Nevada Reports 1994 (110 Nev.) PDF

110 Nev.
1, 1 (1994)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 110
____________
110 Nev. 1, 1 (1994) State, Comm'n on Ethics v. JMA/Lucchesi
NEVADA COMMISSION ON ETHICS, STATE OF NEVADA, and BARTON
MYERS/SWISHER & HALL, a Joint Venture of BARTON MYERS ASSOCIATES,
INC. and SWISHER & HALL, AIA, LTD., Appellants, v. JMA/LUCCHESI, a Joint
Venture of LUCCHESI & ASSOCIATES, INC., and JMA ARCHITECTS AND
ENGINEERS; RAY LUCCHESI and STEVEN CARR Individually, Respondents.
No. 24640
January 4, 1994 866 P.2d 297
Appeal from an order of the district court reversing an opinion of the Nevada Commission
on Ethics. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Architects who had been awarded design contract for building on university of which they
were faculty members petitioned for review of decision of Commission on Ethics that
architect who had been member of university design committee which sponsored the design
competition could not enter into a contract with the university to design the building. The
district court reversed, and Commission and another firm which had submitted a proposal
appealed.
and Commission and another firm which had submitted a proposal appealed. The supreme
court, Rose, C. J., held that: (1) design proposals at issue were bids within meaning of
Ethics in Government Law; (2) Ethics in Government Law did not exclude architects as
persons specifically prohibited by law from bidding on state contracts, unless the submitted
bids were based on price; and (3) Ethics in Government Law was mandatory when petitioners
submitted their design proposal.
Reversed.
Springer, J., dissented.
Frankie Sue Del Papa, Attorney General and Louis Ling, Deputy Attorney General,
Carson City; Harrison Kemp, Chtd. and Derek C. Ence, Las Vegas, for Appellants.
Gentile & Porter and David T. Wall, Las Vegas, for Respondents.
1. Administrative Law and Procedure.
Since construction of statute is question of law, independent appellate review of administrative ruling construing statute, rather
than more deferential standard of review, is appropriate.
2. States.
Although supreme court may conduct de novo review of Commission on Ethics' construction of Ethics in Government Law,
district court is obligated to give deference to construction offered by Commission NRS 281.511(1).
3. States.
Even though price was not an element of proposal submitted by university faculty members for design of university building,
proposal was a bid within meaning of section of Ethics in Government Law preventing public employees from bidding on contract
with the state if they had participated in preparing designs or specifications for that contract. NRS 281.481(3).
4. States.
Ethics in Government Law did not exclude architects as persons specifically prohibited by law from bidding on state contracts,
unless the submitted bids were based on price. NRS 281.481(3).
5. States.
Ethics in Government Law, which prevented public employees from bidding on contract with state if they had participated in
preparing designs or specifications for that contract, was mandatory at time university faculty members submitted proposals for design
of university building. Although faculty members' misconduct began before the amendments, submission of the entry combined with
judging process was sufficient postamendment conduct to establish that prohibited acts took place after amended statute was in force.
NRS 281.481 (3).
OPINION
By the Court, Rose, C. J.:
FACTS
In March, 1989, the University of Nevada, Las Vegas, (UNLV) formed a design committee
to develop a design and plans for an architectural school building (the building) to be
constructed at UNLV. Respondent Ray Lucchesi (Lucchesi) was a member of the design
committee and a faculty member of the UNLV School of Architecture. The design committee
held approximately thirty meetings over a two-year period to discuss the design aspects of the
building. Lucchesi attended at least thirteen of these meetings. Many of the design
requirements for the building were developed at these meetings. Marnell Corrao, Inc., who
was a participant on the committee through one of its principals, Tony Marnell, produced
several prospective designs for the building.
Thereafter, the design committee, UNLV representatives, and the State Public Works
Board (SPWB) decided to sponsor a design competition for the building. The competition
required several architectural firms to submit designs and build scale models in response to
the design requirements the committee had developed. A blind jury would then judge these
entries and would submit its recommendation to the SPWB for a final decision.
In July, 1991, the design committee announced the competition to the public and several
architectural firms responded. A committee made up of SPWB staff then selected four firms
to compete against each other for the opportunity to design the new building. Two of the four
firms selected on this short list were JMA/Lucchesi (JMAL), a joint venture which
respondents Lucchesi and Steven Carr (Carr) had formed in June of 1991, and appellant
Barton Myers/Swisher Hall (BMSH). At all times relevant to this appeal, Lucchesi and Carr
were practicing architects and members of the faculty of UNLV's School of Architecture.
Following the final vote which resulted in four votes for BMSH and four votes for JMAL,
the SPWB awarded the design contract for the building to JMAL. On November 12, 1991,
Robert Ferrari, the SPWB Secretary-Manager, wrote a letter to Dr. Robert Maxson, President
of UNLV, informing Dr. Maxson that he would recommend that the SPWB select JMAL to
design the building.
building. The letter was distributed to all members of the SPWB prior to the November 18,
1991, meeting at which the SPWB awarded the design contract for the building to JMAL.
Lucchesi, Assemblyman James W. McGaughey, and BMSH all separately requested an
opinion from the Nevada Commission on Ethics (the Commission) regarding Lucchesi and
Carr's participation in the design competition and their ability to contract with UNLV to
design the building. On August 7, 1992, the Commission issued Opinion 91-12 finding, inter
alia, that Lucchesi could not enter into a contract with UNLV to design the building because
of NRS 281.481(3), which prevents public employees from bidding on a contract with the
State if they have participated in preparing the designs or specifications for that contract.
On September 11, 1992, JMAL, Lucchesi, and Carr filed a petition for judicial review in
the district court. On July 12, 1993, the district court issued a decision and order reversing the
Commission's opinion on the grounds that JMAL had not submitted a bid within the
meaning of NRS 281.481(3) and that the ethics statutes were directory and not mandatory.
Both the Commission and BMSH appealed the district court's decision.
DISCUSSION
[Headnote 1]
The district court reversed the Commission's opinion because it found that the
Commission erred in applying NRS 281.481(3) to Lucchesi and Carr because the district
court concluded that design proposals are not bids within the meaning of NRS 281.481(3)
and are therefore not covered by the statute. The district court further found that the Nevada
Ethics in Government Law as expressly directory and permissive at all material times
herein. The Commission and BMSH contend that the district court failed to accord proper
deference to the Commission's findings that the design proposals at issue were bids within
the meaning of NRS 281.481(3) and that the Nevada Ethics in Government Law was
mandatory at all times relevant to this appeal. The construction of a statute is a question of
law. Therefore, independent appellate review of an administrative ruling, rather than a more
deferential standard of review, is appropriate. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d
267, 269 (1993); Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).
Whether the district court gave proper deference to the Commission's interpretation of NRS
281.481(3)
The Nevada Ethics in Government Law (NRS 281.411-2S1.5S1) outlines ethical
standards to govern the conduct of government employees and officers.
281.581) outlines ethical standards to govern the conduct of government employees and
officers. It also established the Nevada Commission on Ethics. NRS 281.455. The mandate of
the Nevada Commission on Ethics is to render an opinion interpreting the statutory ethical
standards and apply the standards to a given set of facts and circumstances. NRS 281.511(1).
In the instant matter, the Commission held four days of hearings and admitted almost 500
pages of evidence. The Commission deliberated over this voluminous record at three
meetings over the course of three months and finally issued an opinion spanning some fifteen
single-spaced pages. To say that the Commission considered this matter at length would be an
understatement.
NRS 281.481(3) is part of the Nevada Ethics in Government Law and states, in pertinent
part:
Unless specifically prohibited by law, a public officer or employee, as such, is not
precluded from making a bid on a government contract if the contracting process is
controlled by rules of open competitive bidding, the sources of supply are limited, he
[or she] has not taken part in developing the contract plans or specifications and he [or
she] will not be personally involved in opening, considering or accepting offers.
(Emphasis added.)
Applying this statute to the facts in the case at bar, the Commission found that the
sources of supply were not limited because numerous architects responded to the design
competition. The Commission further found that Lucchesi and Carr were not involved in
considering the offers. Most importantly, the Commission found that Lucchesi had taken
part in developing the contract plans or specifications for the building. Based upon these
findings, the Commission concluded that JMAL had gained an unfair advantage over the
other competitors in the design competition. Neither party challenged these findings in the
district court. Rather JMAL argued, and the district court agree, that NRS 281.481(3) did not
apply to the conduct of Lucchesi and Carr because they submitted design proposals and not
bids as expressly stated in the statute.
[Headnote 2]
BMSH and the Commission assert that the district court failed to accord proper deference
to the Commission's interpretation of NRS 281.481(3). We agree. In State v. State Engineer,
104 Nev. 709, 766 P.2d 263 (1988), this court stated that [a]n agency charged with the duty
of administering an act is impliedly clothed with power to construe it as a necessary precedent
to administrative action' and that 'great deference should be given to the agency's
interpretation when it is within the language of the statute.'"
tive action' and that great deference should be given to the agency's interpretation when it is
within the language of the statute.' Id. At 713, 766 P.2d at 266 (quoting Clark County
School Dist. v. Local Gov't, 90 Nev. 442, 446, 530 P.2d 114, 117 (1974)). Furthermore, the
Commission's power to construe the Nevada Ethics in Government Law is explicit in the
statute rather than implicit. NRS 281.511(1). Accordingly, although this court may conduct a
de novo review of the Commission's construction of the Nevada Ethics in Government Law,
the district court was obligated to give deference to the construction afforded by the
Commission. We conclude that the district court erred in failing to do so.
Whether the design proposals at issue were bids within the meaning of NRS 281.481(3)
[Headnote 3]
The district court found that NRS 281.481(3) can only be applied to public employees who
make a bid on a government contract. The definition of bid urged upon this court, and
apparently accepted by the district court below, is that the term bid only applies to offers to
contract based on a specified price. JMAL relies primarily upon NRS Chapters 332, 333, and
338 to support this interpretation. The cited sections govern purchasing by state and local
governments. JMAL points specifically to NRS 333.330(1) which states that [a]ll bids on
more than one item on which bids are called for by the same notice shall be itemized and give
a price for each item. (Emphasis added.) JMAL argues from this that the term bid' is a
term of art and has a specific meaning when used by our Legislature. JMAL also relies upon
the testimony of two SPWB employees who testified that the design competition was not a
bidding process.
In response, BMSH argues that the key element in a bid' is not price, but a competitive
offer to contract. To support its position, BMSH properly notes that his court should
construe the term in light of the intention of the Legislature. In McKay v. Bd. of Supervisors,
102 Nev. 644, 650-51, 730 P.2d 438, 443 (1986), this court stated that:
The leading rule of statutory construction is to ascertain the intent of the legislature
in enacting the statute. This intent will prevail over the literal sense of the words. The
meaning of the words used may be determined by examining the context and the spirit
of the law or the causes which induced the legislature to enact it. The entire subject
matter and policy may be involved as an interpretive aid.
(Citations omitted.)
The public policy rationale behind the Nevada Ethics in Government Law is set forth in
NRS 281.421(1) which states:
It is hereby declared to be the public policy of this state that:
(a) A public office is a public trust and shall be held for the sole benefit of the
people.
(b) A public officer or employee must commit himself [or herself] to avoid conflicts
between his [or her] private interests and those of the general public whom he [or she]
serves.
We are not persuaded by JMAL's arguments as the stated policy of the Legislature, to prevent
conflicts of interest, militates towards a more expansive reading of the term bid than the
one which JMAL urges upon this court. A logical reading of the statutes involved reflects a
legislative intent to prevent public employees from entering into any contract which would
present a conflict between the employee's private interests and those of the general public
whom he [or she] serves, not just those contracts involving offers based on price. Further,
the Legislature has modified the definition of a bid as it pertains to architects. See NRS
625.530(3); NAC 623.800.
There is additional support in the case law and legal treatises for this position. One such
treatise states, for example, that [a] bid is an offer submitted in response to an invitation for
bids. 1B T. Toughey & B. McBride, Bender's Government Contracts 101.10[5] (1984).
This suggests that it is not the element of price which is crucial, but the element of
competition amongst offers. Similarly, one court noted that [a] bid is no more than an offer
to contract. A.A.B. Electric, Inc. v. Stevenson Public School Distr., 491 P.2d 684, 686
(Wash.Ct.App. 1971). More importantly, this court has noted that [t]he purpose of bidding is
to secure competition, save public funds, and to guard against favoritism, improvidence and
corruption. Gulf Oil Corp. v. Clark County, 94 Nev. 116, 118, 575 P.2d 1332, 1333 (1978).
In light of the stated policy of the Legislature, the district court erred in concluding that
design proposals were not bids within the meaning of NRS 281.481(3).
Whether NRS 281.481(3) excludes architects as persons specifically prohibited by law
from bidding on State contracts
[Headnote 4]
A second argument asserted by JMAL which found support in the court below is that NRS
281.481(3) cannot be applied to architects because architects are specifically prohibited from
bidding on government contracts. NRS 281.481(3) states that it applies to any public officer
or employee [u]nless [they are] specifically prohibited by law . . . from making a bid on a
government contract."
specifically prohibited by law . . . from making a bid on a government contract. NRS
332.115 states that government contracts for professional services are by their nature . . . not
adapted to award by competitive bidding. Therefore, JMAL argue that they are exempted
from NRS 281.481(3) because architects are specifically prohibited by law from bidding on
public projects.
JMAL seeks further support from NRS 625.530(3) and NAC 623.800. As previously
noted, NRS 625.530(3) provides that the selection of an architect for a public project must be
made on the basis of the competence and qualifications of the . . . architect for the type of
services to be performed, and not on the basis of competitive fees. Once the architect is
selected, the architect and the agency must come to an agreement upon a fair and reasonable
fee. Id. NAC 623.800 contains a similar provision; it prevents an architect from submitting
information which would enable the public agency to evaluate the proposal on any basis
other than the competence and qualifications of the registrant. These provisions, argue
JMAL, show that architects may not bid on government projects and that therefore the
bidding requirements of NRS 281.481(3) are inapplicable to them.
BMSH argues in rebuttal that these provisions only prevent architects from competing for
government projects based on price or fees and not on the best design. Since price was never
a factor considered in the design competition, BMSH contends that neither provision was
violated. BMSH also points to a recent amendment to NRS 281.481 which was passed on
July 1, 1993. It reads, in relevant part, as follows:
A full- or part-time faculty member in the University of Nevada System may bid on
or enter into a contract with a governmental agency if he [or she] has not taken part in
developing the contract plans and specifications and he [or she] will not be personally
involved in opening, considering or accepting offers.
1993 Nev. Stat., ch. 536, 1(3) at 2241 (emphasis added). BMSH does not argue that this
amendment ought to be retroactively applied. Rather, they argue that the amendment evinces
a legislative intent to counter the semantic acrobatics which JMAL urged upon the district
court. We are persuaded that NRS 625.530 and NAC 623.800 are intended to prevent public
agencies from awarding contracts for architectural services to the lowest bidder. Where a
public facility is involved, public safety requires that factors such as expertise and experience
take precedence over cost.
1
While architects may compete for government projects, they
may not do so on the basis of price.
__________

1
For example, NRS 625.530(3) provides in relevant part that selection . . . must be made on the basis of . . .
competence and qualifications.
projects, they may not do so on the basis of price. Therefore, JMAL would not be
specifically prohibited by law so as to escape the purview of NRS 281.481(3), unless they
submitted bids based on price.
Finally, it is worth noting that the Commission considered these very arguments at length
and concluded that [t]hese statutory and regulatory provisions enjoin architects in Nevada
from being awarded a contract with the state based on a lowest price competitive bid. It does
not prevent the state from selecting an architect based on other competitive criteria.
We conclude that NRS 281.481(3) does not exclude architects as persons specifically
prohibited by law from bidding on state contracts unless the submitted bids were based on
price.
Whether the district court erred in reversing the Commission's finding that the Nevada Ethics
in Government Law was mandatory at the time of Lucchesi and Carr's conduct
[Headnote 5]
The second major finding of the district court was that the Nevada Ethics in Government
Law was expressly directory and permissive at all material times herein. Appellants
challenge this finding asserting that the amended version of NRS 281.481 is mandatory and
was in effect when the prohibited acts occurred.
An examination of the language of the 1987 statute compared with the language of the
new version of NRS 281.481 which took effect on October 1, 1991, shows a clear legislative
intent to make the amended statute mandatory. The 1987 version of the statute contained the
following preamble entitled [e]ffect of code of ethical standards upon criminal law. NRS
281.481 to 281.541, inclusive, are intended to be directory and preventive rather than
punitive. NRS 281.551. The amended version now empowers the Commission to impose
civil penalties for violation of the Nevada Ethics in Government Law. NRS 281.551 (as
amended 1991). Further support for this interpretation is found in other recent amendments to
the Nevada Ethics in Government Law. For example, the earlier version of NRS 281.481
began as follows: A code of ethical standards is hereby established as a guide for the
conduct of public officers and employees. (Emphasis added.) The statute now provides that
[a] code of ethical standards is hereby established to govern the conduct of public officers
and employees. (Emphasis added.) Similarly, each of the subsections which previously
began [n]o public officer or employee may was amended to read [a] public officer or
employee shall not. (Emphasis added.) It is a well-settled principle of statutory construction
that statutes using the word may are generally directory and permissive in nature, while
those that employ the term "shall" are presumptively mandatory.
employ the term shall are presumptively mandatory. See State v. American Bankers
Insurance Company, 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990); Sengbusch v. Fuller,
103 Nev. 580, 582, 747 P.2d 240, 241 (1987). We conclude that the obvious and substantive
changes outlined above indicate that the amended version of the statute is clearly mandatory
in nature.
Additionally, we are persuaded that JMAL's prohibited acts took place after the
amended version of NRS 281.481 was in force. Specifically, although JMAL's misconduct
began before the amendmentsLucchesi being on the design committee, deciding to enter
the design competition, and forming a joint venture for that purpose one month before the
competition was publicly announcedJMAL also committed prohibited acts after October 1,
1991, when the Nevada Ethics in Government Law became mandatory. JMAL submitted its
design on November 1, 1991, and the competition was not judged until November 7-8, 1991;
therefore, the actual competition did not take place until that time. Although JMAL may have
obtained an unfair advantage prior to NRS 281.481 becoming mandatory, it is the use of that
advantage, rather than the act of obtaining it, that is forbidden. JMAL clearly used its unfair
advantage after the statute became mandatory. We conclude that the submission of the entry
combined with the judging process is sufficient post-amendment conduct to sustain the
Commission's decision.
We note that the Commission found that both SPWB and the University of Nevada System
told Lucchesi that they were not aware of any problems with JMAL's entry into the contest.
Two witnesses testified that they were unaware that Lucchesi was a full-time faculty member
when they gave their permission for him to enter the design competition. We are persuaded
that Lucchesi's error was innocent and made in good faith, and we agree with the findings of
the Commission in that regard. However, this guiltlessness does not negate the fact that
JMAL committed prohibited acts after October 1, 1991, when the Nevada Ethics in
Government Law became mandatory. Public confidence in the integrity of the government
contracts bidding process should be maintained at all costs, even at the expense of those
whose errors are inadvertent. Innocence cannot deflect the appearance of impropriety.
Furthermore, the fact remains that JMAL and Lucchesi obtained an advantage over their
fellow competitors by virtue of Lucchesi's position as a public employee.
CONCLUSION
We conclude that the district court erred in reversing the opinion of the Nevada
Commission on Ethics for the following reasons: {1) the district court failed to give proper
deference to the Commission's opinion in construing and applying the Nevada Ethics in
Government Law; {2) NRS 2S1.4S1{3) applies to the design proposal submitted by JMAL;
and {3) the Nevada Ethics in Government Law was mandatory when Lucchesi and Carr
submitted their design proposal.
opinion of the Nevada Commission on Ethics for the following reasons: (1) the district court
failed to give proper deference to the Commission's opinion in construing and applying the
Nevada Ethics in Government Law; (2) NRS 281.481(3) applies to the design proposal
submitted by JMAL; and (3) the Nevada Ethics in Government Law was mandatory when
Lucchesi and Carr submitted their design proposal.
Accordingly, we reverse the decision of the district court and reinstate the opinion of the
Nevada Commission on Ethics.
Young and Shearing, JJ., concur.
Steffen, J., concurring:
I disagree with the reasoning of both the majority opinion and the dissent written by my
brother Springer, but for reasons which I shall hereafter explain, I am forced to agree with the
majority in concluding that the order entered by the district court must be reversed.
The Commission found that Mr. Lucchesi did not use his position as a faculty member at
UNLV to secure an unwarranted advantage for JMA/Lucchesi (JMAL) in violation of NRS
281.481(2). This finding is supported by substantial evidence and is not implicated in the
resolution of this appeal.
The State Public Works Board (SPWB) decided to award the design contract for the
architectural building at UNLV (the building) to JMAL, and there is no evidence
suggesting that JMAL's selection was based on any improper factor. The Commission,
however, concluded that JMAL, though innocent, violated NRS 281.481(3),
1
thus
precluding its right to compete for the design contract on the building.
The prohibitory first sentence of NRS 281.481(3) is not an issue in this appeal for JMAL
did not participate as an agent of government in the negotiation or execution of any
contract. Indeed, the Commission alluded to no violation attributable to that provision. The
Commission's ruling against JMAL was based entirely on the Commission's interpretation
of the second sentence of NRS 2S1.4S1{3), which provides:
__________

1
NRS 281.481(3) provides:
A public officer or employee shall not participate as an agent of government in the negotiation or
execution of a contract between the government and any private business in which he has a significant
pecuniary interest. Unless specifically prohibited by law, a public officer or employee, as such, is not
precluded from making a bid on a government contract if the contracting process is controlled by rules of
open competitive bidding, the sources of supply are limited, he has not taken part in developing the
contract plans or specifications and he will not be personally involved in opening, considering or
accepting offers.
based entirely on the Commission's interpretation of the second sentence of NRS 281.481(3),
which provides:
Unless specifically prohibited by law, a public officer or employee, as such, is not
precluded from making a bid on a government contract if the contracting process is
controlled by rules of open competitive bidding, the sources of supply are limited, he
has not taken part in developing the contract plans or specifications and he will not be
personally involved in opening, considering or accepting offers.
(Emphasis mine.)
In my view, the highlighted segments of the quoted provision make it apparent that the
provision relates only to the process of formal bidding where, in response to invitations to
bid, a bidder submits a sealed offer capable of creating a binding contract upon acceptance by
the cognizant government contracting authority. The thrust of this provision is that a public
officer or employee may not bid on government contracts unless (1) the contracting process is
controlled by rules of open competitive bidding; (2) the sources of supply are limited; (3) he
[or she] has not taken part in developing the contract plans or specifications; and (4) he [or
she] will not be personally involved in opening, considering, or accepting offers.
NRS 281.481(3) thus prohibits public officers and employees from contracting with the
government except in limited-source, open competition procurements where the public
officer or employee who bids has not participated in developing the plans and specifications
upon which the bids will be based. Additionally, the public officer or employee must not
participate in opening, considering or accepting the offers submitted by the bidders. All of
these conditions are descriptive of a formal, open bidding process where the offeror submits
an offer that is sufficiently complete and responsive to create a binding contract upon
acceptance by the government. Of necessity, one of the bid components would have to be
price.
NRS 625.530(3)
2
precludes architects from submitting bids for government service
contracts based upon fees or price. Since NRS 281.481(3) inferentially allows public officers
and employees to contract with the government only under the limited conditions specified in
that provision, and since architects are precluded by NRS 625.530{3) from participating in
the submission of bids conforming to the requirements of NRS 2S1.4S1{3), JMAL was
ineligible for the building contract.
__________

2
In pertinent part, NRS 625.530(3) provides:
The selection of a . . . registered architect to perform services . . . must be made on the basis of the
competence and qualifications of the . . . architect for the type of services to be performed, and not on the
basis of competitive fees. If, after selection of the . . . architect, an agreement upon a fair and reasonable
fee cannot be reached with him, the public agency may terminate negotiations and select another . . .
architect.
conditions specified in that provision, and since architects are precluded by NRS 625.530(3)
from participating in the submission of bids conforming to the requirements of NRS
281.481(3), JMAL was ineligible for the building contract.
3

The Commission broadly interpreted NRS 281.481(3) to include architects where the
process of selecting the architect is entirely competitive in every respect except as to fees'.
In construing the statute as it did, the Commission sought to avoid the disincentive to serve as
faculty or State licensing board members, where such public employee-architects would
otherwise be ineligible to bid on state-owned building projects.
There are two reasons why the position taken by the Commission is unsound. First, the
interpretation of the statute is in reality an amendment designed to avoid what the
Commission understandably considers to be a public detriment if the statutory language is
given absolute effect. Even the courts are enjoined from rewriting the plain language of a
statute in order to supply a more reasonable effect. Second, the Commission's construction
modifies the terms of NRS 625.530(3). The latter statute mandates the selection of an
architect on the basis of competence and qualifications rather than competition in every
respect other than fees. Indeed, the statute specifically allows the public agency to simply
select another architect if the one first selected is unable to agree with the government
agency on the amount of fees to be charged. The Commission, in expanding the meaning and
scope of NRS 281.481(3), has necessarily contracted the meaning and scope of NRS
625.530(3) at least insofar as it applies to architects who are public employees. Such powers
are not accorded to the Commission.
After construing NRS 281.481(3) to include architects competing in all respects other than
fees, the Commission concluded that the contraction process utilized in selecting an architect
for the building was controlled by the referenced statute and that Lucchesi violated, albeit
innocently, the terms of the statute by participating in the development of the contract plans
and specifications, thereby gaining an advantage for JMAL. The evidence of record does not
support the finding. A reasonable reading of NRS 281.481(3) disqualifies a public-employee
architect who participates in creating the plans and specifications contained in the request for
bids. Since there were no requests for bids under the meaning of the statute, there were no
plans or specifications developed in whole or in part by Lucchesi as a basis for bidding on
the services contract.
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3
The Commission found, without apparent dispute, that both Lucchesi and Carr, principals in JMAL, were
public employees by reason of their positions as faculty members at UNLV.
Moreover, even under the statutory construction supplied by the Commission, there was
no bidding process for the building that was entirely competitive in every respect except as
to fees'. The Commission noted that before the design competition was extended to four
firms, the SPWB considered a larger number of firms and evaluated their professional
qualifications, strengths and abilities to design this particular building before reducing the
number of participants to four. This evaluation process was based upon judgment rather than
competition. In short, NRS 281.481(3) was simply not implicated in the process utilized by
the SPWB in selecting an architect for the building.
4

I have reluctantly decided to concur with the majority opinion because of what I perceive
to be the only reasonable interpretation of the constrictive language of NRS 281.481(3). I
therefore urge the Legislature to seriously consider the consequences of the existing statute as
it applies to architects and other professionals, in order to assure the right of the State to
secure professional services in accordance with the best interests of the State.
Springer, J., dissenting:
The issue in this case is a very simply one: Must the Lucchesi group, as a matter of law,
forfeit its contract with the State? The state Ethics Commission sued Lucchesi claiming that a
provision in the Ethics in Government Law, NRS 281.481(3), precludes Lucchesi, a state
employee, from contracting with the State. The trial court held, as a matter of law, that the
ethics in government chapter in effect when the State awarded the contract, was a
nonpunitive, permissive guide that does not afford a legal basis for declaring a forfeiture of
the contract. The trial court further held, as a matter of law, that even if the statute were to be
read as specifically prohibiting certain conduct, Lucchesi was not in violation of the statute.
I agree completely with the trial court's judgment and fail to see any basis for setting this
contract aside.
__________

4
There is no indication in the Commission's opinion that the Commission would have denied the power of the
SPWB to have selected an architect other than the winner of the design competition had the SPWB determined
that other factors involving competence and qualifications were of greater importance to the project. Indeed, I
found it somewhat strange that the Commission expressly limited its reconciliation of NRS 281.481(3) and
NRS 625.530(3) to the facts of this particular case, and did not attempt to construe and reconcile those
provisions where the State contracts with the architect for services without any competitive process of selection,
as distinct from that which occurred in this matter. Since the Commission found JMAL's conduct innocent, and
the record supports such a finding, I would have difficulty voting to deprive JMAL of its contract were it not for
what appears to be a clear, if not wise, prohibition in NRS 281.481(3).
This case has a strange complexion. The Ethics Commission was created to render
advisory opinions relating to the ethical conduct of state officers and employees. It is a lay
body in the executive department of government. It has no power to adjudicate violations of
the law much less to invalidate contracts which the State has executed. It is very odd that this
court would accept the legal opinion of an ethics commission and reinstate the opinion of
the Nevada Commission on Ethics, as though the Commission's advisory opinion had the
effect of law. Although the trial court may have to give some deference to the factfinding of
the Commission, it certainly was not bound by the Commission's legal opinion that Lucchesi
had violated the law, or that Lucchesi should be precluded from contracting with the
State, or that Lucchsi's existing contract should be forfeited.
My reasons for wanting to affirm the judgment of the trial court can be outlined as
follows:
1. At the time Lucchesi supposedly violated the Nevada Ethics in Government Law,
it was merely an advisory guide for employee conduct. The law did not set up legal or
ethical standards that public employees were required to follow nor did it provide a
legal basis for declaring forfeiture of this or any other contract.
2. The trial court was not obliged to accept the Ethics Commission's opinion as to
the legal meaning of NRS 281.481(3).
1
The trial court was correct in its interpretation
of the statute and was correct in ruling that the statute does not prohibit any given
conduct and is not subject to being violated.
3. Even if NRS 281.481(3) did authorize the Ethics Commission to declare the
forfeiture of a state contract, Lucchesi's conduct is expressly authorized and fits within
the permissible conduct described in the statute.
4. This record contains absolutely no evidence that Lucchesi has done anything
ethically or legally wrong, much less that he committed acts which would warrant
the invalidation of his contract with the State.
__________

1
Because many references are made in this dissent to the noted statute, I set out the current version of NRS
281.481(3) in the margin for the reader's convenience:
A public officer or employee shall not participate as an agent of government in the negotiation or
execution of a contract between the government and any private business in which he [or she] has a
significant pecuniary interest. Unless specifically prohibited by law, a public officer or employee, as
such, is not precluded from making a bid on a government contract if the contracting process is controlled
by rules of open competitive bidding, the sources of supply are limited, he [or she] has not taken part in
developing the contract plans or specifications and he [or she] will not be personally involved in opening,
considering or accepting offers.
chesi has done anything ethically or legally wrong, much less that he committed acts
which would warrant the invalidation of his contract with the State.
Contract forfeiture: Does the Ethics Commission have the statutory power to deprive the
State and Lucchesi of their contractual rights?
The answer to the captioned question is that the Ethics Commission has no power to
declare a contract to be illegal or invalid. It is indeed strange that this court would invest the
Commission with such powers not granted to it by the legislature. This advisory, executive
commission has taken it upon itself to issue an Opinion declaring that Lucchesi has
violated NRS 281.481(3) and, hence, that he is precluded from going ahead with the
performance of his contract with the State. The trial court, naturally, ruled against the Ethics
Commission and said, in effect, to the Ethics Commission:
You have the statutory power to give advisory, nonpunitive opinions' relating to
the ethical conduct of state employees, but you do not have the power to invalidate a
legal contract nor do you have the power to declare that anyone has violated the law,
much less the power to declare that a state employee is precluded' from going forward
with an existing state contract. Legal questions as to the enforceability of this contract
are not a matter of ethics but of law, and are to be decided by the court.
The Ethics Commission intervened in this case at the request of Lucchesi himself, because
Lucchesi wanted to be vindicated morally. I doubt that he would have made this request if he
had dreamt that the Commission was going to declare his contract legally ineffective; but, of
course, Lucchesi had no reason to believe that the Ethics Commission would attempt to do
anything more than issue an advisory ethical opinion as provided for in the Ethics in
Government Law.
NRS 281.511 empowers the Ethics Commission to render an opinion relating only to
statutory ethical standards. (Emphasis added.)
2
The Ethics Commission did rule correctly
in the present case that Lucchesi was guilty of no willful wrongdoing, that is, guilty of no
ethical breach.
__________

2
As I point out in the text the legislature has not, in enacting NRS 281.481(3), adopted any definitive statutory
standards of behavior. NRS 281.481(3), rather than providing statutory ethical standards to govern the conduct
of state officers and employees, merely outlines one kind of dealing with the state that is deemed to be
permissible. The statute in question does not set ethical standards; it does not provide a list of Thou-shalt-not's
for the ethical guidance of governmental personnel. It does not recite any conduct that state employees are
forbidden to do; it merely recites one set of circumstances in which a contract is allowable.
present case that Lucchesi was guilty of no willful wrongdoing, that is, guilty of no ethical
breach. Unfortunately, the Commission did not stop with its ethics decision but, rather, went
on to express its legal opinion, namely that NRS 281.481(3) precludes Mr. Lucchesi and Mr.
Carr, as state employees, from contracting with the State of Nevada through its agency, the
University of Nevada Systems, for architectural services. (Emphasis added.) The effect of
this declaration is entirely legal in import and has nothing to do with the ethical standards
that the Commission is supposed to be attending to.
By definition, an ethics commission deals with ethical questions, not legal questions. This
Commission is entitled to make judgments relating to ethical standards. NRS 281.511(1). It
is not empowered to decide questions of law. Ethics is the science of moral duty. Webster's
Collegiate Dictionary (5th ed. 1943). The Ethics Commission may render advisory opinions
on the moral quality of given conduct, that is to say, whether the conduct is right or wrong.
The Commission is this case, sometimes using the word innocent, declared that Lucchesi,
in his dealings with the State, had done nothing wrong. Still, going far beyond the rendering
of an ethics opinion, the Ethics Commission declared that Lucchesi's conduct was in
violation of law, and adjudicated his ineligibility to proceed with the awarded contract. This
decision goes far beyond the authority given to the Ethics Commission by the statute and is
an intrusion upon the powers of the judicial branch of government.
The meaning and consequence of the legal opinion issued by the Ethics Commission
Obviously, the responsibility of interpreting statutes belongs to the courts; and even if the
Commission took it upon itself to render an advisory legal opinion, it is the duty of the court
to determine the legal meaning of a statute, de novo. See Maxwell v. SIIS, 109 Nev. 327, 849
P.2d 267 (1993).
The Ethics Commission's interpretation of NRS 281.481(3) is clearly wrong. Lucchesi did
not and could not violate this statute because the Nevada Ethics in Government Law, at the
time when Lucchesi supposedly violated it, contained no command which was susceptible to
being disobeyed. There was nothing to violate.
At the time when Lucchesi is charged with being in violation of NRS 281.481(3), the
statute was expressly stated to be a mere guide for the conduct of state employees. The trial
court was undeniably right when it held that NRS 281.481(3) was merely directory and
permissive and no more than a discretionary guide for the conduct of public employees.
As the trial court further correctly ruled, the statute was preventive rather than punitive."
than punitive. See NRS 281.551. The Nevada Ethics in Government law which Lucchesi is
charged with having violated, contained the following preamble: A code of ethical
standards is hereby established as a guide for the conduct of public officers and employees.
(Emphasis added.) Similarly, each of the subsections began: No public officer or employee
may . . . .
3
(My emphasis.) It is an elementary principle of statutory construction that
statutes employing the word may are directory and permissive in nature, while those that
employ the term shall are mandatory statutes. See, e.g., State v. American Bankers
Insurance Company, 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990); Sengbush v. Fuller,
103 Nev. 580, 582, 747 P.2d 240, 241 (1987). The statute in effect when this contract was
signed was not mandatory and does not provide a basis for forfeiting the parties' contractual
interests.
NRS 281.481 does not preclude anything
Even if the Ethics in Government Law were not, by its own terms, and as held by the trial
court, permissive and preventive rather than punitive, the particular statute in question,
NRS 281.481(3), is not framed in terms of prohibition and sanction and does not preclude
the performance of any act by state employees.
What nobody in this case seems to have noticed is that NRS 281.481(3), instead of telling
what is prohibited by the statute, tells only what is not precluded. The statute informs
public officers and employees that under one specified set of circumstances they can be
assured that the are not precluded from contracting with the State. If an employee engages
in open competitive bidding, and sources of supply are limited, and no part is taken in
developing plans and specifications, and there is no involvement in the opening, considering
or accepting of offers, then the employee can rest assured that he or she is not precluded
from contracting with the State. The statute recites one set of circumstances under which a
state employee is assured that contracting with the State is ethically acceptable. The statute
does not specify that these are the only circumstances under which a state employee can
ethically deal with the state. NRS 281.481(3) does not command or prohibit any specified
kinds of conduct, not does it impose any sanction for violation. This reality is consistent with
the nature of the Ethics in Government Law in effect at the timean advisory,
non-prohibitive guide for the conduct of state employees.4 The trial court saw clearly
that there was no legal or ethical basis for cancelling the contract executed by the State
and the Lucchesi group.
__________

3
These subsections have, since the time this controversy arose, been rewritten by the legislature to read: A
public officer or employee shall not . . . . (My emphasis.)
of state employees.
4
The trial court saw clearly that there was no legal or ethical basis for
cancelling the contract executed by the State and the Lucchesi group. I should think that the
jurists of this appellate court would also be able to understand that the subject statute contains
no sanctions and certainly cannot be used to punish Lucchesi for his innocent actions.
5
To
go a step further, however, it appears to me that Lucchesi's case fits squarely into the set of
circumstances listed in NRS 281.481(3) which are permissible and which are expressly not
precluded.
Lucchesi is not precluded from contracting with the State
As everyone involved in this litigation knows, Lucchesi was, along with other faculty, a
member of an informal planning committee which got together back in 1989 to discuss the
possibility of constructing a building to house the UNLV College of Architecture. At some
point, the members of the informal committee decided to approach UNLV officials and
representatives of the Public Works Board in order to include the real decision-makers in
their dream. Because of the special nature of the project and the coveted prestige
understandably
__________

4
To elaborate a bit on the point: the statute merely gives one instance of permitted contract activity between the
state and its employee, rather than defining prohibited activity. Not only does the statute fail to define any
prohibited conduct, it also fails to provide for any sanction, such as, Any public officer or employee who
violates this statute shall forfeit all benefits to be derived from a State contract. Even a cursory reading of NRS
281.481(3) reveals that the statute does not purport to preclude or interdict any conduct on the part of public
employees. NRS 281.481(3) does not prohibit or preclude anything. All the statute does is to tell public
employees what kind of conduct is not precluded, that is to say, a public employee is not precluded from
making a bid on a government contract if . . . (My emphasis.) Merely listing one kind of conduct that is not
unethical might give public employees one example of what the legislature considered to be ethical, but it does
not provide notice of prohibited conduct or of what kind of conduct might result in the kind of punitive
consequences suffered by Lucchesi in this case. If public employees were to become interested in finding out
what does not preclude them from bidding on government contracts, then they might be interested in examining
the list of conditions that appear in NRS 281.481(3). I would surmise, however, that public employees would be
much more interested in what they are prohibited from doing rather than what they are not prohibited from
doing. In this regard they get no help from NRS 281.481(3). There is no language in the statute that prohibits or
precludes any form of conduct. The statute could be read to indicate that out there somewhere there might be
something, not listed in the statute, that would fall in the category of being specifically prohibited by law, but
the statute itself certainly does not specifically prohibit conduct of any kind.

5
We are persuaded that Lucchesi's error was innocent and made in good faith, and we agree with the findings
of the Commission in that regard. (Majority opinion, at 10; my emphasis.)
project and the coveted prestige understandably attached to the design of a university
architecture building, the Public Works Board (the state agency charged with the
responsibility of selecting the architect) agreed that it would collaborate with university
representatives in conducting an advisory design competition to assist the Board in the
sensitive task of selecting the best possible architectural group to design the Architecture
Building. A public invitation was issued to architects, inviting them to submit tentative plans
and a scale model for the project. Architects were told that the competition would be judged
by a blind jury. Although it was surely understood by all that the wining of such an
unofficial, advisory competition would not entitle any of the contestants to be selected for the
job by the Public Works Board, the public invitation nonetheless lured a number of firms into
participating in the design competition. The contestants were eventually reduced to four
architectural groups, among whom was the Lucchesi group.
Although Lucchesi's being awarded the architectural contract by the Public Works Board
was certainly not specifically prohibited by law (see NRS 281.481(3); supra note 1),
Lucchesi himself was sensitive to the fact that he was on the UNLV faculty and had
participated in the early planning discussions for the new building. As the Ethics Commission
notes in its opinion, Lucchesi expressed his concern to the dean of the Architectural School
and to a member of the staff of the Public Works Board. As stated in the Ethics Commission's
opinion, Mr. Lucchesi inquired of the SPWB (Public Works Board) and the University of
Nevada System as to the legality of his participation in the design competition before entering
the competition. Both the SPWB and the University of Nevada System told him they were not
aware of any problems. (Opinion, Ethics Commission at 14.) No one associated with UNLV
or with the State Public Works Board expressed any ethical or legal concerns about
Lucchesi's entering the informal design contest or about his ultimate eligibility for selection
by the Public Works Board. This is evidenced by the Ethic Commission's finding Lucchesi
innocent and by its express conclusion that Mr. Lucchesi did not use his position as a
faculty member at UNLV to secure any unwarranted advantage for JMA/Lucchesi, a business
entity in which he has a significant pecuniary interest, in violation of NRS 281.481. (Id.)
The Commission also found as a fact that Lucchesi was not involved in the Public Works
Board's considering or accepting the proposals of the competing architectural firms;
however, the Commission did conclude that Lucchesi participate[d] in developing the
program and, therefore, the contract plans and specifications."
oping the program and, therefore, the contract plans and specifications. Lucchesi did, as
indicated above, participate in developing the program, but this does not mean that he had
anything to do with the preparation of contract plans and specifications.
6
We must keep in
mind that all Lucchesi did, other than engage in early planning sessions as a member of the
School of Architecture, was to make himself available for selection by the Public Works
Board under conditions in which he had made full disclosure of his position and in which the
Board was fully aware of his connection with UNLV. I would conclude that because there is
no evidence that Lucchesi actually prepared contract plans and specifications, Lucchesi fits
into the not precluded language of NRS 281.481(3) and that he is expressly authorized to
contract with the State in the manner that he did.
Unfair advantage
During oral argument of this case there was some discussion to the effect that Lucchesi,
despite his full disclosure to UNLV and the State Public Works Board, might have secured
some kind of unfair advantage over other architects in being selected for the job. Such an
idea is contrary to the express findings of the Commission, but, nonetheless, the answer to the
unfair-advantage question, if there is such a question, is simply that the design competition
was plainly advisory only and nonbinding. Winning the contest was not an advantage at all
because winning the contest was not a condition of getting the job.
The Public Works Board was entitled to consider, and properly should have considered,
Lucchesi's long-time association with the project in making its decision to hire Lucchesi. I
note that neither the Ethics Commission nor the district court considered any supposed unfair
advantage to Lucchesi as a factor in the Public Works Board's decision to hire Lucchesi.
Lucchesi did nothing legally or morally wrong by entering the contest; and, certainly, his
contract with the State may not properly be cancelled on the basis of his having accepted the
State's invitation to enter the contest. The Ethics Commission rested its findings, conclusions
and opinion on what I see as the legally impossible violation of NRS 281.481(3). The
reviewing district court simply and properly held that since Lucchesi was not legally
disqualified from contracting with the State, he should be permitted to go ahead with the
job.
__________

6
Although the record does not show that Lucchesi prepared any plans or specifications, even if I were to give
deference to this baseless conclusion, I would, of course, continue to maintain that there is still nothing that
Lucchesi has done, legally or ethically, that would justify forfeiture of his contract.
disqualified from contracting with the State, he should be permitted to go ahead with the job.
7
I agree.
Because of the political overtones that surround this case, I find myself having some real
qualms about this court's rejecting the judgment of the trial court and wresting this contract
from the hands of an honest and straightforward professional architect to whom the State
Public Works Board has lawfully awarded a commission to do the architectural work for the
new Architecture Building at UNLV. I see no reason to interfere with the trial court's
judgment in this case. I can understand that the new Ethics Commission might be anxious to
get some exercise, but it should not be allowed to do so at the expense of Lucchesi and his
associates. Lucchesi did nothing morally wrong and nothing legally wrong. He is the victim
of an erroneous legal opinion issued by a lay board. The trial court properly decided that
Lucchesi's contract with the State was legally binding, and there is no reason in the world
why this court should set that judgment aside.
__________

7
The district court also based its legal validation of the Lucchesi contract on the fact that Lucchesi did not make
a bid as the term is used in NRS 281.481(3). I do not deal with this question in the body of my dissent
because, as I have said, the language in this statute deals only with what is not precluded, not with what is
specifically prohibited. Nonetheless, it also seems pretty clear that there was no bidding in this case.
Architectural contracts for state jobs are quite different from other public contracts in that selection . . . must be
made on the basis of . . . competence and qualifications and not on submitted price. NRS 625.530(3). As with
the other architects involved in this case, Lucchesi was only offering himself and his architectural services to the
state on the basis of his claimed competence and qualifications. He was in no sense bidding for this job. He
was selected, presumably, on the basis of his competence and qualifications. He was not bidding in the ordinary
sense of saying, I will do it for such and such a price. The trial court was correct in its interpretation of the
meaning of the term bid as not applying to this case under the mentioned statute; but this does not impact the
correctness of the trial court's decision in this case because, as stated, aside from the bid issue, the statute does
not directly or indirectly prohibit Lucchesi's, or any other person's conduct, and does not authorize a forfeiture of
contract rights such as this under any circumstances. That Lucchesi never offered a bid of any kind is further
grounds for supporting the trial court's ruling.
____________
110 Nev. 23, 23 (1994) Nelson v. Peckham Plaza Partnerships
GAIL NELSON and CHUAN LIU, Appellants, v. PECKHAM PLAZA PARTNERSHIPS,
Respondent.
No. 23395
January 12, 1994 866 P.2d 1138
Appeal from a judgment of the district court in a landlord tenant dispute. Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
Landlord brought action against tenants alleging negligent removal of equipment and that
property was damaged beyond contractual allowance of ordinary wear and tear. The district
court awarded landlord damages and attorney fees. Tenants appealed. The supreme court,
Shearing, J., held that: (1) landlord was entitled to recover damages for removal and
replacement of entire vinyl floor covering when only a small portion was damaged; (2)
evidence supported award of $4,950 to cover costs of repairing and cleaning premises; and
(3) district court did not abuse its discretion in applying attorney fees provision of lease in
awarding landlord, as prevailing party, reasonable attorney fees and costs.
Affirmed.
Young, J. and Rose, C. J., dissented.
Beasley, Holden & Brooks, Reno, for Appellants.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Matthew C.
Addison, Reno, for Respondent.
1. Damages.
When party negligently damages property of another, damage award should be designed to compensate injured party in full
measure for total harm proximately caused by defendant's breach of duty.
2. Landlord and Tenant.
Landlord was entitled to recover from tenants as damages cost of removal and replacement of entire vinyl floor covering when only
small portion of it was damaged when tenants vacated premises and removed equipment. Expert witnesses testified that because
existing vinyl tiles and sheet vinyl were worn, replacing only damaged tiles with new tiles would result in inconsistent floor pattern,
tenants' own expert admitted that replacing only damaged tiles would not result in match, and there was testimony that removal and
replacement of damaged sections of sheet vinyl would result in seams in floor which would collect water and be easily noticeable.
Substantial evidence supported district court's award of $4,950 to landlord to cover costs of repairing and cleaning premises after
tenants vacated. Testimony and pictures presented at trial demonstrated that damage and filth left behind by tenants went well
beyond contractual allowance of ordinary wear and tear.
4. Appeal and Error.
District court's findings of fact will not be set aside unless those findings are clearly erroneous; accordingly, if district court's
findings are supported by substantial evidence, they will be upheld.
Unless there is a manifest abuse of discretion, district court's award of attorney fees will not be overturned on appeal.
6. Costs.
District court did not abuse its discretion in applying attorney fees provision of lease in awarding landlord, as prevailing party,
reasonable attorney fees and costs in its action against tenants alleging negligent removal of equipment and damaged condition of
leased property beyond contractual allowance of ordinary wear and tear.
OPINION
By the Court, Shearing, J.:
Appellants Gail Nelson and Chuan Liu leased property from respondent Peckham Plaza Partnerships (Peckham), and operated a
Mongolian Barbecue restaurant (Panda) on the premises. After five years, the lease expired and Panda vacated the premises and removed
some of its equipment. Peckham was not satisfied with the condition of the property as it was left by Panda, and incurred expenses in
repairing and restoring the property.
The district court awarded Peckham damages and attorneys' fees based on Panda's negligent removal of the equipment and on the
damaged condition of the property beyond the contractual allowance of ordinary wear and tear. Panda contends that the district court did
not base its conclusions of fact on substantial evidence. We disagree.
[Headnotes 1, 2]
Panda first argues that the trial judge erred in awarding Peckham damages in the amount of $7,939.50 for the removal and replacement
of the entire vinyl floor covering when only a small portion of it was damaged. When a party negligently damages the property of another,
damage awards should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's
breach of duty. Martinez v. City of Cheyenne, 791 P.2d 949, 959 (Wyo. 1993).
The flooring in the premises consisted of 1,250 square feet of black and white one-by-one vinyl tiles, 1,250 square feet of sheet vinyl,
and approximately 750 square feet of carpeting. The trial judge found that Panda was negligent in damaging the vinyl flooring when it
removed its trade fixtures.
The trial judge heard evidence on whether only the damaged areas of the vinyl flooring
could be replaced instead of the whole vinyl floor. Expert witnesses testified that because the
existing vinyl tiles and sheet vinyl were worn, replacing only the damaged tiles with new tiles
would result in an inconsistent floor pattern. Panda's own expert admitted that replacing only
the damaged tiles would not result in a match. Furthermore, the trial judge heard testimony
that the removal and replacement of the damaged sections of the sheet vinyl would result in
seams in the flooring which would collect water and be easily noticeable. In essence, there
were three separate areas of damage, two different kinds of flooring and the difficult task of
matching replacements of each type.
The trial judge concluded that the only way Panda could repair the damage caused by its
negligence was by removing and replacing all of the vinyl tiles. If Panda had not negligently
damaged the vinyl flooring, it would not have been required to replace the flooring because it
was only contractually required to vacate the premises in good condition, ordinary wear and
tear excepted. However, in light of Panda's negligence, the trial judge's finding that Peckham
could only be compensated in full through the replacement of the entire vinyl flooring was
not erroneous.
[Headnote 3]
Panda also argues that it was error for the trial judge to award Peckham $4,950 to cover
the costs of repairing and cleaning the premises. After Panda surrendered the premises,
Peckham hired Comstock Maintenance to repair and clean the premises. Comstock
Maintenance charged Peckham $5,000 for completing the work; however, the district court
only awarded Peckham $4,950, finding that $50 of the $5,000 was incurred in repairing
damages which Peckham had the obligation to repair under the lease. Panda asserts that the
district court erred in its award of $4,950 because most of the damage was due to ordinary
wear and tear.
[Headnote 4]
The district court's findings of fact will not be set aside unless those findings are clearly
erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590,
591-92 (1990). Accordingly, if the district court's findings are supported by substantial
evidence, they will be upheld. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129,
130, 734 P.2d 1236, 1237 (1987). Testimony and pictures presented at trial demonstrated that
the damage and filth left behind by Panda went well beyond ordinary wear and tear. We
therefore conclude that the district court's findings were supported by substantial evidence
and were not erroneous.
[Headnotes 5, 6]
Finally, Panda argues that the district court erred in awarding Peckham $9,037.50 in
attorney's fees. Unless there is a manifest abuse of discretion, a district court's award of
attorney's fees will not be overturned on appeal. County of Clark v. Blanchard Constr. Co., 98
Nev. 488, 492, 653 P.2d 1217, 1220 (1982). In the case at bar, the lease agreement provided
that if a suit is brought to enforce any covenant of the lease or for any breach of any covenant
or condition of the lease, the prevailing party is entitled to its reasonable attorney's fees and
costs. The district court did not abuse its discretion in applying the attorney's fees provision of
the lease and awarding Peckham, the prevailing party, reasonable attorney's fees and costs.
We affirm the district court's judgment.
1

Steffen, J., and Zenoff, Sr. J., concur.
Young, J., with whom Rose, C. J., joins, dissenting:
I dissent because the measure of damages, in my view, is palpably unfair to Panda and
deviates from generally accepted principles of damages.
Panda paid approximately $210,000 for rent to Peckham over five years. Peckham knew
that Panda would be using the premises as a restaurant and would operate a Mongolian
barbecue in its operation. The lease, which Peckhama sophisticated business
partnershipprepared, provided that Panda would return the premises in good condition,
ordinary wear and tear excepted.
Of 1,250 floor tiles, Panda damaged only twenty, i.e., less than two percent of the surface.
The district court's award, however, held Panda responsible for all 1,250 tiles. Assuming for
sake of argument that Panda's negligence caused the damage, I cannot agree that Peckham is
entitled to a completely new floor at Panda's expense.
The majority declares that because Panda was negligent in allowing twenty tiles to become
scorched by the barbecue, Peckham must be compensated in full for the cost of a totally new
floor. I disagree. Assuming arguendo that Panda was negligent with regard to twenty tiles,
Panda did not damage Peckham to the extent of 1,250 tiles. Rather, Panda's culpability
extends to a fraction of the 1,250 tilesless than two percent.
The measure of damages for breach of the lessee's covenant to surrender the premises in a
particular condition is generally the cost of putting the premises in the condition in which it
should have been surrendered.
__________

1
The Honorable David Zenoff, Senior Justice, was appointed to sit in place of The Honorable Charles E.
Springer, Justice.
have been surrendered. See 51C C.J.S. Landlord & Tenant 416 (1968) and cases cited
therein. In this instance, Panda should have returned the floor in good condition; that is,
good for a five-year-old floor. Indeed, Peckham expectedand agreedthat upon return
of the premises, the flooring would be marred by five years of normal wear and tear.
Certainly Peckham could not reasonably expect to regain possession of the premises with a
brand new floor made up of 1,250 new tiles! Thus, contrary to the majority opinion, Peckham
is not entitled to a new floor, but rather a floor five years worn.
Peckham is entitled to damages for the twenty damaged tiles. Alternatively, Peckham is
entitled to receive from Panda damages measured by the difference in value between a
five-year-old floor with twenty damaged tiles and a five-year-old floor with no damaged tiles.
Unfortunately, Panda cannot return a five-year-old floor in good condition to Peckham.
That fact, however, does not require Panda to return to Peckham an entirely new floor. The
majority's holding smacks of punitive damages, and I cannot agree.
____________
110 Nev. 27, 27 (1994) Michelsen v. Harvey
JOHN E. MICHELSEN and ANN J. MICHELSEN, Husband and Wife, JOHN E.
MICHELSEN, Trustee of the John E. Michelsen Family Trust Agreement, Appellants,
v. JAMES A. HARVEY, Trustee of Harvey Family Trust Dated 9/26/80, SAMUEL S.
HARVEY, ELIZABETH HARVEY BLAIKIE and JOHN F. BLAIKIE, Tenants in
Common, Respondents.
No. 23735
January 18, 1994 866 P.2d 1141
Appeal from a district court order denying appellants' request for attorney's fees. Ninth
Judicial District Court, Douglas County; David R. Gamble, Judge.
Landowners petitioned for award of attorney fees, claiming that they had successfully
removed cloud upon title to their property. The district court denied request, and landowners
appealed. The supreme court held that landowners were not entitled to award of fees.
Affirmed.
Thomas J. Hall, Reno, for Appellants.
F. Thomas Eck, III, Reno, for Respondents.
1. Costs.
Attorney fees are not available unless authorized by statute, rule, or contract.
Decision to award attorney fees will not be overturned on appeal unless there is manifest abuse of discretion by trial court.
3. Libel and Slander.
Attorney fees are considered element of damages in slander of title actions.
4. Quieting Title.
Although landowners successfully defended against adjoining landowners' claim to ownership of thin area of beach, trial court did
not abuse its discretion in denying them attorney fees, where adjoining landowners were successful in establishing easement by adverse
possession over disputed property.
On appeal, the supreme court may imply findings of fact and law if record clearly supports lower court's ruling.
OPINION
Per Curiam:
The facts relevant to this appeal are not in dispute, nor are they complex. Appellants John E. and Ann J. Michelsen (Michelsens) own
land adjacent to property owned by respondents James A. Harvey, Samuel S. Harvey, Elizabeth Harvey Blaikie, and John F. Blaikie
(Harveys). These two lots abut the shore of Lake Tahoe and were originally owned by the Harvey's grandmother. The Harveys'
grandmother had sold a portion of this property to the Michelsens' predecessor in interest.
In 1988, the Harveys filed a quiet title action against the Michelsens to resolve ownership of a thin area of beach between the
Michelsens' property and the lake shore. The Harveys claimed that this area of land was not included in the deed that described the
Michelsens' property. As a result, the Harveys claimed the beach property still belonged to their family. They alleged slander of title, sought
ownership of the land in fee simple, and alternatively claimed that they had obtained a prescriptive easement over the property.
The district court agreed, concluding that the Harveys owned the beach property in fee simple, subject to an easement retained by the
Michelsens. On appeal, this court reversed and reached the opposite conclusion. In Michelsen v. Harvey, 107 Nev. 859, 822 P.2d 660
(1991), we held that the Michelsens owned the beach front outright and that the Harveys had established a prescriptive easement over the
property.
Thereafter, the Michelsens petitioned the district court for an award of attorney's fees.
Specifically, the Michelsens claimed they were entitled to fees because they had successfully
removed a cloud upon the title of their property. The district court rejected the request, and
the Michelsens renew their contention on appeal.
[Headnotes 1, 2]
Attorney's fees are not available in Nevada unless authorized by statute, rule, or contract.
Ace Truck v. Kahn, 103 Nev. 503, 512 n.4, 746 P.2d 132, 138 (1987). In addition, the
decision to award attorney's fees will not be overturned on appeal unless there is a manifest
abuse of discretion by the trial court. County of Clark v. Blanchard Constr. Co., 98 Nev.
488, 492, 653 P.2d 1217, 1220 (1982) (decided within the context of statutorily-awarded
fees).
[Headnote 3]
As an exception to the general rule, it is well-settled in Nevada that attorney's fees are
considered an element of damages in slander of title actions. Day v. West Coast Holdings,
101 Nev. 260, 265, 699 P.2d 1067, 1071 (1985). This common law tort principle was
expanded by this court in Summa Corp. v. Greenspun, 96 Nev. 247, 607 P.2d 569 (1980),
opinion on reh'g, 98 Nev. 528, 655 P.2d 513 (1982). There, Summa Corporation made a loan
to Greenspun that was secured by a promissory note and deed of trust. Summa backed out of
the deal and agreed to return these two securing instruments. Despite this agreement,
however, Summa recorded the deed of trust and effectively encumbered two thousand acres
of Greenspun's property. Greenspun sued Summa for slander of title and breach of contract.
Greenspun obtained a judgment in the district court that included an award of punitive
damages and attorney's fees. Id. at 250-55, 607 P.2d at 571-74.
On appeal, this court determined that Greenspun's slander of title claim was not supported
by the evidence. Hence, punitive damages were unavailable. Yet in spite of this conclusion,
we affirmed the award of attorney's fees because Greenspun filed their cause of action to
remove a cloud upon title:
A slander of title is a tort. In addition to that claim for relief, the complaint also
sought to remove the cloud upon Greenspun's title caused by the recordation of the deed
of trust.
. . . .
In an action to remove a cloud upon the title to real property it is permissible to
assess as damages the attorney's fees incurred incident to that action.
Id. at 254-55, 607 P.2d at 573-74 (citations omitted) (emphasis added.)
In the instant case, the Michelsens rely upon this aspect of the Summa Corp. holding.
Having fended off a cloud upon their title, the Michelsens claim they are entitled to recover
attorney's fees.
[Headnote 4]
We disagree. The Michelsen's argument is fundamentally flawed. Summa Corp. does not
mandate an award of fees any time a property owner litigates to remove a cloud upon title.
The award is permissible and within the discretion of the trial court. More importantly,
unlike the facts of Summa Corp., the Michelsens have not effectively removed a cloud from
their title. While they have retained ownership of the beach property in fee, it is inescapable
that the Harveys claimed in their original complaint and successfully established a
prescriptive easement over the disputed property. In other words, the Michelsens still have a
cloud upon their title in the form of an easement.
1
Taking the Michelsens' argument and
rationale to its logical conclusion would have this court condoning the award of attorney's
fees against a landowner any time the landowner successfully obtained a property right by
way of adverse occupancy. This court refuses to affront the general prohibition against
recovering fees by such a leap and a bound.
[Headnote 5]
Even though the above rationale was not effectively articulated by the trial court in
rejecting the fee request, the oversight is not fatal to the lower court's decision. On appeal,
this court may imply findings of fact and law if the record clearly supports the lower court's
ruling.
__________

1
The Michelsens urge this court to adopt a liberal definition of the phrase cloud upon title appearing in
Summa Corp. They cite the following language from a Michigan appellate court decision:
A cloud upon a title is but an apparent defect in it. If the title, sole and absolute in fee, is really in the
person moving against the cloud, the density of the cloud can make no difference in the right to have it
removed. Anything of this kind that has a tendency, even in a slight degree, to cast doubt upon the
owner's title, and to stand in the way of a full and free exercise of his ownership, is, in my judgment, a
cloud upon his title which the law should recognize and remove.
Michigan Nat. Bank-Oakland v. Wheeling, 419 N.W.2d 746, 749 (Mich.App. 1988) (citations omitted)
(emphasis added); see also 65 Am.Jur.2d Quieting Title 9 (1972) (cloud upon title defined as an
encumbrance which is actually invalid or inoperative, but which may nevertheless impair the title to the
property).
Utilizing this authority for sake of the Michelsens' argument only, it seems indisputable that these definitions
would include the Harveys' claim of an easement over the beach property.
lower court's ruling. Luciano v. Diercks, 97 Nev. 637, 639, 637 P.2d 1219, 1220 (1981).
Based upon the simple facts that the Harveys now have an easement over the Michelsens'
property and that this entire dispute was pursued in good faith, we cannot conclude that the
district court abused its discretion. Accordingly, we affirm the district court's denial of the
Michelsens' attorney's fee request.
____________
110 Nev. 31, 31 (1994) Breithaupt v. USAA Property and Casualty
BARBARA BREITHAUPT, Appellant, v. USAA PROPERTY AND CASUALTY
INSURANCE COMPANY, Respondent.
No. 23118
January 20, 1994 867 P.2d 402
Appeal from an order of the district court granting summary judgment for respondent
USAA. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Insured sought reformation of her automobile policy, claiming that the insurer did not
adequately notify her that she was entitled to purchase uninsured/underinsured motorist (UM)
coverage equal to her bodily injury coverage. The district court granted summary judgment
for the insurer. Insured appealed. The supreme court held that: (1) a flier included by the
insurer with its renewal notice adequately notified the insured that she was entitled to
purchase UM coverage equal to her bodily injury coverage, and (2) a statutory amendment
imposing a greater duty on automobile insurers to inform insureds of the option to purchase
additional UM coverage could not be applied retroactively.
Affirmed.
Hale, Lane, Peek, Dennison & Howard and Tracy Mathia and Robert Martin, Reno, for
Appellant.
Barker, Gillock, Koning & Brown and Bruce Scott Dickinson, Las Vegas, for Respondent.
1. Insurance.
Flier included by insurer with renewal notice adequately notified insured that she was entitled to purchase uninsured/underinsured
motorist (UM) coverage equal to her bodily injury coverage. Flier described nature of UM coverage and minimum amount that insured
was required to purchase, it contained section indicating that higher limits were available, and it listed limits of coverage, including
option of UM coverage equal to dollar amounts of bodily injury coverage. NRS 687B.145(2).
2. Insurance.
Insurer's failure to use affirmative language expressly telling insured that she was entitled to purchase uninsured/underinsured
motorist (UM) coverage equal to her bodily injury coverage did not prevent flier included by insurer with renewal notice from giving
insured adequate notice. NRS 687B.145(2).
3. Insurance.
Statutory amendment overruling Quinlan v. Mid. Century Ins., 103 Nev. 399, 741 P.2d 822 (1987) and imposing greater duty on
automobile insurers to inform insureds of their entitlement to purchase uninsured/underinsured motorist (UM) coverage equal to bodily
injury coverage could not be applied retroactively to transaction that occurred before effective date of amendment. Retroactive
application of amendment would not improve consumer awareness and could subject insurers to potentially large liabilities for failing
to meet standard that was not applicable when they wrote policies. NRS 687B.145(2).
OPINION
Per Curiam:
Barbara Breithaupt (Breithaupt) brought an action against her insurer, USAA Property and Casualty Insurance Company (USAA),
seeking reformation of her automobile insurance contract. Breithaupt claimed that USAA failed to comply with the pre-1990 version of
NRS 687B.145(2) because USAA did not adequately notify her that she was entitled to purchase uninsured/underinsured motorist (UM)
coverage equal to her coverage for bodily injury.
1
The trial court granted summary judgment for USAA,
holding that the notice which USAA gave Breithaupt satisfied the requirements of NRS
687B.145(2). We affirm.
On April 4, 1988, Breithaupt suffered severe and permanent injuries when another driver
struck her car from behind. Breithaupt recovered the maximum amount from the driver's
insurer, but this amount fell far short of compensating Breithaupt for her injuries.
__________

1
Prior to January 1, 1990, the first sentence of NRS 687B.145(2) stated:
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.
Effective January 1, 1990, the legislature amended the first sentence of NRS 687B.145(2) to state:
Insurance companies transacting motor vehicle insurance in this state must offer, on a form approved by
the commissioner, uninsured and underinsured vehicle coverage in an amount equal to the limits of
coverage for bodily injury sold to an insured under a policy of insurance covering the use of a passenger
car.
The present dispute involves the pre-1990 version of NRS 687B.145(2). Thus, unless otherwise specified,
citations to NRS 687B.145(2) refer to the pre-1990 statute.
for her injuries. Breithaupt carried UM coverage with USAA in the amount of $15,000 per
person and $30,000 per accident for each of two vehicles. USAA allowed Breithaupt to stack
the coverage of her two vehicles and paid her $30,000, the full amount of coverage.
Breithaupt had purchased bodily injury coverage of $300,000 per person and $500,000 per
accident from USAA. Breithaupt claims that the court should reform her contract with USAA
so that the UM limits of the policy are equal to the limits for bodily injury. See Ippolito v.
Liberty Mutual, 101 Nev. 376, 379, 705 P.2d 134, 136-37 (1985). Under such a reformed
insurance contract, Breithaupt would collect an additional $570,000 from USAA.
2

In relevant part, NRS 687B.145(2) stated that insurers must offer uninsured motorist
coverage equal to the limits of bodily injury coverage sold to the individual policyholder. In
Quinlan v. Mid. Century Ins., 103 Nev. 399, 403, 741 P.2d 822, 824-25 (1987), this court
acknowledged that the term must offer was susceptible to several interpretations, each of
which imposed a different duty of notice upon the insurer. The duty which NRS 687B.145(2)
could impose upon the insurer ranged from simply making the coverage available, i.e. no duty
of notice, to a full disclosure of the nature and cost of the optional coverage. Id. Relying upon
the legislature's use of offer in other insurance statutes, this court concluded that offer' is
used to instruct an insurance carrier simply to make a certain type of coverage available to the
insured. Id., 741 P.2d at 825. However, to effectuate the legislature's intent to compel
insurance carriers to begin providing heightened uninsured motorist coverage as an option,
this court ruled that insurers must notify their customers that such coverage is available. Id.
In Quinlan, this court held that the following statement included in the insurer's renewal
notice satisfied the insurer's obligation under NRS 687B.145(2):
Did you know that you may now have uninsured motorist coverage in amounts up to
your bodily injury liability limits? If interested, contact your agent.
Quinlan, 103 Nev. at 401, 741 P.2d at 823.
[Headnote 1]
In the instant case, USAA made a much fuller disclosure regarding UM coverage.
__________

2
A reformed contract of insurance would provide UM coverage of $300,000 per person for each of Breithaupt's
two vehicles. Breithaupt hoped to stack the coverage on her two vehicles, thereby entitling her to $600,000 of
UM coverage. Having already received $30,000, appellant sought recovery of the remaining $570,000.
regarding UM coverage. The renewal notice which USAA sent Breithaupt included a flyer
which described the nature of UM coverage and the minimum UM coverage which an insured
was required by law to purchase. Additionally, the flyer contained a section entitled: Higher
limits are available. This portion of the notice discussed factors which an insured should
consider in determining the appropriate amount of UM coverage to purchase. The notice then
stated:
If you want to increase your UM coverage, give us your order on the order form on the
back of this folder. Available limits are listed in the box to the right.
IMPORTANT: The UM policy limits you select may not exceed the Bodily Injury (BI)
liability limits in your policy. If you want to increase your UM to a limit higher than
your present BI, please use the order form on the back to increase your BI liability limit.
In a box to the right of this statement, USAA listed UM Limits Available. This list included
UM coverage of $300,000/$500,000. Thus, USAA made available to Breithaupt UM
coverage with the same limits as her bodily injury coverage.
[Headnote 2]
Breithaupt contends that USAA's flyer did not satisfy the notice requirement of NRS
687B.145(2) because it was unclear and ambiguous. We agree with Breithaupt that USAA
could have made a clearer statement, using affirmative language, to notify Breithaupt of her
right to UM coverage equaling her bodily injury coverage. However, we nonetheless believe
that the notice is sufficient to inform the average layman who is untrained in the law or the
field of insurance that UM coverage equal to bodily injury coverage was available.
Thompson v. Government Emp. Ins. Co., 592 P.2d 1284, 1288 (Ariz.Ct.App. 1979); cf. Bove
v. Prudential Ins. Co., 106 Nev. 682, 686, 799 P.2d 1108, 1110 (1990). We conclude that
USAA satisfied its duty of notice as this court defined that duty in Quinlan.
Breithaupt argues that in Khoury v. Maryland Casualty Co., 108 Nev. 1037, 843 P.2d 822
(1992), this court abandoned the Quinlan standard and imposed a greater burden of notice
upon insurers, a burden which USAA did not meet. In Khoury the issue was whether oral
notice of the availability of uninsured motorist coverage was sufficient under NRS
687B.145(2). This court held that the testimony of two employees of the insurance agency
was insufficient, as a matter of law, to establish by clear and convincing evidence that notice
was given. Id. At 1041, 843 P.2d at 824. This court did not reach the issue of the adequacy of
the content of the notice. To the extent that dictum in Khoury conflicts with the standard of
notice set in Quinlan, we disapprove it.
conflicts with the standard of notice set in Quinlan, we disapprove it.
[Headnote 3]
The legislative history behind the 1990 amendment to NRS 687B.145(2) indicates that the
legislature specifically intended to overrule Quinlan and to impose a greater duty of notice
upon insurers. There can be no doubt that the 1990 amendment to NRS 687B.145(2) has
rendered Quinlan's notice standard inapplicable to insurance transactions which occur after
the effective date of the statute.
Breithaupt urges this court to take the legislative response to Quinlan a step further.
Breithaupt contends that the 1990 amendment of NRS 687B.145(2) indicates that the
legislature considered Quinlan to be wrongly decided, and that the legislature had always
intended the statute to impose a broader duty of disclosure upon insurers. Breithaupt argues
that this court should overrule Quinlan and retroactively impose a broader duty of disclosure
upon insurers. We disagree.
The legislative history behind the 1990 amendment to NRS 687B.145(2) does not support
Breithaupt's contention that the legislature considered Quinlan to be wrongly decided. Having
reviewed the minutes from the various committee meetings, we have not found any indication
that the legislature considered NRS 687B.145(2) to impose a duty of notice greater than that
which this court announced in Quinlan; nowhere in the legislative history does a speaker or
committee indicate that Quinlan contravened the intent of the 1979 legislature in enacting
NRS 687B.145(2).
Furthermore, even if this court concludes that Quinlan was wrongly decided, it does not
follow that this court would retroactively impose a greater burden of disclosure upon insurers.
In determining whether a new rule of law should be limited to prospective application, courts
have considered three factors: (1) the decision to be applied nonretroactively must establish
a new principle of law, either by overruling clear past precedent on which litigants may have
relied, or by deciding an issue of first impression whose resolution was not clearly
foreshadowed; (2) the court must weigh the merits and demerits in each case by looking to
the prior history of the rule in question, its purpose and effect, and whether retrospective
operation will further or retard its operation; and (3) courts consider whether retroactive
application could produce substantial inequitable results. Chevron Oil Co. v. Huson, 404
U.S. 97, 106-07 (1971)
3
; Fain Land & Cattle Co. v.
__________

3
In a recent decision, five justices of the United States Supreme Court expressed dissatisfaction with the
three-part test announced in Chevron Oil
Land & Cattle Co. v. Hassell, 790 P.2d 242, 251 (Ariz. 1990); Matter of Estate of McDowell,
777 P.2d 826, 829 (Kan. 1989); Marinez v. Industrial Comm'n of State, 746 P.2d 552, 556
(Colo. 1987); State, City of Bozeman v. Peterson, 739 P.2d 958, 960 (Mont. 1987); Lopez v.
Maez, 651 P.2d 1269, 1276 (N.M. 1982); 21 C.J.S. Courts 148 (1990); see Truesdell v.
Halliburton Co., Inc., 754 P.2d 236, 239 (Alaska 1988) (court applies similar four-part test).
The overruling of a judicial construction of a statute generally will not be given retroactive
effect. United States v. Estate of Donnelly, 397 U.S. 286, 295 (1970) (In rare cases,
decisions construing federal statutes might be denied full retroactive effect, as for instance
where this Court overrules its own construction of a statute.); 20 Am.Jur.2d Courts 234
(1965).
The instant case falls within the general rule. Retroactive application of NRS 687B.145(2)
would not improve pre-1990 consumer awareness of the benefits of purchasing the optional
UM coverage. At this late date, insurers do not have the opportunity to comply retroactively
with a new and more demanding standard of notice. As a result, insurers such as USAA who
complied with Nevada's pre-1990 insurance law are nonetheless subject to potentially large
liabilities for failing to meet a standard pronounced years after the fact. Such a result is highly
inequitable to insurers and does nothing to promote the objectives of NRS 687B.145(2).
Thus, even if Quinlan were wrongly decided, we would not give retroactive effect to its
overruling.
USAA's flier satisfied the notice requirement of NRS 687B.145(2) as pronounced by this
court in Quinlan. Accordingly, we affirm the trial court's grant of summary judgment for
USAA.
__________
Co. American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990). Although four justices approved of the test
in a plurality opinion, id. at 178, a concurring justice argued that in all cases prospective decision making is
incompatible with the judicial role, id. at 201 (Scalia, J., concurring), and four dissenting justices argued that
application of the three-part test was appropriate only in limited circumstance, id. at 218-24 (Stevens, J.,
dissenting). In spite of the disagreement within he United States Supreme Court, the federal appellate courts
have continued to use the three-part test. Cf. Gray v. Phillips Petroleum Co., 971 F.2d 591, 596 n.9 (10th Cir.
1992).
____________
110 Nev. 37, 37 (1994) Mausbach v. Lemke
JERRI LINN MAUSBACH, Appellant, v. ALICIA M. LEMKE and JOHN S. JUREACK,
Respondents.
No. 23743
January 20, 1994 866 P.2d 1146
Appeal from order denying motion for prejudgment interest. Eighth Judicial District Court,
Clark County; John S. McGroarty, Judge.
Person injured in automobile accident sought confirmation of arbitration award. The
district court denied injured person's motion for prejudgment interest, and she appealed. The
supreme court held that, absent statutory or contractual authority, district court confirmation
proceeding may not add prejudgment interest to arbitration award.
Affirmed.
Albert D. Massi, Ltd. and Allen A. Cap, Las Vegas, for Appellant.
Edwards, Hale & Hansen and Sharon Gwin Immerman, Las Vegas, for Respondents.
1. Arbitration.
Circumstances under which district court may modify or correct arbitration award are statutorily limited. NRS 38.155, 38.165.
2. Arbitration.
Inclusion of prejudgment interest in judgment confirming arbitration award is impermissible modification of award as awarding
prejudgment interest is not among statutory bases for modifying award. NRS 38.155, 38.165.
3. Arbitration.
Absent statutory or contractual authority, district court in confirmation proceeding may not add prejudgment interest to arbitration
award. NRS 38.155, 38.165.
OPINION
Per Curiam:
This appeal challenges the district court's rejection of a request for prejudgment interest in connection with the confirmation of an
arbitrator's award. We conclude that the court's ruling was correct and therefore affirm.
FACTS
The facts are not in dispute. Appellant Jerri Linn Mausbach obtained an arbitration award against respondents Alicia M. Lemke and
John S.
Lemke and John S. Jureack (collectively Lemke) pursuant to an action filed by Mausbach
against Lemke for personal injuries suffered in an automobile collision. The parties agreed
that the matter qualified for arbitration under the provisions of NRS 38.215, then in effect.
1
The arbitration resulted in an award to Mausbach of $10,599.44.
Shortly after the arbitrator's decision, Mausbach learned that Lemke's insurer would pay
the award exclusive of any prejudgment interest. This prompted Mausbach to move for
confirmation of the arbitration award together with prejudgment interest. Lemke opposed the
motion, first noting that Lemke had tendered a check to Mausbach in the full amount of the
award. Lemke also argued that the law did not provide for an award of prejudgment interest
and that, in any event, the issue was subsumed within the arbitration proceedings.
The district court confirmed the arbitration award, entering judgment in favor of Mausbach
in the amount of $10,599.44, but denied Mausbach's request for prejudgment interest. This
appeal ensued.
DISCUSSION
This appeal presents an issue of first impression in this state. We are asked to determine
whether the district court, acting pursuant to NRS 17.130,
2
may add prejudgment interest to
a confirmed arbitration award.
__________

1
NRS 38.215, before its repeal, provided:
1. Except as otherwise provided in subsection 2, all civil actions for damages for personal injury, death
or property damage arising out of the ownership, maintenance or use of a motor vehicle, where the cause
of action arises in this state and the amount in issue does not exceed $25,000, must be submitted to
arbitration, in accordance with the provisions of NRS 38.015 to 38.205, inclusive.
2. Subsection 1 does not apply to any such action within the jurisdiction of the justice's court, unless the
parties agree, orally or in writing, that the action will be submitted to arbitration or the justice's court so
orders.

2
NRS 17.130 provides:
1. In all judgments and decrees, rendered by any court of justice, for any debt, damages or costs, and in
all executions issued thereon, the amount must be computed, as near as may be, in dollars and cents,
rejecting smaller fractions, and no judgment, or other proceedings, may be considered erroneous for that
omission.
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the
judgment draws interest from the time of service of the summons and complaint until satisfied, except for
any amount representing future damages, which draws interest only from the time of the entry of the
judgment until satisfied, at a rate equal to the prime rate at the largest bank in Nevada as ascertained by
the commissioner of financial institutions on January 1 or July 1, as the
confirmed arbitration award. Both parties rely upon language in NRS 38.165 to support their
respective positions. That statute provides:
Upon the granting of an order confirming, modifying or correcting an award, judgment
or decree shall be entered in conformity therewith and be enforced as any other
judgment or decree. Costs of the application and of the proceedings subsequently
thereto, and disbursements may be awarded by the court.
Mausbach contends that a judgment resulting from an arbitration award is to be enforced
as any other judgment, and that prejudgment interest is therefore mandated pursuant to NRS
17.130. Mausbach insists that nothing in the Uniform Arbitration Act prohibits the
assessment of interest on the award.
Lemke challenges Mausbach's premise by citing to the last sentence of NRS 38.165, which
limits an award of costs and fees incurred in arbitration proceedings to those connected with
the application for confirmation and proceedings arising thereafter. See Hot Springs County
Sch. Dist. v. Strube Constr. Co., 715 P.2d 540 (Wyo. 1986). The Wyoming case held that the
legislature did not intend that its interest statute, Wyo.Stat. 1-16-102(a),
3
apply to
arbitration awards. The court stated:
In reaching this conclusion, we are not without guidance from the legislature. In the
Uniform Arbitration Act itself, awards are not treated as judgments for purposes of
enforcement until the granting of an order confirming, modifying or correcting an
award by the district court.
Strube Constr., 715 P.2d at 549.
We conclude that the language upon which Mausbach relies does not support her position
that a judgment pursuant to an arbitration award is subject to prejudgment interest. NRS
38.165 simply states that a judgment entered pursuant to confirmation shall be enforced as
any other judgment. The purpose served by the entry of judgment upon confirmation of an
arbitration award is that of providing a basis for enforcing the award. H.E. Sargent, Inc. v.
Town of Millinocket, 478 A.2d 683, 686 (Me.
__________
case may be, immediately preceding the date of judgment, plus 2 percent. The rate must be adjusted
accordingly on each January 1 and July 1 thereafter until the judgment is satisfied.

3
That statute provided that: Except as provided in subsection (b) of this section, all decrees and judgments for
the payment of money shall bear interest at ten percent (10%) per year from the date of rendition until paid.
1984.) Here, Lemke had already paid the $10,599.44 award, thus relieving Mausbach of the
need to enforce the judgment. Mausbach's confirmation proceedings were initiated only for
the purpose of obtaining prejudgment interest from the date the lawsuit was filed.
Mausbach asserts that this court and courts in other jurisdictions have concluded that
prejudgment interest may be added to judgments based upon arbitration awards. Citing
County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 653 P.2d 1217 (1982), Hooten
Constr. Co., Inc. v. Borsberry Constr. Co., Inc., 769 P.2d 726, 730 (N.M. 1989) and Waldrop
v. Rodery, 190 N.W.2d 691 (Mich.Ct.App. 1971), Mausbach contends that there is ample
support for her position. The Blanchard decision is distinguishable both on the facts and the
issues actually decided by this court.
4
We do not elect to follow the minority view
represented by the other decisions cited by Mausbach.
The weight of authority supports Lemke's position that the addition of prejudgment
interest upon confirmation of an arbitration award constitutes an impermissible modification
of the award. See, e.g., Creative Builders v. Avenue Devs., Inc., 715 P.2d 308 (Ariz.Ct.App.
1986) (see infra); McDaniel v. Berhalter, 405 So.2d 1027, 1030 (Fla.Dist.Ct.App. 1981) (trial
court not authorized to add interest to arbitrator's award for period predating award where
award stated it was in full settlement of all claims); Westmark Properties, Inc. v. McGuire,
766 P.2d 1146, 1148 (Wash.Ct.App. 1989) (trial court erred in adding prejudgment interest to
arbitrator's award as it was foreclosed from going behind face of award for determining
whether test for prejudgment interest had been met); Leach v. O'Neill, 568 A.2d 1189 (N.H.
1990) (discussed below).
In Leach, an arbitration award had been entered in favor of the plaintiffs in a personal
injury action. In confirming the arbitration award, the trial court provided for interest from
the date of the award.
__________

4
In Blanchard, the district court did award prejudgment interest upon confirming the arbitrator's award.
However, the issue presented to this court was whether interest was properly assessed against a portion of the
award involving a sum tendered prior to arbitration with an unwarranted condition attached. Allowance of the
interest was permitted by this court against a challenge based exclusively upon an untenable theory of failure to
mitigate damages. Blanchard, 98 Nev. at 492-93, 653 P.2d at 1220-21.
Unlike the Blanchard case, Lemke has raised the specific issue of whether the district court is authorized to add
prejudgment interest to an arbitration award upon confirmation of such an award. This issue was simply not
raised or decided in Blanchard; therefore, it was not considered in our analysis.
Accordingly, Blanchard is not authority for the proposition that a district court may add prejudgment interest to
an arbitration award. That issue is decided in the instant appeal.
award, the trial court provided for interest from the date of the award. The plaintiffs appealed,
contending that they were entitled to interest from the date they commenced the action. The
New Hampshire Supreme Court rejected the argument, stating:
After an award is rendered by an arbitrator, the superior court's power is limited to
confirming the award, modifying the award for plain mistake, or vacating the award for
fraud, corruption, or misconduct by the parties or arbitrators. [N.H. Rev.Stat.Ann. ]
542.8. Upon the granting of an order confirming . . . an award, judgment may be
entered in conformity therewith. . . . [N.H. Rev.Stat.Ann. ] 542.9. [N.H.
Rev.Stat.Ann.] chapter 542 does not authorize the superior court to add interest to an
arbitration award. Indeed, the law in New Hampshire has long been established that if
an award is accepted by the superior court and an order is granted confirming the
award, [t]here can be no variation from it.
Id. at 1190 (citations omitted).
In Creative Builders, the trial court awarded prejudgment interest sua sponte upon
confirmation of an arbitration award in a contract case. The Arizona Court of Appeals
reversed, holding that the trial court erred in modifying the award so as to include pre-award
interest. Creative Builders, 715 P.2d at 313. The court reasoned that the party's entire claim
was submitted to arbitration, including any claim for pre-award interest, and such claim
must be deemed to have merged in the arbitration award. Id. at 312; accord McDaniel, 405
So.2d at 1030.
The district court's power of review of an arbitration award is limited to the statutory
grounds provided in the Uniform Arbitration Act. New Shy Clown Casino v. Baldwin, 103
Nev. 269, 271, 737 P.2d 524, 525 (1987); see also Container Technology Corp. v. J. Gadsden
Pty., Ltd., 781 P.2d 119, 121 (Colo.Ct.App. 1989) (the issues before the court in a
confirmation proceeding are limited by the terms of the Uniform Arbitration Act.)
5

In Nevada, the Uniform Arbitration Act is embodied in NRS Chapter 38. NRS 38.165
provides that upon the granting of an order confirming . . . an award, judgment . . . shall be
entered in conformity therewith . . . . (Emphasis added.) The only authority the district court
is given to deviate from the award upon confirmation is to award costs and attorney's fees
incurred in obtaining the confirmation.
__________

5
In this regard, Mausbach's reliance upon Waldrop v. Rodery, 190 N.W.2d 691 (Mich.Ct.App. 1971) is
misplaced. Waldrop was not decided under the Uniform Arbitration Act. The Michigan appellate court's
decision affirming the award of prejudgment interest and attorney's fees was based upon Michigan's general
statutes and court rules. Id. at 693-94.
confirmation is to award costs and attorney's fees incurred in obtaining the confirmation. See
NRS 38.165.
[Headnotes 1, 2]
The circumstances under which a district court may modify or correct an award are
statutorily limited. See NRS 38.155;
6
New Shy Clown Casino, 103 Nev. at 271, 737 P.2d at
525. Since an order awarding prejudgment interest is not among the statutory bases for
modifying an award, the inclusion of such interest constitutes an impermissible modification
of the arbitrator's award. See Creative Builders, 715 P.2d at 313.
[Headnote 3]
For the above reasons, we conclude that, absent statutory or contractual authority, a district
court in a confirmation proceeding may not add prejudgment interest to the arbitration award.
Therefore, the district court properly declined to award prejedgment interest when it
confirmed the arbitrator's award in this case.
We note that we have said nothing that would preclude an arbitrator from expressly
providing for prejudgment interest in an award, even where the added interest would cause
the total award to exceed the $25,000.00 limit imposed by the arbitration act. Nor does our
ruling preclude the district court from awarding post-judgment interest, commencing from the
date of entry of the award itself. See Creative Builders, 715 P.2d at 313.
CONCLUSION
As previously noted, we join the weight of authority and conclude that the district court
properly refused to award prejudgment interest when it confirmed Mausbach's arbitration
award and entered judgment thereon.
__________

6
1. Upon application made within 90 days after delivery of a copy of the award to the applicant, the court
shall modify or correct the award where:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person,
thing or property referred to in the award;
(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected
without affecting the merits of the decision upon the issues submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.
2. If the application is granted, the court shall modify and correct the award so as to effect its intent and
shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as
made.
3. As application to modify or correct an award may be joined in the alternative with an application to
vacate the award.
ment interest when it confirmed Mausbach's arbitration award and entered judgment thereon.
Accordingly, the order of the district court is affirmed.
____________
110 Nev. 43, 43 (1994) Watson v. State
ELSIA MAXINE WATSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23299
January 20, 1994 867 P.2d 400
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of theft
under NRS 205.0832(3). Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
The supreme court held that prosecution failed to prove that defendant would have been
ineligible for free medical services card had she disclosed bank accounts.
Reversed.
Gary E. Gowen, Folkston, Georgia, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney and David Barker, Deputy District Attorney, Clark
County for Respondent.
1. Criminal Law.
It is axiomatic that state must prove every element of charged offense beyond reasonable doubt.
2. Social Security and Public Welfare.
Prosecution failed to prove that defendant would have been ineligible for free medical services card had she disclosed bank
accounts, and thus failed to prove each element of offense of theft beyond reasonable doubt. NRS 205.0832(3).
OPINION
Per Curiam:
Appellant Elsia Maxine Watson (Watson) was convicted by a jury of one count of theft for receiving and using a medical services
card from Clark County Social Services (CCSS) after intentionally concealing her ownership interest in two Totten trust savings
accounts. She now attacks that conviction. We hold that the prosecutor failed to prove each element of the offense
beyond a reasonable doubt, and therefore we reverse.
hold that the prosecutor failed to prove each element of the offense beyond a reasonable
doubt, and therefore we reverse.
On January 3, 1990 Watson withdrew $15,000 from an account she held at First Western
Savings Bank (First Western), leaving a balance in that account of nearly $10,000. She then
purchased, with the withdrawn money, a certificate of deposit at PriMerit Bank (PriMerit).
The money left at First Western was allegedly held by Watson in trust for her sister's
children, and Watson claims that the account contained the proceeds from the sale of
Watson's deceased sister's house.
1
The account at PriMerit was held by Watson in trust for
her own children, and allegedly represented money Watson had earned over the years from
savings, from a judgment in a civil lawsuit, and from the sale of an apartment building. At all
times relevant to this action, Watson was unemployed.
Within days of the above transactions, Watson applied for a medical services card from
CCSS. The holder of a CCSS medical services card is entitled to receive medical services on
credit from University Medical Center (UMC) without incurring an obligation to pay the
account. CCSS then pays UMC for services rendered to the holder of a card.
Under CCSS guidelines, an applicant will be denied a medical services card if she owns
assets, including money in bank accounts, valued at over $1,000-$2,000. When Watson
applied for the card, an eligibility screener asked if she owned any bank accounts, and
Watson stated that she did not. Watson then met with another CCSS employee who asked if
she had bank accounts, and Watson again indicated that she did not. Without knowledge that
Watson owned two bank accounts worth nearly $25,000, CCSS issued Watson a two-month
medical services card in January 1990 and another in March 1990. CCSS paid $2,957.28 for
services Watson received from UMC between January and April 1990. Watson's alleged
welfare fraud was discovered when CCSS received an anonymous letter informing CCSS of
the PriMerit account.
__________

1
There was evidence that both the First Western and PriMerit accounts were in Watson's name. CCSS workers
testified that even trust accounts are considered assets of the named account holder. This is especially true of
Totten trust accounts, which allow the owner to use the money during life, with the balance passing to the
named beneficiaries upon the owner's death, thereby avoiding probate. See Byrd v. Lanahan, 105 Nev. 707, 710,
783 P.2d 426, 428 (1989) (citing In re Totten, 71 N.E. 748, 752 (N.Y. 1904)). In addition, the state presented
evidence that Watson used the money in the accounts to pay for personal expenses. She allegedly depleted the
First Western account, and approximately $5,000 remained in the PriMerit account on June 26, 1991.
Watson elicited testimony at trial, from CCSS workers, that lump sum assets received
more than thirty months before the date of application for CCSS service may not be evaluated
and may not result in the disqualification of an applicant for services. Watson claimed that
both bank accounts contained money earned or received from the sale of a house and from a
civil judgment more than thirty months prior to her CCSS application. She argued the she
might, therefore, still be eligible for a card even though she owns the two accounts. Watson
was convicted after a one-day trial.
[Headnote 1]
It is axiomatic that the state must prove every element of a charged offense beyond a
reasonable doubt. Slobodian v. State, 107 Nev. 145, 147-48, 808 P.2d 2, 3-4 (1991). Under
NRS 205.0832(3), part of Nevada's general theft statute, the state must prove that a person
knowingly caused the unlawful transfer of property or services through a misrepresentation.
2

In the instant case a transfer occurred when CCSS paid for the medical services Watson
received on credit from UMC. If Watson's bank accounts would have rendered her ineligible
to receive a medical services card, she would have caused the unlawful transfer of funds from
CCSS to UMC through her misrepresentation that she owned no bank accounts. Thus, it was
the state's burden to show beyond a reasonable doubt that Watson's concealment of her
accounts caused the unlawful, or wrongful, payment of money by CCSS to UMC.
[Headnote 2]
The state never clearly showed that Watson would have been ineligible for the card had
she disclosed the accounts. The prosecutor's only evidence was the testimony of one witness.
Ms. Leavitt, the social worker who qualified Watson for the card, testified that had Watson
disclosed the money, under the manual, it would have made a difference . . . she would have
had to use her own money to pay for her medical expenses. Watson, however, questioned
this same witness, and another CCSS worker, on an alleged "lump sum" exception to the
general rule that one may not own bank accounts worth more than $2,000.
__________

2
A person commits theft if, without lawful authority, [s]he knowingly . . . [o]btains . . . personal property
or [services] by a material misrepresentation with intent to deprive [a] person of the property or services.
As used in this subsection, material misrepresentation means the use of any pretense, or the making of
any promise, representation or statement of present, past or future fact which is fraudulent and which,
when used or made, is instrumental in causing the wrongful control or transfer of property or services.
(Emphasis added.)
however, questioned this same witness, and another CCSS worker, on an alleged lump sum
exception to the general rule that one may not own bank accounts worth more than $2,000.
On cross-examination, both Leavitt and the other CCSS worker, Zachariah, stated that if
Watson had revealed the accounts, they would have had to verify her, or would have had to
look into the matter. Neither testified, when asked about the alleged exception, that Watson
would have been disqualified from receiving CCSS benefits. After this questioning the state
made no effort to clarify the provisions of the eligibility criteria or to introduce them into
evidence for the jury. In sum, the state failed to show beyond a reasonable doubt that Watson
would have been ineligible for the card had she disclosed the accounts.
We do not pass on the validity of Watson's claim. It is not possible to determine from the
record whether Watson would have been eligible or ineligible for a medical services card
under CCSS eligibility criteria, had the CCSS workers been told of the accounts. We do hold,
however, that Watson's ineligibility was an issue of proof that must have been made at trial,
and that it was the state's burden to show ineligibility beyond a reasonable doubt.
In view of our decision, we decline to address the other issues raised on appeal. The
judgment of the district court is reversed.
____________
110 Nev. 46, 46 (1994) State, Dep't of Mtr. Vehicles v. Frangul
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. HAMID FRANGUL, Respondent.
No. 23947
January 20, 1994 867 P.2d 397
Appeal from an order of the district court reversing the revocation of respondent's driving
privileges. Second Judicial District Court, Washoe County; Mark Handelsman, Judge.
State Department of Motor Vehicles and Public Safety (DMV) appealed from order of the
district court reversing revocation of driving privileges. The supreme court held that: (1) civil
license revocation proceedings under implied consent statute are separate and distinct from
drunk driving arrest, and (2) civil administrative license revocation is not reached by
expungement provisions of statute governing sealing of criminal records.
Reversed and remanded.
Frankie Sue Del Papa, Attorney General, and M. Greg Mullanax, Deputy Attorney
General, Carson City, for Appellant.
Edwin T. Basl, Reno, for Respondent.
Review in supreme court from district court's interpretation of statute is de novo. NRS 233B.135.
2. Automobiles.
Implied consent statutes provide for administrative, civil proceedings entirely separate and distinct from criminal statutes
prohibiting drunk driving. NRS 484.383-484.385.
3. Automobiles.
Civil revocation proceedings under implied consent statutes are separate and distinct from criminal driving under influence (DUI)
arrests and prosecutions. NRS 484.383-484.385.
4. Criminal Law.
License revocation under implied consent statute is not relating to the arrest, for purposes of statute providing that person who
has been arrested for alleged criminal conduct, and against whom charges are later dismissed, may petition for orders sealing all
records relating to the arrest. NRS 179.255, 484.383-484.385.
5. Criminal Law.
Civil license revocation proceeding under implied consent statute is not proceeding recounted in the record, for purposes of
statute allowing sealing of records relating to arrest and providing that upon sealing, all proceedings recounted in the record are
deemed never to have occurred. NRS 179.285, 484.383-484.385.
6. Criminal Law.
Sealing statute was enacted to remove ex-convicts' criminal records from public scrutiny and to allow convicted persons to
lawfully advise prospective employers that they have had no criminal arrests and convictions with respect to the sealed events. NRS
179.255, 179.285.
7. Criminal Law.
Statute allowing sealing of arrest records does not operate to expunge outcome of separate civil, administrative proceeding, even
when decision from that proceeding concerns matter arising from same events as sealed arrest. NRS 179.255, 179.285.
8. Automobiles.
In reviewing decision of Department of Motor Vehicles and Public Safety (DMV) revoking driver's license, district court should
have given deference to DMV hearing officer's conclusions regarding question of whether implied consent admonition was read after
driver was under arrest, in light of factual findings made by officer. NRS 179.255, 179.285, 484.383-484.385.
9. Criminal Law.
Sealing statute was not intended to erase everything alleged to have occurred after arrest, but rather pertains to events and
proceedings relating to arrest. NRS 179.285.
OPINION
Per Curiam:
The Department of Motor Vehicles and Public Safety (DMV) revoked the driver's
license of Hamid Frangul (Frangul) after Frangul refused to submit to a requested blood
alcohol test. A district court later dismissed criminal charges for driving under the influence
(DUI), stemming from the same incident of alleged drunk driving. Frangul then
successfully sought an order sealing his criminal records relating to the dismissed DUI
charges. Relying upon the sealing order, the district court reversed the DMV's revocation of
Frangul's driver's license. That court accepted Frangul's argument that the DMV revocation
proceedings are deemed, by operation of the sealing statute, never to have occurred.
Because we reject Frangul's interpretation of the sealing statute's effect on the implied
consent statutes, we reverse.
On July 24, 1991 Frangul was stopped by a police officer for speeding through a red light.
The officer who spoke to Frangul suspected that he was driving under the influence of
alcohol. Frangul failed to perform field sobriety tests successfully, and refused to submit to an
evidentiary test to determine his blood alcohol level. The officer then arrested Frangul for
allegedly driving under the influence, and, under the implied consent law, served a Notice of
Revocation of driver's license upon him for failing to take the test.
After Frangul's trial, DUI charges against him were dismissed when the state failed to call
necessary witnesses. Frangul then petitioned the Reno Municipal Court for an order sealing
the records relating to his arrest for DUI and the criminal charges filed in connection with that
arrest, and the petition was granted. In the meantime, a DMV hearing officer found
substantial evidence to support the revocation of Frangul's license and issued an order
upholding it. Frangul then sought judicial review of that order in the district court, arguing
that the sealing of his criminal file operated to nullify the DMV's revocation of his driver's
license. Frangul relied on NRS 179.285, which provides that all proceedings in [a sealed
criminal] record are deemed never to have occurred. The district court agreed with Frangul,
reversed the hearing officer and reinstated Frangul's driving privileges. The state appeals.
[Headnote 1]
Review in this court from a district court's interpretation of a statute is de novo. NRS
233B.135 (court may set aside decision on review because of error of law); Gandy v. State
ex rel. Div. Investigation, 96 Nev. 2S1, 2S2
on review because of error of law); Gandy v. State ex rel. Div. Investigation, 96 Nev. 281,
282, 607 P.2d 581, 532 (1980) (role of this court is identical to district court, to review the
agency's findings under the standard provided by statute). Because the effect of the sealing
statute upon the DMV revocation process is a pure question of law, considered for the first
time in this case at the district court level, we undertake an independent analysis of the effect,
if any, of the criminal record sealing statutes upon the implied consent statutes.
[Headnotes 2-4]
Implied consent statutes
1
provide for administrative, civil proceedings entirely separate
and distinct from criminal statutes prohibiting drunk driving. State, Dep't Mtr. Vehicles v.
Brown, 104 Nev. 524, 525 n.1, 762 P.2d 882, 883 n.1 (1988); see also State v. Uehara, 721
P.2d 705, 706-07 (Haw. 1986); Covington v. Dept. of Motor Vehicles, 102 Cal.App.3d 54,
59-60, 162 Cal.Rptr. 150, 153-54 (1980) (conviction for DUI did not render implied consent
sanctions meaningless as each punishes the violator for a different illegal activity). A person
who refuses to submit to a blood alcohol test risks license revocation under such a statute
regardless of whether he is acquitted or convicted, and even when he is never charged with an
offense or charges are later dismissed. See Defense of Drunk Driving Cases 33.03 at 33-28
(Richard E. Erwin et al. eds., 1989) (Since the offense' involved is the refusal to submit to
testing . . . in most states the outcome of the criminal prosecution is totally irrelevant to the
civil revocation proceeding.) We hold that Frangul's criminal arrest and prosecution existed
wholly independently of the DMV revocation process.
Frangul asserts that the order sealing his criminal record nonetheless operated to nullify
the DMV's revocation of his driver's license because the underlying events are deemed never
to have occurred. Nevada's statute authorizing the sealing of criminal records provides that a
person who has been arrested for alleged criminal conduct, and against whom charges are
later dismissed, may petition for an order sealing all records relating to the arrest. NRS
179.255 (emphasis added). It also provides that all proceedings recounted in the record are
deemed never to have occurred, and the person to whom [the order] pertains may properly
answer accordingly to any inquiry concerning the arrest, . . . and the events and
proceedings relating to the arrest."
__________

1
Nevada's implied consent statute authorizes the DMV to revoke a motorist's driver's license for refusal to
submit to an evidentiary test to determine blood alcohol level. NRS 484.383. The officer requesting the test, as
agent for the DMV, must revoke the license of an individual reasonably suspected of drunk driving who refuses
to submit to a test. NRS 484.384, 484.385.
occurred, and the person to whom [the order] pertains may properly answer accordingly to
any inquiry concerning the arrest, . . . and the events and proceedings relating to the arrest.
NRS 179.285 (emphasis added). The municipal judge granted Frangul's request for an order
sealing his criminal record. Under the sealing statutes, then, all records relating to the arrest
must be sealed, and all proceedings in the record and all events and proceedings relating
to the arrest are deemed never to have occurred.
Since we hold that revocation proceedings are separate and distinct from DUI arrests,
however, it logically follows that revocation is not a record, proceeding or event relating to
the arrest. The DMV has authority to revoke a license even when an officer does not arrest
the individual who fails to take a requested blood alcohol test. Thus, a license revocation
under the implied consent statute cannot be said to be related to an arrest. As a result, the
revocation order need not be sealed, nor is it deemed never to have occurred.
[Headnote 5]
Nor is the civil revocation proceeding a proceeding[ ] recounted in the [sealed criminal]
record. The DMV conducted its own revocation hearing and had a separate record pertaining
to the revocation. This proceeding was civil in nature, not criminal, and was not before the
district judge, nor contained in the criminal record before the court. Therefore, a civil,
administrative license revocation is not a proceeding recounted in the criminal record, and is
not reached by the expungement provisions of the sealing statute.
[Headnote 6]
The legislative history of the sealing statute and our prior interpretations of these
provisions support this result. The sealing statute was enacted to remove ex-convicts' criminal
records from public scrutiny and to allow convicted persons to lawfully advise prospective
employers that they have had no criminal arrests and convictions with respect to the sealed
events. Baliotis v. Clark County, 102 Nev. 568, 570, 729 P.2d 1338, 1340 (1986) (citing
hearings on bill in Assembly and Senate). We stated in Baliotis that there is no indication
that the statute was intended to require . . . licensing authorities to disregard information . . .
known independently of the sealed records. Id. Neither can sealing orders erase history. Id.
at 571, 729 P.2d at 1340.
[Headnote 7]
There is nothing in the text of the statute, the legislative history or our prior interpretations
indicating that the legislature intended to provide that the underlying events of a situation
that leads to an arrest are deemed never to have occurred.
to provide that the underlying events of a situation that leads to an arrest are deemed never to
have occurred. Rather, the statute provides only that those events specifically relating to the
arrest are deemed never to have occurred. As a result, the statute does not operate to expunge
the outcome of a separate civil, administrative proceeding, even when a decision from that
proceeding concerns a matter arising from the same events as the sealed arrest.
The district court erroneously focused on the timing of the implied consent admonition.
The judge found that the implied consent admonition was read after Frangul was under arrest.
He then held that everything that occurred after the arrest was deemed never to have
occurred. Thus, by operation of law, the giving of the admonition never occurred, and
Frangul could not have refused an admonition that was not given. This is erroneous for two
reasons.
[Headnote 8]
First, although whether Frangul was under arrest is a question of law properly addressed
by the district court, the court should have given deference to the hearing officer's conclusions
in light of the factual findings made by the officer. Jones v. Rosner, 102 Nev. 215, 217, 719
P.2d 805, 806 (1985) (legal conclusion not disturbed on appeal so long as intertwined with
facts supported by substantial evidence). The hearing officer found that the implied consent
admonition was given twice, and refused by Frangul, before Frangul was placed under arrest.
This finding was based upon four statements of the two officers, who testified at the hearing
that the admonition was read, refused and clarified, but that Frangul still refused to submit to
the test. The officers testified that they then placed Frangul under arrest. This is substantial
evidence to support the finding, and legal conclusion, that Frangul was arrested after the
admonition was read.
Second, even if Frangul was under arrest when the admonishment was read, there is no
support for the conclusion that the statute was intended to erase everything alleged to have
occurred after the arrest.
2
On the contrary, the sealing statute refers to all events or
proceedings relating to the arrest. NRS 179.285 (emphasis added). We have held that
license revocation is not "related to" an arrest.
__________

2
The district court's judgment reads:
Officer Holmes' testimony establishes that petitioner was already under arrest when he allegedly refused
to consent to the evidentiary breath test. Of course, the Reno Municipal court order of January 30, 1992,
as well as NRS 179.285, provide that all proceedings in the recordthat is, everything alleged to have
occurred after the arrestare deemed never to have occurred.
is not related to an arrest. As a result, it does not matter whether the admonition and refusal
occurred before, during or after the arrest.
Accordingly, we reverse the trial court's order and remand the case to the district court to
reinstate the DMV's revocation of respondent's driving privileges.
____________
110 Nev. 52, 52 (1994) Sunrise Hospital v. District Court
SUNRISE HOSPITAL, JANE FREDERICKS, STEVE WILSON, KAREN FORNOFF and
RUBEN, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
GERARD J. BONGIOVANNI, District Judge, Respondents, and KEVIN DAILEY
and ELIZABETH DAILEY, Real Parties in Interest.
No. 24897
January 20, 1994 866 P.2d 1143
Original petition for a writ of mandamus, or in the alternative, a writ of prohibition. Eighth
Judicial District Court, Clark County; Gerard Bongiovanni, Judge.
Hospital and others petitioned for writ of mandamus, or in alternative, writ of prohibition,
challenging order of the district court granting petition by potential medical malpractice
plaintiffs to perpetuate testimony. The supreme court held that allowing potential plaintiffs to
perpetuate testimony was a abuse of discretion.
Petition granted.
Earley & Dickinson, Las Vegas, for Petitioners.
Pearson & Patton; Thorndal, Backus, Maupin & Armstrong; and Galatz, Earl & Bulla,
Las Vegas, for Real Parties in Interest.
1. Pretrial Procedure.
Perpetuation of testimony pursuant to rule of civil procedure is not intended as substitution for discovery. NRCP 27.
Rule of civil procedure governing perpetuation of testimony is available in special circumstances to preserve testimony which
could otherwise be lost due to some occurrence other that mere passage of time. NRCP 27.
District court may not grant petition to perpetuate testimony pursuant to rule of civil procedure, for sole purpose of allowing
petitioner to obtain information with which to formulate petitioner's complaint.
obtain information with which to formulate petitioner's complaint. NRCP 27.
Order permitting perpetuation of testimony is to be granted only in extraordinary circumstances. NRCP 27.
Order permitting perpetuation of testimony should be limited to that evidence which will likely be lost or destroyed without the
order. NRCP 27.
Potential medical malpractice plaintiffs were not entitled to order granting precomplaint petition to perpetuate testimony. There
was no showing that evidence they sought to preserve would be lost or that they were presently unable to submit case to malpractice
screening panel, legislature had provided specific alternative means for discovery, and allowing extensive precomplaint discovery
would frustrate purpose of malpractice screening panel. NRS 41A.016, 41A.039; NRCP 27, 27(a).
7. Mandamus.
Petition for writ of mandamus is proper vehicle for challenging district court's abuse of discretion in granting petition for
perpetuation of testimony. NRS 34.160; NRCP 27.
OPINION
Per Curiam:
This petition for a writ of mandamus, or in the alternative, a writ of prohibition, challenges an order of the district court granting real
parties in interest's petition to perpetuate testimony pursuant to NRCP 27. Petitioners (collectively Sunrise Hospital) contend that the
district court abused its discretion by granting a pre-complaint petition to perpetuate testimony in contemplation of a medical malpractice
action against Sunrise Hospital. We agree.
On May 25, 1993, real parties in interest Elizabeth and Kevin Dailey filed in the district court a verified petition to perpetuate
testimony on behalf of their infant son, Erik. The Daileys alleged that Erik suffered devastating permanent physical injuries after
undergoing surgery at Sunrise Hospital. In their petition, the Daileys stated that they had sought Erik's full medical record from Sunrise
Hospital and that the most crucial portions of the records have either been lost, or delayed in appearing in the medical chart or have never
appeared in the medical chart. The Daileys stated in their petition that without viewing the original transcription of the reports and the
identification of the personnel transcribing those reports and information from Sunrise Hospital on the deficiency notices and attempts to
procure the tardy reports, the evidence of the authenticity of the operative reports may not be preserved. Finally, the Daileys declared that
it is essential before commencing any Medical-Screening Panel claim against Sunrise Hospital that certain documents and
testimony be obtained and preserved.
against Sunrise Hospital that certain documents and testimony be obtained and preserved.
The Daileys requested an order permitting them to take numerous depositions and engage in
extensive discovery. Sunrise Hospital opposed the Daileys' petition to perpetuate testimony.
On June 24, 1993, the district court conducted a hearing regarding the Daileys' petition. On
June 25, 1993, the district court entered its order granting the Daileys' petition to perpetuate
testimony pursuant to NRCP 27. The district court commanded Sunrise Hospital to provide
the Daileys with numerous records and materials. The district court also permitted the Daileys
to take depositions of many hospital employees.
The district court ordered the extensive discovery in this case pursuant to NRCP 27, which
provides for the perpetuation of testimony in limited circumstances.
1
NRCP 27(a), in
relevant part, provides the following:
(1) Petition. A person who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of the State may file a
verified petition in a district court. The petition shall be entitled in the name of the
petitioner and shall show: 1, that the petitioner expects to be a party to an action
cognizable in a court of the State but is presently unable to bring it or cause it to be
brought, 2, the subject matter of the expected action and his interest therein, 3, the facts
which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it, 4, the names or a description of the persons he expects will be adverse
parties and their addresses so far as known, and 5, the names and addresses of the
persons to be examined and the substance of the testimony which he expects to elicit
from each, and shall ask for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition, for the purpose of perpetuating
their testimony.
. . . .
(3) Order and Examination. If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order designating or
describing the persons whose depositions may be taken and specifying the subject
matter of the examination and whether the depositions shall be taken upon oral
examination or written interrogatories.
__________

1
For example, Sunrise Hospital's representatives suggested that compliance with the district court's order would
require one full-time employee more than one month to compile and copy the volumes of subpoenaed
documents. The district court order provided that the Daileys could depose all nursing personnel present in the
operative suites during Erik's operations, all other hospital personnel present during the operations, several
records department employees and the persons most knowledgeable about numerous documents.
describing the persons whose depositions may be taken and specifying the subject
matter of the examination and whether the depositions shall be taken upon oral
examination or written interrogatories.
Numerous courts have construed their counterparts to NRCP 27 to limit the perpetuation
of testimony to a limited category of cases where it is necessary to prevent testimony from
being lost before the complaint can be filed. See Ash v. Cort, 512 F.2d 909 (3d Cir. 1975);
Petition of Rosario, 109 F.R.D. 368 (D. Mass. 1986); In re Boland, 79 F.R.D. 665 (D.D.C.
1978); Petition of Ferkauf, 3 F.R.D. 89 (S.D.N.Y. 1943). A rule 27 petition may therefore be
justified when a witness is aged or gravely injured and in danger of dying. Rosario, 109
F.R.D. at 370. Because rule 27 specifically requires that a petition be verified, conclusory
allegations that testimony will be lost will not satisfy the rule's verification requirement. Id. at
371. Courts have concluded that if the petitioner fails to show a substantial danger of the loss
of evidence, the petitioner cannot take advantage of rule 27 merely for the purpose of
obtaining facts on which to base a complaint. See, e.g., Harmon v. Mercy Hosp., 460 N.W.2d
404 (N.D. 1990). Courts generally agree that to allow rule 27 to be used to fish for some
ground for bringing suit would be an abuse of the rule. Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure 2071 at 332-33 (1970).
[Headnotes 1, 2]
Perpetuation of testimony pursuant to NRCP 27 is not intended as a substitution for
discovery. The purpose of the perpetuation rule, NRCP 27, is to provide an ancillary
proceeding to prevent a failure of justice by preserving testimony which otherwise would be
lost before the matter to which it relates is ripe for judicial determination. Cardinal v.
Zonneveld, 89 Nev. 403, 405, 514 P.2d 204, 205 (1973). NRCP 27 is available in special
circumstances to preserve testimony which could otherwise be lost due to some occurrence
other than the mere passage of time. See Ash v. Cort, 512 F.2d 909 (3d Cir. 1975).
[Headnotes 3-6]
The Daileys failed to demonstrate in their petition below why the evidence they seek to
preserve will be lost. A district court may not grant a petition to perpetuate testimony
pursuant to NRCP 27, for the sole purpose of allowing the petitioner to obtain information
with which to formulate the petitioner's complaint. An order permitting the perpetuation of
testimony is to be granted only in extraordinary circumstances. Further, an order permitting
the perpetuation of testimony should be limited to that evidence which will likely be lost or
destroyed without the order.
The extraordinary circumstances necessary to justify the perpetuation of testimony have not
been established in this case.
The analysis provided above is applicable to any petition for the perpetuation of testimony.
The following analysis is applicable to cases involving medical malpractice.
A petition to perpetuate testimony pursuant to NRCP 27 may be granted only if the
petitioner demonstrates that the petitioner expects to be a party to an action cognizable in a
court of the State but is presently unable to bring it or cause it to be brought. NRCP 27(a)(1).
A medical malpractice action is commenced with the submission of a case to the medical
malpractice screening panel. NRS 41A.016, NRS 41A.039. The Daileys did not demonstrate
in the district court that they are presently unable to submit their case to the medical
malpractice screening panel. This precondition was not met; therefore, the rule does not
apply, and the district court erred in granting the petition to perpetuate testimony.
In addition, the purposes of the medical malpractice screening panel would be frustrated if
district courts permitted extensive pre-complaint discover. The purposes of the screening
panel are to minimize frivolous suits against doctors, to encourage settlement, and to lower
the costs of malpractice premiums and health care. Jain v. McFarland, 109 Nev. 465, 471,
851 P.2d 450, 455 (1993). In designing the medical malpractice screening panel system, the
legislature sought to balance the needs of complainants and the need to lower health care
costs. We are hesitant to interfere with that balance. The legislature has provided a means of
discovery in medical malpractice actions. NRS 41A.046, in part, provides the following:
1. The department [of insurance] may, by certified or registered mail, issue
subp[o]enas as may be required by the screening panel, to compel the attendance of
expert witnesses and, as may be required by the parties or the screening panel, to
compel the production of books, papers, health care records, statements of policy and
procedure or other materials.
2. The department shall keep the material so produced and make it available to the
parties, upon request, for inspection or copying. If the material is reasonably capable of
being copied, the department shall provide a copy to the parties, upon request and
receipt of a fee for the copying.
Where, as here, the legislature has provided a specific means of obtaining and enforcing
discovery, that procedure is to be followed by the parties. See NRS 41A.046(3), (4), and (5).
The broad discovery permitted by the district court in this case would frustrate the
purposes of the medical malpractice screening panel.
broad discovery permitted by the district court in this case would frustrate the purposes of the
medical malpractice screening panel. Although there may be limited circumstances in which a
party could obtain the perpetuation of testimony pursuant to NRCP 27, in a medical
malpractice case, those extraordinary circumstances have not been demonstrated in this case.
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 637 P.2d 534 (1981). A petition for a writ of mandamus is the proper vehicle for
challenging a district court's abuse of discretion in granting a petition for the perpetuation of
testimony pursuant to NRCP 27. Sunrise Hospital v. Dailey, 109 Nev. 950, 860 P.2d 162
(1993). In this case, the district court abused its discretion in granting the Dailey's petition to
perpetuate testimony. Accordingly, we grant this petition. The clerk of this court shall
forthwith issue a writ of mandamus compelling the district court to vacate its order granting
the petition to perpetuate testimony and directing the district court to dismiss the petition.
____________
110 Nev. 57, 57 (1994) State v. Shade
THE STATE OF NEVADA, Appellant, v. MARSHALL TIMOTHY SHADE, Respondent.
No. 24986
January 20, 1994 867 P.2d 393
Motion to dismiss discretionary appeal, pursuant to NRS 177.015(2), from a pretrial order
of the district court granting respondent's motion in limine to exclude evidence. Second
Judicial District Court, Washoe County; James A. Stone, Judge.
On remand after appeal the district court granted defendant's motion to limine and to
dismiss, and the state appealed. On motion to dismiss appeal, the supreme court held that
state could not appeal from order excluding evidence based on evidentiary rather than
constitutional grounds.
Motion granted; appeal dismissed in part.
Frankie Sue Del Papa, Attorney General, Carson City; Dorothy Nash Holmes, District
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
David Houston and Scott Freeman, Reno, for Respondent.
110 Nev. 57, 58 (1994) State v. Shade
1. Criminal Law.
Motion in limine which was granted on evidentiary rather than constitutional grounds was not a motion to suppress for purposes
of statute authorizing state to appeal from adverse ruling on motion to suppress; accordingly, state had no right to appeal from ruling
on motion in limine. NRS 174.125, 177.015(2), 179.085(1).
2. Criminal Law.
Motion to suppress is a term of art which is defined as request for exclusion of evidence which is premised upon allegation that
evidence was illegally obtained. U.S. Const. amend. 4.
3. Criminal Law.
Although state could not directly appeal from motion in limine, issues raised by that ruling could be considered on state's appeal
from order granting defendant's motion to dismiss charges against him. NRS 177.015(1)(b), 177.045.
OPINION
Per Curiam:
This is a discretionary appeal, pursuant to NRS 177.015(2), from a pretrial order of the district court granting respondent's motion in
limine to exclude evidence. This is also an appeal, pursuant to NRS 177.015(1)(b), from an order of the district court granting a motion to
dismiss. Both appeals have been docketed in this court under a single case number.
The state charged respondent Marshall Timothy Shade with several drug related offenses after Reno police officers allegedly observed
Shade in the company of his stepson Peter Kenneson and confidential informant Ray Richardson. Kenneson had purchased heroin on
behalf of Richardson. Several police officers claim that they found cocaine and methamphetamine in Kenneson's car which Shade was
driving. In an appeal from an order of the district court granting a pretrial petition for a writ of habeas corpus, this court affirmed the
dismissal of charges against Shade relating to a sale of heroin, reversed the dismissal of charges relating to possession of methamphetamine
and cocaine, and remanded the matter to the district court. Sheriff v. Shade, 109 Nev. 826, 858 P.2d 840 (1993). Thereafter, the state
instigated grand jury proceedings against Shade.
On September 29, 1993, the state filed in the district court an indictment superseding information. The grand jury charged Shade
with one count of unlawful transportation of a controlled substance (cocaine), one count of unlawful transportation of a controlled
substance (methamphetamine), one count of possession of a controlled substance (cocaine), and one count of possession of a controlled
substance (methamphetamine).
110 Nev. 57, 59 (1994) State v. Shade
On October 13, 1993, Shade filed in the district court numerous motions and petitions.
Significant to this appeal is Shade's motion in limine precluding the introduction of any
evidence regarding the sales charges previously dismissed. In his motion, Shade argued that
the following evidence should be excluded because the evidence is irrelevant:
1. Drug activity of Peter Kenneson;
2. Peter Kenneson's involvement in the sales of heroin to Confidential Informant
Ray Richardson;
3. Ray Richardson's knowledge of Peter Kenneson and his sales of controlled
substances;
4. The $100 in buy money allegedly found on Marshall Timothy Shade relating to
the sale;
5. The $1,897 in cash found on Marshall Timothy Shade (from cashing his Washoe
County Teacher's paycheck);
6. The counter-surveillance allegation made by Detectives Leal and Moen against
Marshall Timothy Shade at the time of the controlled substance transaction;
7. Any statements made by the Confidential Informant Ray Richardson relating to
Peter Kenneson and/or Marshall Timothy Shade relating to the sale;
8. Any statements and/or actions of Peter Kenneson relating to Marshall Timothy
Shade relating to the sale;
9. Any testimony by members of law enforcement regarding surveillance of
Marshall Timothy Shade relating to the sale;
10. Any surveillance of the Confidential Informant and/or Peter Kenneson involving
the sale;
11. Any discussion, whatsoever, in any way, shape or form regarding the drug
heroin, including, but not limited to its discussion related to the sale;
12. Any discussion of any statement made by the Confidential Informant known as a
debrief relating to the sale;
13. Any statement made by the Confidential Informant and/or Peter Kenneson
and/or Marshall Timothy Shade relating to the Confidential Informant's being wired
and his statement;
14. Any notes made by law enforcement agents relating to surveillance of the sale;
and
15. Any and all evidence, in whatever form, relating to Ray Richardson.
On November 4, 1993, the district court conducted a hearing concerning the various
motions and petitions. After denying most of Shade's motions and petitions, the district court
granted, in major part, Shade's motion in limine to preclude introduction of any evidence
regarding the heroin transactions.
110 Nev. 57, 60 (1994) State v. Shade
major part, Shade's motion in limine to preclude introduction of any evidence regarding the
heroin transactions. Specifically, the district court announced from the bench:
In the present case, it seems to the Court that evidence regarding the prior bad acts of
the defendant would be prejudicial, for the simple reason the Jury would in all
probability consider evidence of the prior bad acts as further proof that the defendant is
a drug dealer.
However, if the Court were convinced that the Jury would only take the
previously-dismissed charges for the narrow purpose for which they would be
introduced, the evidence would be admitted.
But the danger, of course, would be that the Jury would assume that the defendant
must have known of the drugs in the car, because he's been involved with drugs on
other occasions. Such assumption would put the defendant on trial for crimes with
which he is not charged.
The Motion in Limine is granted.
There will be no evidence put before this Jury as to any heroin, or any heroin
transaction.
The district court subsequently added that the state is not precluded from presenting evidence
of the $100 in buy money which was allegedly found on Shade. The district court's ruling was
premised entirely upon the relevancy of the evidence and was not premised on any allegation
that the evidence was illegally obtained.
After the district court ordered the evidence excluded, the state indicated that it was unable
to proceed with its case. Shade then moved to dismiss the case. The district court orally
granted Shade's motion to dismiss.
On November 5, 1993, the state filed in the district court a notice of appeal from the oral
order of the district court granting the defendant's Motion in Limine precluding or
suppressing the introduction of evidence. On November 9, 1993, the state filed in this court
a notice of appeal. In its preliminary statement of good cause in support of appeal, the state
indicated that it wished to challenge the district court's decision to exclude evidence of the
heroin transaction between Kenneson and confidential informant Richardson. On November
16, 1993, Shade filed a motion to strike the state's preliminary statement of good cause in
support of appeal. Shade also moved to dismiss the appeal.
On December 3, 1993, the district court entered its written order granting Shade's motion
to dismiss the action below. On December 9, 1993, the state filed in the district court a notice
of appeal from the written order of the district court granting Shade's motion to dismiss.
110 Nev. 57, 61 (1994) State v. Shade
appeal from the written order of the district court granting Shade's motion to dismiss.
[Headnote 1]
Shade contends that the appeal from the order of the district court granting Shade's motion
in limine to exclude evidence should be dismissed because the district court did not suppress
any evidence. Shade argues that a motion in limine is not the same as a motion to suppress
evidence, and because the district court excluded evidence based on evidentiary
considerations, rather than constitutional considerations, this court does not have jurisdiction
over the appeal. The state responds that Shade's argument puts form over substance, and that
because the district court ruled that the state could not use the evidence, the evidence has
been suppressed.
1

NRS 177.015(2) provides for appeals by the state from rulings upon suppression motions
made pursuant to NRS 174.125. NRS 174.125 provides, in relevant part:
1. All motions in a criminal prosecution to suppress evidence, for a transcript of
former proceedings, for a preliminary hearing, for severance of joint defendants, for
withdrawal of counsel, and all other motions which by their nature, if granted, delay or
postpone the time of trial must be made before trial, unless an opportunity to make such
a motion before trial did not exist or the moving party was not aware of the grounds for
the motion before trial.
There is no Nevada statute which defines motion to suppress.
2
The term has, however,
been defined by numerous courts. In Cook v. State, 85 Nev. 692, 694-95, 462 P.2d 523, 526
(1969), this court noted that a "motion to suppress is the remedy normally used to
preclude the introduction of evidence at trial which is claimed to be inadmissible for
constitutional reasons[.]"
__________

1
The state also argues that if this appeal is dismissed, criminal defendants will entitle all of their motions as
motions in limine so as to avoid appeals from orders suppressing evidence. We reject this argument. It is the
substance of an order, rather than its caption, which is determinative of whether the order is appealable.

2
The only statutory authority which appears to be relevant is NRS 179.085(1), which provides:
A person aggrieved by an unlawful search and seizure may move the court having jurisdiction where the
property was seized for the return of the property and to suppress for use as evidence anything so
obtained on the ground that:
(a) The property was illegally seized without warrant;
(b) The warrant is insufficient on its face;
(c) There was not probable cause for believing the existence of the grounds on which the warrant was
issued; or
(d) The warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to
the decision of the motion.
110 Nev. 57, 62 (1994) State v. Shade
this court noted that a motion to suppress is the remedy normally used to preclude the
introduction of evidence at trial which is claimed to be inadmissible for constitutional
reasons[.] Other courts have interpreted the term motion to suppress in a similar manner.
For example, the State of Illinois has a statute that is nearly identical to NRS 177.015(2). In
People v. McCollins, 468 N.E.2d 196 (Ill.App.Ct. 1984), the court ruled that the state could
not appeal from an order granting a motion in limine. The order prohibited the state from
offering any evidence of the defendant's alleged refusal to submit to a breath analysis. The
court concluded:
[D]efining that which constitutes an order of suppression and determining whether a
trial court's ruling falls within that definition is a difficult task. [A] distinction must be
made between the suppression of evidence and the exclusion of evidence. This
distinction is not merely semantic. [The rule allowing the State to appeal] was not
intended to give the State the right to appeal from every ruling excluding evidence
offered by the State. It is suppression orders, as distinguished from evidentiary rulings,
that are appealable under the rule.
Id. at 197-198 (citations omitted); see also People v. Kokesh, 486 P.2d 429 (Colo. 1971)
(absent averment of constitutional overtone by defendant, ruling of court on defendant's claim
that there was no chain of evidence established did not come within the rule relating to
appeals by the state from rulings of court suppressing evidence); State v. Brown, 365 S.E.2d
865, 866 (Ga.Ct.App. 1988) (the State may bring a direct appeal only when the trial court's
exclusion of evidence is based upon the determination that the State unlawfully obtained it
and not when the exclusion is based upon some general rule of evidence.) (emphasis in
original); People v. Macaluso, 344 N.E.2d 476 (Ill.App.Ct. 1976) (order excluding evidence
because of irrelevancy and immateriality was patently evidentiary in nature and did not
constitute an order suppressing evidence from which State could appeal); State v. Dwyer, 847
S.W.2d 102, 103 (Mo.Ct.App. 1992); (The suppression' of evidence is not the same thing as
the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used
for evidence which is not objectionable as violating any rule of evidence, but which has been
illegally obtained.); State v. Miller, 391 N.W.2d 151 (N.D. 1986) (appeal by state pursuant
to statute allowing appeal from order suppressing evidence is limited to appeal from granting
of motion to suppress under Criminal Procedure Rule 12(b)(3) and not the exclusion of
evidence based upon other reasons); Com. v.
110 Nev. 57, 63 (1994) State v. Shade
dence based upon other reasons); Com. v. Brown, 378 S.E.2d 623 (Va.Ct.App. 1989)
(commonwealth's right to appeal was limited to suppression orders granted on basis that
evidence was obtained in violation of the provisions of the United States Constitution or the
Constitution of Virginia).
[Headnote 2]
Motion to suppress is a term of art which is defined as a request for the exclusion of
evidence premised upon an allegation that the evidence was illegally obtained. Black's Law
Dictionary 914 (5th ed. 1979) defines the term as follows:
Device used to eliminate from the trial of a criminal case evidence which has been
secured illegally, generally in violation of the Fourth Amendment (search and seizure),
the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment
(right to assistance of counsel, right of confrontation etc.), of [the] U.S. Constitution.
In this case, the district court excluded evidence for evidentiary reasons. The district court
did not suppress evidence. The right to appeal is statutory. Where no statute or rule provides
for an appeal, no right to appeal exists. Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207,
678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975). There is no
statute or rule which provides for an appeal from an order of the district court granting a
motion in limine to exclude evidence. We conclude, therefore, that we lack jurisdiction to
entertain the appeal from the order of the district court excluding the evidence. Accordingly,
we grant Shade's motion, and we dismiss the state's appeal from the order of the district court
granting Shade's motion in limine to exclude evidence.
[Headnote 3]
This court may nonetheless consider the issue of the exclusion of the evidence in the
context of the appeal from the order granting Shade's motion to dismiss. NRS 177.015(1)(b)
provides that the state or the defendant may appeal to this court from an order of the district
court granting a motion to dismiss. Upon the appeal, any decision of the court in an
intermediate order or proceeding, forming a part of the record, may be reviewed. NRS
177.045. The appeal from the order of the district court granting Shade's motion to dismiss
may now proceed.
____________
110 Nev. 64, 64 (1994) Farmers Insurance Group v. Stonik
FARMERS INSURANCE GROUP, Appellant, v. JENNIFER STONIK, a Minor by and
Through Her Guardian Ad Litem, JOHN STONIK, LAURA LEA MALESKI,
JAMES MALESKI, and DORIS MALESKI, Respondents.
No. 24001
January 20, 1994 867 P.2d 389
Appeal from a district court order granting summary judgment in an insurance declaratory
action. Eighth Judicial District Court, Clark County; Nancy Becker, Judge.
Automobile insurer brought declaratory action to clarify dispute regarding available
coverage for accident involving one of insureds' three vehicles. The district court ruled that
only single policy covering vehicle involved in accident provided liability coverage for
accident but that all three policies were applicable within meaning of other applicable
insurance clause of policy so that insureds could substitute higher payout limitations from
other policies for those limitations appearing in policy covering accident vehicle. Insurer
appealed. The supreme court held that: (1) exclusionary language in policy covering accident
vehicle limited liability of insurer by those amounts appearing in policy, and thus, only policy
providing coverage for accident was specific policy covering accident vehicle, and (2)
policies covering insureds' other two vehicles were not applicable for substitution of
limitations purposes under other applicable insurance clause.
Reversed.
Thorndal, Backus, Maupin & Armstrong, and William R. Killip, Jr., Las Vegas, for
Appellant.
Galatz, Earl & Bulla, Las Vegas, for Respondent Stonik.
Thompson & Harper and Brent D. Percival and Mark Patterson, Las Vegas, for
Respondents Maleski.
1. Insurance.
Insurance policy is contract of adhesion and should be interpreted broadly, affording greatest possible coverage to insured.
2. Insurance.
Any ambiguity in insurance contract must be interpreted against drafting party and in favor of insured.
3. Insurance.
Court will not rewrite contract provisions that are otherwise unambiguous.
4. Insurance.
Court will not increase obligation to insured where such was intentionally and unambiguously limited by parties.
5. Insurance.
Exclusionary language in automobile policies stating that bodily injury coverage was not provided for injuries occurring in vehicle
other than insured car which was defined as vehicle described in declarations of policy limited liability of insurer by those amounts
appearing in insurance contract covering specific vehicle involved in accident. Only policy that provided coverage for accident was
policy covering vehicle involved in accident and policies covering other of insureds' vehicles did not provide coverage.
6. Insurance.
Policies covering two of insureds' vehicles were not applicable for substitution of limitations purposes under other applicable
insurance clause in policy covering third insured vehicle, and thus, insureds could not increase limits in policy governing vehicle
involved in accident simply because they had separate and more fruitful coverage under other policies.
OPINION
Per Curiam:
FACTS
This case involves interpreting language appearing in an automobile insurance contract. The following facts are not in dispute.
Co-respondents James and Doris Maleski (the Maleskis) owned three vehicles insured by Farmers Insurance Group (Farmers). All
three insurance contracts contained identical language with one key exception: the Maleskis' 1987 Ford Ranger carried bodily injury payout
limitations of only $15,000 per person and $30,000 per accident. The Maleskis' two other vehicles, a Mustang and a Ranchero, were
insured up to $30,000 per person and $60,000 per accident.
In August 1990, co-respondent Jennifer Stonik (Stonik) was riding in the Ford Ranger driven by the Maleskis' daughter, Laura Lea.
Laura Lea ran a stop sign and the Ford Ranger collided with another vehicle. Stonik was seriously injured in the accident and filed a tort
claim against the Maleskis and their daughter.
Farmers subsequently filed a declaratory action to clarify a dispute regarding the available coverage for the Ford Ranger accident. Both
Stonik and the Maleskis answered. At issue was the following pertinent language appearing in the Ford Ranger policy. Under the
exclusions section, language informed the insured that liability coverage was not available for injuries occurring in a vehicle other than
your insured car:
This coverage does not apply to:
. . . .
10. Bodily injury or property damage arising out of the ownership, maintenance
or use of any vehicle other than your insured car, which is owned by or furnished or
available for regular use by you or a family member.
(Emphasis in original.)
The definitions section of the policy defined your insured car as follows:
Your insured car means:
1. The vehicle described in the Declarations of this policy or any private passenger
car or utility car with which you replace it. You must advise us within thirty (30) days
of any change of private passenger car or utility car. If your policy term ends more
than thirty (30) days after the change, you can advise us anytime before the end of that
term.
(Emphasis in original.)
Finally, the limits of liability section informed the insured that whenever there was some
other applicable Farmers insurance coverage, the insured was entitled to the highest
payment limitations of all such applicable policies:
If any applicable insurance other than this policy is issued to you by us or any other
member company of the Farmers Insurance Group of Companies, the total amount
payable among all such policies shall not exceed the limits provided by the single
policy with the highest limits of liability.
(Emphasis added.) This latter portion of the policy language is central to the issues on appeal.
Therefore, we hereinafter refer to this clause as the OTHER APPLICABLE INSURANCE
CLAUSE.
Asserting competing interpretations of the policy language, all parties requested summary
judgment in the district court. Farmers argued that the exclusionary language clearly stated
that there was no insurance available for an accident occurring in a vehicle other than your
insured car or the car described by this policy. Hence, because the accident involved only
the Maleskis' Ford Ranger, coverage was limited by the $15,000/$30,000 figures appearing in
the Ford Ranger insurance contract. Conversely, Stonik claimed that she was entitled to
benefits from all three policies because she was suing both the Maleskis and their daughter. In
turn, the Maleskis argued that coverage limitations were established by an aggregate of the
three policies.
The district court specifically rejected both Stonik's and the Maleskis' arguments.
Maleskis' arguments. The court held that Nevada's common law prohibition against liability
insurance stacking would not allow Stonik to obtain benefits from all three policies. The
court also concluded that the policy language clearly stated that the Ford Ranger contract was
the only source of liability coverage for the subject accident. The Mustang and Ranchero
policies did not provide coverage.
Finally, in conflict with these other findings, the court held that all three of the Farmers
policies were applicable within the meaning of the OTHER APPLICABLE INSURANCE
CLAUSE. Thus, the Maleskis could substitute the higher payout limitations from the
Mustang and Ranchero policies for those limitation amounts appearing in the Ford Ranger
insurance contract. As a result, the court concluded that there was $30,000/$60,000 in
available liability coverage.
DISCUSSION
[Headnotes 1, 2]
Fundamental tenets of insurance law govern this court's interpretation of insurance
contract language. An insurance policy is a contract of adhesion and should be interpreted
broadly, affording the greatest possible coverage to the insured. Harvey's Wagon Wheel v.
MacSween, 96 Nev. 215, 219-20, 606 P.2d 1095, 1098 (1980). Any ambiguity in an
insurance contract must be interpreted against the drafting party and in favor of the insured.
Neumann v. Standard Fire Ins., 101 Nev. 206, 209, 699 P.2d 101, 104 (1985) (citing
Yosemite Ins. Co. v. State Farm Mut., 98 Nev. 460, 653 P.2d 149 (1982)).
[Headnotes 3, 4]
Yet in spite of these axioms, this court will not rewrite contract provisions that are
otherwise unambiguous. In addition, we will not increase an obligation to the insured where
such was intentionally and unambiguously limited by the parties. Senteney v. Fire Ins.
Exchange, 101 Nev. 654, 707 P.2d 1149 (1985).
[Headnote 5]
Farmers argues that the district court erred by interpreting the OTHER APPLICABLE
INSURANCE CLAUSE to mean that the $30,000/$60,000 limitations of the Maleskis' two
other automobile insurance policies (Mustang and Ranchero) were applicable to the Ford
Ranger accident. Farmers claims that before these policies can apply and trigger a
replacement of limitation amounts, the two policies must first provide coverage for the
accident. This position rests upon the premise that each Farmers policy at issue insures only
a particular vehicle and not an individual driver.
policy at issue insures only a particular vehicle and not an individual driver.
We agree. The exclusionary language clearly states that bodily injury coverage is not
provided for injuries occurring in a vehicle other than your insured car. Your insured car is
defined in the definitions section as [t]he vehicle described in the Declarations of this
policy. We conclude that this language plainly limits liability by those amounts appearing in
the insurance contract covering the accident vehicle. Therefore, the only policy that provided
coverage for the Ford Ranger accident was the Ford Ranger contract. The Mustang and
Ranchero policies did not provide coverage benefits.
[Headnote 6]
Consistent with this position, we cannot conclude that these same two policies (Mustang
and Ranchero) were applicable for substitution of limitations purposes described by the
OTHER APPLICABLE INSURANCE CLAUSE. The language of the policy does not allow
the insureds to increase the listed policy limits simply because they have separate and more
fruitful Farmers coverage.
In Shefner v. Illinois Farmers Ins. Co., 611 N.E.2d 626 (Ill.App.Ct. 1993), the Illinois
Court of Appeals recently examined this issue and held in favor of the insurer. There, the
Shefners owned two vehicles insured by Farmers Insurance Company. The two policies were
identical except for the fact that the Shefners' Skylark had uninsured policy limits of $50,000
and their Corsica had uninsured policy limits of $100,000. While driving in the Skylark, the
Shefners were involved in a collision with an uninsured driver. Relying upon contract
language identical to that at issue in the instant case,
1
the Shefners argued that they were
entitled to replace the $50,000 limitations appearing in the accident vehicle's policy (Skylark)
for the $100,000 limits appearing in their other Farmers Insurance Company policy (Corsica).
They would therefore be able to reap higher uninsured motorist benefits from the
non-accident vehicle's policy.
The Illinois Court of Appeals rejected the argument, reasoning that the contract language
unambiguously required that the other insurance policy {Corsica) provide coverage before a
replacement of higher payout limitations was available:
__________

1
Paragraph number five of the Shefners' policy stated:
5. If any applicable insurance other than this policy is issued to you by us or any other member company
of the Farmers Insurance Group of Companies, the total amount payable among all such policies shall not
exceed the limits provided by the single policy with the highest limits of liability.
Id. at 628.
insurance policy (Corsica) provide coverage before a replacement of higher payout limitations
was available:
Paragraph No. 5 [the OTHER APPLICABLE INSURANCE CLAUSE] limits plaintiffs'
recovery to the highest amount provided by any applicable insurance policies defendant
[Farmers] issued plaintiffs. Thus, if both policies apply to the accident, plaintiffs may
elect the $100,000 coverage of the Corsica policy. Plaintiffs' argument begs the
question central to this casewhether the Corsica policy is applicable here. The issue
is not whether plaintiffs may stack two applicable policies, but whether both policies
are applicable.
Id. at 629 (emphasis in original).
In light of this conclusion, the Shefner court then examined other pertinent policy language
informing the insured that coverage was not provided for a vehicle other than your insured
car. Id. Based thereupon, the court held that the policies at issue only provided coverage to
the vehicle and not the driver. The Corsica was not the accident vehicle, the Corsica policy
did not provide coverage, and therefore the Corsica policy did not fall within the language of
the OTHER APPLICABLE INSURANCE CLAUSE. Consequently, the Shefners could not
replace the lower limitation amount appearing in the Skylark policy ($50,000) for the higher
figure in the Corsica insurance contract ($100,000), Id. at 632.
In addition to the foregoing analysis and authority, our conclusion is also supported by
public policy considerations. If we were to accept the co-respondents' claims on appeal, the
practical effect would allow the Maleskis to obtain higher coverage benefits merely because
they insured more than one car with Farmers. Surely, the language of the insurance contract
and the expectations of the respective parties could not contemplate such an unreasonable
result. See Rando v. Calif. St. Auto. Ass'n, 100 Nev. 310, 316, 684 P.2d 501, 505 (1984)
(referencing same public policy considerations in prohibiting stacking of liability insurance
coverage).
As a final point requiring some consideration, both Stonik and the Maleskis cite this
court's opinion in Torres v. Farmers Insurance Exchange, 106 Nev. 340, 793 P.2d 839 (1990),
for the position that the OTHER APPLICABLE INSURANCE CLAUSE is ambiguous. In
light of this alleged ambiguity, co-respondents assert that the coverage limitations were
properly expanded by the district court.
Reliance on Torres is misplaced. In Torres, this court held that an anti-stacking
endorsement was invalid for the purposes of NRS 6S7B.145{1).
NRS 687B.145(1).
2
Although the Torres court considered language identical to the language
at issue here, the factual climate of the decision is fundamentally different from the case at
bar. In Torres, this court was examining an uninsured motorist anti-stacking clause in light of
a specific statutory requirement. In addition, the court was interpreting an exclusion or a
prohibitory clause of an insurance contract.
Conversely, the clause at issue in this appeal deals with liability coverage and is not
specifically governed by the requirements of a Nevada statute. Moreover, unlike uninsured
motorist coverage, there is a Nevada common law prohibition against liability insurance
stacking. As reasoned above, the same public policy considerations against stacking liability
coverage militate against expanding coverage benefits in the instant case. Finally, the clause
at issue in this appeal is not a prohibitory clause. Rather, co-respondents are attacking the
OTHER APPLICABLE INSURANCE CLAUSE to give the particular language effect and
expand limitation amounts. Unlike the litigants in Torres, the Maleskis and Stonik do not
seek a part and parcel invalidation of the OTHER APPLICABLE INSURANCE CLAUSE.
The point of this analysis is to convey that the Torres decision is inapposite. In the absence
of any controlling authority, we conclude that co-respondents cannot evade the limitation
amounts appearing in the Ford Ranger insurance contract. Our conclusion is supported by a
plain reading of the policy language and public policy rationale.
In accordance with the foregoing, we reverse the lower court's summary judgment ruling.
Coverage limits for the Maleskis' accident were established by the $15,000/$30,000 figures
appearing in the Ford Ranger insurance contract.
____________
110 Nev. 70, 70 (1994) In re Birmingham
In re: Petition of MARK BIRMINGHAM to Waive SCR 67(2).
No. 23231
January 21, 1994 866 P.2d 1150
Petition for waiver of SCR 67(2) and for admission to the practice of law in the State of
Nevada.
Law school graduate petitioned for waiver of rule that applicant who has been once denied
admission to bar for failure to meet necessary character requirements may not apply
again, and for admission to practice law.
__________

2
NRS 687B.145(1) enables an insurer to prohibit stacking of uninsured motorist coverage benefits if the
anti-stacking language is clear and prominently displayed in the policy.
meet necessary character requirements may not apply again, and for admission to practice
law. The supreme court, Springer, J., held that graduate had clearly and convincingly
demonstrated full and complete rehabilitation from involvement in conspiracy to distribute
marijuana.
Petition granted.
Steffen, J., and Rose, C. J., dissented.
Mark K. Birmingham, In Proper Person, for Petitioner.
Ronald D. Alling, Chairman, Board of Bar Examiners, Leonard I. Gang, Bar Counsel and
Rosalie Small, Executive Director, Las Vegas, for State Bar of Nevada.
Attorney and Client.
Bar applicant would be admitted to practice of law, upon compliance with any unsatisfied requirements for admission, even
though he had pled guilty to federal charge of conspiracy to distribute marijuana and served time in prison, where applicant clearly and
convincingly demonstrated full and complete rehabilitation.
OPINION
By the Court, Springer, J.:
Petitioner Birmingham is a pilot and in 1983 he admittedly was involved in a scheme to smuggle marijuana into this country from
South America. He voluntarily withdrew from this illicit activity and entered law school. While he was in law school, his past caught up
with him, and he was arrested by federal officials. He pleaded guilty to a federal charge of conspiracy to distribute marijuana and was sent
to prison. Because of his cooperation with law enforcement, he was placed on early parole in February of 1989. While on parole,
Birmingham returned to law school and was able to graduate in May of 1990, whereupon he took the Nevada Bar Examination and passed
it.
Birmingham was discharged from parole on March 12, 1991. After hearings conducted in May of 1991 and July of 1991, the State
Board of Bar Examiners recommended to this court that we admit him to the practice of law. On October 25, 1991, in a written order, this
court refused to accept the Board's recommendation for Birmingham's admission and questioned the Board's conclusion that Birmingham
possessed the suitable moral character that would qualify him to be numbered among those licensed to practice law in this state. We did,
however, at the same time, also conclude that, in the light of Birmingham's commendable efforts to overcome past
mistakes, we would accord serious future consideration to an appropriately documented petition for a waiver
of SCR 67{2).
same time, also conclude that, in the light of Birmingham's commendable efforts to overcome
past mistakes, we would accord serious future consideration to an appropriately documented
petition for a waiver of SCR 67(2).
1

Having reviewed the instant petition and the record on file before this court, the members
of this court have all concluded that Birmingham has at this time clearly and convincingly
demonstrated full and complete rehabilitation. See In re Belsher, 689 P.2d 1078, 1083 (Wash.
1984) (prior criminal conduct adds to applicant's burden by requiring convincing proof of full
and complete rehabilitation). As the Dissenting Opinion notes, none of the members of this
court are any longer worried about whether Birmingham is of suitable moral character. No
one, including the dissenting justices, questions Birmingham's suitability to be a lawyer or
considers him to be a threat to the public in the form of unethical or criminal behavior.
Justices Steffen and Rose dissent solely upon the ground that Birmingham's admission will
discretely add to a significant and enduring increase in public distrust of the legal profession.
We understand how it is that Justices Rose and Steffen might consider Birmingham's
conspiracy to distribute marijuana to be so extremely serious as to disqualify him forever
from practicing law and understand their belief that to admit him to practice law would
permit further erosion of public respect for the profession. This is their own, personal moral
judgment, and they are certainly entitled to make this stern judgment. In light, however, of the
two dissenting justices' frank recognition of Mr. Birmingham's many positive
accomplishments since the commission of his criminal offenses, the number and magnitude
of his achievements, their express confidence in Mr. Birmingham's rehabilitation and,
perhaps most significantly, Justice Steffen's and Chief Justice Rose's belie[f] that he will
distinguish himself in the practice of law, we, in the majority, believe that the Board's
position is more reasonable than theirs and that Birmingham's isolated dereliction, ten years
ago, should not brand him forever. Birmingham is not a serial killer or a predator on the
estates of aged widows. When he was a young man he improvidently tried to make a quick
buck, even, perhaps, as Justices Steffen and Rose maintain, at the expense of marijuana
victims who have suffered and will suffer, at least in part, from Birmingham's crimes.
(Steffen-Rose Dissent at 3.) None in the Majority, in any sense, minimizes the seriousness of
conviction of a federal offense of conspiracy to distribute marijuana, but this does not
mean that we have to reject the Board's recommendation of approval, based entirely on
this past conviction.
__________

1
SCR 67(2) provides that an applicant who has been once denied admission for failure to meet the necessary
character requirements shall not thereafter be permitted to apply for admission.
distribute marijuana, but this does not mean that we have to reject the Board's
recommendation of approval, based entirely on this past conviction.
The Board, having given hours, even days, to this matter in the form of investigations and
hearings, is in a better position than we are to pass judgment on the question of whether
admitting Mr. Birmingham to practice law is so destructive of Public confidence in the bar
as a whole as to require denying him membership in the Bar. Although we respect the right
of Chief Justice Rose and Justice Steffen to be particularly strict when it comes to drug
conspirators, we hold that there is insufficient reason in this case to reject the Board's
favorable recommendation and to exclude Mr. Birmingham solely upon the ground of his past
conviction and the dissenting Justices' perceptions that his admission would substantially
diminish public confidence in the bar as a whole.
We grant Mr. Birmingham's petition; and we direct the State Bar of Nevada to admit Mark
K. Birmingham to the practice of law in this state upon his compliance with any heretofore
unsatisfied requirements for admission.
Steffen, J., with whom Rose, C. J., joins, dissenting:
I agree with the majority and the Board of Bar Examiners that Mark Birmingham has
demonstrated rehabilitation. Moreover, I have little objective cause to doubt that Mr.
Birmingham will perform responsibly as a lawyer. In any event, since he is being admitted to
the Nevada bar by a majority of the members of this court, I regret that I must register my
dissent to his admission.
This court has previously recognized the two-fold purpose of lawyer discipline. In the case
of In re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976), we stated that the fundamental
objective of disciplinary action . . . is not additional punishment of the attorney but rather to
protect the public from persons unfit to serve as attorneys . . . and to maintain public
confidence in the bar as a whole.' Id. at 255, 549 P.2d at 329 (quoting In re Ford's Case, 149
A.2d 863, 864 (N.H. 1959)) (emphasis added). See also State Bar of Nevada v. Claiborne,
104 Nev. 115, 219, 756 P.2d 464, 531 (1988). Although this is not a case involving the
discipline of a licensed attorney, the twin objectives of lawyer discipline have equal
significance in qualifying applicants for admission to the bar. SCR 51, which addresses the
qualifications of applicants for examination, states at subsection (4) that an applicant must
demonstrate good moral character and willingness and ability to abide by high ethical
standards required of attorneys.
The Washington Supreme Court has recognized the common purpose underlying
proceedings to reinstate suspended or disbarred attorneys and to initially screen persons who
seek admission to the practice of law. In both cases, the fundamental concerns include
protecting the public from unethical behavior, preserving public confidence in the judicial
system and legal profession, and fairness to the applicant. See In re Belsher, 689 P.2d 1078,
1082 (Wash. 1984).
As noted above, I have no reason to question the judgment of those who have concluded
that Mr. Birmingham will not pose a threat to the public in the form of unethical or criminal
behavior. I dissent solely upon the ground that Birmingham's admission will discretely add to
a significant and enduring increase in public distrust of the legal profession.
Assuming, as I do, that the judiciary and legal profession must bear the primary
responsibility for reversing the trend of public disrespect for attorneys, then judges and
lawyers must be at the forefront of measures designed to achieve that objective. I suggest,
most reluctantly, that today's action by the majority is counterproductive when exposed to the
stark realities of a cost-benefit analysis. Accepting, as I do, the premise that public confidence
in the legal profession is preeminent among a complex of factors this court must consider, it
seems axiomatic that it is usually better to exclude rehabilitated ex-felons from the practice of
law than to permit further erosion of public respect for the profession by authorizing their
admission to the bar.
I realize that the aforementioned premise denies, to an extent, individual justice to a
rehabilitated and repentant ex-felon. It must be remembered, however, that Birmingham
elected to pursue his criminal endeavors. They were not forced upon him. During the years
1982 and 1983, Birmingham piloted a small aircraft to and from South America for the
purpose of smuggling contraband into the United States. He would fly from a small airport
near New Orleans to the South American country of Belize, where he would pick up a cargo
of 250-275 pounds of marijuana for delivery to several small airstrips in this country.
Although Birmingham eventually abandoned his criminal enterprise, he did not voluntarily
reveal his crimes to law enforcement authorities. After his apprehension, he served sixteen
months of a four-year sentence, and was then given an early release on parole in February of
1989. He successfully completed his parole on March 12, 1991, and was discharged.
Birmingham's crimes were extremely serious. He was instrumental in supplying huge
quantities of marijuana for distribution in the United States. There is no way of telling how
many lives, especially among our youth, were destroyed or devastated by the drugs flown into
this country by our new admittee to the legal profession.
profession. The full extent and nature of the consequences resulting from the hundreds or
thousands of pounds of marijuana smuggled here by Birmingham can never be measured.
Moreover, we will never know the names or the number of victims, past and future, that have
suffered and will suffer, at least in part, from Birmingham's crimes. Birmingham will now
turn to the practice of law, but his victims will continue to mount in the years to come.
I readily admit that I speak from the perspective of past generations, and that times have
changed. To illustrate the point, I refer the reader to an article entitled Hijinks That Can
Haunt Your Life appearing in the Readers Digest dated June 1965. The author, Jerome M.
Lasky, was a judge on New York's Nassau County District Court who had made a special
study of youthful lawbreakers. The article referred to a young college student who had
accidentally knocked over a marker at Jones Beach, although he was with a group of students
who had been deliberately taunting an officer by knocking over signs as soon as the officer
turned his back. The student's father, despite his son's innocence, advised the son to pay the
fine rather than lose time from school in fighting the charge at a trial. After noting why the
boy was pleading guilty, the story as related by Judge Lasky continued as follows:
What kind of career do you hope to have? I asked. I plan to be a lawyer, he replied.
I refused to accept his plea, explaining that it would be tantamount to a conviction and
could have grave consequences for his future. While your friends from law school are
hanging out their shingles, you'll still be explaining your record to the character
committee of the bar, I told him.
Too many young people today are woefully unaware of the harm that a police record for
a seemingly petty violationresulting in a fine or suspended sentencecan do to their
lives. When, in a moment of irresponsibility, they step over the line between
high-spirited fun and legal offense, they fail to consider that the results can be
disastrous.
. . . .
If you have a police record it can be difficult, in some instances impossible, to go
into any business or profession where a special license is required, such as law or
real-estate brokerage.
I burden this dissent with the quoted material in order to illustrate how far we have gone in
tolerating serious criminal records on the part of those who are accepted in the legal
profession. I suggest that if we continue to permit rotten apples (I regret the metaphor even
as I write it, for in no real sense is Mr.
sense is Mr. Birmingham either rotten or incapable of positive contribution to the legal
profession in particular and society in general) in the barrel, the overall quality of the apples
will continue to suffer. We can selectively show compassion for the rehabilitated ex-felon and
admit him or her to the practice of law, but I seriously question whether, in so doing, we can
concomitantly hope to enhance public respect for the profession, especially where the
admittee has been involved in crimes of violence or the supplying or sale of substantial
quantities of illicit drugs.
Mr. Birmingham was discharged from parole slightly less than three years ago. Under
Nevada law, he is ineligible for public office, may not vote or own or possess a firearm. The
foregoing disabilities of an ex-felon whose civil rights have not been restored by the proper
pardoning authority reflect the seriousness with which our society views the commission of
felony crimes. We have not been informed that Birmingham has been pardoned and received
the restoration of his civil rights, so I must assume, especially in light of his comparatively
recent discharge from parole, that he has not yet obtained such relief. This is significant in
that society withholds from Birmingham the cherished rights to vote, hold public office and
bear arms, but we conclude that he is qualified to be clothed with the public trust invested in
attorneys.
I suggest that the court's action today also undermines the values and policy reflected in
SCR 67(2), which provides that an applicant who has been once denied admission for failure
to meet the necessary character requirements shall not thereafter be permitted to apply for
admission. The values underlying Rule 67(2) obviously include that of sound moral character
as revealed by the applicant's background. The policy implicated by the rule is that of
maintaining public confidence in the state bar. Obviously, had the rule not contemplated a
permanent disqualification based upon an applicant's unacceptable character qualifications, it
would not have been adopted in its present form.
It may be of value to note various comments concerning the reported state of the legal
profession today. The ABA Journal of September 1993, noted a survey of lawyers taken last
year indicating that improving the standing of the [legal] profession in the eyes of the public
[was] one of the highest priorities they want[ed] the ABA to address. The article also
observed that
there [is not] much comfort in a comparison with the public's overall view of other
professions. Compared to lawyers' favor-ability rating of 40 percent, teachers received
84 percent; pharmacists, 81 percent; police officers, 79 percent; doctors, 71 percent;
accountants, 60 percent; and bankers, 56 percent. The only other professions in the
survey that tested with less than majority favorable feelings were stockbrokers (28
percent) and politicians (21 percent).
The public survey also revealed that barely one in five (22 percent) said the phrase honest
and ethical' describes lawyers. Nearly twice as many (40 percent) said this description does
not apply. The survey also disclosed that
[a]lmost half (48 percent) of those surveyed said that as many as three in 10 lawyers
lack the ethical standards necessary to serve the public, which matches exactly the
proportion who say the same thing about auto mechanics. On the ethics measure, the 48
percent rating for lawyers far exceeds the proportion who feel dishonesty is a problem
for accountants (22 percent), doctors (28 percent), and bankers (30 percent).
Gary A. Hengstler, Vox Populi, ABA Journal, September 1993, at 60-62.
A recent article published in USA Today stated, in part:
Public opinion of lawyers keeps falling. Lawyer jokes are popular and advertisers,
such as Miller Brewing, air TV commercials showing rodeo cowboys lassoing
briefcase-carrying lawyers. Meanwhile, a National Law Journal poll this year says
lawyers are increasingly seen as dishonest, greedy and selfish. The number of people
who said lawyers are less honest than most people rose to 31% from 17% in 1986; 73%
said there are too many lawyers, up from 55%. America's perception of the legal
profession has clearly taken a turn for the worse, says editor Doreen Weisenhaus.
Finally, a recent article in The National Law Journal alarmingly, but not surprisingly,
entitled Anti-Lawyer Attitude Up stated in part:
AMERICANS' cynicism toward lawyers is growing, presenting a deepening image
crisis for the legal profession.
. . . .
The findings support the widely held perception that resentment of lawyersranging
from lawyer-bashing jokes to outright vilificationis running at a fever pitch. And it is
especially high among better-educated, higher-wage earners in society.
Although a slim majority of Americans, 52 percent, said their image of lawyers has
stayed the same, a startling 36 percent said it has gotten worse, and only 8 percent
said it has improved.
Randall Samborn, Anti-Lawyer Attitude Up, The National Law Journal, August 9, 1993, at 1.
The distillate of the above statistics, evaluations and conclusions, consonant with my own
sense of the public pulse, is that the legal profession is in urgent need of rehabilitation.
the legal profession is in urgent need of rehabilitation. The venerable profession of the law is
in need of a mass transfusion of public respect. The transfusion will not be immediate or
certain, but certain it is that historically the profession has contributed greatly to the cherished
values of our society, and the goal of helping to restore its rightful luster should be our
commitment.
Although I regret the prospect of being viewed as unforgiving or uncaring, I am
nevertheless compelled to withhold my approval from Mr. Birmingham's request for
admission to practice law in the State of Nevada. I consider the denial of his admission,
however difficult, better than the prospect of discretely promoting a deepening and
foreboding public disrespect for the legal profession.
For the reasons noted above, I respectfully dissent.
1

____________
110 Nev. 78, 78 (1994) PETA v. Bobby Berosini, Ltd.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS aka PETA, a Delaware
Non-Profit Corporation; PERFORMING ANIMAL WELFARE SOCIETY, aka
PAWS, a California Non-Profit Corporation; JEANNE ROUSH, OTTAVIO
GESMUNDO, and PAT DERBY, Appellants, v. BOBBY BEROSINI, LTD., a
Nevada Corporation, and BOHUMIL BEROUSEK, aka BOBBY BEROSINI,
Individually, Respondents.
No. 21580
January 27, 1994 867 P.2d 1121
Appeal from a money judgment based on respondents' claims of defamation and invasion
of privacy (intrusion upon seclusion and appropriation of name or likeness). Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Animal trainer brought suit against animal rights organizations and individuals alleging
defamation and invasion of privacy from showing and distribution of videotape made while
trainer prepared animals for show. The district court entered money judgment in favor of
animal trainer. The supreme court, Springer, J., held that: (1) distributing and showing
videotape to the public was not false or defamatory; (2) commenting publicly that videotape
depicted trainer regularly abusing animals was protected opinion; {3) no tortious
intrusion occurred; and {4) animal trainer failed to state claim for tortious appropriation.
__________

1
I am not unaware of Mr. Birmingham's many positive accomplishments since the commission of his criminal
offenses. Indeed, the number and the magnitude of his achievements have made the production of this dissent
both reluctant and regrettable. Although I have strongly felt the need to dissent for what I perceive to be the
good of the legal profession, I nevertheless again express confidence in Mr. Birmingham's rehabilitation, and in
fact have good reason to believe that he will distinguish himself in the practice of law.
tape depicted trainer regularly abusing animals was protected opinion; (3) no tortious
intrusion occurred; and (4) animal trainer failed to state claim for tortious appropriation.
Reversed.
Opinion withdrawn. PETA v. Bobby Berosini, Ltd., 111 Nev. Advance Opinion 36
(April 14, 1995).
[Rehearing granted.]
Hale, Lane, Peek, Dennison & Howard and Robert D. Martin, Las Vegas, for Appellant
Gesmundo.
Hirschkop & Associates, Alexandria, Virginia, for Appellants PETA, Roush and
Gesmundo.
Watkiss & Saperstein, Salt Lake City, Utah, for Appellants PETA and Roush.
Anderson, Pearl, Hardesty, Lyle, Murphy & Stone, Reno, for Appellants PAWS and
Derby.
Gewerter & Bohn, Las Vegas; Thomas Pitaro, Las Vegas; Hibbs, Roberts, Lemons,
Grundy & Eisenberg, Reno, for Respondents.
Woodburn, Wedge & Jeppson and Suellen Fulstone, Reno, for Amicus Curiae Nevada
State Press Association.
Susan Quig-Terry, Las Vegas, for Amici Curiae Humane Society of the United States, et.
al.
Videotape depicting animal trainer disciplining animals back stage immediately before performances was not a false statement
needed to support defamation claim for making and distributing videotape. Tape accurately depicted trainer's conduct.
2. Constitutional law; Libel and Slander.
Statements that animal trainer regularly abused animals, based on videotape depicting trainer's preparations for show, were
opinion statements protected from liability for libel under both State and Federal Constitutions. Disputed statements were merely
evaluative comments based on known facts. Const. art. 6, 4; U.S. Const. amend. 1.
3. Evidence.
Failure of party to produce evidence on issue peculiarly within that party's own knowledge raises presumption that concealed
information is unfavorable.
Statements that rods used by animal trainer to discipline animals were made of steel did not defame animal tamer, even if true.
Trainer disputably struck animals with some type of rod and no particular injury or damages resulted from statements that rod was
made out of steel rather than wood.
5. Torts.
Four species of privacy tort are: unreasonable intrusion upon seclusion of another; intrusion upon name or likeness of another;
unreasonable publicity given to private facts; and publicity unreasonably placing another in false light before the public.
6. Torts.
To recover for tort of intrusion, plaintiff must prove: an intentional intrusion on solitude or seclusion of another that would be
highly offensive to reasonable person.
7. Torts.
In order to have interest in seclusion or solitude which is protected by tort of intrusion, plaintiff must show that he or she had
actual expectation of seclusion or solitude and that expectation was objectively reasonable.
8. Torts.
Animal trainer had no expectation of privacy backstage while preparing animals for performance and, thus, animal trainer failed to
state invasion of privacy tort claim against worker who videotaped trainer striking animals backstage.
9. Torts.
Videotaping animal trainer's backstage discipline of animals was not highly offensive, as needed to state invasion of privacy tort
claim based on intrusion. Videotape did not interfere with animals prior to performance, no significant invasion of privacy occurred,
subject being filmed could be seen and heard by number of people, and motive in making videotape was well-intentioned.
10. Torts.
Common-law appropriation tort involves unwanted and unpermitted use of name or likeness of ordinary, uncelebrated person for
advertising or other such commercial purposes. Appropriation torts seeks to protect individual's personal interest in privacy as
measured in terms of mental anguish from appropriation.
11. Torts.
Right of publicity tort involves appropriation of celebrity's name or identity for commercial purposes. Tort seeks to remedy
economic loss celebrity suffers when someone else interferes with property interest in celebrity's name.
12. Torts.
Allegations that animal trainer's name and photographs were used to raise money for animal rights groups failed to state tort claim
for appropriation of privacy. Animal trainer was public figure and celebrity and was seeking to recover pecuniary gain obtained
through use of animal trainer's name and likeness.
13. Torts.
Complete and exclusive remedy for right of publicity torts are provided by statutory remedy. NRS 598.980-598.988.
OPINION
In this litigation respondent Berosini claims that two animal rights organizations, People for the Ethical Treatment of
Animals {PETA) and Performing Animal Welfare Society {PAWS), and three individuals defamed him and
invaded his privacy.
rights organizations, People for the Ethical Treatment of Animals (PETA) and Performing
Animal Welfare Society (PAWS), and three individuals defamed him and invaded his
privacy. Judgment was entered by the trial court on jury verdicts on the libel and invasion of
privacy claims in the aggregate amount of $4.2 million. This appeal followed. We conclude
that the evidence was insufficient to support the jury's verdict and, accordingly, reverse the
judgment.
The two independent claims, libel and invasion of privacy, each involving clearly distinct
principles of law, will be discussed in separate sections of this opinion.
PART ONE: THE LIBEL ACTIONS
The word libel comes for the Latin Libellus, little book. The legal term derives from the
practice in ancient Rome of publishing little books or booklets which were used by one
Roman in defaming another. The little book in this case takes the form of a videotape
which shows world-renowned animal trainer, Bobby Berosini, backstage before the beginning
of his show, shaking and punching his trained orangutans and hitting them with some kind of
rod. We conclude that the libellus is not libelous.
In a critical pretrial discovery order, the trial court limited Berosini's libel action to two
categories, thus:
1. [T]he [video] tape and its distribution and showing to the public.
2. [T]he alleged statements of Defendants quoted in the Amended Complaint,
namely, that all or some of the Defendants had defamed Berosini by stating that
Plaintiff Berosini regularly abuses his orangutans and has beaten them with steel rods,
all of which is false.
1

__________

1
After entry of the order limiting the libel action to the two mentioned categories, the defendants sought,
through written interrogatories, to have Berosini give more detail as to who did what, and when, with reference
to the defamation charges. Berosini did not respond to these questions to defendants' satisfaction, and the district
court refused to compel him to do so. The court ruled that Berosini need not identify each allegedly [sic]
defamatory statement and further ruled that Berosini would be limited in his proof to those defamatory
statements identified in discovery answers or depositions. We read this latter order to refer to the mentioned,
already-narrowed two categories. This order did not, by its terms, countermand the previous order limiting
Berosini's defamation proof to the video tape and its distribution and to unattributed statements that Berosini
regularly abuses his orangutans and has beaten them with steel rods.
The defendants in this case have repeatedly complained that they have not been put on notice as to which
defendant is claimed to have made what actionable statements to whom. Defendants cannot be expected to
search
The mentioned pretrial order frames the libel issues in this appeal:
1. Were the defendants, or any of them, liable to Berosini by reason of
distributing and showing the mentioned videotape?
2. Were the defendants, or any of them, liable to Berosini by reason of their
having said either, (a) that Berosini regularly abuses his orangutans or (b) that
Berosini has beaten them with steel rods?
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm, or the existence
of special harm caused by the publication.
Restatement (Second) of Torts 558 (1965). Based on the absence of (a), a false and
defamatory statement, we conclude that the two stated questions must be answered in the
negative and that the judgment of the trial court must therefore be reversed.
FIRST LIBEL CLAIM: [T]he tape and its distribution and showing to the public.
[Headnote 1]
It is immediately apparent that the distribution and showing of this particular little
book cannot possibly be either false or defamatory.2 The videotape is not "false" because
it is an accurate portrayal of the manner in which Berosini disciplined his animals
backstage before performances.
__________
through scores of depositions and massive discovery materials to guess just what Berosini had in mind with
respect to each defendant's supposed defamatory conduct. This problem was mitigated considerably, however,
when the trial judge limited the defamation charges to the videotape and to the mentioned charges of regular
abuse and use of a steel rod. In his answering brief, Berosini appears to agree that there are only two allowable
categories of defamation. In opposition to defendants' charges that he had not adequately informed them
concerning the specifics of the defamation claim, Berosini tells us in his brief:
In the present case Berosini specifically alleged the defamatory tapes and the words said to be actionable,
to wit: . . . Defendants have stated that Plaintiff BEROSINI regularly abuses his orangutans and has
beaten them with steel rods, all of which are false.
Although Berosini may have considered some other conduct by one or another of the defendants as being
actionable, in light of the trial judge's limiting order and Berosini's own argument that he did in fact specifically
allege the defamatory items on which he relied, we assume in this appeal that the libel charges are limited to
those covered by the trial judge's order.
false or defamatory.
2
The videotape is not false because it is an accurate portrayal of the
manner in which Berosini disciplined his animals backstage before performances. The
videotape is not defamatory because Berosini and his witnesses take the position that the
shaking, punching, and beating that appear on the tape are necessary, appropriate and
justified for the training, discipline, and control of show animals. If Berosini did not think
that the tape showed him doing anything wrong or disgraceful, he should not be heard to
complain that the defendants defamed him merely by showing the tape.
Appellant Ottavio Gesmundo did the actual taping of Berosini. Gesmundo was a dancer in
the Stardust Hotel's Lido floor show, at which Berosini's animal act was the principal
attraction. Gesmundo claims that he was prompted to videotape Berosini's treatment of the
animals because he had become aware of Berosini's conduct with the animals and thought
that he would be in a better position to put an end to it if Berosini's actions were permanently
recorded on tape. Gesmundo says that he had, on a number of occasions, heard the animals
crying out in distress and that he had overheard thumping noises coming from the area
backstage where the videotaping was eventually done. The area in question was demarked by
curtains which kept backstage personnel from entering the staging area where Berosini made
last-minute preparations before going on stage. By looking through the worn portions of the
curtains, Gesmundo testified that backstage personnel were able to observe the manner in
which Berosini disciplined his animals in the mentioned staging area. Berosini's position is
that his actions depicted on the tape were a proper and necessary manner of treating these
animals.
However motivated, Gesmundo did decide to record Berosini's treatment of the animals on
his eight-millimeter home video recorder. From July 9 through July 16, 1989, Gesmundo
placed his video camera in a place that would permit Berosini's actions to be recorded without
Berosini's being aware of it. Gesmundo would go home each night and transfer that day's
video recording onto a VHS tape. In doing this he would edit out the dead-time, the time
during which Berosini was not within the curtained area preparing to go on stage. The final
tape which Gesmundo put together showed nine separate incidents, with the date
superimposed on the daily taped images.
__________

2
A statement is defamatory when, [u]nder any reasonable definition[,] such charges would tend to lower the
subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to
contempt. Las Vegas Sun v. Franklin, 74 Nev. 282, 287, 329 P.2d 867, 869 (1958).
All of the members of this court have viewed the tape; and what is shown on the tape is
clear and unequivocal: Berosini is shown, immediately before going on stage, grabbing,
slapping, punching and shaking the animals while several handlers hold the animals in
position. The tape also shows Berosini striking the animals with a black rod approximately
ten to twelve inches long. Perhaps Berosini has some explanation or justification for this
conduct; but, the videotape accurately portrays what he was doing to these animals on at least
nine different occasions. Berosini, himself, was forced to admit at trial that there was no
visual inaccuracy in the images represented on the tape. Berosini's counsel and Berosini's
video expert, Dennis Cooper, also agree to the accuracy of what is portrayed on the tape.
There is no credible evidence that Gesmundo altered the tape in any manner that would
render the tape, in any sense of the word, false. Had Gesmundo in some way been able to take
this tape and superimpose false images or sounds, it might be possible to say that he falsified
the tape, but there is no evidence this was the case. There was no evidence presented which
would support a conclusion that the tape, either visually or auditorily, was of itself, false.
3
The tape, of course, has nothing to do with whether Berosini was justified in punishing
the animals; it just shows that he did in fact punish them.
__________

3
Visual accuracy has been conceded and the only possible question is whether the sound was so materially
altered as to render the tape false. The only modification of the tape was done when the tape was transferred
from the VHS format to a three-quarter inch format by a professional video technologist, Alan Kartes. Kartes
testified that in the transfer process he enhanced the amateur video effort by turning up the light and the sound so
that it would more clearly and accurately represent the subject of the taping. Berosini also claims that taking out
the dead time in the manner stated made the tape falsely appear as if the beatings were constant and close
together in time. The consecutively-dated tape clearly shows, however, that the episodes are intermittent in
nature and not one long torture session for the animals. Each episode shows Berosini coming from another
backstage area into the curtained area, and there is no way of mistaking this tape for one, prolonged beating.
None of the defendants ever said or pretended that Berosini engaged in marathon beatings; and there is
nothing in the least misleading about the way the tape was put together. The tape merely shows that Berosini did
(on at least nine consecutive days) regularly beat his animals before they went on stage.
The only other conceivable scenario out of which falsity might be claimed with regard to the videotape itself
would have to be found in Berosini's argument that he was set upthat the animal rights activists were out to
get him and that they teased his animals in order to rile them up and so make it necessary for him to be violent
with the animals in order to control them. When we address this argument we must bear in mind that even if
Berosini's charges were true, it does not mean that the tape itself is in any way false. Berosini can only argue that
even though he was in fact violent with his animals, it was necessary to be violent in order to discipline and
control them. Even if Berosini had been entrapped into beating his animals
The tape, of course, has nothing to do with whether Berosini was justified in punishing the
animals; it just shows that he did in fact punish them. The showing and distributing of this
tape was, plainly and simply, only the showing of this fact. Berosini could have explained, as
he did, that he had to exert violence against the animals in order to discipline them or to get
them quieted down or to ensure the audience's safety, but this has nothing to do with the truth
or falsity of the tape. The distribution and showing of the videotape in no way interferes
with Berosini's right to present possible justifications for his actions. As the distributors of the
tape had the right to show this true tape, so Berosini had the right to explain his actions on the
tape. If in fact some of the defendants had intentionally interfered with Berosini's act and had,
as Berosini claims, provoked the animals to the point that it was necessary for him to do what
he is shown doing on the tape, then, of course, Berosini might have had some tort action other
than a libel action, perhaps a conspiracy action, against persons who, he claims, were
wrongfully and intentionally interfering with his act.
4

Unless the tape had been materially altered to portray something different from what
Berosini was actually doing, then defendants have not made a false statement about
Berosinithey have merely shown to the world how Berosini treated his animals on nine
separate occasions,5 backstage, immediately preceding his act.
__________
by overzealous animal rights activists, this would have no bearing on the truth or falsity of the tape itself. No
matter how one interprets what Berosini was shown to be doing on the tape, the fact remains that the tape does
truly show Berosini beating the animalsregularly.

4
Berosini did try to pursue a conspiracy tort action against the defendants for these activities; however, the
district court dismissed this action prior to trial.
The trial court also dismissed Berosini's false light invasion privacy action, after verdict and judgment. Berosini
has not cross-appealed, so that this tort is not before us. We note also that during the oral argument on this
appeal, Berosini's counsel complained that the tape resulted in Berosini's actions being taken out of context,
which goes to the very essence of the now unavailable false light tort. There are cases indicating that the false
light invasion of privacy may be committed even when the publication is not defamatory. [W]hile a false light
claim may be defamatory, it need not be. Machleder v. Diaz, 801 F.2d 46, 55 (2d Cir. 1986), cert. denied, 479
U.S. 1088 (1987). The false light privacy action differs from a defamation action in that the injury in privacy
actions is mental distress from having been exposed to public view, while the injury in defamation actions is
damage to reputation. Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983). Since the tape itself is not false,
and since the tape itself is not defamatory, clearly no defamation action can arise out of distribution of the tape.
Because the false light tort is not a subject of this appeal, we are not required to decide whether the tort was
committed by any of the defendants in this case.
animals on nine separate occasions,
5
backstage, immediately preceding his act. As the
evidence does not support a conclusion that the tape was visually or auditorily false, we
conclude that Berosini presented insufficient evidence to support the jury's verdict with
respect to this tape.
SECOND LIBEL CLAIM: Berosini regularly abuses his orangutans.
[Headnote 2]
Whether the violence portrayed in the videotape is seen as abuse or proper discipline is a
matter of wide-ranging difference of opinion among the witnesses in this case and within the
public in general. There is no doubt that at the time the tape was first shown in Las Vegas on
June 28, 1989, some of the present defendants did comment publicly on the videotape's
content. One example is found in Berosini's response to interrogatories, in which he testified:
Beginning on July 28, 1989, and continuing thereafter, [defendant] Jeanne Roush
appeared on local television and wrongfully stated that the Plaintiff abuses his
animals and beats them severely.
The testimony at trial exhibited a very wide spectrum of opinion as to whether Berosini's
actions constituted abuse or was proper and acceptable disciplinary action. For example, one
of Berosini's experts, Kenneth Gould, Ph.D., a professor at Emory University, whose Primate
Center provided orangutans for Berosini's use, testified that the beatings portrayed in the
videotape show appropriate and necessary action on his part with regard to discipline of
animals under his control. Berosini claimed that extra disciplinary measures were required
because certain stage hands and performers had been making monkey sounds and were
hissing and making giggling sounds. According to Berosini, these taunting sounds
(which, incidentally, are not detectable on the tape), agitated the animals and required him to
exert additional force on the animals in order to secure the safety of his audiences. Whether it
was more prudent for Berosini to have tried to put a stop to the supposed teasing or, as he
appears to have done, to escalate his pre-act violence on the animals, is also a matter of
opinion; and, again, whether the beatings portrayed in the tape are justified or constitute
animal abuse is a matter involving a broad spectrum of opinion, lay and expert.
__________

5
Bobby Berosini, Berosini's son, testified that he had seen his father strike the animals with a black rod at times
other than those during which Berosini was being filmed by the Gesmundo camera.
The animal rights activists all see Berosini's treatment of his animals as cruel and abusive,
an opinion shared by the defendants in this case. Jane Goodall, Ph.D., Director of the Gombe
Stream Research Centre and expert in primate behavior viewed the tape in this manner:
In this video, I saw the following sequence of events: A door opened and five men,
each leading a young orang by one hand, walked along a bare passage towards the
(presumably concealed) camera. With these ten primates was a sixth man, wearing a
bow tie. At the end of the passage the whole group stopped. The orangs, still standing
upright, appeared quiet and well behaved. I saw no signs of disobedience in any of them
at any time. Yet as they stood thereapparently waiting to go onstage for a
performancethe man in the bow tie began to abuse the orangs. Suddenly he would
seize one of them by its hair and pull and push it towards and away from him with
violent movements. He would slap one of them, or punch it with his fist. Most of the
abuse was directed towards the larger orangs. Once he pulled one round to face him,
then slapped it hard over the muzzle. Occasionally he hit one of them over the
shoulders with a heavy implement, shaped like a conductor's baton.
During these entirely unprovoked assaults the handlers restrained the orangs by both
arms, holding them upright. They gave the impression that they were expecting the
abuse and positioning their charges in readiness to receive it.
Dr. Goodall was of the opinion that what she saw on the videotape involved severe
psychological cruelty as well as physical abuse, and recommended that the five orang-utans
depicted in the videotape be confiscated immediately and placed in the hands of caring and
responsible people who could try to cure them of their psychological (and perhaps physical)
wounds.
Obviously, there are persons who disagree with Dr. Goodall and who approve of this kind
of violence in the training of animals. Berosini, himself, testified that in his opinion it is often
necessary to hit an orangutan to keep it under control. Although Berosini may be entitled to
hold his own opinion on these matters, he does not claim that the defendants in this case or
their experts did not honestly and sincerely hold the contrary opinion that the violence
portrayed on the videotape constituted animal cruelty and abuse.
6

__________

6
Some of Berosini's own witnesses also believed that the tapes disclosed untoward behavior on the part of
Berosini. For example, Lewis McKeen, Stardust stage manager, said that the tapes looked like Mr. Berosini
was . . . hurting the animals . . . . Berosini himself admitted that his conduct on the videotape looks like a
vicious beating. Any viewer of this tape is entitled
The opinion expressed by any defendants or by any of defendants' witnesses in this case
that Berosini's activities, as represented in the videotape, constituted abuse or cruelty falls
squarely into a class of opinion described by Prosser and Keeton as evaluative opinions.
Prosser and Keeton on Torts 814 (W. Page Keeton, ed.; 5th ed. 1984). An evaluative opinion
involves a value judgment based on true information disclosed to or known to the public.
Evaluative opinions convey the publisher's judgment as to the quality of another's behavior
and, as such, it is not a statement of fact. Under the Restatement (Second) virtually all
evaluative only' opinions would be nonactionable, since they are by definition based on
disclosed facts . . . . The statement that Jane Doe did not deserve the Oscar for her movie
role because it was a shallow, two-bit, hack performance' is not actionable even in the face of
ironclad proof that every other living being who has ever seen the movie loved the
performance. Rodney A. Smolla, Law of Defamation 6.05[2], page 6-20 (1988) (citations
omitted). The divergent evaluative opinions expressed in this case now before us are subject
to debate. Neither is right or wrong.
In the present case, everyone involved has seen the movie; and all the facts upon which
opinions were based were disclosed in the videotape itself. Those who were of the opinion
that Berosini was being abusive to the animals were making an evaluative judgment based on
the facts portrayed in the video. All viewers of that video are free to express their opinion on
the question of whether they think Berosini was being cruel to those animals, and no one can
be successfully sued for expressing such an evaluative opinioneven if it is wrong. There
is no such thing as a false idea or a wrong opinion. See Nevada Ind. Broadcasting Corp. v.
Allen, 99 Nev. 404, 410, 664 P.2d 337, 341-42 (1983).
We are dealing here with two very strongly held, contrary opinions on how animals should
be treated. We agree completely with amicus, Nevada State Press Association, Inc., that
[w]ithout taking sides on the activities or the strongly-held beliefs of either party, it is
nevertheless clear that open and robust debate on controversial and contested issues of this
kind could not long survive a succession of such multi-million dollar judgments. We believe
that open and robust debate should be encouraged in Nevada and not deterred by what has
appeared to appellant Gesmundo and others as a "slap" suit {a law suit whose principal
intent and purpose is not to settle a legitimate dispute but to terrorize those who wish to
involve themselves in public issues such as this one).
__________
to the opinion that Berosini ab-used, that is to say, used the animals in an improper and wrongful manner.
There can be no clear and universally accepted definition of animal abuse, and the line between proper treatment
and improper treatment and abuse is indistinct.
Gesmundo and others as a slap suit (a law suit whose principal intent and purpose is not to
settle a legitimate dispute but to terrorize those who wish to involve themselves in public
issues such as this one).
7

Finally, the constitutional privilege provided by the Nevada Constitution protects the
animal rights activists from defamation liability in this case. Article 1, section 9, of the
Nevada Constitution provides that [e]very citizen may freely speak, write and publish his
sentiments on all subjects, being responsible for the abuse of that right. Citing to the Nevada
Constitution, in Culinary Workers Union v. Eighth Judicial Dist. Court, 66 Nev. 166, 207
P.2d 990 (1949), this court observed that the constitutional right to free speech . . . embraces
every form and manner of dissemination of ideas held by our people. Id. at 173, 207 P.2d at
993. Free speech . . . must be given the greatest possible scope and have the least possible
restrictions imposed upon it, for it is basic to representative democracy. Id. at 173, 207 P.2d
at 994 (citations omitted). In Culinary Workers, the district court issued a restraining order
against peaceful picketing. The Culinary Workers Union sought a writ of prohibition
countermanding the restraining order. One of the grounds asserted by the parties opposed to
the Culinary Workers Union's application for the prohibition writ was that the unfair sign
used on the picket line was untruthful. Id. at 176, 207 P.2d at 995 (citations omitted). With
regard to the Culinary Workers Union's use of the word unfair on picket signs, this court
ruled in Culinary Workers, that [s]uch normal statements or claims which in general convey
the idea that a business is unfair to organized labor' are no more than statements of
opinion and are not subject to judicial restraint. Id. at 177, 207 P.2d at 995.
Any of the defendants in this case who might have said that Berosini's videotaped beatings
were abusive are in a very similar position to the Culinary Workers Union members in
Culinary Workers who called an employer unfair. The existence of the undisputed fact of
the videotaped beatings makes the statements of "defendants" about what is seen on the
tape merely evaluative comments based on known facts.
__________

7
Gesmundo argues, quite credibly, that once it was firmly established that the tape was not false, Berosini
should have dropped the lawsuit and not have pursued it based on defendants' having stated their opinions that
the tape portrayed abuse. Gesmundo points out in his brief that when Berosini first filed his complaint, he
alleged that the videotape was altered and distorted and that the actions depicted in the tape did not occur. By
trial time, Berosini admitted that the tapes were visually accurate and tried to excuse his conduct. At this point,
Berosini should have realized that he did not have a libel suit based on the mere expression of opinion arising
out of the true facts portrayed on the tape. Whether this is or is not a slap suit, deterrence of the free
expression of ideas and opinions by the filing of lawsuits should not be tolerated.
ments of defendants about what is seen on the tape merely evaluative comments based on
known facts. [A] statement of opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full constitutional protection under
the federal constitution, as well as under the Nevada Constitution as interpreted in the
Culinary Workers case. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). The libel
judgment, based on the statement Berosini regularly abuses his orangutans, therefore, must
be reversed on constitutional as well as common law grounds.
THIRD LIBEL CLAIM: Berosini has beaten them with steel rods.
With regard to the allegedly false statements made by defendants that Berosini has beaten
[the orang-utans] with steel rods, we have something that comes a little closer to being a
statement of fact that might be subject to being characterized as either true or false. The
statement that Berosini has beaten them with . . . rods is obviously a true statement; it is on
tape. That he has beaten them with steel rods is not necessarily true; and, if some defendant
did accuse Berosini of using a steel rod, then perhaps a false statement of fact has been made
about the kind of instrument Berosini used to beat the animals.
[Headnote 3]
Although Berosini says that he used a taped wooden rod and admits that he hit the animals
from time to time with such a rod, none of these rods was produced by Berosini at the trial.
Berosini lost or destroyed whatever kind of rod or rods he is shown on the video tape to be
using to hit the animals. The chastening rod was lost somehow after this litigation was in
progress. Berosini bore the burden below of proving that the statement was false. Posadas v.
City of Reno, 109 Nev. 448, 453, 851 P.2d 438, 442 (1993).
8
Furthermore, the failure of a
party to produce evidence on an issue peculiarly within his own knowledge raises an
inference that the concealed information is unfavorable. Isola v. Sorani, 47 Nev. 365, 368,
222 P. 796, 797 (1924); State of Nevada v. McLane, 15 Nev. 345, 369 (1880); see also Nev.
Tax. Com. v. Hicks, 73 Nev. 115, 129, 310 P.2d 852, 859 (1957).
[Headnote 4]
The statement that the rod was steel and was taped with black tape originates with
Gesmundo.
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8
Berosini filed a motion for leave to file supplemental citation of authority with this court based upon the recent
Posadas opinion. We have already considered Posadas and therefore deny Berosini's motion.
tape originates with Gesmundo. Two different stage hands told Gesmundo that Berosini was
using a steel rod to beat the animals. Gesmundo told a number of animal rights people that
the rod was made of steel. Although we view the question of what the rod was made of to be
largely immaterial, we did note in watching the video that in the July episode, Berosini
dropped whatever kind of rod it was that he had in his hand, and we heard an unmistakable
ringing sound that sounded strikingly similar to a steel rod being dropped. We certainly do
not conclude from our own viewing of the tape that Berosini was lying or that the rod was
steel rather than wood, but hearing this sound makes the listener wonder whether the lost rod
or rods were what Berosini claimed them to be.
One's saying that the rods with which Berosini is shown striking the animals are steel rods
is not in itself defamatory. Once we all know (and see on television) that Berosini strikes his
animals with some kind of black rod, it is unlikely that we would change our opinion or have
a more derogatory opinion against him based on the rods' being steel rather than wood. See
Las Vegas Sun v. Franklin, 74 Nev. 282, 287, 329 P.2d 867, 869 (1958). We do not have to
reach the question as to whether proof is sufficient to prove falsity in this regard, because,
true or false, saying that Berosini beats his animals with steel rods is not, as a matter of law,
defamatory under the circumstances of this case. The composition of the rods is of little
moment; if the rods were wooden, saying that they were steel does not defame Berosini.
None of the Berosini witnesses attributed any particular injury or damages to Gesmundo's
statements that the rod was made out of steel rather than wood. A libel judgment of the
present magnitude, based solely on a charge that defendants falsely accused Berosini of using
a tape-wrapped steel rod instead of a tape-wrapped wooden rod cannot possibly stand.
We conclude that publication of the videotape itself, is not libelous. Any statements made
by unspecified defendants to the effect that Berosini regularly abuses his orangutans are,
given the context of the videotape on which the opinions of abuse were necessarily made, a
matter of evaluative opinion and therefore not libelous. The underlying fact, namely, the
manner in which Berosini is seen to be treating his animals in the videotape, provides the
framework in which the expressed, evaluative opinions of abuse must be seen, that is to say,
as expressions of pure opinion and not statements of fact. So long as the factual basis for the
opinion is readily available, the persons receiving the opinion are in a position to judge for
themselves the validity of the opinion. See Leers v. Green, 131 A.2d 781, 787-88 (N.J. 1957).
Finally, whether the rods in question were steel or wood is immaterial; if the rods were in fact
wood, saying they were steel cannot be said to defame Berosini in this context.
9

PART TWO: THE INVASION OF PRIVACY ACTIONS
The jury in this case awarded two different species of privacy tort damage awards, each
based on a different aspect of a charged invasion of Berosini's privacy. The first species of
privacy tort is intrusion on seclusion, for which Berosini was awarded $250,000.00 against
Gesmundo alone. The second species of invasion of privacy upon which the jury returned a
verdict in this case was for the appropriation of Berosini's name or likeness. For commission
of this tort the jury awarded Berosini $500,000.00 against PETA and $250,000.00 against
Jeanne Roush. For the sake of convenience we will refer to these two torts as the tort of
intrusion and the tort of appropriation.
The law relating to a protectable right to privacy is an American invention, developing
over a period of approximately the last one hundred years.
10
The law in its present form was
conceived almost entirely by Professor William Prosser, who, in a 1960 law review article in
the California Law Review, expounded that the right of privacy gave rise not to one but to
four different tort actions, sometimes called Prosser's Four Torts of Privacy.
11

[Headnote 5]
These four torts found their way into the Restatementperhaps because Prosser was the
American Law Institute Reporter who drafted the Restatement languageand have been
adopted, often verbatim, by the vast majority of American jurisdictions.
12
The four species
of privacy tort are: {1) unreasonable intrusion upon the seclusion of another; {2)
appropriation of the name or likeness of another; {3) unreasonable publicity given to
private facts; and {4) publicity unreasonably placing another in a false light before the
public.
__________

9
Much of the briefing in this case relates to whether the defendants are protected from liability by the First
Amendment to the United States Constitution because there is no showing of actual malice. Defendants in this
case claim to be protected by current federal constitutional doctrine which holds that traditional tort rules
governing the law of libel are subject to overriding constraints of the First Amendment. We do not reach the
question of actual or constitutional malice (although it is extremely clear that Berosini has not proven by clear
and convincing evidence that any defendant made a false or defamatory statement known to be false or with
reckless disregard of the truth) because this appeal is easily decided under traditional tort rules and under the
Nevada Constitution.

10
The genesis of the right to privacy is traceable to a law review article, Samuel D. Warren and Louis D.
Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890); William L. Prosser, Privacy, 48 Cal.L.Rev. 383
(1960) (hereinafter Prosser).

11
Prosser, supra note 9.

12
Restatement (Second) of Torts, 652A, appendix, at 268-69 (1977) (listing the states recognizing the privacy
torts); Prosser at 386-88, supra note 9.
four species of privacy tort are: (1) unreasonable intrusion upon the seclusion of another; (2)
appropriation of the name or likeness of another; (3) unreasonable publicity given to private
facts; and (4) publicity unreasonably placing another in a false light before the public.
13

Nevada has long recognized the existence of the right to privacy.
14
A jurist noted some
fifty years ago that [i]t may be conceded that the doctrine of privacy in general is still
suffering the pains of its birth.
15
It is still suffering; accordingly, we undertake in this
opinion to offer some guidance on the right of privacy as it is recognized in Nevada, at least
with regard to the two specific torts involved in this appeal: the tort of intrusion and the tort
of appropriation.
Additionally, we recognize today another tort, a cousin to the Prosser Four but not,
strictly speaking, a privacy tort. By virtue of statute, NRS 598.980-.988, a fifth, tort must be
considered and discussed in connection with the privacy judgments awarded here. This fifth
privacy tort is the tort of invasion of the right of publicity. With this background in mind,
let us now proceed to discuss the privacy tort of intrusion for which Berosini was awarded
damages in this case.
FIRST INVASION OF PRIVACY ACTION: Intrusion
You had to livedid live, from habit
that became instinctin the
assumption that every sound you made
was overhead and, except in darkness,
every movement scrutinized.
George Orwell
1984
Berosini claims that one of the Stardust dancers, Ottavio Gesmundo, has intruded upon his
seclusion backstage, before his act commenced. We support the need for vigilance in
preventing unwanted intrusions upon our privacy and the need to protect ourselves against the
Orwellian nightmare that our every movement [be] scrutinized. The question now to be
examined is whether Gesmundo's inquiring video camera gives cause for concern over
privacy and gives rise to a tort action against Gesmundo for invasion of Berosini's privacy.
__________

13
Restatement at 376, supra note 11.

14
See Montesano v. Donrey Media Group, 99 Nev. 644, 649, 668 P.2d 1081, 1084 (1983), cert. denied, 466
U.S. 959 (1984) (adopting the Restatement formulation); M & R Investment Co. v. Mandarino, 103 Nev. 711,
718-19, 748 P.2d 488, 493 (1987); Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442 (1947) (implicitly
recognizing an action for invasion of privacy).

15
Clayman v. Bernstein, 38 Pa. D & C 543 (Ct. Common Pleas, Penn, 1940).
Although the problems which the tort of intrusion seeks to remedy are well-recognized,
the tort of intrusion has only recently gained the attention of this court. In M & R Investment
Co. v. Mandarino, 103 Nev. 711, 748 P.2d 488 (1987), we faced the question of whether
appellant, a twenty-two year old man, disguised in dark glasses, a false mustache and slicked
down hair, who by virtue of his skill at counting cards, [won] a great deal of money in a short
period of time had stated a cognizable claim for intrusion against the casino personnel who
confiscated his winnings, had him arrested, photographed him, and distributed his photograph
to other casinos. Id. at 719, 748 P.2d at 493. We answered this question with an emphatic
No, noting that the appellant, so conspicuously attired, could have had no subjective
expectation that casino personnel [would] turn a blind eye to his presence. This court held
that even viewing the facts in the light most favorable to the appellant, such an expectation
was patently unreasonable and would thus not give rise to a tort action. Id. at 719, 748 P.2d at
493.
The Restatement, upon which this court has previously relied for guidance in this area,
16
formulates the tort of intrusion in terms of a physical invasion upon the solitude or
seclusion of another,
17
the rationale being that one should be protected against intrusion by
others into one's private space or private affairs. To Prosser, these torts were personal injury
actions, and he saw as examples of tortious activity the meddling conduct of eaves-droppers,
the unpermitted opening of others' mail, and the making of illegal searches and seisures.
18
Simply put, the intrusion tort gives redress for interference with one's right to be left alone.
[Headnote 6]
To recover for the tort of intrusion, a plaintiff must prove the following elements: (1) an
intentional intrusion (physical or otherwise); (2) on the solitude or seclusion of another; (3)
that would be highly offensive to a reasonable person.
[Headnote 7]
In order to have an interest in seclusion or solitude which the law will protect, a plaintiff
must show that he or she had an actual expectation of seclusion or solitude and that that
expectation was objectively reasonable. M & R Investment Co. v. Mandarino, 103 Nev. 711,
719, 748 P.2d 488, 493 (1987). Thus, not every expectation of privacy and seclusion is
protected by the law.
__________

16
See Montesano, 99 Nev. at 649, 668 P.2d at 1084.

17
Restatement, 652 B at 378, supra note 11.

18
Prosser at 392, supra note 9.
expectation of privacy and seclusion is protected by the law. The extent to which seclusion
can be protected is severely limited by the protection that must often be accorded to the
freedom of action and expression of those who threaten that seclusion of others. 2 Fowler v.
Harper, et al., The Law of Torts, 9.6, at 636 (2d ed. 1986). For example, it is no invasion of
privacy to photograph a person in a public place; see, e.g., Gill v. Hearst Publishing Co., 253
P.2d 441 (Cal. 1953); or for the police, acting within their powers, to photograph and
fingerprint a suspect. See, e.g., Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442
(1947). Bearing this in mind, let us examine Berosini's claimed right to be left alone in this
case and, particularly, the nature of Berosini's claim to seclusion backstage at the Stardust
Hotel.
[Headnote 8]
Berosini's Invasion of Privacy claim in his Second Claim for Relief contains no factual
averments and refers the reader back to paragraphs 1 through 18 of the First Claim for Relief,
where one is required to search for some factual basis for Berosini's charging of the intrusion
tort. The only factual allegations that appear to have any relation to the intrusion tort are
found in paragraph 12 of the first claim, a paragraph that relates only to defendant Gesmundo.
(Gesmundo is the only defendant against whom a judgment was entered on the intrusion tort.)
Paragraph 12 reads as follows:
12. Defendant GESMUNDO unlawfully trespassed onto the Stardust Hotel with a
video camera in July, 1989. Video cameras and other recording equipment are strictly
prohibited at the Stardust Hotel. Defendant GESMUNDO unlawfully filmed Plaintiff
BEROSINI disciplining the orangutans without the Plaintiff's knowledge or consent and
just after Defendant GESMUNDO and others agitated the orangutans.
The focus, then, of Berosini's intrusion upon seclusion claim is Gesmundo's having
trespassed onto the Stardust Hotel with a video camera and having unlawfully filmed
Plaintiff Berosini disciplining the orangutans without the Plaintiffs knowledge or consent. It
is of no relevance to the intrusion tort that Gesmundo trespassed onto the Stardust Hotel, and
it is of no moment that Gesmundo might have unlawfully filmed Berosini, unless at the
same time he was violating a justifiable expectation of privacy on Berosini's part. The issue,
then, is whether, when Gesmundo filmed Berosini disciplining the orangutans without the
Plaintiff's knowledge or consent, Gesmundo was intruding on the solitude or seclusion of
Berosini.
The primary thrust of Berosini's expectation of privacy backstage at the Stardust was that
he be left alone with his animals and trainers for a period of time immediately before going
onstage. Berosini testified that as part of his engagement with the Stardust, he demanded
that the animals be left alone prior to going on stage. Throughout his testimony, over and
over again, he stresses his need to be alone with his animals before going on stage. Berosini's
counsel asked him what his purpose was in requiring that he be secured from the other
cast members and people before [he] went on stage. Berosini's answer to this question was:
I have to have the attention . . . I have to know how they think. I cannot have them drift away
with their mind . . . .; and, further, it is very important that before the show I have the
orangutans' attention and I can see what they think before I take him on stage . . . .
Significantly, Berosini testified that his concern for privacy was based upon the animals
and that his main concern is that [he] have no problems going on stage and off stage, that is
to say that no one interfere with his animals in any way immediately before going on stage.
(Emphasis added.)
Berosini was concerned that backstage personnel not stare at the orangutans in their faces.
The orangutans will interpret [this] as a challenge. It is clear that Berosini's main concern
was that he be provided with an area backstage in which he could get the animals'
undistracted attention before going on stage. He never expressed any concern about backstage
personnel merely seeing him or hearing him during these necessary final preparations before
going on stage; his only expressed concern was about possible interference with his pre-act
training procedures and the danger that such interference might create with respect to his
control over the animals. Persons who were backstage at the Stardust could hear what was
going on when Berosini [was] disciplining his animals, and, without interfering with
Berosini's activities, could, if they wanted to, get a glimpse of what Berosini was doing with
his animals as he was going on stage.
19

What is perhaps most important in defining the breadth of Berosini's expectation of
privacy is that in his own mind there was nothing wrong or untoward in the manner in which
he disciplined the animals, as portrayed on the videotape, and he expressed no concern about
merely being seen or heard carrying out these disciplinary practices. To Berosini all of his
disciplinary activities were completely justified. He had nothing to hidenothing to be
private about. Except to avoid possible distraction of the animals, he had no reason to
exclude others from observing or listening to his activities with the animals.
__________

19
The record reveals that a number of people were readily able to see or hear what was going on in Berosini's
private area.
of the animals, he had no reason to exclude others from observing or listening to his activities
with the animals. Berosini testified that he was not ashamed of the way that [he] control[ed]
[his] animals; and he testified that he would have done the same thing if people were
standing there because if anybody would have been standing there, it was visibl[e]. It was
correct. It was proper. It was necessary.
As his testimony indicates, Berosini's concern for privacy was based upon the animals,
and not upon any desire for sight/sound secrecy or privacy or seclusion as such; and he
would have done the same thing if people were standing there. The supposed intruder,
Gesmundo, was in a real sense just standing there. By observing Berosini through the eye
of his video camera, he was merely doing what other backstage personnel were also
permissibly doing. The camera did not interfere in any way with Berosini's pre-act animal
discipline or his claimed interest in being secured from the other cast members and people
before [he] went on stage.
20
Having testified that he would have done the same thing if
people were standing there, he can hardly complain about a camera standing there.
If Berosini's expectation was, as he says it is, freedom from distracting intrusion and
interference with his animals and his pre-act disciplinary procedures, then Gesmundo's video
filming did not invade the scope of this expectation. Gesmundo did not intrude upon
Berosini's expected seclusion. See, e.g., Kemp v. Block, 607 F.Supp. 1262, 1264 (D. Nev.,
1985) (This Court finds that the plaintiff knew that other persons could overhear. He,
therefore, had no reasonable expectation of privacy); McClain v. Boise Cascade Corp., 533
P.2d 343, 346 (Or., 1975) (plaintiff conceded that his activities which were filmed could
have been observed by his neighbors or passersby). For this reason the tort of intrusion
cannot be maintained in this case.
21

[Headnote 9]
On the question of whether Gesmundo's camera was highly offensive to a reasonable
person, we first note that this is a question of first impression in this state.
__________

20
See discussion, supra, at 95.

21
We do not find it necessary to discuss the question of reasonability (objective expectation of privacy) of
Berosini's privacy interests because, as said, his concern was not with being seen. Nevertheless, we note that
Berosini's being a public figure militates against his privacy claim. It is probably not reasonable for a well
known, headliner entertainer to expect that his picture will not be taken backstage at his place of performance,
even when it is a violation of company rules. Furthermore, we note that there is, generally speaking, a reduced
objective expectation of privacy in the workplace. See, e.g., Baggs v. Eagle-Picher Industries, 957 F.2d 268, 275
(6th Cir. 1992), cert. denied, 113 S.Ct. 466 (1992); Yarbray v. Southern Bell Tel. & Tel. Co., 409 S.E.2d 835
(Ga. 1991).
offensive to a reasonable person, we first note that this is a question of first impression in this
state. As might be expected, [t]he question of what kinds of conduct will be regarded as a
highly offensive' intrusion is largely a matter of social conventions and expectations. J.
Thomas McCarthy, The Rights of Publicity and Privacy, 5.10(A)(2) (1993). For example,
while questions about one's sexual activities would be highly offensive when asked by an
employer, they might not be offensive when asked by one's closest friend. See Phillips v.
Smalley Maint. Services, 435 So.2d 705 (Ala. 1983). While what is highly offensive to a
reasonable person' suggest a standard upon which a jury would properly be instructed, there is
a preliminary determination of offensiveness' which must be made by the court in discerning
the existence of a cause of action for intrusion. Miller v. National Broadcasting Co., 232
Cal.Rptr. 668, 678 (Cal.Ct.App. 1986); see, e.g., Lovgren v. Citizens First Nat. Bank, 534
N.E.2d 987 (Ill. 1989); Kaiser v. Western R/C Flyers Inc., 477 N.W.2d 557, 562 (Neb. 1991);
Smith v. Jack Eckerd Corp., 400 S.E.2d 99 (N.C.App. 1991). A court considering whether a
particular action is highly offensive should consider the following factors: the degree of
intrusion, the context, conduct and circumstances surrounding the intrusion as well as the
intruder's motives and objectives, the setting into which he intrudes, and the expectations of
those whose privacy is invaded. Miller, 232 Cal.Rptr. at 679; 5 B. E. Witkin, Summary of
California Law, Torts 579 at 674 (9th ed. 1988).
Three of these factors are of particular significance here and, we conclude, militate
strongly against Berosini's claim that Gesmundo's conduct was highly offensive to a
reasonable person. These factors are: the degree of the alleged intrusion, the context in which
the actions occurred, and the motive of the supposed intruder. First, we note the nonintrusive
nature of the taping process in the instant case. Berosini was concerned with anyone or
anything interfering with his animals prior to performance. The camera caused no such
interference. Neither Berosini nor his animals were aware of the camera's presence. If
Gesmundo had surprised Berosini and his animals with a film crew and had caused a great
commotion, we might view this factor differently. See generally Miller, 232 Cal.Rptr. 668.
On the contrary, it appears from these facts that any colorable privacy claims arose not from
the actual presence of the video camera but from the subsequent use to which the videotape
was put.
Secondly, as has been discussed fully above, the context in which this allegedly tortious
conduct occurred was hardly a model of what we think of as privacy. We must remember
that the videotaping did not take place in a private bedroom {see Miller, 232 Cal.Rptr. at
66S), or in a hospital room {see Estate of Berthiame v.
the videotaping did not take place in a private bedroom (see Miller, 232 Cal.Rptr. at 668), or
in a hospital room (see Estate of Berthiame v. Pratt, 365 A.2d 792, 796 (Me. 1976)), or in a
restroom (see Harkey v. Abate, 346 N.W.2d 74 (Mich.Ct.App. 1983)), or in a young ladies'
dressing room (see Doe by Doe v. B.P.S. Guard Services Inc., 945 F.2d 1422 (8th Cir. 1991)),
or in any other place traditionally associated with a legitimate expectation of privacy. Rather,
Gesmundo filmed activities taking place backstage at the Stardust Hotel, an area where
Gesmundo had every right to be, and the filming was of a subject that could be seen and
heard by any number of persons. This was not, after all, Berosini's dressing room; it was a
holding area for his orangutans.
Finally, with regard to Gesmundo's motives, we note that Gesmundo's purpose was not to
eavesdrop or to invade into a realm that Berosini claimed for personal seclusion. Gesmundo
was merely memorializing on tape what he and others could readily perceive. Unlike the
typical intrusion claim, Gesmundo was not trying to pry, he was not trying to uncover the
covered-up. Although Berosini envisioned Gesmundo to be engaged in a conspiracy with
others (as put in the Answering Brief) to put an end to the use of animals in entertainment,
as noted in note 3, supra, the conspiracy charges in Berosini's complaint were dismissed.
Furthermore, even if Gesmundo was conspiring to put an end to the use of animals in
entertainment, this is not the kind of motive that would be considered highly offensive to a
reasonable person. Many courts, and Professor Prosser, have found the inquiry into motive or
purpose to be dispositive of this particular element of the tort. See Prosser and Keeton on
Torts 117 at 856 (W. Page Keeton, ed.; 5th ed. 1984). For example, in Estate of Berthiame,
365 A.2d at 792, the court held that a doctor who photographed a dying patient against his
will could be held liable for intrusion, in part because the doctor was not seeking to further
the patient's treatment when he photographed him. Id. at 796. Similarly, in Yarby v. Southern
Bell Tel. & Tel. Co., 409 S.E.2d 835 (Ga. 1991), the court held that an employee who
claimed that her employer pressured her regarding her testimony in an employment
discrimination suit brought against the company, could not state a claim for intrusion because
the employer was motivated by his desire to protect the company's interests. Id. at 837; see
also Beggs v. Eagle-Picher Industries, 957 F.2d 268, 275 (6th Cir. 1992), cert. denied, 113
S.Ct. 466 (1992); Saldana v. Kelsey-Hayes Co., 443 N.W.2d 382, 384 (Mich.Ct.App. 1989).
While we could reverse Berosini's intrusion upon seclusion judgment solely on the
absence of any intrusion upon his actual privacy expectation, we go on to conclude that
even if Berosini had expected complete seclusion from prying eyes and ears, Gesmundo's
camera was not "highly offensive to a reasonable person" because of the nonintrusive
nature of the taping process, the context in which the taping took place, and Gesmundo's
well-intentioned {and in the eyes of some, at least, laudable) motive.
judgment solely on the absence of any intrusion upon his actual privacy expectation, we go on
to conclude that even if Berosini had expected complete seclusion from prying eyes and ears,
Gesmundo's camera was not highly offensive to a reasonable person because of the
nonintrusive nature of the taping process, the context in which the taping took place, and
Gesmundo's well-intentioned (and in the eyes of some, at least, laudable) motive. If Berosini
suffered as a result of the videotaping, it was not because of any tortious intrusion, it was
because of subsequent events that, if remediable, relate to other kinds of tort actions than the
intrusion upon seclusion tort.
SECOND INVASION OF PRIVACY ACTION: Appropriation
[Headnotes 10, 11]
We now draw our attention to the other privacy tort pursued by Berosini in this case,
namely, the tort of invasion of privacy based upon appropriation of name or likeness. There is
considerable confusion in the cases and in the literature regarding this tort, primarily because
the difference between the appropriation tort and the right of publicity tort is often obscured.
The common law appropriation tort ordinarily involves the unwanted and unpermitted use of
the name or likeness of an ordinary, uncelebrated person for advertising or other such
commercial purposes, although it is possible that the appropriation tort might arise from the
misuse of another's name for purposes not involving strictly monetary gain. The right of
publicity tort, on the other hand, involves the appropriation of a celebrity's name or identity
for commercial purposes.
22
The distinction between these two torts is the interest each seeks
to protect. The appropriation tort seeks to protect an individual's personal interest in privacy;
the personal injury is measured in terms of the mental anguish that results from the
appropriation of an ordinary individual's identity. The right to publicity seeks to protect the
property interest that a celebrity has in his or her name; the injury is not to personal privacy, it
is the economic loss a celebrity suffers when someone else interferes with the property
interest that he or she has in his or her name. We consider it critical in deciding this case that
recognition be given to the difference between the personal, injured-feelings quality involved
in the appropriation privacy tort and the property, commercial value quality involved in the
right of publicity tort.
__________

22
The right of publicity tort is recognized by statute in Nevada by NRS 598.980-.988.
As said, in the case of a private person, the invasion of privacy resulting from misuse or
misappropriation of that person's name or identity is a personal injury, an injury that is
redressable by general damages for the mental anguish and embarrassment suffered by reason
of the unwanted public use of the private person's name. When, however, the name of a
famous or celebrated person is used unauthorizedly, that person's main concern is not with
bruised feelings, but rather, with the commercial loss inherent in the use by another of the
celebrated name or identity. The commercial or property interest that celebrities have in the
use of their names and identities is protected under what has been termed the right of
publicity.
There is a certain reciprocity between the two kinds of interests, personal and proprietary;
and, accordingly, the more the aspects of one tort are present, the less likely are the aspects of
the other tort to be present. The more obscure the plaintiffs are, the less commercial value
their names have and the more such plaintiffs will be seeking to redress personal interest in
privacy in a common law appropriation action, and not commercial or property interests in
their name or likeness as a claimed violation of a right of publicity. The more famous and
celebrated the plaintiffs, the less injury is likely to be claimed to their privacy interests, their
interest in being left alone, because their names and likenesses already have wide
recognition and are not appropriate subjects for invasions of personal privacy. Generally
speaking, a private person will be seeking recovery for the appropriation tort, and a celebrity
will be recovering for the right of publicity tort. A celebrity, whose identity, by definition, is
well known, will not ordinarily be heard to complain of indignity, mental distress, or other
personal injury resulting from the public use of his or her name; and consequently, such a
person ordinarily will be suing for invasion of the right of publicity and will not likely be able
to prosecute a successful claim under the common law privacy tort, appropriation of name or
likeness.
Prosser did not recognize a discrete difference between the two torts that we are now
discussing; but as far back as 1953, in the case of Haelan Laboratories, Inc. v. Topps
Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953), Judge Jerome Frank commented:
[I]n addition to and independent of that right to privacy [i.e. the appropriation privacy
tort] . . . a man has the right in the publicity value of his photograph . . . . This right
might be called a right of publicity.' For it is common knowledge that many prominent
persons . . . far from having their feelings bruised through public exposure of their
likeness, would feel sorely deprived if they no longer received money for authorizing
advertisements . . . .
sorely deprived if they no longer received money for authorizing advertisements . . . .
(Emphasis added.)
As discussed by Judge Frank in Haelan, the right of publicity refers to a property right in a
person's identity. This property right is infringed by the unpermitted use of a person's identity
for money-making purposes. This infringement on what is in every sense a property right is,
as we have explained, quite different from the other tort action, the personal injury action
involved in the appropriation privacy tort.
The distinction between the two kinds of torts being discussed was also put with clarity by
Joseph R. Grodin in this way:
[T]he Haelan case gave protection to persons' commercial interest in their personality
independent of their privacy interest. . . . [C]ourts have confused commercial interests
with privacy interests. . . . If courts wish to protect both interests to at least some extent,
they should do so under separate doctrines, so that limitations appropriate to each
interest may be imposed.
Note, Joseph R. Grodin, The Right of Publicity: A Doctrinal Innovation, 62 Yale L.J. 1123
(1953) (emphasis added), quoted in J. Thomas McCarthy, The Rights of Publicity and
Privacy 1.7, page 1-34 (1993). [T]he act of infringement on the Right of Publicity can
properly be viewed as a commercial tort,' as well as a form of unfair competition.'
McCarthy, supra, at 10.02, page 10-6.
[Headnote 12]
Berosini, a public figure and celebrity, has not sued for violation of his right of publicity.
Berosini has prosecuted a common law appropriation tort action in this litigation. Even
though he sues under the appropriation tort, it is apparent from Berosini's brief that tort
damages for hurt feelings stemming from defendants' commission of the appropriation
privacy tort is not what he is really interested in; rather, Berosini is (understandably) only
interested in recovery of the pecuniary gain sought by PETA through the use of Berosini's
name and likeness . . . . (Berosini Brief, p. 76). Berosini claims in his brief that PETA used
his photographs and name to promote national publicity for PETA and to raise money as part
of the fund raising campaign. Id. The pecuniary gain by PETA and its use of Berosini's
celebrity for publicity and fund-raising purposes is not, and cannot be, of the personal injury
kind of tort represented by the appropriation privacy tort or (as put in Berosini's brief) within
the common law tort of misappropriation of one's name and likeness."
law tort of misappropriation of one's name and likeness. If there were a privacy tort
committed here by PETA, it would necessarily have to be a tort involving the right of
publicity and only the right of publicity, and not the hurt-feelings, personal injury tort of
appropriation.
[Headnote 13]
Nevada has codified the right of publicity tort in NRS 598.980-.988. Nevada provides a
statutory remedy in cases of invasion of the right of publicity and for protection against any
commercial use within this state of a living or deceased person's name, voice, signature,
photograph or likeness . . . . NRS 598.982. The statute provides a complete and exclusive
remedy for right of publicity torts. Berosini does not plead a right of publicity tort, did not
request that the jury be instructed on this statutory tort, and did not argue the commission of
this tort in his appeal. Berosini, therefore, cannot recover on the common law tort, the
appropriation privacy tort, for the reasons stated; and he cannot recover under the statutory
tort, the right of publicity tort because he has not sought recovery under the statute. The
privacy tort judgments against PETA and Roush must therefore be reversed.
The judgment of the trial court is reversed in its entirety.
23

Steffen and Young, JJ., and Lehman, D.J., concur.
24

____________
110 Nev. 103, 103 (1994) Hutchins v. State
TYRONE BOBBY HUTCHINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22928
February 4, 1994 867 P.2d 1136
Appeal from judgment of conviction of one count of robbery, one count of kidnapping
with use of a deadly weapon, and four counts of sexual assault with use of a deadly weapon.
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
The supreme court held that: (1) evidence supported conviction; (2) scissors was not
deadly weapon for purposes of sentence enhancement involving use of "deadly weapon";
and {3) trial court had not committed reversible error by using instruction on "reasonable
doubt" which did not follow amended version of controlling statute.
__________

23
The Honorable Robert E. Rose, Chief Justice, voluntarily recused himself from participation in the decision
of this appeal.

24
The Honorable Jack Lehman, Judge of the Eighth Judicial District Court, was designated by the Governor to
sit in place of The Honorable John Mowbray, Chief Justice. Nev. Const. art. 6, 4. The Honorable Miriam
Shearing, Justice, did not participate in the decision of this appeal.
sentence enhancement involving use of deadly weapon; and (3) trial court had not
committed reversible error by using instruction on reasonable doubt which did not follow
amended version of controlling statute.
Affirmed in part and reversed in part.
[Rehearing denied June 16, 1994]
Cherry, Bailus & Kelesis, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County for Respondent.
1. Criminal Law.
In determining whether there is sufficient evidence to support finding of guilt, it is for jury to determine what weight and
credibility to be given various testimony.
2. Criminal Law.
When sufficiency of evidence is challenged on appeal in criminal case relevant inquiry is whether, after viewing evidence in light
most favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond reasonable doubt.
3. Kidnapping.
Movement of victim, from one location to another, is required to sustain kidnapping conviction when kidnapping is charged as
incidental to another offense, such as robbery, in which restraint of victim is inherent within primary offense, and victim is not
physically restrained. NRS 200.310(1).
4. Kidnapping.
A kidnapping is not incidental to another underlying offense involving restraint, so as to require determination that victim was
moved from one location to another, if restraint was nonphysical and increased risk of harm or had independent purpose and
significance as being essential to accomplishment of other offense. NRS 200.310(1).
5. Kidnapping.
Defendant had kidnapped victim, in connection with robbing her, even though he had moved her only from one part of her
apartment to another. Defendant had physically restrained victim, by binding her hands and feet, which significantly increased risk of
harm to her.
6. Assault and Battery.
Uncorroborated evidence of sexual assault victim, if believed, is sufficient to convict. NRS 200.364, 200.366.
7. Sodomy.
Defendant had committed sexual penetration of victim, even though he claimed that he only placed his tongue on victim's
vagina and not in vagina. Defendant's act of cunnilingus was included within term sexual penetration as defined by statute. NRS
200.364, 200.366.
8. Criminal Law.
Statute providing for sentence enhancement for crimes involving use of deadly weapon applied only to instrumentalities which,
if used in ordinary manner contemplated by design and construction, would or would not be likely to cause
life-threatening injury or death.
ordinary manner contemplated by design and construction, would or would not be likely to cause life-threatening injury or death. NRS
193.165.
9. Criminal Law.
Defendant found to have cut victim's hair with scissors, while robbing, kidnapping and sexually assaulting her, could not have
sentences enhanced for use of deadly weapon. Scissors was not an instrumentality, such as gun or knife, which was dangerous in its
ordinary application. NRS 193.165.
10. Criminal Law.
Error in instructing jury, as to standard needed to convict, that doubt to be reasonable must be actual and substantial, not mere
possibility or speculation, did not rise to level of substantive or constitutional error required for reversal, even though amendment to
statute governing instruction had deleted words and substantial. Supreme court had found earlier version of statute constitutional.
NRS 175.211.
11. Criminal Law.
Evidence supported giving of instruction on flight, in case involving robbery, kidnapping and sexual assault, even though
defendant claimed that he had not fled, but had merely left scene of crime. Witness testified that defendant had called her three times in
early morning hours following incident, stating that he was scared, and he had not sought medical attention for an injured leg.
OPINION
Per Curiam:
A jury convicted appellant Tyrone Bobby Hutchins, a/k/a Tyrone Bobby Hutchinson (Hutchins), of robbery, kidnapping with the use
of a deadly weapon, and four counts of sexual assault with the use of a deadly weapon. He was sentenced to one twelve-year term on the
robbery charge and ten consecutive life terms on the other charges, five of which represent enhancements based upon the use of a deadly
weapon. Hutchins raises five assignments of error on appeal.
We conclude that Hutchins' sentences were improperly enhanced for use of a deadly weapon, as scissors are not a deadly weapon
under the Zgombic
1
rule. The five enhancements must therefore be reversed and vacated. We
otherwise affirm the remaining judgments of conviction.
FACTS
At trial, the victim (Tammy) testified that on the evening of September 15, 1990, she
was visited by Hutchins, an acquaintance, at the Airport Inn Apartments in Las Vegas.
Hutchins asked Tammy if she would loan him some money, but Tammy declined and
asked Hutchins to leave.
__________

1
Zgombic v. State, 106 Nev. 571, 798 P.2d 548(1990).
asked Tammy if she would loan him some money, but Tammy declined and asked Hutchins
to leave. Hutchins then began choking Tammy and dragging her through the apartment. At
some point in the struggle, Hutchins also beat the victim. Tammy directed Hutchins to some
money in a closet, which Hutchins took, along with some jewelry. Hutchins then bound
Tammy's arms, legs and mouth with belts, chipping one of her teeth in the process. He also
threatened to kill her if she made any noise.
Hutchins thereafter called a person by the name of Jose and forced Tammy to talk to him
on the phone about meeting Hutchins to buy her jewelry. Later, Hutchins responded to a
knock on the door and, while Tammy was trussed on the floor, engaged in a transaction
regarding his victim's jewelry.
After the jewelry transaction, Hutchins returned to his victim with some hair-cutting
scissors which he used to cut off the victim's shirt. He also removed the victim's shorts and
again warned Tammy that he would kill her if she made any noise. Hutchins then placed the
scissors on a counter and proceeded to commit various acts of sexual assault upon his victim,
including digital vaginal penetration, cunnilingus and fellatio. Hutchins thereafter untied the
victim's legs and placed his penis in her vagina. Tammy thought he ejaculated onto her
stomach. Hutchins then freed Tammy's arms and left the apartment. Tammy telephoned the
police and her former boyfriend.
After the police arrived, Tammy was taken to the University Medical Center, where she
was examined by Dr. John W. Wilson. Wilson testified that Tammy appeared to have been
severely beaten and nearly choked to death. Wilson also stated that there were no vaginal
tears or lacerations, a common finding among sexual assault victims, and that there was no
abnormal amount of mucous membrane secretions.
Linda Errichetto, the State's criminalist, testified that her examination revealed no
indication of semen in the victim's oral or vaginal samples. She did find some indication of
semen in the victim's panties upon her initial presumptive test, but a second confirming test
produced no evidence of semen, thus rendering the test inconclusive. Errichetto also
determined that the hairs given her from Tammy's pubic combing belonged to the victim.
Accordingly, Errichetto could form no opinion as to whether Tammy had been sexually
assaulted.
Photographs of the victim depicting bruises, swelling and scars on her right eye, left cheek
and jaw, chest, tongue, right hand, neck, arm and knees were admitted to show the effects of
Hutchins' attacks. Photos of the victim's apartment were also admitted showing the blanket
upon which she was assaulted, the belts on the floor, the victim's shorts and Hutchins' shirt.
The latter item was demonstrated by the defense to be a tight fit as Hutchins donned the
garment at trial.
item was demonstrated by the defense to be a tight fit as Hutchins donned the garment at trial.
The shirt worn by Tammy and cut by Hutchins was not found or recovered. However, the
scissors found by Tammy after her ordeal were introduced into evidence.
Other evidence presented at trial included the testimony of Terry L. Walker, a resident of
the Airport Inn at the time of the incident. Walker testified that in the late evening and early
morning hours of September 15-16, 1990, Hutchins called her three times. Hutchins was
crying and stated that he was scared. He told Walker that he had a fight with Tammy over
money or a chain or something like that. He also said that he had beaten Tammy, and that
his leg was bleeding really bad where Tammy had angrily hit him.
The defense called Hutchins' wife,
2
Barbara Hutchinson. Hutchinson testified that she
picked up the defendant at the Airport Inn on the evening of the 16th, that he was limping,
and that he explained that Tammy had hit him in the leg with a pipe. Hutchinson further
testified that Hutchins admitted beating Tammy.
The jury found Hutchins guilty of first-degree kidnapping with use of a deadly weapon,
robbery, and four counts of sexual assault with the use of a deadly weapon. The court
sentenced Hutchins to a twelve-year term on the robbery charge, and to a life term for the
kidnapping conviction and for each of the four sexual assault convictions, enhanced by five
life terms for use of a deadly weapon, for a total of one twelve-year term and ten life terms,
each term to run consecutively.
DISCUSSION
I. Whether appellant's convictions were supported by sufficient evidence
[Headnotes 1, 2]
Hutchins' first assignment of error is that his convictions were not supported by sufficient
evidence to support a finding of guilt beyond a reasonable doubt. Although his convictions
are based primarily on the testimony of the victim, it is for the jury to determine what weight
and credibility to give various testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20
(1981). Furthermore, when the sufficiency of the evidence is challenged on appeal in a
criminal case, [t]he relevant inquiry for this Court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'"
__________

2
According to her testimony, Hutchinson is appellant's wife, although appellant's counsel's brief refers to her as
his mother.
doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). With these standards in mind, we
review Hutchins' contentions concerning this issue.
A. Whether there was sufficient evidence to support the kidnapping conviction
Hutchins argues that there was insufficient evidence to support his conviction for
kidnapping, as the movement of the victim from the living area of her apartment to the closet
or hall area did not increase the danger to the victim.
Every person who willfully seizes, confines . . . or carries away any person by any
means whatsoever with the intent to hold or detain, or who holds or detains, the person
. . . for the purpose of committing sexual assault . . . or robbery upon or from the person
. . . is guilty of kidnaping in the first degree.
Tammy's testimony meets the requirements of this statute, showing that Hutchins seized,
confined and carried her, intending to hold and detain her for the purpose of committing
robbery and sexual assault.
[Headnotes 3, 4]
While the plain language of NRS 200.310(1) does not require asportation, the court has
required it when the kidnapping is incidental to another offense, such as robbery, where
restraint of the victim is inherent with the primary offense. Clem v. State, 104 Nev. 351,
354, 760 P.2d 103, 105 (1988), overruled on other grounds, Zgombic v. State, 106 Nev. 571,
798 P.2d 548 (1990). However, if the victim is physically restrained, this, in itself,
establishes kidnapping as an additional offense. Clem, 104 Nev. at 354, 760 P.2d at 105.
Moreover, the kidnapping is not incidental to the underlying offense if the restraint increased
the risk of harm or had an independent purpose and significance as [being] essential to the
accomplishment of the other offense. Id.
[Headnote 5]
In the present case, Tammy was forcibly asported to a different part of the apartment
where she was physically restrained and less apt to be heard by a passerby. Additionally, the
forcible method used to relocate her to a more secure setting for the assault, coupled with the
measures used to accomplish her restraint, created a greater risk of harm without more. See,
e.g., Beets v. State, 107 Nev. 957, 962, 821 P.2d 1044, 1048 (1991), cert. denied,
------
U.S.
------
, 113 S.Ct. 116 (1992) ([T]he act of binding [the victim's] hands and feet was sufficient
evidence to establish the kidnaping charge since these acts increased the risk of harm to
[her] and had independent significance with regard to appellant's ability to commit the
sexual assault.").
establish the kidnaping charge since these acts increased the risk of harm to [her] and had
independent significance with regard to appellant's ability to commit the sexual assault.).
Accordingly, we reject Hutchins' challenge to the sufficiency of the evidence to support
the conviction for kidnapping.
B. Whether there was sufficient evidence to support the sexual assault convictions
[Headnote 6]
Hutchins emphasizes that the only witness to the sexual assaults was the alleged victim,
whose credibility the defense sought to impugn. Hutchins also maintains that while the
combination of physical evidence and his admissions to other witnesses confirmed that he
had beaten the victim, forensic experts were unable to find any physical corroboration of
sexual contact.
However, as previously stated, it is for the jury to determine the degree of weight,
credibility and credence to give to testimony and other trial evidence, and this court will not
overturn such findings absent a showing that no rational juror could have found the existence
of the charged offenses beyond a reasonable doubt. Furthermore, this court has long ago
determined that the uncorroborated testimony of a victim, without more, is sufficient to
uphold a rape conviction. For example, in May v. State, 89 Nev. 277, 279, 510 P.2d 1368,
1369 (1973), we confirmed that [it is] a correct statement of the law of this state . . . that in a
rape case a jury may convict on the uncorroborated testimony of the prosecuting witness. Id.
(citing Bennett v. Leypoldt, 77 Nev. 429, 432, 366 P.2d 343, 345 (1961)); see also Martinez
v. State, 77 Nev. 184, 189, 360 P.2d 836, 838 (1961) (the uncorroborated testimony of a
prosecutrix in a rape case, standing alone, is sufficient to sustain a conviction).
[Headnote 7]
Hutchins mounts a more specific challenge to the fourth count of sexual assault by
contending that the evidence showed only that he had placed his tongue on the victim's
vagina and not in it, and thus the requisite penetration was lacking.
3
However, NRS 200.364
and 200.366, upon which the sexual assault counts are based, provide as follows:
200.364 Definitions. As used in [NRS 200.366], unless the context otherwise
requires:
. . . .
2. Sexual penetration means cunnilingus, fellatio, or any intrusion, however
slight, of any part of a person's body or any object manipulated or inserted by a
person into the genital or anal openings of the body of another, including sexual
intercourse in its ordinary meaning.
__________

3
The testimony of the victim on this point is inconsistent and thus inconclusive.
or any object manipulated or inserted by a person into the genital or anal openings of
the body of another, including sexual intercourse in its ordinary meaning.
200.366 Sexual assault: Definition; Penalties.
1. A person who subjects another person to sexual penetration . . . against the
victim's will . . . is guilty of sexual assault.
Thus, while sexual penetration is required for a count of sexual assault, the act of cunnilingus
is considered penetration according to that word's statutory definition. Based upon the
testimony, the jury was properly able to determine that Hutchins accomplished at least a
slight penetration of the victim's vagina by placing his tongue on it. Accordingly, we conclude
that even if it were only shown that Hutchins had placed his tongue on and not in the victim's
vagina without her consent, this constituted sufficient evidence to sustain a conviction for
sexual assault.
II. Whether scissors are properly considered a deadly weapon for purposes of enhancing
Hutchins' sentences
[Headnote 8]
Hutchins contends that his sentences were improperly enhanced pursuant to NRS 193.165,
4
Nevada's deadly weapon penalty-enhancement statute, as scissors are not a deadly
weapon under Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990). In Zgombic this court
overruled our previously adopted functional test for determining whether an instrumentality
is a deadly weapon for purposes of NRS 193.165. The Zgombic decision, in overruling the
functional test adopted in Clem v. State, 104 Nev. 351
__________

4
NRS 193.165 provides, in pertinent part, as follows:
193.165 Additional penalty: Use of a deadly weapon or tear gas in commission of crime; restriction of
probation.
1. Except as otherwise provided in NRS 193.169, any person who uses a firearm or other deadly weapon
. . . in the commission of a crime shall be punished by imprisonment in the state prison for a term equal to
and in addition to the term of imprisonment prescribed by statute for the crime. The sentence prescribed
by this section runs consecutively with the sentence prescribed by statute for the crime.
2. This section does not create any separate offense but provides an additional penalty for the primary
offense, whose imposition is contingent upon the finding of the prescribed fact.
3. The provisions of subsections 1 and 2 do not apply where the use of a firearm, [or] other deadly
weapon . . . is a necessary element of such crime.
4. The court shall not grant probation to or suspend the sentence of any person who is convicted of using
a firearm, other deadly weapon or tear gas in the commission of any of the following crimes:
. . . .
(b) Kidnaping in the first degree;
(c) Sexual assault . . . .
State, 104 Nev. 351, 760 P.2d 103 (1988), embraced the inherently dangerous weapon test,
meaning that the instrumentality itself, if used in the ordinary manner contemplated by its
design and construction, will or is likely to, cause a life-threatening injury or death.
Zgombic, 106 Nev. at 576-77, 798 P.2d at 551. In other words, Zgombic determined that the
legislature, in passing 193.165, meant to enhance crimes committed with instrumentalities
designednot just usedas weapons. Id.
[Headnote 9]
In the present case, the question of whether the scissors were an inherently dangerous
weapon was determined by the jury, pursuant to Zgombic's admonition that, in a few close
cases where the court cannot determine as a matter of law whether the weapon is or is not a
deadly weapon, the judge will need to submit the entire issue to the jury after instructing it on
the previously stated definition of a deadly weapon. Id. at 577, 798 P.2d at 552. However, it
is apparent to this court that scissors are not a weapon at all under the inherently
dangerous test, because when used in the ordinary manner contemplated by [their] design
or construction, scissors do not cause bodily harm nor are they designed for that purpose.
Thus, it was error for the district judge to submit the question to the jury in the first place.
The State argues that scissors are analogous to a knife, something which could clearly be
classified as a deadly weapon even under the inherently dangerous standard. However, in
addition to their more commonplace uses, knives are often designed as weapons and have
been so used throughout history. Scissors, however, are more analogous to tools and other
items which are potentially harmful when misused, but are not intended by their nature or
design to be used to cause injury. In this respect, scissors are similar to knitting needles,
mentioned in Zgombic as the type of item, the use of which in the commission of a crime
should not be the basis for invoking the enhancement statute. Zgombic, 106 Nev. at 576, 798
P.2d at 551.
Additionally, this court supported its decision in Zgombic, in part, by pointing out that the
legislative intent behind the penalty enhancement statute was to deter the carrying and use of
arms and other deadly weapons. Id. at 575, 798 P.2d at 550; see also Kazalyn v. State,
108 Nev. 67, 76, 825 P.2d 578, 584 (1992) (the Legislature intended to curb the potential
violence inherent in the weapon itself and to deter injuries caused by weapons). This
legislative intent is not furthered by enhancing penalties for the use of potentially dangerous
household items, such as scissors, in the commission of a crime.
For the reasons specified above, we conclude that five of Hutchins' consecutive life terms,
specifically, those relating to the use of a deadly weapon in conjunction with his kidnapping
and sexual assault convictions, must be vacated, as Hutchins cannot be said to have used
a "deadly weapon" under the Zgombic test.
and sexual assault convictions, must be vacated, as Hutchins cannot be said to have used a
deadly weapon under the Zgombic test.
5

III. Whether the district court's instruction to the jury on the definition of reasonable doubt
constituted reversible error
[Headnote 10]
Hutchins contests the propriety of the district court's instruction on reasonable doubt based
upon the following sentence: Doubt to be reasonable must be actual and substantial, not
mere possibility or speculation. Hutchins contends that this part of the instruction was
erroneous, as the statute governing the instruction for reasonable doubt, NRS 175.211, had
been amended before trial, deleting the words and substantial from the quoted sentence.
6

We have previously determined that the jury instruction given here, following the former
version of NRS 175.211, is constitutional, despite the U.S. Supreme Court's decision in Cage
(see supra note 6), as the word substantial was given a much different context and meaning
in the former Nevada statute than in the Louisiana instruction. See Lord v. State, 107 Nev. 28,
40, 806 P.2d 548, 556 (1991); Beets v. State, 107 Nev. 957, 963, 821 P.2d 1044, 1048-49
(1991), cert. denied,
------
U.S.
------
, 113 S.Ct. 116 (1992). Accordingly, we decline to
reverse on this basis. Although the district court failed to use the language of the current
statute, any resulting error does not rise to the level of substantive or constitutional error
required for reversal. Nevertheless, in the future, courts are admonished to use the current
statutory definition.
IV. Whether the district court erred in giving a jury instruction on flight
[Headnote 11]
Hutchins contends that the district court erred in giving the following jury instruction:
__________

5
We elect not to re-examine the Zgombic opinion, as urged upon us by the State.

6
This legislative amendment was apparently in response to Cage v. Louisiana, 498 U.S. 39 (1990), which
invalidated a Louisiana jury instruction on reasonable doubt because of its inclusion, among other things, of the
term substantial.
The amendment to Nevada's statute was made effective upon passage and approval on May 2, 1991 (see AB
426, 1991 Nev. Stat., ch. 138, 1-2 at 257), two months before Hutchins' July 1991 trial.
The flight of a person immediately after the commission of a crime or after he is
accused of a crime that has been committed, is not sufficient in itself to establish his
guilt, but is a fact which, if proved, may be considered by you in the light of all other
proved facts in deciding the question of his guilt or innocence. Whether or not evidence
of flight shows a consciousness of guilt and the significance to be attached to such a
circumstance are matters for your deliberation.
Hutchins insists that the quoted instruction should not have been given as there was no
evidence of flight; there was only evidence that he had left the scene of the crime.
Our review of the record discloses that there was evidence sufficient to support at least an
inference that Hutchins fled. In the early morning hours after the crime, Hutchins was not in
his residence, wherever that may have been, despite the fact that his leg was painful and
bleeding. Terry Walker testified that Hutchins called her three times in the early morning
hours of September 16th, immediately following the incident, from Ralph's Market. During
these calls, Hutchins stated that he was scared. Inferentially, Hutchins was too scared to
go where he was living or to a place where he could receive medical attention even though he
told Walker that his leg was bleeding badly. Furthermore, Hutchins chose, on the evening of
the 16th following the incident, to be picked up and taken to his home by Hutchinson, which
appears unusual as Hutchinson testified that Hutchins really wasn't staying at home at the
time.
These facts justified giving the flight instruction to the jury. It was for the jury to decide
whether the facts warranted an inference of flight. This assignment of error is also without
merit.
CONCLUSION AND DISPOSITION
Our disposition of the foregoing issues makes it unnecessary to address the remaining
assignments of error.
Accordingly, we affirm Hutchins' robbery, kidnapping, and sexual assault convictions, but
reverse and vacate Hutchins' five life sentences for use of a deadly weapon.
____________
110 Nev. 114, 114 (1994) State v. Parent
THE STATE OF NEVADA, Appellant, v. CRAIG S. PARENT, Respondent.
No. 24365
February 4, 1994 867 P.2d 1143
Appeal from an order of the district court granting a pretrial motion to suppress evidence.
Second Judicial District Court, Washoe County; James A. Stone, Judge.
Defendant was charged with possession of controlled substance. The district court granted
defendant's pretrial motion to suppress evidence, and state appealed. The supreme court held
that anticipatory search warrant was valid under state statute and under Fourth Amendment.
Attorney, Washoe County, for Appellant.
Craig S. Parent, In Proper Person, Metairie, Louisiana, for Respondent.
1. Searches and Seizures.
Anticipatory search warrant, which was issued before owner of airplane luggage to be searched had arrived in state and thus before
luggage owner had committed any crime within the state, was valid. Statute governing issuance of warrants did not require crime to
actually have been committed at time warrant issued, anticipatory search warrant did not per se violate Fourth Amendment, and
warrant provided adequate protection against premature execution and adequate description of things to be searched. U.S. Const.
amend. 4; NRS 179.035.
Anticipatory search warrants are not unreasonable and are, therefore, permissible under Fourth Amendment. Purposes of Fourth
Amendment are best served by permitting government agent to obtain warrants in advance if they can show probable cause to believe
that contraband will be present at time search takes place. U.S. Const. amend. 4.
OPINION
Per Curiam:
This is an appeal, pursuant to NRS 177.015(2), from an order of the district court granting a pretrial motion to suppress evidence. The
district court concluded that evidence gained through use of an allegedly unlawful anticipatory search warrant must be suppressed. This
appeal by the state followed.
On July 1, 1992, an anonymous informant telephoned Detective Wygnanski of the Washoe
County Consolidated Narcotics Unit. The informant told Wygnanski that respondent Parent
would arrive, via Continental Airlines at the Reno Cannon Airport, from New Orleans, on
July 3, 1992. The informant stated that Parent would be with two women and he would have
cocaine concealed inside a baby powder bottle in his baggage. The informant also provided
Wygnanski with a physical description of Parent, his social security number, his FBI number,
and his date of birth. Wygnanski confirmed that fact that Parent was scheduled to fly on
Continental Airlines to Reno on July 3, 1992. On July 2, 1992, Wygnanski obtained a search
warrant from a justice of the peace. Execution of the warrant was conditioned upon the arrival
of Continental Airlines flight number 781 from New Orleans on July 3, 1992.
On July 3, 1992, Parent and two women arrived at the Reno Cannon Airport. Police
officers observed the threesome once the threesome exited the airplane. Parent played a slot
machine and entered the airport bar before retrieving his luggage from the luggage carousel.
The police officers arrested Parent shortly after he retrieved his luggage. A police officer
found 3.7 grams of cocaine in a baby powder bottle which was located inside one of
appellant's bags.
On August 17, 1992, the state filed an information charging Parent with one count of
possession of a controlled substance (cocaine). On January 11, 1993, appellant filed in the
district court a motion to suppress evidence gained through the use of the search warrant. The
state opposed the motion. On May 13, 1993, the district court conducted a hearing on Parent's
motion to suppress. The informant was not identified. On May 13, 1993, the district court
entered an order granting Parent's motion to suppress evidence gained through the use of the
search warrant. This appeal followed. This matter has been submitted on the record.
[Headnote 1]
In his motion to suppress, Parent argued that the justice of the peace improperly issued the
search warrant because NRS 179.035 requires that the offense for which the search was
obtained be committed before the search warrant issues.
1
In its order granting the motion to
suppress, the district court reached the following conclusions: (1) NRS 179.035 specifically
says that the offense must have already been committed before the search warrant [may
issue]"; {2) this court has not adopted the anticipatory search warrant rule; {3) the
legislature has not adopted the anticipatory search warrant rule; {4) the search warrant
should not have been issued until after Parent arrived in Nevada; and {5) Parent "could
easily have been detained at the airport while a search warrant was sought.
__________

1
In his motion, Parent raised additional challenges to the search warrant. Because the district court's order
concerned only the fact that the search warrant was issued prior to the time that the offense was committed, we
have not addressed the other issues presented in the district court.
search warrant [may issue]; (2) this court has not adopted the anticipatory search warrant
rule; (3) the legislature has not adopted the anticipatory search warrant rule; (4) the search
warrant should not have been issued until after Parent arrived in Nevada; and (5) Parent
could easily have been detained at the airport while a search warrant was sought. The
warrant was not appropriately obtained, and, consequently, the evidence must be suppressed.
NRS 179.035 provides (emphasis added):
A warrant may be issued under NRS 179.015 to 179.115, inclusive, to search for and
seize any property:
1. Stolen or embezzled in violation of the laws of the State of Nevada, or of any
other state or of the United States;
2. Designed or intended for use or which is or has been used as the means of
committing a criminal offense; or
3. When the property or things to be seized consist of any item or constitute any
evidence which tends to show that a criminal offense has been committed, or tends to
show that a particular person has committed a criminal offense.
During the hearing on the motion to supress, Parent argued that the justice of the peace lacked
jurisdiction to issue the search warrant because at the time the search warrant was issued a
criminal offense had not been committed within this state. The district court agreed with
Parent's argument.
At the time that the justice of the peace issued the search warrant, Parent had not yet
entered the State of Nevada and had not yet committed a crime within the State of Nevada.
The district court and the parties relied exclusively on NRS 179.035(3) in their analysis of
this issue. Although NRS 179.035(3), at least arguably, contains language that might require
that a crime actually have been committed at the time a warrant is issued,
2
NRS 179.035(2),
which clearly applies to the facts of this case, has no such language. Indeed, NRS 179.035(2)
provides statutory authorization for an anticipatory search warrant: A warrant may be issued
. . . to search for and seize any property . . . intended for use . . . as the means of committing a
criminal offense[.] The intended for use language of the statute indicates that it is not
necessary that the crime be committed before the magistrate issues the search warrant.
__________

2
One might argue, however, that NRS 179.035(3) requires only that a crime have been committed at the time
property is seized; the statute is silent with respect to the timing of the issuance of the warrant, and one might
persuasively argue that the Legislature never intended to restrict the issuance of warrants in the manner
suggested by respondent. We need not here resolve this issue, however, because NRS 179.035(2) provides a
sufficient statutory basis for the issuance of the warrant in this case.
Although the district court is correct in noting that this court has not expressly approved of
anticipatory search warrants, the clear weight of authority holds that anticipatory search
warrants are not unconstitutional per se. See e.g., United States v. Tagbering, 985 F.2d 946
(8th Cir. 1993); Rivera v. United States, 928 F.2d 592, 602-03 (2nd Cir. 1991); United States
v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990); United States v. Garcia, 882 F.2d 699 (2nd Cir.),
cert. denied sub nom. Grant v. United States, 493 U.S. 943 (1989); United States v.
Dornhofer, 859 F.2d 1195 (4th Cir. 1988), cert. denied, 490 U.S. 1005 (1989); Johnson v.
State, 617 P.2d 1117 (Alaska 1980); State v. Cox, 522 P.2d 29, 34 (Ariz. 1974); State v.
Wright, 772 P.2d 250, 256-60 (Idaho Ct.App. 1989).
In addition, the United States Supreme Court implicitly approved of anticipatory search
warrants in Katz v. United States, 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41
(1967). In those cases, the Court indicated that it was constitutionally possible to obtain a
search warrant for the seizure of oral communications through the use of electronic
surveillance. Of course, the oral communications to be intercepted would occur after the
issuance of the search warrant.
[Headnote 2]
[T]he purposes of the fourth amendment are best served by permitting government agents
to obtain warrants in advance if they can show probable cause to believe that the contraband
will be located on the premises at the time that the search takes place. . . . Anticipatory search
warrants . . . in the proper circumstances, may be an effective tool, both to fight criminal
activity, and to protect individual fourth amendment rights. United States v. Garcia, 882
F.2d 699, 703 (2nd Cir.), cert. denied sub nom. Grant v. United States, 493 U.S. 943 (1989).
Anticipatory search warrants are not unreasonable and are therefore permissible under the
Fourth Amendment to the United States Constitution. In Garcia, the Second Circuit Court of
Appeals provided a model for analysis of whether the issuance of an anticipatory search
warrant is proper. We find the analysis persuasive. In that case, the court stated the following:
[W]e recognize that any warrant conditioned on what may occur in the future presents
some potential for abuse. Magistrates and judges should therefore take care to require
independent evidence giving rise to probable cause that the contraband will be located
at the premises at the time of the search. This means that affidavits supporting the
application for an anticipatory warrant must show, not only that the agent believes a
delivery of contraband is going to occur, but also how he has obtained this belief, how
reliable his sources are, and what part government agents will play in the delivery.
are, and what part government agents will play in the delivery. Judicial officers must
then scrutinize whether there is probable cause to believe that the delivery will occur,
and whether there is probable cause to believe that the contraband will be located on the
premises when the search takes place.
Moreover, when an anticipatory warrant is used, the magistrate should protect
against its premature execution by listing in the warrant conditions governing the
execution which are explicit, clear, and narrowly drawn so as to avoid
misunderstanding or manipulation by government agents.
Finally, as with other search warrants, anticipatory warrants require that a magistrate
give careful heed to the fourth amendment's requirement that the warrant particularly
describ[e] the place to be searched, and the persons or things to be seized. Of course,
the scope of the search under an anticipatory warrant should be no narrower than the
scope of the search which would be allowed under the exigent circumstances
exception.
Id. 703-04 (emphasis omitted).
In this case, Officer Wygnanski's oral affidavit in support of the application for an
anticipatory search warrant revealed that Wygnanski received a telephone call from an
anonymous informant. The informant told Wygnanski that Parent, who resides in New
Orleans, is a driver for an organized crime figure named Frank Kerazy. The informant told
Wygnanski that Parent is six foot one, a white male with green eyes, brown wavy hair, and a
moustache. Further, the informant told Wygnanski that Parent's FBI number is 259273JA1,
that Parent has a long criminal history, that Parent would arrive in Reno on July 3rd at
approximately 1:26 p.m., on flight number 781, Continental Airlines from New Orleans to
Denver, and that Parent would be flying with two women by the names of Jodie and
Stephanie. The informant told Wygnanski that Parent would bring approximately four ounces
of cocaine which would be packaged in a baby powder bottle and would be disguised within
the baby powder.
Wygnanski verified with the State of Louisiana that Parent had prior convictions for
aggravated burglary, resisting arrest, causing substantial bodily harm to a police officer,
resisting a police officer, first degree murder, armed robbery, aggravated burglary and
attempted armed robbery. Parent's FBI record was expunged on September 28, 1989.
Wygnanski also verified the fact that Parent would be flying into Reno on July 3rd on
Continental Airlines.
The magistrate provided protection against premature execution of the warrant by
requiring that the warrant be served only after the arrival of Continental Airlines flight
number 781 from New Orleans on July 3, 1992. Finally, the warrant particularly described the
place to be searched and persons or things to be seized. The warrant provided that the
evidence to be seized consisted of cocaine, packaging materials, U.S. currency, and writings
with names, addresses or phone numbers. The warrant provided that the police were
permitted to search all luggage, purses, personal clothing, and the persons of the three
suspects at the Reno Cannon Airport.
The issuance of the anticipatory search warrant and subsequent search in this case were
authorized by state statute and did not violate the Fourth Amendment to the United States
Constitution. The district court erred in suppressing the evidence obtained as a result of the
search. Accordingly, we reverse the order of the district court suppressing evidence obtained
through use of the search warrant and remand this matter to the district court for further
proceedings consistent with this opinion.
____________
110 Nev. 119, 119 (1994) Royal Ins. v. Eagle Valley Constr., Inc.
ROYAL INSURANCE, a Delaware Corporation, and CARSON READY MIX, INC., a
Nevada Corporation, Appellants, v. EAGLE VALLEY CONSTRUCTION, INC., a
Nevada Corporation, Respondent.
No 23322
February 4, 1994 867 P.2d 1146
Appeal from an order of the district court dismissing appellants' complaint for damages.
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Personal injury action was brought. The district court dismissed complaint based on lack
of subject matter jurisdiction. Appeal was taken. The supreme court held that attorney fees
and costs cannot be included in damage amount to meet jurisdictional amount of statute
providing that district court only has jurisdiction over suits involving more than $5,000 in
damages.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison & List and Stephen S. Kent, Reno, for Appellants.
Perry & Spann, Reno, for Respondent.
110 Nev. 119, 120 (1994) Royal Ins. v. Eagle Valley Constr., Inc.
Courts.
Attorney fees and costs cannot be included in damage amount to meet jurisdictional amount under statute providing that district
court only has jurisdiction over suits involving more than $5,000 in damages. NRS 4.370, 4.370(1)(b).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellants' complaint for damages sustained in a traffic accident.
1
The district court sua sponte dismissed appellants' complaint based on a lack of subject
matter jurisdiction. Appellants claimed in their complaint $4,208.74 in damages. At the time
appellants filed their action, however, NRS 4.370(1)(b) provided that the district court only
had jurisdiction over suits involving more than $5,000 in damages.
2

Appellants contend on appeal that attorney's fees and costs are included in the
jurisdictional limit under NRS 4.370. Appellants thus argue that the attorney's fees and costs
incurred in this case raise the amount in controversy above the jurisdictional threshold of the
district court. Appellants' contention is without support. We have previously ruled that [a]
court which is the creation of statute has only the authority given to it by the statute. McKay
v. City of Las Vegas, 106 Nev. 203, 205, 789 P.2d 584, 585 (1990). In this case, the justices'
court has exclusive jurisdiction if the damage claimed does not exceed $5,000. NRS
4.370(1)(b) (emphasis added). Because appellants only claim $4,208.74 in damages, the
district court properly dismissed appellants' complaint for lack of jurisdiction. Accordingly,
we affirm the decision of the district court.
__________

1
This appeal was previously dismissed in an unpublished order of this court. On November 18, 1993, the
district court requested this court to publish as an opinion our previous unpublished order. Cause appearing, we
grant the request. Accordingly, we issue this opinion in place of our order dismissing this appeal filed September
29, 1993.

2
In 1993, the legislature amended NRS 4.370 and raised the jurisdictional limit of the district court to suits
involving more than $7,500.
____________
110 Nev. 121, 121 (1994) Humana Inc. v. District Court
HUMANA INC. d/b/a HUMANA HOSPITAL SUNRISE, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, and THE HONORABLE JACK LEHMAN, District Judge,
Respondents, SOUTHERN NEVADA EQUIPMENT CO., INC., a Nevada
Corporation, Real Party in Interest.
No. 23958
HUMANA INC. d/b/a HUMANA HOSPITAL SUNRISE, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, and THE HONORABLE JOSEPH T. BONAVENTURE, District
Judge, Respondents, RYAN TERRY PRETNER, JERRY FOX, MARY FOX and
DARREN P. MIEHE, Real Parties in Interest.
No. 24050
February 4, 1994 867 P.2d 1147
Consolidated original petitions for writ of mandamus or prohibition. Eighth Judicial
District Court, Jack Lehman, Judge, and Joseph T. Bonaventure, Judge.
Hospital petitioned court to issue extraordinary writs of mandamus or prohibition directing
district courts to vacate their orders which held hospital in contempt for failing to comply
with subpoenas duces tecum directing hospital to disclose medical records. Cases were
consolidated for appeal. The supreme court held that hospital was required to comply with
subpoenas duces tecum.
Petition denied.
Lionel Sawyer & Collins and John R. Bailey, Las Vegas, for Petitioner.
Edwards, Hale & Hansen and Kym Cushing, Las Vegas, for Real Party in Interest.
Pretrial Procedure.
Hospital was required to comply with subpoenas duces tecum directing hospital to disclose medical records, although hospital
alleged that medical records could not be released to real parties in interest without either patient's consent or court order. Proper
remedy for hospital to object to subpoenas was to move to quash or modify subpoena as described in subpoena rule, which hospital
failed to do. NRS 449.720(4), 629.061; NRCP 45, 45(b)(1), (d)(1).
OPINION
Per Curiam:
These petitions for writs of mandamus or prohibition arise from personal injury lawsuits.
On March 16, 1992, and October 6, 1992, respectively, real parties in interest served the
custodian of medical records for Humana Hospital Sunrise (Humana) with subpoenas duces
tecum requiring the custodian to appear at depositions and to bring any and all medical
records pertaining to the plaintiffs below. Humana's custodian did appear at the depositions
with the requested medical records; however, since the real parties in interest did not have
either the consent of the plaintiffs below or specific court orders, the custodian was unwilling
to disclose the medical records.
Real parties in interest sought and obtained an Order to Show Cause why Humana should
not be held in contempt of court and punished accordingly for failing to fully comply with a
subpoena duces tecum. Discovery conferences were held and the discovery commissioners in
both cases found that Humana had failed to show good cause why it did not comply with the
subpoenas. Further, the discovery commissioner in Case No. 24050 recommended that
Humana be sanctioned $500 for its failure to comply. In Case No. 23958, monetary sanctions
were stayed pending this court's resolution of the issue raised by these petitions.
Humana filed objections to the discovery reports with the Eighth Judicial District Court.
Judges Bonaventure and Lehman, respectively, affirmed and upheld the commissioners'
discovery reports. Humana petitions this court to issue an extraordinary writ directing the
district courts to vacate their orders affirming the discovery commissioners' reports. These
cases were consolidated for appeal
1
and present the same question: whether a health care
provider must disclose medical records when served with a subpoena duces tecum signed
only by the clerk of court.
Real parties in interest maintain that a subpoena duces tecum is sufficient to compel the
disclosure of medical records. Humana asserts that medical records are privileged and
confidential documents under NRS 449.720(4). Humana further contends that it should not
have been held in contempt nor sanctioned since its refusal to disclose the requested records
was pursuant to: (1) NRS 629.061, which permits disclosure of health care records only to the
patient (or a representative of the patient) or to specific government agencies, and (2) an
Order issued in a previous case that identified the "proper avenue" for obtaining a patient's
medical records.
__________

1
The action underlying Case No. 23958 settled on January 27, 1993; however, this does not render the issue
moot since Humana faces possible sanctions as a result of our decision in this case.
that identified the proper avenue for obtaining a patient's medical records.
2

We hold that Humana was required to comply with the subpoenas duces tecum and that it
did not do so. We further hold that NRCP 45 provides the proper remedy for Humana to
object to such subpoenas. Under NRCP 45(b)(1), a party may move the court to quash or
modify a subpoena if it is unreasonable and oppressive. Further, NRCP 45(d)(1) allows a
person served with a subpoena to object and demand a court order before that person is
required to comply with the subpoena. NRCP 45(d)(1) states that if a person objects to the
inspection or copying of any or all of the designated materials, he or she may serve upon the
attorney designated in the subpoena written objection within ten days of being served. If
such written objections are made, the party serving the subpoena is not entitled to inspect or
copy the materials except pursuant to a court order.
Sanctions for failure to comply with a subpoena duces tecum might well be inappropriate
if imposed against a party who did not show the willful disregard for NRCP 45 that Humana
has shown in these cases. For example, sanctions would be inappropriate if imposed upon a
person served with a subpoena, who in good faith was simply unaware of the procedures set
forth in NRCP 45(b)(1) and NRCP 45(d)(1). Of course, the record reveals that Humana is not
in this position.
In the instant case, Humana objects to the subpoena duces tecum on the basis that the
requested medical records could not be released to real parties in interest without either the
patient's written consent or a court order. However, Humana neither moved the lower court
under NRCP 45(b)(1) to modify or quash the subpoena, nor served upon the attorney
designated in the subpoena a written objection which, in turn, would have compelled a court
order. Since Humana failed to comply with NRCP 45, this petition is denied.
3

Steffen, Springer and Shearing, JJ., and Zenoff, Sr. J.,
4
concur.
__________

2
Humana refers to an Order by then District Court Judge Rose in Henderson v. Ludlow, No. A253367 (Order,
April 13, 1988), another case in which the defendants filed a motion for Humana to show cause. The Order
states, in pertinent part:
[T]he Court finds that defendant's motion to show cause is denied. The proper avenue to proceed is on a
motion to compel William Henderson [the patient] to execute a medical consent form, or in the
alternative, for an order declaring that Henderson has waived the privilege by filing the law suit pursuant
to NRS 49.245(3).

3
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.

4
The Honorable David Zenoff, Senior Justice, was appointed to sit in place of The Honorable Robert E. Rose,
Chief Justice.
____________
110 Nev. 124, 124 (1994) Buffington v. State
MONTE BRENT BUFFINGTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24422
February 4, 1994 868 P.2d 643
Appeal from an amended judgment of conviction, pursuant to a guilty plea, ordering
restitution. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
On remand after appeal, district court resentenced defendant for sexual abuse of stepson,
and defendant appealed. The supreme court held that: (1) trial court lacked jurisdiction to
resentence defendant until it received remittitur from supreme court, and (2) defendant agreed
to make restitution.
Vacated and remanded.
James J. Jackson, State Public Defender and James P. Logan, Deputy Public Defender,
Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney
and Mark Forsberg, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Trial court lacked jurisdiction following appeal to resentence defendant and order him to pay restitution, where trial court had not
yet received remittitur from supreme court. Until remittitur issued to trial court, jurisdiction was vested solely in the supreme court.
NRS 177.155, 177.305; NRAP 41(a).
2. Courts.
Decision holding that accused is liable to make restitution for victims or alleged victims of offenses to which defendant has
admitted, upon which he has been found guilty, or upon which he has agreed to pay restitution is not a new rule of law for purposes
of determining whether decision applies retroactively.
3. Courts.
New rule of law applies prospectively only; conversely, when decision merely interprets and clarifies existing rule, decision applies
retroactively.
4. Stipulations.
Defendant agreed to make restitution for psychological counseling provided to his three sexually abused stepsons by stipulating
to any restitution for amounts incurred in the past having to do with counseling and to restitution for amounts incurred in the future if
corroborated in some way or properly submitted.
OPINION
Per Curiam:
Appellant Monte Brent Buffington (Buffington) attacks a judgment of conviction, entered upon resentencing,
ordering him to pay restitution for psychological counseling provided to his three stepsons.
judgment of conviction, entered upon resentencing, ordering him to pay restitution for
psychological counseling provided to his three stepsons. The boys received counseling after
Buffington was accused of various alleged incidents of child sexual assault. We conclude that
Buffington agreed to pay restitution for the boys, but that the district judge lacked jurisdiction
over the case when he sentenced Buffington. We therefore remand to the district court for
resentencing.
Buffington was charged with two felony counts of lewdness with a minor under fourteen
years of age, for alleged lewd activity with John and Mark, two of his three stepsons.
Buffington pleaded guilty to the count involving Mark, in exchange for dismissal of the count
involving John. The Memorandum of Plea Negotiation was silent on restitution. The district
judge sentenced Buffington to six years in Nevada State Prison and ordered him to pay
restitution to the Victims of Crime Fund (the Fund) for payments the Fund had made to a
psychologist. The payments were compensation for psychological services provided to all
three of Buffington's stepsonsMark, John and Ted. John and Mark received counseling in
connection with the charged counts, and Ted in connection with incidents of lewd activity
allegedly perpetrated by Buffington but for which he had never been charged.
Buffington appealed the Judgment of Conviction (the first Judgment) to this court,
arguing that the restitution portion was invalid because it failed to set a specific amount for
each victim of the offense, as required by statute. This court agreed and remanded to the
district court for resentencing to include a specific amount [of] restitution for each of
appellant's victims.
Before the district judge resentenced Buffington, this court decided Erickson v. State, 107
Nev. 864, 821 P.2d 1042 (1991). In Erickson this court interpreted the restitution statute to
allow district judges to order restitution only to victims or alleged victims of offenses to
which a defendant has admitted, upon which he has been found guilty, or upon which he has
agreed to pay restitution. 107 Nev. at 866, 821 P.2d at 1043.
[Headnote 1]
On May 10, 1993 the district judge held a resentencing hearing. This court had entered its
judgment in the appeal (an Order of Remand) on April 27, 1993, but the remittitur
1
was not
transmitted to the district court until May 18, 1993, and was not received in the district court
until May 21, 1993. The judge admitted at resentencing that he did not have the file, because
the remittitur "has not been received, so . . . [a]ll I have is the documents created by the
Order of Remand."
__________

1
The remittitur is [a] certified copy of the judgment and a copy of the opinion of the court, if any, and any
direction as to costs . . . unless the court directs that a formal remittitur shall issue. NRAP 41(a).
remittitur has not been received, so . . . [a]ll I have is the documents created by the Order of
Remand.
The judge then resentenced Buffington and entered an Amended Judgment of Conviction
(the Amended Judgment), ordering restitution to the Fund and to Buffington's wife in
specific amounts for payments each had made for counseling services provided to all three
boys.
Buffington now attacks the Amended Judgment. He first claims that the district judge
lacked jurisdiction at the time he resentenced Buffington, as the judge had not yet received
the remittitur from this court after Buffington's appeal. Buffington further argues that he
cannot be found to have agreed to pay restitution in connection with an offense against John
or Ted. The state contends that Buffington agreed to pay restitution for the boys when counsel
stipulated to restitution at sentencing.
Jurisdiction in an appeal is vested solely in the supreme court until the remittitur issues to
the district court. Under the relevant statutes, the supreme court has control and supervision
of an appealed matter from the filing of the notice of appeal until the issuance of the
certificate of judgment. NRS 177.155; 177.305.
2
The certificate of judgment and various
other documents constitute the remittitur. See NRAP 41(a). From these provisions, we
conclude that a district judge lacks jurisdiction over a case until the remittitur is issued, and
that the district court in the instant case had not yet regained jurisdiction to resentence
Buffington when it did. Any other construction would allow a district judge to enter orders
and judgments while the judgment of this court is still subject to revision or rehearing. See
NRAP 40(a) (allowing 18 days after entry of Judgment to file a petition for rehearing in the
supreme court). Accordingly, we hold that Buffington must be resentenced by the district
court.
[Headnote 2]
Buffington also argues that Erickson v. State, 107 Nev. 864, 821 P.2d 1042 (1991), was
not the law governing restitution when he was charged and convicted. Apparently he views
Erickson as expansive of the restitution statute,
3
and argues that the statute should therefore
be read to apply in his case only to Mark, the victim of the specific offense to which he
pleaded guilty.
__________

2
NRS 177.155 provides that [t]he supervision and control of the proceedings on appeal shall be in the
appellate court from the time the notice of appeal is filed with its clerk . . . . NRS 177.305 provides that, after
the certificate of judgment has been remitted, the supreme court shall have no further jurisdiction of [an] appeal .
. . .

3
NRS 176.033(1)(b) provides that [when] a sentence of imprisonment is . . . permitted by statute, the court
shall . . . [i]f restitution is appropriate, set an amount of restitution for each victim of the offense.
victim of the specific offense to which he pleaded guilty. He also argues that even if Erickson
does apply, he did not agree to pay restitution for, he did not admit to, and he was not found
guilty of, offenses involving John and Ted within the meaning of Erickson.
This court held in Erickson that an accused is liable to restitution for victims or alleged
victims of offenses to which that accused has admitted, upon which he has been found guilty,
or upon which he has agreed to pay restitution. 107 Nev. at 866, 821 P.2d at 1043. However,
this holding was merely an articulation of existing law, and was not a new rule of law.
[Headnote 3]
A new rule of law applies prospectively only. Gier v. District Court, 106 Nev. 208, 212,
789 P.2d 1245, 1248 (1990) (new rules prospective unless they are rules of constitutional law,
in which case they may apply retroactively); Franklin v. State, 98 Nev. 266, 269-70, 646 P.2d
543, 544-45 (1982). When a decision merely interprets and clarifies an existing rule,
however, and does not announce an altogether new rule of law, the court's interpretation is
merely a restatement of existing law. See Gier, 106 Nev. at 213, 789 P.2d at 1248.
This court interpreted the restitution statute in line with a universal, well-settled principle
of law. See, e.g., United States v. Tyler, 767 F.2d 1350 (9th Cir. 1985); Nelson v. State, 628
P.2d 884 (Alaska 1981); State v. French, 801 P.2d 482 (Ariz.Ct.App. 1990); State v. Madril,
733 P.2d 365 (N.M.Ct.App. 1987); State v. Dillon, 637 P.2d 602 (Or. 1981). As a result, we
view our holding in Erickson to have been a clarification of the law existing when Buffington
was charged and convicted. Accordingly, Erickson applies to Buffington's sentence.
[Headnote 4]
In addition, we construe the stipulation of Buffington's counsel at sentencing to be an
agreement to pay restitution for all three boys under Erickson. At Buffington's first sentencing
hearing, his counsel declared generally that Buffington would stipulate to any restitution in
the past having to do . . . [w]ith the counseling and any restitution in the future that's
corroborated in some way or properly submitted. Counsel later stated, I wasn't very clear,
Your Honor. I did want to put it on the record that we also stipulate specifically to any
counseling for Teddy. These statements evidence an agreement to pay restitution in
connection with the charged offense against Buffington and in connection with the dismissed
offense involving John and the allegations of lewd conduct with Ted. As a result, we find no
error in the district judge's award of restitution based upon counsel's stipulation.
tion. However, because the court lacked jurisdiction over the subject matter of the case before
it received the remittitur, we vacate the Amended Judgment and remand for resentencing.
____________
110 Nev. 128, 128 (1994) Whitehead v. Comm'n on Jud. Discipline
In re Petition for a WRIT OF PROHIBITION or in the Alternative for a WRIT OF
MANDAMUS.
THE HONORABLE JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION
ON JUDICIAL DISCIPLINE, Respondent.
No. 24598
February 18, 1994 869 P.2d 795
Original proceeding; motion for reconsideration of orders requiring in camera
production of documents.
District court judge petitioned for writ of mandamus/prohibition directed to Commission
on Judicial Discipline, alleging that excesses of Commission's jurisdiction had occurred. The
supreme court ordered in camera inspection of Commission's records to evaluate whether
records supported judge's allegations. Commission moved for reconsideration of order. The
supreme court, Zenoff, Senior Justice, held that: (1) Attorney General and associates rendered
themselves subject to adjudication of contempt by supreme court and appropriate sanctions
by counseling Commission members to defy supreme court's order for in camera inspection;
(2) it would not immediately treat Commission members' defiance of its order for in camera
inspection as actionable contempt; and (3) it was for supreme court and not Attorney General
and associates to decide whether supreme court had jurisdiction to consider district court
judge's petition.
Motion denied; basis of jurisdiction for orders for production of documents stated.
[Rehearing denied April 22, 1994]
Shearing, J., dissented.
Ohlson & Springgate, Reno; Hamilton & Lynch, Reno; Gentile, Porter & Kelesis, Las
Vegas; Laura Wightman FitzSimmons, Las Vegas, for Petitioner.
Frankie Sue Del Papa, Attorney General, Brooke Nielsen, Deputy Attorney General,
Carson City; Donald J. Campbell, Las Vegas, for Respondent.
1. Contempt; Courts.
Jurisdiction to determine jurisdiction doctrine relates to authority of courts to issue ancillary orders while considering other
questions (including determination of their own jurisdiction) and to punish as criminal contempt violations of such orders even though
it may later be judicially determined that court lacked jurisdiction over proceedings in which ancillary orders were issued.
2. Constitutional Law.
It was for supreme court and not Attorney General and associates to decide whether rule, providing that review of interlocutory
orders of Commission on Judicial Discipline may be sought by way of petition for an appropriate extraordinary writ, provided supreme
court with jurisdiction to consider district court judge's petition seeking interlocutory relief from Commission action. Administrative
and Procedural Rules for the Nevada Commission on Judicial Discipline Rule 40(7).
3. Contempt.
Attorney General and associates rendered themselves subject to adjudication of contempt by supreme court and appropriate
sanctions by counseling Commission on Judicial Discipline to defy supreme court's order for in camera inspection of Commission
records because it was void before providing supreme court with meaningful opportunity to vacate its order for in camera inspection.
4. Contempt.
Viewing members of Commission on Judicial Discipline as conscientious and reasonable persons who were donating their
energies with worthwhile social ends in view, supreme court would not immediately treat Commission members' defiance, apparently
counseled by Attorney General and associates, of supreme court's order for in camera inspection of commission records as actionable
contempt on part of any member.
Jurisdiction to define how Commission on Judicial Discipline shall receive and process complaints lies entirely with supreme court
and not with Commission.
6. Judges.
Actions that Attorney General and associates advised Commission on Judicial Discipline to take or activities pursued by Attorney
General and associates in Commission's name were not immune from supreme court review.
7. Judges.
Supreme court is obligated to maintain confidentiality of any petition for its review (prior to determination of probable cause) in
order to maintain confidentiality of proceedings to which Commission on Judicial Discipline proceedings are constitutionally entitled.
8. Judges.
In legal effect, Commission on Judicial Discipline is a constitutionally created court of judicial performance and qualifications
whose activities are entitled to extreme deference when duly confined to their proper constitutionally contemplated sphere.
9. Judges.
Commission on Judicial Discipline is a part of the Judicial Department of Nevada government.
10. Courts.
Members of Commission on Judicial Discipline do not enjoy exemption from responsibility to answer to writs that regularly are
employed to question activities of constitutionally established Nevada officials such as governor, lieutenant
governor, secretary of state, treasurer, controller, attorney general, district judges, and board of examiners
and regents of the University of Nevada system.
question activities of constitutionally established Nevada officials such as governor, lieutenant governor, secretary of state, treasurer,
controller, attorney general, district judges, and board of examiners and regents of the University of Nevada system.
11. Judges.
Commission on Judicial Discipline is not merely administrative agency or arm of supreme court.
12. Judges.
Commission on Judicial Discipline is a constitutionally established court of judicial performance and qualifications whose
functions, as defined in judicial department article of state constitution, are essentially of the same fact-finding and law-applying
nature that state constitution assigns to district courts. Commission's constitutionally assigned functions do not include defining what
constitutes ethical wrongdoing any more than district courts may make authoritative pronouncements as to what conduct constitutes
crimes or civil wrongs.
13. Judges.
Commission on Judicial Discipline is not free to define its own procedures. Commission is obligated to accept and apply both
substantive rules of conduct and rules of procedure as they are stated by supreme court, however much Commission members might
disagree with them.
14. Judges.
Commission on Judicial Discipline members are no less subject to having their actions subjected to interlocutory judicial review
than are judges of district courts.
OPINION
By the Court, Zenoff, Sr. J.:
STATEMENT OF THE CASE
This opinion is written to explain certain actions this court has already taken in these proceedings, which commenced when a District
Court judge on July 22, 1993, filed an original petition for a writ of mandamus, or alternatively for prohibition, directed to the Nevada
Commission on Judicial Discipline. Our constitutional authority to entertain writs of the kind requested is set forth in article 6 of the
Nevada Constitution (the title of which reflects that its purpose is to establish a Judicial Department) as follows:
The supreme court shall have appellate jurisdiction in all civil cases arising in district courts, and also on questions of law
alone in all criminal cases in which the offense charged is within the original jurisdiction of the district courts. The court shall also
have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs
necessary or proper to the complete exercise of its appellate jurisdiction. . . .
and also all writs necessary or proper to the complete exercise of its appellate
jurisdiction. . . .
Nev. Const. art. 6, 4 (emphasis added).
1

The Discipline Commission was created in 1976 by an amendment to the mentioned
Judicial Department article of our constitution that inserts into article 6 a new section 21,
which not only creates the Commission but also grants this court certain powers over it. In
very broad terms, section 21(1) recognizes that the Supreme Court, theretofore also created
by the Judicial Department article, is to have appellate jurisdiction over the Commission, as
it does over Nevada's District Courts:
1. A justice of the supreme court or a district judge may, in addition to the provision
of article 7 for impeachment, be censured, retired or removed by the commission on
judicial discipline. A justice or judge may appeal from the action of the commission to
the supreme court, which may reverse such action or take any alternative action
provided in this section.
(Emphasis added.)
2
Section 21(5) of article 6, in addition, vests the Supreme Court with
power to promulgate rules for the governance of the Commission, as it does for the District
Courts:
5. The supreme court shall make appropriate rules for:
(a) The confidentiality of all proceedings before the commission, except a decision
to censure, retire or remove a justice or judge.
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1
It should be noticed immediately that this constitutional passage does not by its terms limit this court to issuing
writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus solely to complete the exercise of
its appellate jurisdiction. Instead, article 6, section 4, initially grants this court unrestricted authority to issue
those enumerated writs without any limitation, after which section 4 follows with the words, and also all writs
necessary or proper to the complete exercise of its appellate jurisdiction. (Emphasis added.) This is expansive
language, not restrictive language as a phrase such as and other writs necessary to complete the exercise of its
appellate jurisdiction would be. Accordingly, as will hereafter be demonstrated, in past decisions this court has
used mandamus, certiorari, prohibition, quo warranto and habeas corpus to correct improper activities of
constitutionally-created officers outside the judicial branch of Nevada government. Likewise, as concerns the
other tribunals in the judicial branch (such as Justice, Municipal and District Courts), the use of the writs of
mandamus, certiorari, prohibition, quo warranto and habeas corpus has never been confined merely to complete
this court's appellate jurisdiction in the narrow sense of that term.

2
It should be noted that this passage simply establishes explicitly that an accused judge has an absolute right to
seek review of final Commission decisions by way of appeal. By its terms, section 21(1) in no way undertakes to
state a limitation on the authority granted elsewhere in the constitution for this court to issue traditional,
discretionary writs.
mission, except a decision to censure, retire or remove a justice or judge.
(b) The grounds of censure.
(c) The conduct of investigations and hearings.
(Emphasis added.)
The premise underlying the petition for relief herein is that by multiple violations of the
provisions of the new set of rules that this court promulgated in 1988, pursuant to the
above-quoted constitutional mandate, the Commission and attorneys acting in its name have
exceeded the lawful scope of the Commission's jurisdiction as established by the rules in
ways that justify our intervention by way of a writ.
When the petition for writ was initially presented last July to the Vice-Chief Justice in
chambers, the Vice-Chief Justice temporarily stayed proceedings before the Commission, in
order to allow the full court to consider whether violations of the applicable rules had been
stated so as to justify our exercise of jurisdiction as requested, and ordered that proceedings
before this court be kept confidential, in order to maintain the confidentiality of proceedings
before the Commission as mandated by our constitution.
Later, in various orders, other members of this court approved these actions by the
Vice-Chief Justice, and ultimately joined with him in ordering a private, in camera,
inspection of the Commission's records so that the court might evaluate whether these records
provide support for petitioner's contentions that excesses of the Commission's jurisdiction
have occurred which are of a nature as to justify our intervention by way of extraordinary
writs.
3

Orders of this kind directing litigants to deliver materials of possible evidentiary
significance to a reviewing court for private or in camera inspection, as a prudential first
step in deciding whether to allow opposing litigants access to any part of such materials, are
widely employed in judicial practice. See, e.g., Donrey of Nevada v. Bradshaw, 106 Nev. 630,
798 P.2d 144 (1990) (in camera inspection of police reports proper before release to media);
Hickey v. District Court, 105 Nev. 729, 7S2 P.2d 1336 {19S9) {in camera inspection of
juvenile records proper to determine whether they were relevant to litigation); Nicklo v.
Peter Pan Playskool, 97 Nev. 73
__________

3
By virtue of petitioner Whitehead's subsequent waiver of his constitutional right to confidentiality of judicial
disciplinary proceedings, the orders mentioned above are now accessible to the public. The public, therefore, can
now confirm that, contrary to stories published in some news media to the effect that such orders were signed
only by Vice-Chief Justice Steffen and Justice Springer (pejoratively alluded to as a minority of the court),
both orders were in fact signed by a majority of the court as then constituted: Vice-Chief Justice Thomas L.
Steffen, Justice Charles E. Springer, and District Judge Addeliar Guy (who was participating in the place of
Justice Cliff Young, who was disqualified).
release to media); Hickey v. District Court, 105 Nev. 729, 782 P.2d 1336 (1989) (in camera
inspection of juvenile records proper to determine whether they were relevant to litigation);
Nicklo v. Peter Pan Playskool, 97 Nev. 73, 624 P.2d 22 (1981) (trial court should have
inspected child custody investigator's report in camera to determine its relevance to the trial).
4

Nevada Attorney General Frankie Sue Del Papa, nevertheless, joined by a so-called special
prosecutor (whom she has employed with public funds that she obtained from Nevada's State
Board of Examiners by acknowledging that she faced a conflict of interest herein),
5
advised
the Commission to refuse compliance with our orders.
__________

4
Nonetheless, some news organizations have portrayed our action as anomalous and unprecedented, a distortion
enhanced by also inaccurately reporting that we had ordered the Commission to deliver all of its investigative
records directly to petitioner Whitehead rather than to the court.

5
The Nevada Attorney General is routinely involved in representing and defending this and other Nevada
courts in litigation involving challenges to court actions and sometimes claims for money damages against the
justices and judges personally, and in providing courts other advice and services on a continuing basis. It follows
that any undertaking by the Attorney General to represent the Nevada Commission on Judicial Discipline in
contested proceedings (as contrasted with supplying the Commission with abstract advice on an occasional
basis) necessarily raises serious prospects of conflict with her regular obligations as a representative and
advocate of the courts' legal positions and interests. Consequently, we certainly cannot fault Attorney General
Del Papa for advising the Board of Examiners, as she did, that in the opinion of the Attorney General,
representation of the Commission on Judicial Discipline in the matter of Case No. D-163-03/04 (the number by
which the Commission identifies the Whitehead proceedings) presents a potential conflict of interest that
requires employment of special counsel for those matters. What is less clear to us is why, once this recognized
potential of conflict ripened into indubitable actuality through petitioner Whitehead's institution of proceedings
in this court, the Attorney General has continued actively to advise and represent the Commission as well as to
act as its ostensible spokesperson in deprecatory pronouncements about this court. We note that it was Attorney
General Del Papa's continued active involvement in these proceedings that resulted in petitioner Whitehead's
motions to challenge our Chief Justice, on grounds that while he was presiding chief justice in these proceedings,
Attorney General Del Papa was simultaneously acting as attorney in an inquiry of substantial concern to him
personally.
We note that Nevada law does not call for such problems and conflicts. NRS 1.450 does not, as claimed by
Attorney General Del Papa, require her to act as the Commission's legal counsel. Instead, NRS 1.450(1)
specifies that the Commission may select any counsel it desires, subject, of course, to the implicit limitation that
the Commission cannot choose an attorney who is disqualified because of a conflict of interest. NRS 1.450(2)
also allows the Commission to ask the attorney general for advice, but, like other attorneys, of course, the
attorney general has no right to provide advice or services in circumstances of conflict or impending conflict.
See also Nev. Const. art. 6, 21(9)(a).
Routinely, when decisions of this court are challenged in federal court, the attorney general represents the court
and its justices. We must question who
orders. Essentially, it is the premise of Attorney General Del Papa, her chief deputy and her
special prosecutor
6
that, regardless of any excesses of authority they may have committed or
what they may have advised to be done in the Commission's name, this court will remain
powerless until such time as their allegedly improper activities some day culminate in a
final Commission order that censures, removes or retires Judge Whitehead.
By a letter dated October 14, 1993, delivered to the court the following day by Attorney
General Del Papa's deputy, this court was told:
After careful and thoughtful consideration of the Court's many orders including its
confidential order of October 4, 1993, the Nevada Commission on Judicial Discipline
has unanimously reached the following difficult, but constitutionally demanded,
decision.
This Court's order of October 4, 1993, calls for the production of material which is
statutorily and constitutionally privileged. To comply with this secret order would
require the Commission to not only waive those privileges, but to betray its
constitutional duty to safeguard the collective rights of Nevada's citizens to fair and
impartial justice. The Commission cannot in law, nor in good conscience, abandon its
constitutional post in the face of an assault by a series of secret, illegal and void
orders. To acquiesce in this most recent attempt to emasculate and usurp the separate
constitutional powers of the Commission would violate the oath which each of the
undersigned has sworn to fulfill.
7

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now would remain to defend our rulings herein if Attorney General Del Papa were to carry through on reported
intimations that she may sue us in federal court in the name of the Discipline Commission, which she voluntarily
decided to represent notwithstanding her engagement of special counsel with public funds. See Cy Ryan, Del
Papa may seek federal help with Whitehead case, Las Vegas Sun, Feb. 1,1994, at 4C.

6
Documents presented in this case by the Attorney General have been signed by her chief deputy and her
special prosecutor. For convenience, the mentioned three signators will be referred to collectively as the
Attorney General and associates.

7
For such interest as the fact may have, we note parenthetically that some time before we received this letter
protesting our secret, illegal and void orders,' the Deputy Attorney General who delivered it had written
petitioner Whitehead's counsel another letter stating:
The Nevada Commission on Judicial Discipline has directed your letter dated June 18, 1993, to me for
response. In accordance with Rule 5 of the Administrative and Procedural Rules (hereinafter ARJD)
for the Commission, all proceedings are strictly confidential until the filing of a formal statement of
charges occurs. Any breach of this confiden-
From the quoted letter and from other documents submitted to this court, it appears that
the Attorney General and associates have been inaccurately advising the Commission's
members that, as a separate entity in the structure of Nevada government, the Commission
was created as totally independent from any control by anyone in the three established
branches of government: executive, legislative and judicial. Hence (according to the stated
view of the Attorney General and associates), no action of the Commission, however
wrongful or prejudicial, is subject to any control or review whatever, unless and until a
final order is entered censuring or removing or retiring an aggrieved judge. If such a final
order is ultimately entered, the Attorney General and associates evidently concede, the
aggrieved judge may then appeal to this court to seek correction of harm wrongfully
occasioned. Absent such a final order, however, as the argument of the Attorney General
and associates proceeds, neither this court nor anyone else in Nevada's government has
authority to prevent unwarranted intrusions into Nevada's judicial machinery or to forestall
impositions on its judges perpetrated by attorneys ostensibly serving the Commission's
interests as prosecutors.
In summary, then, it appears that the Attorney General and associates have led the
members of the Commission to believe: (1) that this court's orders herein, including our
aforementioned orders for in camera inspection of documents, were void because they were
secret and because they constituted unwarranted intrusions into the Commission's
constitutional duty; and (2) that because the orders were void, they should be disobeyed.
We have concluded that, out of respect for the Commission and the importance of the
purposes for which it was created, such ideas must be explicitly examined and laid to rest as
groundwork for proceeding to an orderly disposition of this case.
We therefore intend to explain in this opinion, the bases for this court's authority to direct
the Commission to submit certain records to us for our private, in camera inspection, as we
did in a confidential order filed in these proceedings on October 4, 1993, which we later
confirmed in another confidential order on October 7, 1993.
[Headnote 1]
As a preface to this explication, however, we should note that even if this court's orders
to permit our "in camera" inspection of documents were indeed "void," as the Attorney
General and associates evidently have led the Commission to believe, the Attorney
General's advising the Commissioners simply to defy those orders would, nonetheless,
have been questionable advice.
__________
tiality requirement is punishable as a contempt of the Nevada Supreme Court.
We are therefore unsure at what point in time the Attorney General and associates developed the abhorrence for
secrecy'' expressed in the letter later delivered to us and quoted above in the text of this opinion; nor do we
know when it was they decided this court had no authority to enforce the confidentiality rule, ARJD 5.
even if this court's orders to permit our in camera inspection of documents were indeed
void, as the Attorney General and associates evidently have led the Commission to believe,
the Attorney General's advising the Commissioners simply to defy those orders would,
nonetheless, have been questionable advice. From the filed briefs herein it appears that the
Attorney General and associates may be insufficiently acquainted with the legal precedents
relating to the jurisdiction to determine jurisdiction doctrine. This doctrine relates to the
long-recognized authority of courts to issue ancillary orders while considering other questions
(including determination of their own jurisdiction), and to punish as criminal contempt
violations of such orders even though it may later be judicially determined that the court
lacked jurisdiction over the proceedings in which the ancillary orders were issued. For
example, the Attorney General and associates suggest in their briefs that United States v.
United Mine Workers of America, 330 U.S. 258 (1947), holds that when a court goes
outside its jurisdiction and acts as a usurper, such orders are void and may be disobeyed with
impunity. This statement mischaracterizes the holding of the Mine Workers case and distorts
the significance of its holding and other decisions of the same genre in regard to the case at
bar.
In Mine Workers, a federal district court, without notice, had entered a temporary
restraining order enjoining the defendant union and its president from encouraging mine
workers to strike. Id. at 266-67. The defendants defied the order, and the United States
Government pursued contempt proceedings before the district court. Id. at 267. In response,
the miners contended that the Norris-LaGuardia Act provided no jurisdiction for the district
court to proceed against them; hence, they claimed, the restraining order had been void. Id. at
269. The district court nonetheless imposed very substantial civil and criminal sanctions
against the defendant union and its president, which the United States Supreme Court
subsequently upheld. Id. at 289.
In a decision often cited to illustrate the jurisdiction to determine jurisdiction doctrine,
the High Court said in Mine Workers that even if the Norris-LaGuardia Act had not vested the
district court with jurisdiction, there would have been alternative grounds which support the
power of the District Court to punish violations of its orders as criminal contempt. Id. at
289. The Court went on to cite Howat v. Kansas, 258 U.S. 181, 189-90 (1922), as authority
for the proposition that an injunction issued by a court of general jurisdiction must be obeyed,
however improper the action of the court may be, even if the error be the assumption of the
validity of a void law going to the merits of the case.
case. Mine Workers, 330 U.S. at 292-93. Quoting Howat, the High Court stated:
It is for the court of first instance to determine the question of the validity of the law,
and until its decision is reversed for error by orderly review, either by itself or by a
higher court, its orders based on its decision are to be respected, and disobedience of
them is contempt of its lawful authority, to be punished.
Id. at 294 (quoting Howat, 258 U.S. at 189-90).
[Headnote 2]
In like manner, as in Howat and in the other cases discussed above, it was for this court
and not the Attorney General and associates to decide whether ARJD 40(7) provides this
court with jurisdiction to consider a petition seeking interlocutory relief from Discipline
Commission action. Furthermore, as in Mine Workers, our jurisdiction temporarily to restrain
Commission action while conducting our review cannot be doubted. Mine Workers teaches
that even if a stay or restraining order was entered in a proceeding over which the lower
tribunal lacked jurisdiction, it may still be enforced under the jurisdiction to determine
jurisdiction doctrine. See Mine Workers, 330 U.S. at 292. Thus, in the case now before us,
assuming that the Commission and the Attorney General could persuade the United States
Supreme Court to grant certiorari, under the holding in Mine Workers, they could not hope to
gain relief from a judgment for contempt (if we entered one now), unless they could persuade
the High Court that they had no opportunity to apply for relief in this court, before defying
our order. Otherwise, the asserted fact that our undertaking interlocutory relief was wrong
would make no difference. See Walker v. City of Birmingham, 388 U.S. 307 (1967) (Dr.
Martin Luther King, Jr.'s conviction for contempt upheld, for violating restraining order,
preventing civil rights march, regardless of whether ordinance enforced by the order was
offensive to Federal Constitutional rights); cf. Shuttlesworth v. Birmingham, 394 U.S. 147
(1969) (vacating, on certiorari, the conviction of a minister who accompanied Dr. King in the
same civil rights march, and who did not violate the lower court's order but only a facially
unconstitutional ordinance that violated his First Amendment rights). To gain relief, the
Attorney General and associates would, in addition, have to satisfy the High Court that this
court's interpretation of the Nevada Constitution and the rules promulgated pursuant thereto
was not only wrong in its assuming jurisdiction in this court, but also that it impacted
adversely on Commission members' rights that are protected under the Federal Constitution
{an undertaking with dubious prospects of success).
under the Federal Constitution (an undertaking with dubious prospects of success).
[Headnote 3]
The holdings of Walker and Shuttlesworth, therefore, do not support the position that the
Attorney General and associates have counseled the Commission members to take in this
matter. Like Dr. King in the Walker case, the Attorney General and associates did not provide
this court a meaningful opportunity to vacate its October 4, 1993, order for in camera
inspection before having counseled the Commission to defy the order as void. They submitted
only a vague, one and one-half page motion, for a thirty-day extension of time, that was
denied. Then, on October 12, 1993, they filed a motion seeking reconsideration and a stay of
the court's order of October 4, 1993. The motion also requested oral argument. Three days
later, one day past the date for compliance established by our order of October 4, 1993, the
Commissioners tendered their letter, dated October 14, 1993, indicating their intention to defy
this court's order.
8
Thus, it appears that they placed the members of the Commission in
exactly the same position as was Dr. King in the Walker case. The Commission members did
more than simply violate the rules of this court upon which the order of in camera
inspection was predicated; thus, they are not in the position of Dr. King's colleague in
Shuttlesworth. Therefore, under the general principles of the jurisdiction to determine
jurisdiction doctrine, as recognized in Mine Workers and Walker, the Attorney General and
associates have rendered themselves subject to an adjudication of contempt and appropriate
sanctions for contempt.
__________

8
The Attorney General and associates filed the mentioned motion for reconsideration and stay only two days
before they counseled the members of the Commission to sign and issue the October 14, 1993, letter signifying
the refusal by each signing Commission member to obey and comply with the discovery order of this court.
Under NRAP 27 the time for petitioner Whitehead to file a response in opposition to the motion had not expired.
Prior to counseling Commission members to defy this court's order, the Attorney General and associates made
no effort to expedite a decision on the motion or to call the court's immediate attention to the motion prior to
issuance of the letter refusing to comply with the discovery order. It appears that the Attorney General and
associates had more than ample opportunity to apply for and obtain an emergency ruling on this motion for
reconsideration. Rather than take this opportunity, however, the Attorney General and associates evidently opted
to prepare the October 14 letter by which the Commission members categorically refused to obey the order of
the court regardless of whether or not the court granted the relief requested in the motion. Under such
circumstances, the motion for reconsideration appears to be a mere pretext, rather than a bona fide application
for relief from this court.
The United States Supreme Court has already specifically considered the peculiar problem
faced by a lawyer who believes in good faith that a court directive to produce documents is
unduly burdensome or otherwise unlawful. In such a case, subject to the obligation to apply
first for relief to the court that issued the discovery order (see Walker, supra), the party and
the party's lawyer may, at their peril, defy the order while seeking relief in a higher court.
Once the jurisdictional contentions have been presented to and rejected by the lower court,
they are preserved for review. If on appeal (or certiorari) the contentions are upheld, any
contempt adjudication will fall. In United States v. Ryan, 402 U.S. 530 (1971), which
involved this fact pattern, the High Court stated:
Walker v. Birmingham . . . is not to the contrary. Our holding that claims there sought
to be asserted were not open on review of petitioners' contempt conviction was based
upon the availability of review of those claims at an earlier stage.
Id. at 532 n.4. Thereafter, if they later persuade a higher court (in the instant case, the United
States Supreme Court) that the order was entered without jurisdiction (and that they had
adequately brought its void character to the attention of the lower court before defying it) the
appellate court may vacate any contempt judgment. See also Maness v. Meyers, 419 U.S. 449
(l975).
9

__________

9
Maness v. Meyers was a case holding that a lawyer may not be held in criminal contempt for advising his
client, a defendant in a state civil case, not to comply with a subpoena duces tecum that the court refused to
quash, or with the court's follow-up order to comply, when the lawyer believed reasonably and in good faith that
compliance might tend to incriminate his client in violation of the Fifth Amendment.
In the course of decision, the Court discussed the duty of the client to obey court orders. It began with the basic
proposition that the orderly and expeditious administration of justice by the courts requires the client to
comply with all court orders and then pursue review thereof. Maness, 419 at 458-59.
Remedies for judicial error may be cumbersome but the injury flowing from an error generally is not
irreparable . . . .
When a court during trial orders a witness to reveal information, however, a different situation may be
presented. Compliance could cause irreparable injury because appellate courts cannot always unring the
bell once the information has been released. Subsequent appellate vindication does not necessarily have
its ordinary consequence of totally repairing the error.
Id. at 460. So in Maness, although eventual review of the Fifth Amendment contention might be possible, there
was no regular opportunity to review for compliance. And compliance could have constituted irreparable injury.
Thus, the client could refuse to comply, and then raise his constitutional contention in any consequent contempt
proceedings; if his contention were eventually upheld, any contempt adjudication would then fall.
The fundamental legal difficulties with the position in which the Commission members
have been placed, therefore, are: (1) that following entry of our order of October 4, 1993, and
prior to defying it, the Commission did not provide this court with a meaningful opportunity
to consider intelligibly any arguments, or any opposition to the arguments, claiming that the
order was void
10
; and (2) that no good faith effort was made to seek relief in a higher court.
We therefore believe that, assuming that the High Court would now (always a doubtful
prospect) grant certiorari if we proceeded immediately to contempt proceedings in this matter,
it is highly unlikely that the Court would vacate any judgment for contempt that we might
now enter.
None of the legal authorities tendered by the Attorney General and associates has any
significance to persuade us to the contrary. For example, counsel place great reliance on NRS
22.010, which lists some acts or omissions that Nevada courts may consider as constituting
contempt, and which counsel suggest does not encompass the defiance they have counseled.
As one of the matters that may be deemed to be contempt, NRS 22.010(3) enumerates:
Disobedience or resistance to any lawful writ, order, rule or process issued by a court or a
judge at chambers. (Emphasis added.) The Attorney General and associates appear to find
great comfort in the fact that the statute states that the order defied must be lawful. They
ignore the fact that under decisions of the United States Supreme Court cited above, our
orders have been lawful under the jurisdiction to determine jurisdiction doctrine, even if it
should be ultimately decided federally that jurisdiction in this matter should be rejected or
denied. Considered in this light, NRS 22.010, therefore, does not support the advice given to
the Commission members, but, rather, is contrary to it.
Ex parte George, 371 U.S. 72 (1962), on which the Attorney General and associates also
place great reliance, is a brief per curiam opinion decided five years before Walker v. City of
Birmingham, supra, and it is based on distinguishable reasoning. Essentially, what the High
Court held in Ex parte George was that, in view of the Texas appellate court's recognition of
Texas law (which provided that a person cannot be punished for contempt for violating a
temporary injunction granted by a court without jurisdiction), a Texas district court's
imposition of a contempt sanction was improper because the NLRA precluded the district
court's subject matter jurisdiction. The case thus clearly turns on a Texas interpretation of
Texas law.
__________

10
As noted, however, the Commission's motion for reconsideration was filed on October 12, 1993.
clearly turns on a Texas interpretation of Texas law. Under Texas law one may not be
punished for contempt for violating a temporary injunction, as here, granted by a court having
no jurisdiction of the subject matter. 371 U.S. at 73 (citations omitted). Thus the application
of the jurisdiction to determine jurisdiction doctrine would not have been appropriate in the
Ex parte George case, which in any event antedated all the major, meaningful authorities we
have discussed above.
11

[Headnote 4]
In view of what has been said, it should be clear that if we desired to do so, we might
successfully proceed immediately to address apparent defiance of our prior orders as
contempt of court without pausing to explain the validity of those orders further. However,
viewing the members of the Commission as conscientious and reasonable persons who are
donating their energies with worthwhile social ends in view, we will not immediately treat the
acts of resistance (which the Attorney General and associates appear to have counseled) as
actionable contempt on the part of any Commission member. We feel obliged, instead, to
explain why we have deemed our orders for in camera inspection of Commission records
(as well as all other orders heretofore entered) not to be void but, rather, within this court's
legitimate jurisdiction. We will, therefore, regard the Commission's above-quoted letter of
October 14, 1993, as a request for reconsideration of the court's implicit determination of
jurisdiction upon which the subject orders were based; hence, this opinion is issued.
EXPLICATION OF THE COURT'S JURISDICTION
1. In 1976, Nevada citizens voted to amend article 6 of the Nevada Constitution, entitled
Judicial Department, to include therein a new section 21 that established a Nevada
Commission on Judicial Discipline.
12
From the examination of our Constitution's "Judicial
Department" article, it is evident that jurisdiction to define what actions the Commission
has the power to sanction as judicial misconduct reposes in the Supreme Court of Nevada,
rather than in the Commission.
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11
A fairly recent United States Circuit Court decision of interest is In re Providence Journal Co. which
declares that a newspaper may be punished for criminal contempt for defying a court order later determined to
be improper for lack of jurisdiction, even though the order was transparently invalid. 820 F.2d 1354 (1st Cir.
1987) (en banc), cert. dismissed sub nom, United States v. Providence Journal Co., 485 U.S. 693 (1988).

12
Article 6, section 21, provides as follows:
Sec. 21. Commission on judicial discipline.
1. A justice of the supreme court or a district judge may, in addition to the provision of article 7 for
impeachment, be censured, retired or removed by the commission on judicial discipline. A justice or
judge may appeal from the action of the commission to the supreme
tion's Judicial Department article, it is evident that jurisdiction to define what actions the
Commission has the power to sanction as judicial misconduct reposes in the Supreme Court
of Nevada, rather than in the Commission. The Constitution plainly declares that the Supreme
Court shall make appropriate rules for: The grounds of censure. Nev. Const. art. 6,
21(5)(b) (emphasis added). The Constitution does not suggest or infer that the Commission
shares this power in any way whatsoever.
__________
court, which may reverse such action or take any alternative action provided in this subsection.
2. The commission is composed of:
(a) Two justices or judges appointed by the supreme court;
(b) Two members of the State Bar of Nevada, a public corporation created by statute, appointed by its
board of governors; and
(c) Three persons, not members of the legal profession, appointed by the governor.
The commission shall elect a chairman from among its three lay members.
3. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all
attorneys admitted to practice before the courts of this state, the legislature shall provide by law, or if it
fails to do so the court shall provide by rule, for the appointment of attorneys at law to the positions
designated in this section to be occupied by members of the State Bar of Nevada.
4. The term of office of each appointive member of the commission, except the first members, is 4 years.
Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a
vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. An appointing
authority shall not appoint more than one resident of any county. The governor shall not appoint more
than two members of the same political party. No member may be a member of a commission on judicial
selection.
5. The supreme court shall make appropriate rules for:
(a) The confidentiality of all proceedings before the commission, except a decision to censure, retire or
remove a justice or judge.
(b) The grounds of censure.
(c) The conduct of investigations and hearings.
6. No justice or judge may by virtue of this section be:
(a) Removed except for willful misconduct, willful or persistent failure to perform the duties of his office
or habitual intemperance; or
(b) Retired except for advanced age which interferes with the proper performance of his [or her] judicial
duties, or for mental or physical disability which prevents the proper performance of his [or her] judicial
duties and which is likely to be permanent in nature.
7. Any person may bring to the attention of the commission any matter relating to the fitness of a justice
or judge. The commission shall, after preliminary investigation, dismiss the matter or order a hearing to
be held before it. If a hearing is ordered, a statement of the matter shall be served upon the justice or
judge against whom the proceeding is brought. The commission in its discretion may suspend a justice or
judge from the exercise of his [or her] office pending the determination of the proceedings before the
commission. Any justice or
As a legal corollary, the Commission, therefore, would be acting in excess of its
jurisdiction at any time it might undertake to sanction, as misconduct, any judicial behavior
that has not been proscribed definitively by either the rules adopted for the Commission by
this court pursuant to its constitutional mandate, Nevada criminal law
13
or the Nevada
Constitution. The Constitution simply does not contemplate that the Commission members
may define judicial misconduct for themselves based on their own ad hoc judgments
concerning what conduct is desirable. To condone such a practice would not merely offend
the Constitution's letter but its underlying policy. Judges could be rendered subject to censure
and to removal from office without any fair prior notice that actions questioned by the
Commission might be treated as wrongful. Judges could be subjected to discipline based on
whatever notions of propriety might be harbored by the Commission's shifting membership at
any given time. We should hasten to mention that this court thus far has issued no writ, and it
has made no determination that excesses of jurisdiction have occurred as alleged by
petitioner Whitehead.
__________
judge whose removal is sought is liable to indictment and punishment according to law. A justice or
judge retired for disability in accordance with this section is entitled thereafter to receive such
compensation as the legislature may provide.
8. If a proceeding is brought against a justice of the supreme court, no justice may sit on the commission
for that proceeding. If a proceeding is brought against a district judge, no judge from the same judicial
district may sit on the commission for that proceeding. If an appeal is taken from an action of the
commission to the supreme court, any justice who sat on the commission for that proceeding is
disqualified from participating in the consideration or decision of the appeal. When any member of the
commission is disqualified by this subsection, the supreme court shall appoint a substitute from among
the eligible judges.
9. The commission may:
(a) Designate for each hearing an attorney or attorneys at law to act as counsel to conduct the proceeding;
(b) Summon witnesses to appear and testify under oath and compel the production of books, papers,
documents and records;
(c) Grant immunity from prosecution or punishment when the commission deems it necessary and proper
in order to compel the giving of testimony under oath and the production of books, papers, documents
and records; and
(d) Exercise such further powers as the legislature may from time to time confer upon it.
(Emphasis added.)

13
We do not, of course, suggest that violations of the criminal law necessarily fall within the Constitution's
proscription of willful misconduct. Nev. Const. art. 6, 21(6)(a). See, ARJD 11(2), which provides: [a]ny
acts or omissions amounting to public offense which tend to corrupt or to impair the administration of justice in
any court are grounds for discipline by censure or removal.
has made no determination that excesses of jurisdiction have occurred as alleged by petitioner
Whitehead. By deciding to consider the petition, the judgment we made was simply that
(based on the petition and supporting documents) the petitioner has set forth issues of
arguable merit. (Emphasis added.)
14

[Headnote 5]
2. In the same vein, the referenced section 21 of our Constitution's Judicial Department
article leaves no room for the Attorney General and associates to argue that jurisdiction to
define procedures to be followed in receiving, investigating or processing disciplinary
complaints rests with the Commission rather than with this court. The Constitution in article
6, section 21(5), explicitly states that the Supreme Court shall make appropriate rules for (c)
The conduct of investigations and hearings. (Emphasis added.) Thus, jurisdiction to define
how the Commission shall receive and process complaints lies entirely with this court, and
not with the Commission.
Pursuant to the constitutional mandate just quoted, this court has heretofore adopted three
different sets of rules to govern the Commission. In the initial set we clearly identified the
rules by their title as interim rules since at that time we had absolutely no experience with
the problems of implementing a structure for judicial discipline. In short order, we concluded
that our first effort was inadequate, and so we substituted a second provisional set of
procedural rules for Commission action that we designated as "revised interim rules."
__________

14
Because our files in the proceedings are now open pursuant to Judge Whitehead's waiver of confidentiality,
the public can now ascertain that this court's confidential order of July 22, 1993, merely recited:
CONFIDENTIAL ORDER
Petitioner the Honorable Jerry Carr Whitehead having filed a petition for a writ of prohibition or in the
alternative for a writ of mandamus directed to the respondent Nevada Commission on Judicial Discipline;
and it appearing that petitioner has set forth issues of arguable merit and that petitioner has no plain,
speedy and adequate remedy in the ordinary course of law; and good cause appearing therefor;
IT IS HEREBY ORDERED that pending the determination of this petition on its merits, all proceedings
before and actions of the Nevada Commission on Judicial Discipline and the actions of those acting on
behalf of the Commission relating to this matter, including the filing of an answer to a purported
complaint, the holding of a hearing to determine probable cause, and the conducting of any further
investigative activities, are stayed. . . .
(Emphasis added.) Other provisions in the order, like its provisions for a stay, were merely intended to facilitate
determinations as to whether the petition was meritorious and a proper subject for the exercise of our
jurisdiction.
as revised interim rules. With experience, we later became convinced that these rules also
were flawed, and, following an extended period of study and solicitation of expert advice, the
court adopted and published the permanent administrative and procedural rules (ARJD)
that came into effect as of April 29, 1988.
The ARJD which govern activities of the Commission at the present date, were
promulgated with the full knowledge and acquiescence of both then-Attorney General McKay
and the Commission. Until the activities of the present attorney general were questioned by
Judge Whitehead's counsel in these proceedings, neither Attorney General Del Papa nor the
Discipline Commission ever objected to the adoption of any rule on which the petitioner
Whitehead here relies.
It should be mentioned parenthetically that our study of the turmoil that has characterized
the Commission's activities extended over a period of several years. To aid this court, we
created a Study Committee that included Justice Charles Springer as well as lawyers and lay
persons with substantial and relevant credentials. Study Committee members included a
present United States Senator, a professor of political science, the immediate past chair of the
Discipline Commission and a former United States Attorney for Nevada who has served as a
legislator on the judiciary committee. Two Study Committee members had, in fact, served
together on the Assembly Judiciary Committee when the language of article 6, section 21,
was being prepared for submission to the voters of Nevada; and thus they, in effect, were
co-authors of its language. This Study Committee conducted extensive factual and legal
research, consulted experts at the National Judicial College and elsewhere, and finally
submitted an extensive and thoughtful report that expressed conclusions concerning a
perceived history of problems and dysfunctions.
15
Thus, again, we suggest that the Attorney
General and associates have no grounds for advising the Commission to question this court's
authority to enact and enforce any of the procedural rules that we have promulgated to govern
the investigations and hearings of that body.
__________

15
Without delving deeply into specific changes introduced in 1988 by the current procedural rules, there is no
doubt that the Study Committee and this court intended to effect substantial changes in procedures that the prior
revised interim rules could be read to allow. With the First Report of the Study Committee on Nevada
Commission on Judicial Discipline contained in ADKT 38 in the office of our Clerk, there was submitted a draft
set of rules which were the precursors of the ARJD now in effect. In its First Report, the Study Committee
documented many problems that it believed loose practices had occasioned in the past, stating that the Study
Committee was proposing corrective measures through a structured process . . . to foreclose future
that body. (The issues of when and through what procedural expedients we may take
corrective action if the rules are not obeyed are matters that we will consider shortly.) This
court then submitted the Study Committee's report and its draft set of rules to a wide range of
persons for comment, including members of the State Bar of Nevada, representatives of the
news media, members of the Commission and the then-Attorney General. Comments were
received from all the foregoing, and in almost all instances, this court accommodated the
suggestions by making changes in the rules. Neither the then-Attorney General, the
membership of the Commission, nor anyone else, raised any objection to ARJD 40(7) and
ARJD 5, which form the basis of our action in the case now before us.
__________
opportunities for such abuses of power. In this regard the Study Committee stated, among other things:
[T]he Study Committee sees in past Commission operations . . . a secret, inquisitional body meeting
behind closed doors investigating unspecified acts of judicial wrongdoing by unspecified judicial
officers.
ADKT 38 at 7.
Proceedings [under the proposed new rules] would then be accusatory rather than inquisitorial, open
rather than closed, and accompanied by due process formalities (e.g., specific accusations, right to
challenge biased Commission members) rather than loose, unstructured and informal.
Id. at 8.
[J]udges have been faced [under the old revised interim rules] with the prospect of secret, inquisitorial
proceedings. There was no requirement of any formal, sworn accusatory document telling an accused
judge the exact nature of the complaint.
Id. at 9.
We have intended [by the proposed new rules] to provide a fair and open forum governed by clear and
explicit rules.
Id.
Initial complaints, in writing and under oath, must [under the proposed new rules] state specifically the
nature of the offense (e.g., violation of a section of the Code of Judicial Conduct) and the specific acts
which constitute the offense.
Id. at 10.
Potential injustice is foreclosed [in the new rules] by clearly defining the basis of the complaint and by
requiring the charges to be reduced to writing and attested by an identified complainant.
Id. at 11.
They [the old revised interim rules] are vague, lack checks and balances, and incorporate no adequate
sanctions to deter misconduct by individual [C]ommission members.
Id. at 12-13.
[P]artially because of deficiencies in the [old] Interim Rules, at least some members of the Commission
have misconceived the constitu-
3. We will, nonetheless, discuss the constitutional justifications for those rules, after
digressing briefly to lay at rest a contention that the Attorney General and associates continue
to proffer in briefs to this court and to promote in public discussions with the news media
about this pending litigation. The Attorney General and associates apparently believe that
none of the activities they have pursued in the Commission's name in their extended effort to
establish grounds for charges against petitioner Whitehead, and to find witnesses to support
them, can possibly be wrong, whatever the ARJD may provide. This is so, they contend,
because the procedures that they have employed in the Commission's name were approved
by this court in the case of Goldman v. Nevada Comm'n on Judicial Discipline, 10S Nev. 251
__________
tional purposes of the Commission. They appear to have proceeded on the assumption that they were
possessed of unbridled discretion to formulate and act upon their own notions of appropriate judicial
conduct without reference to established norms.
Id. at 13.
To this end [providing due process and prompt open disposition of legitimate charges], they [the
proposed new rules] are designed to foreclose the Commission from secret, inquisitorial processes which
result in ad hoc decisions neither related to nor tethered by principle.
Id. at 13.
Planned, selective leaks [as described by the Study Committee] resulted in giving inaccurate and
unreliable information to the public, which [in one case mentioned by the Study Committee] incited
public furor and unjustifiably damaged the reputation of a judicial officer who was never even charged.
After almost two years, the Commission was compelled to concede that its costly, secret inquisition had
generated no evidence against such officer.
Id. at 7.
The proposed rules seek to protect judges from these kinds of unwholesome, un-American practices.
Id. at 8.
As this court learned in the course of its study of the subject, the disciplinary rules of some states can be read (if
commissioners and prosecutors are disposed to do so) to authorize the kinds of abuses identified by our Study
Committee. In a majority of states, however, disciplinary rules include more explicit due process protections.
See The New York Commission on Judicial Conduct, 1988 Annual Report, 57-58 (1988), wherein New York
practices were described as follows:
The commission for example, lacks the broad discretion given to law enforcement agencies to commence
investigations on the basis of mere suspicion; a commission inquiry must be based on a written complaint
and (pursuant to court decisions) the scope of the inquiry must be limited to subject matter that is related
to that complaint.
In view of advice from the Study Committee and other respected authorities, we therefore decided in 1988 to
adopt very explicit rules and practices, far less conducive to unwholesome and quite probably unconstitutional
abuses than the revised interim rules had proved themselves to be.
Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992).
With all due respect to the Attorney General and associates it appears that their researchers
have not read our Goldman opinion with adequate care. If that had been done, it would be
recognized that Commission proceedings against Judge Goldman were conducted under the
prior revised interim rules which no longer even exist. The current rules were adopted after
the Commission's ruling in Goldman. Indeed, in Goldman, this court explicitly noted that the
current rules were not in effect at the time of the proceedings against appellant and did not
govern those proceedings. 108 Nev. at 258 n.4, 830 P.2d at 111 n.4.
There are, furthermore, several other significant factual distinctions between the Goldman
case and this one. In Goldman, for example, upon employment of the special prosecutor,
Attorney General McKay withdrew totally from all personal participation in the proceedings
and allowed the special prosecutor real independence. In sharp contrast to the role that
Attorney General Del Papa has assigned herself to play in the present case, Attorney General
McKay permitted the independent special prosecutor hired by the Commission in Goldman
to perform his function as independent counsel to the Commission without interference or
guidance from Attorney General McKay. This, of course, enabled Attorney General McKay
to avoid generating the kinds of conflicts that would have been present if he had simply used
a special prosecutor as an attach and special deputy attorney general to help him pursue
ends that he may have desired to see realized. There may be various other significant
differences between the role played by special counsel in the Goldman case and the role
assumed by Attorney General Del Papa's special deputy attorney general/special prosecutor
in this case; however, because such differences raise concerns that may relate to the merits of
Judge Whitehead's petition, any in-depth consideration of them would not now be
appropriate.
16
Suffice it to say for present purposes that the Goldman case (a) involved an
appeal and not a writ proceeding challenging jurisdiction; (b) was decided under an entirely
different set of less-definitive rules; and (c) raised and decided issues that were not remotely
coincident with those here involved. It therefore is not a relevant judicial precedent on the
issues before us.
__________

16
It may be noted, however, that in Goldman the special prosecutor predicated his presentation at the
probable cause hearing primarily on evidentiary data compiled by original complainants, rather than grievances
he had searched out himself. From the petitioner's perspective, this appears to be a significant distinction.
4. Aside from their invocation of Goldman, the ultimate position of the Attorney General
and associates, as we previously have mentioned, appears to be that even if the actions they
have pursued and counseled are not in compliance with the applicable rules duly promulgated
by this court pursuant to the Nevada Constitution, we are powerless to correct any mere
interlocutory deviation from the rules by issuing a writ, and especially not a secret one. We
therefore turn to review the pertinent legal authorities which repel the misperception under
which the Commission members evidently have been counseled to place themselves in
jeopardy of sanctions for contempt.
5. In the matter before us, petitioner Whitehead's counsel are alternatively seeking either a
writ of prohibition or a writ of mandamus. They ask for a writ of prohibition on grounds that
acts done and being done in the Commission's name exceed the Commission's jurisdiction as
set out in the substantive and procedural rules this court adopted in response to our
constitutional mandate, Nev. Const. art. 6, 21(5)(a-c), and that such acts, therefore, should
be prohibited from continuing.
17
Petitioner's counsel alternatively seek a writ of mandamus
on grounds that because the Commission has been induced to act in ways that do not comport
with its lawfully-defined functions, mandamus should issue commanding compliance with all
lawful duties that heretofore have been ignored in the proceeding against Judge Whitehead.
18
It is common practice in writ proceedings to tender alternative requests when seeking writs,
just as petitioner's counsel have done here, because in many instances pertinent facts can
arguably be marshalled in a manner that satisfies the requirements of two or more different
writs. That is arguably true in the case at bar. Judging this matter simply from the perspective
of the historical availability of prohibition or mandamus as recognized in the Nevada
Constitution, Nevada statutes and case authority, either prohibition or mandamus seemingly
should be available to correct the abuses petitioner's counsel claim have been done in the
Commission's name, provided that the remaining traditional condition for each writ is
satisfied.
__________

17
The theory of petitioner's request is within the traditional scope of prohibition as historically recognized and
codified in Nevada law. NRS 34.320 provides: Writ of prohibition defined. The writ of prohibition is the
counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person
exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal,
corporation, board or person.

18
The theory of this request is within the traditional scope of mandamus as historically recognized and as
codified in Nevada law. NRS 34.160 provides: The writ may be issued by the supreme court, or a judge of the
district court, to compel the performance of an act which the law especially enjoins as a duty resulting from an
office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to
which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or
person.
correct the abuses petitioner's counsel claim have been done in the Commission's name,
provided that the remaining traditional condition for each writ is satisfied.
19

6. The remaining, traditional condition precedent to the issuance of a writ concerning
which the court would need to satisfy itself before issuing a writ of prohibition or mandamus
(at least, if this case involved any governmental agency other than the Judicial Discipline
Commission) would be whether the alleged deviations from lawful duty, if they occurred,
were of such a kind and magnitude that the petitioner had no adequate remedy by appeal or
otherwise to correct them.
20
In this case, we naturally will express no opinion on how this
question should be decided until the merits of petitioner Whitehead's request for a writ are
eventually considered. As noted, in issuing our prior orders indicating that we would consider
issuing a corrective writ, we merely found that the petitioner presented
(1) an arguable basis for contending that there had been deviations from the rules
governing the Commission; and,
(2) such deviations may arguably have been of a character and magnitude that
petitioner has no adequate remedy to correct them, except through writ proceedings.
As to the basis for the foregoing provisional determinations, our reasons were quite
straightforward. If petitioner's contentions about actions taken in the Commission's name
prove true (and Commission members may not know the full truth about such contentions,
any more than this court yet does),
21
practices employed and counseled by the Attorney
__________

19
See article 6, section 4, of the Nevada Constitution which gives the Supreme Court power to issue writs of
mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to
the complete exercise of its appellate jurisdiction. This provision is discussed at length in footnote 1, at the
beginning of this opinion.

20
NRS 34.170 provides in pertinent part: This writ shall issue in all cases where there is not a plain, speedy
and adequate remedy in the ordinary course of law. See, e.g., Schlatter v. District Court, 93 Nev. 189, 561 P.2d
1342 (1977) (extraordinary relief was available to review an interlocutory order which could cause irreparable
harm to the affected party).

21
In fact, assuming Commission members have scrupulously avoided compromising their capacity as fair and
impartial adjudicators, as contemplated by the current rules, they will have avoided all involvement in the
investigative efforts and all ex parte communications concerning them with Attorney General Del Papa and
associates. The activities that petitioner's counsel seek to establish herein, therefore, do not necessarily involve
wrongdoing on the part of Commission members, except to the extent that they might knowingly have involved
themselves in some of the alleged rule violations assertedly perpetrated in the Commission's name. Accordingly,
much, if not all, of the behavior being challenged herein is in fact related to the activities of Attorney General
Del Papa and associates performed in the
employed and counseled by the Attorney General and associates may involve multiple
violations of this court's constitutionally-mandated rules. If such violations occurred, they
may likewise be of such a magnitude and character that neither an appeal in the narrow
sense, after awaiting a final dispositive Commission order (which may never issue), nor any
other legal remedy except a writ of prohibition or mandamus, will be adequate to prevent the
injury and harm that petitioner claims to be suffering. Without belaboring this point further,
when we issued our prior orders, we were satisfied that petitioner had tendered a sufficient
showing of ongoing and irreparable harm to justify our provisional determination that we
should consider the matter further, to ascertain whether the facts justify issuance of an
interlocutory writ of mandamus or prohibition.
7. In any other case, the foregoing would end the discussion; however, the Attorney
General and associates appear to contend that because the Commission members are serving
as an independent entity of our state government, and are not in fact part of the Judicial
Department of government (even though the constitutional provision creating the
Commission places it there), actions performed in the Commission's name are wholly exempt
from review by extraordinary judicial writ. A parallel contention was considered and rejected
in State v. Board of Regents, 70 Nev. 144, 261 P.2d 515 (1953). Board of Regents involved
an attempted invocation of this court's authority to examine, by way of extraordinary writ, a
tenured professor's disciplinary proceedings before the University of Nevada's Board of
Regents, an independent body outside the Judicial Department of our government. As in the
case now before us, the Attorney General of Nevada then contended that the professor's
challenge to the disciplinary charges against him could not be heard in this court for the exact
reasons the Attorney General and associates now tender. As Attorney General Del Papa and
associates do now, the Attorney General in Board of Regents based this contention on the
proposition that the Board of Regents, being outside the Judicial Department of Nevada
government, was not subject to this court's review. This court rejected the contention:
It is first asserted by respondents that, since the board of regents is a duly constituted
administrative board established under the constitution and statutes as a part of the
executive department, it is beyond any control by the courts, and that this is so
irrespective of whether the action of the board was executive, administrative or
judicial.
__________
Commission's name. As such, those allegedly improper activities, or at least many or them, could perhaps have
been questioned by proceedings in the nature of quo warranto directly against the Attorney General and
associatesa question we do not reach.
this is so irrespective of whether the action of the board was executive, administrative
or judicial. In support of this contention respondents rely upon King v. Board of
Regents, 65 Nev. 533, 200 P.2d 221. That case does not so hold. Our opinion dealing
with the exclusive control of the university by the board of regents expressly and
repeatedly referred to their constitutional, executive and administrative capacity, and
to their executive and administrative control. That the constitutional separation of
powers prevents any judicial review of the judicial or quasi judicial acts of the board of
regents when an excess of jurisdiction is in question was not the holding in the King
case or in any other authorities cited by respondents. The contrary is the rule in this
state and in virtually all other jurisdictions.
Id. at 147-48, 261 P.2d at 516-17 (citations omitted).
The Board of Regents case is closely on point, and totally dispositive as to the contention
under consideration. Many other Nevada authorities to the same effect can be cited.
22

__________

22
The power of this court to issue extraordinary writs to compel or restrain the actions of persons holding
offices created by the Nevada Constitution has existed untrammelled from the early days of this State to the
present day. Compare State of Nevada v. Blasdel, 4 Nev. 241 (1868) (writ of mandamus ordering Governor to
issue a land patent); with Stumpf v. Lau, 108 Nev. 826, 839 P.2d 120 (1992) (writ of mandamus issued ordering
Secretary of State to remove initiative from ballot). We will briefly review some of the more illustrative
examples from among the dozens upon dozens of examples scattered throughout the history of this State.
1. Writ issued to compel action by the Secretary of State: Stumpf v. Lau, supra; Choose Life Campaign 90' v.
Del Papa, 106 Nev. 802, 801 P.2d 1384 (1990) (writ of mandamus issued ordering Secretary of State not to
disseminate misleading arguments regarding abortion referendum); State Gen. Obligation Bond v. Koontz, 84
Nev. 130, 437 P.2d 72 (1968) (writ of mandamus issued compelling Secretary of Colorado River Commission
and Secretary of State to send out notice of sale of state bonds); Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808
(1966) (writ of mandamus issued compelling Secretary of State to refrain from publishing ballot initiative);
Wilson v. Koontz, 76 Nev. 33, 348 P.2d 231 (1960) (writ of mandamus issued compelling Secretary of State to
file ballot initiative); Watson v. Koontz, 74 Nev. 254, 328 P.2d 173 (1958) (writ of mandamus issued
compelling Secretary of State to accept a declaration of candidacy); State v. Koontz, 69 Nev. 25, 240 P.2d 525
(1952) (writ of mandamus issued compelling Secretary of State to file articles of incorporation without charge).
2. Extraordinary writ issued compelling Attorney General to refrain from acting: Ryan v. District Court, 88 Nev.
638, 503 P.2d 842 (1972) (writ of prohibition issued preventing Attorney General from filing an improper
charging document).
3. Writ of certiorari issued to review proceeding before the Board of Regents of the University of Nevada:
Richardson v. Board of Regents, 70 Nev. 347, 269 P.2d 265 (1954) (writ of certiorari issued to review
disciplinary proceedings before the Board of Regents to fire a professor).
4. Writ of mandamus issued to compel action by State Board of Exam-
Before moving to another subject, however, we further emphasize the principles discussed
in the instant issue by referring to a case which not only implicated the precise contention
proffered by the Attorney General and associates, but also concerned facts strikingly similar
to those of the present case. In People ex rel. Harrod v. Illinois Cts. Com., 372 N.E.2d 53 (Ill.
1977), the Illinois Supreme Court concluded that it clearly possessed the power to exercise
mandamus jurisdiction over the Illinois Courts Commission, notwithstanding the fact that the
Illinois Constitution did not even authorize that state's high court to review the Courts
Commission's judicial disciplinary decisions on appeal.
In Harrod, the Courts Commission contended that the Illinois Supreme Court lacked
jurisdiction to entertain a judge's mandamus petition challenging the jurisdiction of the Courts
Commission. The Courts Commission argued that the court could not issue a writ of
mandamus because the Courts Commission was a constitutionally created body with
exclusive power to interpret and define its authority. The Illinois Supreme Court predictably
rejected the Commission's contention, however, and concluded instead that, although the
Commissionlike the courtderived its authority from the state constitution, the
Commission was not a coequal fourth branch of government, nor was it a court within the
meaning of the state constitution's judicial article. Rather, it was the function and duty of the
Illinois Supreme Court, not the Commission, to act as the final arbiter of the Illinois
Constitution. As such, the court held, the Illinois Supreme Court possessed both the authority
and the responsibility to determine whether the actions of the Courts Commission in judicial
discipline proceedings were beyond the Commission's constitutional grant of authority and, if
so, to declare such actions invalid.
__________
iners and State Controller: S.N.E.A. v. Daines, 108 Nev. 15, 824 P.2d 276 (1992) (writ of mandamus issued
ordering Controller to issue warrants for salaries of state employees including pay raises to which Governor and
Board of Examiners objected); Armstrong v. State Bd. Examiners, 78 Nev. 495, 376 P.2d 492 (1962)
(Controller and Board compelled to pay petitioner's salary); State v. Eggers, 29 Nev. 469, 91 P. 119 (1907)
(Controller ordered to pay petitioner's salary); State of Nevada v. Parkinson, 5 Nev. 15 (1869) (Controller
ordered to pay petitioner's salary).
5. Extraordinary writ compelling Governor to take action: State Bar of Nevada v. List, 97 Nev. 367, 632 P.2d
341 (1981) (writ of mandamus issued requiring Governor to declare judgeships vacant); State v. Dickerson, 33
Nev. 540, 113 P. 105 (1910) (writ of mandamus granted requiring acting Governor to accept certain bonds on
behalf of the state).
6. Miscellaneous state boards or agencies: Raggio v. Campbell, 80 Nev. 418, 395 P.2d 625 (1964) (writ of
prohibition issued prohibiting State Board of Parole Commissioners and the Warden of the State Prison from
releasing certain prisoners); State v. Nevada Ind. Commission, 40 Nev. 220, 161 P.2d 561(1916) (mandamus
proper to order Commission to pay judgment).
Thus, in Harrod, the court totally rejected the suggestion that the Courts Commission
could interpret and determine the scope of its own authority, as well as the corresponding
implication that the court was without power in a writ proceeding to determine whether the
state constitution's grants or limitations of authority had been exceeded by the Courts
Commission.
Other states have also had little trouble entertaining extraordinary writs challenging the
jurisdiction of their state judicial discipline commissions. State Ex Rel. Turner v. Earle, 295
So.2d 609 (Fla. 1974) (supreme court had jurisdiction over Judicial Qualifications
Commission under rule-making power and all-writs provisions of state constitution); State
Ex Rel. Shea v. Judicial Standards Comm., 643 P.2d 210 (Mont. 1982) (writ of prohibition
issued because Judicial Standards Commission exceeded its jurisdiction); Christensen v. Bd.
of Comm'rs, 575 N.E.2d 790 (Ohio 1991) (Ohio Supreme Court held a writ of prohibition
proper where Commission about to exercise quasi-judicial power); Herald Ass'n v. Judicial
Conduct Bd., 544 A.2d 596 (Vt. 1988) (Vermont Supreme Court entertained extraordinary
writ seeking disclosure of judicial conduct board materials); Richter v. State Comm'n on
Judicial Conduct, 430 N.Y.S.2d 796 (N.Y.Sup.Ct. 1980) (granting writ of prohibition because
Commission acted in excess of jurisdiction); see also Matter of Marquardt, 778 P.2d 241
(Ariz. 1989) (Supreme Court is the final arbiter on judicial discipline questions); In Re
Greenwood, 796 P.2d 682 (Utah 1990) (Supreme Court is constitutionally obligated to review
judicial conduct proceedings).
8. As noted above, the current rules which guide and limit practices to which the
Commission must conform when it receives complaints, conducts investigations and holds
hearings were promulgated by this court pursuant to constitutional mandateand without
adverse comment from the Attorney General's office or the Commission as to the rules
specifically concerned in this case. ARJD 40(7), as much, or more, for the benefit of
prosecutors as for respondent judges subject to possible disciplinary action, provides:
Review of interlocutory orders of the commission, which are considered either by
the prosecuting officer or the respondent judge to be without or in excess of
jurisdiction, may be sought by way of petition for an appropriate extraordinary writ.
These rules were partially based on recognition of problems that a prosecutor for the
Commission had faced in obtaining a speedy, authoritative answer to a juridictional issue that
related to a Reno municipal judge. ARJD 40(7) was, of course, also adopted in the
recognition that prior Commission practices, in which investigations concerning illusory or
unfounded charges about innocent judges had languished while the subject judges and
their families were subjected to the torments occasioned by untruthful "leaks" to the
press, could no longer be tolerated.
recognition that prior Commission practices, in which investigations concerning illusory or
unfounded charges about innocent judges had languished while the subject judges and their
families were subjected to the torments occasioned by untruthful leaks to the press, could
no longer be tolerated. It is most difficult to raise a legitimate question or challenge to the
sound policy which supports the enactment of ARJD 40(7) and the constitutional and
precedential authority which supports the rule.
ARJD 5(1) of the current procedural rules provides:
All proceedings must be confidential until there has been a determination of probable
cause and a filing of formal statement of charges.
Under the constitution, case law and especially under ARJD 5(1), the Vice-Chief Justice's
decision to order files in these proceedings to be kept confidential, in order that the
confidentiality of the proceedings before the Commission would be maintained, cannot
plausibly be questioned. In various orders hereinbefore entered, all members of the court, as
now constituted, have implicitly recognized the foregoing, as the State Bar of Nevada's Board
of Governors did explicitly at the Board's official meeting on December 17, 1993.
If we correctly understand the Attorney General and associates, they may be harboring
some idea that Nevada's constitutional mandate of confidentiality of judicial discipline
proceedings is, nonetheless, itself unconstitutional under the Federal Constitution. In the
previously quoted letter of October 14, 1993, the Commission was induced to protest vaguely
about secret, illegal and void orders.' If the notions of the Attorney General and associates
are predicated on hopes that the United States Supreme Court would support their views by
so interpreting the Federal Constitution, their prospects seem most doubtful in light of the
comment concerning such confidentiality provisions articulated by the United States Supreme
Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).
9. In section 3 of this opinion we have already treated the untenable contention that in
Goldman v. Nevada Comm'n on Judicial Discipline, supra, this court approved the
procedural practices employed by the Attorney General and her colleagues in the
Commission's name. We now turn to address their contention that in Goldman we made a
pronouncement that establishes the point that this court has no authority to intervene in
Commission proceedings by issuing an interlocutory writ to review alleged Commission
abuses. In their Opposition to Motion to Strike, filed herein on October 27, 1993, the
Attorney General and associates assert that in Goldman, this court recognized the
independent authority of the Commission as follows:
A Commission decision to censure, remove, or retire is not merely advisory or
recommendatory in nature; it is of independent force and effect absent perfection of an
appeal to this court. This broad constitutional authority distinguishes Nevada's
commission from similar commissions in other jurisdictions. . . . It is readily
apparent that by deviating from the California model, the drafters of article 6, section
21 of the Nevada Constitution rejected California's recommendation system in favor
of procedures intended to vest a far greater degree of authority in Nevada's
commission. . . . We conclude, therefore, that the Nevada Constitution does not
contemplate this court's de novo or independent review of factual determinations of the
commission on appeal. To the contrary, the constitution confines the scope of
appellate review of the commission's factual findings to a determination of
whether the evidence in the record as a whole provides clear and convincing
support for the commission's findings.
The commission possesses the authority to weigh and balance all the equities as
well as the rights of the judge and the public's interest in the competence and
ethical integrity of the bench.... The proceedings before the commission must be
allowed to run their full constitutional course from their inception to their
conclusion.
At first glance this excerpt certainly has power to persuade a casual reader, such as a
newspaper reporter, that this court is acting in a manner directly contrary to the views
expressed in Goldman. In fact, it takes a trained lawyer some time to unravel just how the
above quotation was constructed by the Attorney General and associates and how far it
deviates from the approved editorial practices that we expect lawyers to employ when they
prepare documents for submission to this court. In reality, the above quote consists of seven
sentences lifted out of different paragraphs and spanning nine pages of text and two entirely
distinct sections of the Goldman opinion. The quoted passage is deceiving as to which
sentences are at the beginnings of paragraphs, which are at the middle and which are at the
end. Some of the sentences are emphasized, with no indication that the emphasis has been
supplied, as proper editorial procedures require. It is difficult for even a sophisticated
researcher to discover all this, because the Attorney General and associates cited only to a
year-old slip opinion, even though reference to the available printed report would have
been the approved practice to facilitate confirmation of the point being tendered. In several
instances the Attorney General and associates even failed to use ellipses to indicate that
material had been omitted between sentences.
to use ellipses to indicate that material had been omitted between sentences. The last sentence
of the passage is taken out of context and is placed adjacent to a sentence that supplies a
misleading meaning to it. The truth is that the last sentence in the above quote simply
means and says that the Governor may not interrupt disciplinary proceedings before the
Commission by assembling a panel of physicians to allow a judge charged with misconduct
to retire with an enhanced disability pension.
[Headnotes 6, 7]
10. Up to this point there appears to be no basis (except as an emotional reaction or a
political stance) for disagreement with any of the foregoing. As has been demonstrated above,
conscientious review of the pertinent legal authorities repels a contention either that actions
the Attorney General and associates have advised the Commission to take, or activities
pursued by the Attorney General and associates in the Commission's name, are immune from
our review. The pertinent authorities also clearly establish that this court is obligated to
maintain the confidentiality of any petition for our review (prior to a determination of
probable cause) in order to maintain the confidentiality of proceedings to which Commission
proceedings are constitutionally entitled.
Understandably concerned about untruthfulness concerning these proceedings that was
being generated by a Nevada newspaper on the basis of illegal leaks, the Board of
Governors of the State Bar of Nevada undertook to evaluate the bases for this court's actions.
After its investigation, in a public statement issued by the Board on December 17, 1993, the
State Bar of Nevada publicly expressed its conclusion as follows:
Administrative and Procedural Rule 40(7) allows a judge to challenge the
jurisdiction of the Commission. Judge Whitehead has filed a petition challenging the
jurisdiction of the Commission.
Until there has been a determination that probable cause exists, proceedings alleging
misconduct are to be conducted confidentially. The court has issued an order lifting the
confidentiality of the Whitehead proceedings based on a waiver of confidentiality by
Judge Whitehead.
This is all rather obvious, but we have, nonetheless, often belabored the obvious in this
opinion in order to disabuse Commission members of incorrect legal impressions they may
have received from the newspapers or other poorly informed sources. We expect that much
that is included herein about the substantial legal underpinnings for our judicial actions will
be new information to at least some of the Commission members.
We certainly hope so; we have no desire to experience further delay in these proceedings as a
result of contumacious conduct.
While the substantial precedential underpinnings of our prior orders may not have
heretofore been well-explained to Commission members, this opinion's assertion of our
jurisdiction to entertain these proceedings should surprise no one. A number of prior orders
have been entered herein by various members of the court then available. Our rationale for
concluding that this court has jurisdiction to proceed herein may not have been as
well-explicated in those orders as it is in this opinion; nevertheless, by joining in one or more
of them, we think that each member of the present panel (except Senior Justice Zenoff) has
implicitly recognized that this court has proper jurisdiction over these proceedings, and that,
until the confidentiality was ended by petitioner Whitehead's waiving of confidentiality,
this court had a constitutionally-based obligation to shepherd the proceedings in a
confidential setting.
Before declaring himself disqualified in this case, our Chief Justice joined in several of
such orders. In his disqualification statement, our Chief Justice also stated, among other
things: While the Nevada Supreme Court has authority to review preliminary orders of the
Commission as well as its final result, any preliminary review should be done swiftly and
with deference to the Commission. (Emphasis added.) It, therefore, cannot be questioned
that our Chief Justice also disagreed with the argument of the Attorney General and
associates as to their contentions that this court lacks jurisdiction to undertake review of
Commission actions.
We likewise consider the Chief Justice to have been correct in saying that our review
should be done swiftly [consistent with due process] and with deference to the Commission.
That is why, when the Commission was resistant to the court's initial directive to deliver
certain records directly to Judge Whitehead's counsel, we modified our order to provide that
the records be delivered to this court for its private (in camera) inspection only. The merits
of these proceedings might have been determined by now if the Commission had not been
incorrectly advised that our orders were void because they were secret and because the
Commission is beyond any judicial review.
[Headnote 8]
On the subject of the deference which we believe is the Commission's due, more will be
said in the conclusion of this opinion, which follows. In that conclusion we explain that, in
legal effect, the Commission is a constitutionally-created Court of Judicial Performance and
Qualifications, whose activities are entitled to extreme deference when duly confined to
their proper constitutionally-contemplated sphere.
CONCLUSION
[Headnotes 9, 10]
To avoid any possible future misunderstandings, it seems appropriate to explain more
specifically the role of the Commission in the government of this State. We have already
noted some of the things that the Commission is not, for example:
(a) The Commission is not part of any department of government other than the
Judicial Department.
(b) The Commission is not a separate, fourth department of government.
Whatever the Commission may heretofore have been led to believe, the Commission is in fact
a part of the Judicial Department of Nevada government exactly as the constitutional
provisions creating it in 1976 denoted. Additionally, as mentioned before in the body of this
opinion, even if the Commission were part of a separate department of our government (or by
itself constituted one), the members of the Commission would still be accountable to this
court in the exercise of the court's usual powers, which include, among other things, the
issuance of the writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus
directed to non-judicial officers. Commission members do not enjoy an exemption from the
responsibility to answer to the writs that regularly are employed to question the activities of
constitutionally-established Nevada officials such as our Governor, Lieutenant Governor,
Secretary of State, Treasurer, Controller, Attorney General, District Judges, Board of
Examiners and Regents of the University of Nevada System.
[Headnotes 11-14]
We want to make it very clear, however, that we in no way regard the Commission merely
as an administrative agency or arm of this court. If we embraced such a perception of the
Commission, then in the new procedural rules (ARJD) that we promulgated for the
Commission's regulation in 1988, we would have declared that Commission members could
claim only qualified administrative immunity from law suits. Such an immunity would
have been the most we could recognize under holdings of our nation's High Court if we
expected the Commission to pursue functions that are administrative or otherwise
non-judicial in nature.
23
Instead, we declared that the Commission members, while acting
within the scope of their authority, shall enjoy absolute immunity from suit, which is to
say: judicial immunity.
__________

23
We do not wish to extend this opinion unduly with a lengthy discussion of current distinction among the
terms administrative, judicial and prosecutorial as they relate to immunity as the law has evolved in
decisions relating to civil rights actions brought pursuant to 42 U.S.C. 1983 et seq. It is enough here to say that
if this court had framed Commission rules
while acting within the scope of their authority, shall enjoy absolute immunity from suit,
which is to say: judicial immunity. See ARJD 13. The premise for our action was that, under
the rules, the Commission members would be confined to fulfilling the essentially judicial
function of determining facts from evidence brought before them in an adversarial setting and
applying the facts to substantive rules theretofore established by duly constituted authority.
24

Because of the foregoing, in a certain sense, it is as vital to the Commission as to a
respondent judge that the limitations marked out by our current rules (which seek to prevent
the Commission's judicial function from being tainted by involvement in investigative and
prosecutorial activities) shall be effectively enforced. Such enforcement could not be
achieved solely by deferring review of Commission proceedings until appeal from a final,
dispositive Commission order.
__________
to allow the Commission members wide-ranging administrative or police functions, they at most would have
limited immunity as to those activities. See, e.g., Forrester v. White, 484 U.S. 219 (1988) (judge acting in
administrative capacity relating to discharge of court employee held not entitled to judicial immunity, but only to
limited or qualified immunity). Also, if we allowed Commission members to drift totally outside the judicial
realm assigned to them by the ARJD, Commission members might be held to have no immunity at all. See Harris
v. Harvey, 605 F.2d 330 (7th Cir. 1979) (judge who participated in non-judicial activities against a police officer
subject to disciplinary proceeding, including acts injuring officer through adverse newspaper publicity, enjoyed
neither judicial nor prosecutorial immunity for such acts done in absence of jurisdiction).

24
We regard the Commission as being a constitutionally established court of judicial performance and
qualifications, whose functions, as defined in the Judicial Department article of Nevada's Constitution, are
essentially of the same fact-finding and law-applying nature that the state Constitution assigns to the District
Courts of this State. The Commission's constitutionally-assigned functions do not include defining what
constitutes ethical-wrongdoing any more than the District Courts may make authoritative pronouncements as to
what conduct constitutes crimes or civil torts. Like the District Courts, the Commission is not free to define its
own procedures; however, it certainly would receive an attentive hearing if it ever requested this court to amend
some rule we have promulgated, as the District Courts occasionally do. Absent such an amendment, the
Commission is obligated to accept and apply both the substantive rules of conduct and the rules of procedure as
they are stated by this court, however much Commission members or a prosecutor presenting evidence to them
might disagree with the rules in any given case. This is not to say, of course, that the Commission is subservient
to this court, any more than are the District Courts; rather, we are saying that the Commission must faithfully
perform its constitutionally-assigned functions in the judicial disciplinary process. When it appears that the
Commission is being caused to stray outside its jurisdiction, as defined in the substantive or procedural rules we
have adopted pursuant to constitutional mandate, the Commission members are no less subject to having their
actions subjected to interlocutory judicial review than are judges of the District Courts.
dispositive Commission order. The most grievous jurisdictional impositions could then
escape review simply because a special prosecutor hired to present a case did not see fit to
press the case to completion after causing great damage in the Commission's name. Also,
even if some aggrieved respondent judge ultimately obtained the opportunity to appeal from a
final disposition, it might be impossible for this court to correct the harm earlier done either
by improper acts of an administrative or prosecutorial nature in which the Commission has
allowed itself to become implicated, or by acts of a judicial nature violating fundamental
requisites of judicial due process.
Under these circumstances, the Commission members might find themselves held
personally accountable for the judge's damages in federal as well as state tribunals; therefore,
we deem it equally as important for them as for the respondent judge that we allow
interlocutory review of their stewardship of the Commission when a petition for extraordinary
writ arguably reflects serious deviations from rules defining Commission jurisdiction. In
short, a holding that action performed in the Commission's name is totally immune from
interlocutory review would not be calculated to serve the interests of Commission members
or anyone else, except possibly to protect prosecutors from scrutiny, at the expense of
Nevada's citizens, its judges and its legal system.
25

__________

25
As we have noted before, the case of Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830
P.2d 107 (1992), is no precedent to the contrary on this issue. Our decision in Goldman does, however, reflect
our high respect for the Commission and our perception that its factual determinations are entitled to deference
similar to that which we extend to those of the District Courts. In Goldman, we stated:
We conclude, therefore, that the Nevada Constitution does not contemplate this court's de novo or
independent review of factual determinations of the commission on appeal. To the contrary, the
constitution confines the scope of appellate review of the commission's factual findings to a
determination of whether the evidence in the record as a whole provides clear and convincing support for
the commission's findings. The commission's factual findings may not be disregarded on appeal merely
because the circumstances involved might also be reasonably reconciled with contrary findings of fact.
108 Nev. at 267, 830 P.2d at 117-18.
Thus, we assigned a higher status to the Commission and accorded greater deference to its final decisions than
other courts have done, in accord with our view that the Commission is not to be regarded merely as an
administrative agency but as a true Court on Judicial Performance and Qualifications. Our deference to the
Commission is in significant contrast to the California Supreme Court action in the case of Geiler v. Comm'n on
Judicial Qualifications, 515 P.2d 1 (Cal. 1973). Still, the fact that we held in Goldman that the Commission, like
the District Courts, is free from our de novo or independent review of factual findings only emphasizes how
impor-
As indicated above, some considerable time before this court ultimately changed them, we
had concluded that the old revised interim rules were dangerously deficient because they
did not adequately assure that Commission procedures should be kept essentially judicial in
character. We therefore sought to define better procedures which did not blur the
Commission's proper fact-finding and law-applying function with investigative and
prosecutorial functions that inevitably encourage commitment to a pre-judged result. On the
bases of our study and experience, we enacted the current rules which are distinctly more
specific in defining the Commission's proper role, and which explicitly allow for an
interlocutory review by either the respondent judge or by the special prosecutor. See ARJD
40(7).
Despite this history, it seems that the Attorney General and associates may have counseled
the Commission to proceed as the abrogated revised interim rules could be read to allow,
which is to say, in direct violation of the current procedural rules or ARJD. We do not now
decide whether in fact this has occurred. Nor do we decide whether, if deviations occurred as
the petitioner alleges, we should deem them so prejudicial that a writ terminating proceedings
before the Commission should issue. What is important now is that, on the showing tendered
by petitioner, the court felt constrained to determine if the facts warranted the issuance of a
writ as the petitioner is requesting. In order to make a meaningful inquiry by this court
possible, we have ordered in camera delivery of Commission records so that we may see
what documents might be essential to resolve petitioner's claims fully and fairly to both sides.
26

__________
tant it is in Nevada's system that the Commission, like our District Courts, shall apply with fidelity the
substantive legal principles articulated by other constituted authority. It also underscores that in Nevada it is
highly important that the established substantive rules or principles be applied only in compliance with the
procedural requirements delineated by constituted authority. Moreover, in Nevada, as with our District Courts,
when counsel may have led the Commission to stray from its jurisdiction as defined in the rules by other
constituted authority, it is important that such deviations be subject to review by interlocutory writ, as are those
of the District Courts.

26
Of obvious implication in this proceeding is the meaning and scope of ARJD 14(5) which states:
In preparing to oppose a determination of probable cause, the respondent has the right to inspect all
records of the commission relating to the disciplinary action against the respondent and to be fully
advised as to the contents of the administrative record considered by the commission determining that
there was sufficient reason for a probable cause hearing.
We note once again that this court has not previously had occasion to interpret the meaning and scope of this
rule, including the right to inspect
In the course of deciding whether or not petitioner's counsel need to see any part of the
Commission's records, this court fully intends to be sensitive to the Commission's concerns
that persons interviewed by the Attorney General and associates should be protected.
Especially is this true of persons who may have supplied information confidentially, not
expecting to be witnesses, pursuant to promises that their identities would not be revealed. In
accord with practices common when courts conduct in camera inspection of documents
during disputes over discovery issues, the identity of confidential informants can be protected
by redacting any relevant material that would identify the confidential informant. See
Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990).
If redacting will not suffice for the purpose, other expedients will be employed by the
court to assure that no persons who have been promised confidentiality will be jeopardized.
We intend to give substantial respect to the concerns of the Attorney General and associates;
however, we cannot allow the prosecutors to be the arbiters of whether the investigative
initiatives they have pursued in the Commission's name violate the current rules. To move
this matter forward by resolving this issue, it remains necessary for this court to review all
records called for by our prior orders.
This brings us back to the question of what should now be done to address the resistance
to our lawful orders which it appears prosecutors have advised and promoted. Willful
violations of this court's orders are, of course, sanctionable in various ways. However, we do
not intend to consider these options unless it comes to appear that the Commission's
members, having now been fully advised of the basis of our prior rulings, hereinafter willfully
elect to follow a contumacious course.
Before proceeding further, we therefore suggest that each individual member of the
Commission may be well-advised to review the contents of this opinion carefully and to
discuss its contents in depth with some independent, qualified attorney in whom he or she
reposes special confidence. To facilitate this, we direct the Clerk of this court, forthwith, to
initiate steps to provide all Commission members and alternates with two certified copies of
this opinion, either personally or by certified mail with return receipt requested.
As to the conduct of the Attorney General and associates, as discussed above, and as
variously reported in the news media, we also take no immediate action pending further
deliberations of the court.
__________
all records of the commission relating to the disciplinary action and respondent's right to be fully advised as
to the contents of the administrative record. (Emphasis added.)
also take no immediate action pending further deliberations of the court.
Accordingly, we deny the motion of October 12, 1993, seeking reconsideration and a stay
of our order of October 4, 1993. Additionally, we deny the request for oral argument on the
motion for reconsideration.
The members of the Nevada Commission on Judicial Discipline, namely, General Drennan
A. Clark, Alan Lefebvre, B. J. Fuller, Frank Brusa, Judge Nancy A. Becker, Judge Sally
Loehrer, Guy Shipler and Attorney General Frankie Sue Del Papa, Chief Deputy Attorney
General Brooke Nielsen, and Special Deputy Attorney General Donald J. Campbell, are
ORDERED individually and separately to communicate with the Clerk of the Supreme Court,
at her office in the Supreme Court Building, Carson City, Nevada, on or before March 11,
1994, at 5:00 p.m., during that time, to advise the Clerk as to whether he or she will or will
not comply with the discovery order of this court ordering that all records, papers, documents,
video or audio tapes, exhibits or other materials relating to any investigation or proceeding of
any kind concerning Judge Jerry Carr Whitehead be delivered to the Supreme Court for its in
camera inspection.
Further orders of the court will be issued in due course.
27

Steffen and Springer, JJ., concur.
28

__________

27
The Honorable Thomas L. Steffen, Vice-Chief Justice, assigned The Honorable David Zenoff, Senior Justice,
to sit in the place of The Honorable Robert E. Rose, Chief Justice. Nev. Const. art. 6, 19; SCR 10.

28
Vice-Chief Justice Steffen and Justice Springer agree that it would indeed be dubious social policy if, after a
newspaper had misstated the judge's past rulings in a pending case, the judge could not request a proper
correction, without thereby demonstrating prejudgment and establishing a disqualifying financial interest.
This, however, appears to be exactly the contention the Attorney General and associates have heretofore sought
to tender to this court in a motion to disqualify those justices, based on a request for correction that an attorney
for Justices Steffen and Springer recently sent to the Las Vegas Review-Journal.
Justices Steffen and Springer have been unable to comprehend how their continuing belief in the propriety of
rulings already made can possibly constitute a prejudgment of issues remaining to be decided herein. Nor have
these justices as yet been able to fathom just how their belief that they may have been libeled in connection with
reports relating to prior rulings in this case could possibly imbue them with a financial interest which would
render them disqualified from deciding the remaining issues in this case. Moreover, the prosecutors evidently
were unable to locate or cite any legal authority, decided on facts even remotely resembling the circumstances
surrounding the correction request tendered by the justices' attorney, in which a jurist has been held to be
disqualified either for making a supposed
Guy, D. J., concurring:
1

I concur with the results. I would go further than the majority pertaining to the Attorney
General.
Having decided that the Commission is a part of the Judicial Department, I would further
order the Attorney General, her associates and Special Deputy Attorneys General to have no
further contact with this case or any other matter appearing before the Commission.
Aside from the obvious Attorney General conflict noted in the majority opinion, article 3,
section 1 of the Constitution of the State of Nevada expressly forbids either the Legislature or
the Executive to intrude into the Judicial.
Article 3, section 1 of the Constitution of the State of Nevada entitled Three separate
departments; separation of powers, states:
The powers of the Government of the State of Nevada shall be divided into three
separate departments,the Legislative,the Executive and the Judicial: and no
persons charged with the exercise of powers properly belonging to one of the three
departments shall exercise any functions, appertaining to either of the others, except in
the cases herein expressly directed and permitted.
(Emphasis added.)
The Constitution of the State of Nevada invests the governing of this state in three
co-equal divisions of government: The Legislative, the Executive and the Judiciary. Neither
is more important than the other two. Neither is any less important than the other two. They
are co-equal partners in the governing of the State of Nevada. The Constitution of the State of
Nevada does not authorize a non-criminal investigation into either the internal organization
or the competency of one branch of government by either of the other two divisions.
__________
prejudgment or for having a financial interest in the outcome of the case.
Although the other members of this court have heretofore denied the insubstantial motion to disqualify them,
Justices Steffen and Springer nevertheless wish to lay at rest any lingering concerns, unjustifiably raised in the
public mind to the effect that their attorney's correction request to the Review-Journal somehow raised a
financial interest which might result in a prejudgment of issues yet to be decided herein. The two justices,
accordingly, hereby release their rights to any damages resulting from prior false statements of the Las Vegas
Review-Journal that the request for correction heretofore issued by their attorney might otherwise have the effect
of preserving.

1
The Governor appointed the Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court, to sit in
place of The Honorable Cliff Young, Justice, who is disqualified because he is a member of the Commission on
Judicial Discipline. Nev. Const. art, 6, 4.
organization or the competency of one branch of government by either of the other two
divisions. These matters are left to the voters.
Article 6, section 21(9)(a) authorizes the Commission to use attorneys and attorneys at law
to act as counsel to conduct the proceedings. It does not authorize the Attorney General to act
in any capacity for the Commission. The use of the Attorney General in an administrative
judiciary proceeding for the possible administrative discipline of a member of the judiciary
cannot be condoned.
It is certain that to permit the executive department, to wit, the Attorney General, whether
upon request or otherwise, to be counsel or in any way participate in the possible disciplinary
action procedure of a justice or district judge before whom the Attorney General must appear
for judicial decisions, could cause investigations, brought about for political reasons or
because of decisions that were unfavorable. The power or ability to bring before the
Commission only that information or those facts necessary for a favorable decision for
disciplinary action is a great temptation. The temptation becomes even greater if there is only
a scintilla of evidence indicating that a justice or district judge might need censoring or a
stricter penalty. The Legislature may not authorize that which is forbidden by the
Constitution.
I would remand this matter to the Commission to commence or proceed in its investigation
and proceedings by an impartial investigator not within the executive or legislative branch.
Such investigator, of course, could be an attorney at law.
Shearing, J., dissenting:
In view of the importance of issues involved in this case, I would grant the motions for
reconsideration of orders requiring in camera production of documents and the request for
oral argument.
____________
110 Nev. 167, 167 (1994) Hanneman v. Downer
ELDON HANNEMAN and PATRICIA HANNEMAN, Husband and Wife, Appellants, v.
ROBERT C. DOWNER, MAXINE V. SWENSON, and STODDARD JACOBSEN,
Respondents.
ROBERT C. DOWNER, Cross-Appellant, v. ELDON HANNEMAN AND PATRICIA
HANNEMAN, Husband and Wife, MAXINE V. SWENSON, STODDARD JACOBSEN,
Cross-Respondents.
MAXINE V. SWENSON, Cross-Appellant, v. ELDON HANNEMAN and PATRICIA
HANNEMAN, Husband and Wife, ROBERT C. DOWNER, and STODDARD JACOBSEN,
Cross-Respondents.
No. 23434
March 30, 1994 871 P.2d 279
Appeal and cross-appeals from money judgment entered pursuant to bench trial. Ninth
Judicial District Court, Douglas County; Michael E. Fondi, Judge.
Purchasers brought action against vendor for breach of sales agreement, against vendor's
predecessor for breach of warranty of title, and against surveyor for negligence. Vendor
counter-claimed against purchasers for breach of note and against predecessor and surveyor
seeking indemnification. Predecessor cross-claimed against surveyor for indemnification. The
district court entered judgment against vendor and against surveyor and cross appeals were
taken. The supreme court held that: (1) finding that purchasers did not make reasonable effort
to mitigate losses was clearly erroneous; (2) offset for rental value of property was
unwarranted inasmuch as house was uninhabitable and purchasers would not have lived there
as renters; (3) vendor's predecessor was not liable for surveyor's negligence under doctrine of
respondeat superior; (4) doctrine of merger by deed did not apply to relieve vendor of
liability; and (5) surveyor owed duty of care to subsequent purchasers.
Affirmed in part; reversed and remanded in part.
Jack McAuliffe, Reno for Eldon and Patricia Hanneman.
Jon M. Yaple, Carson City, for Robert C. Downer.
Aebi & McCarthy, Carson City, for Maxine V. Swenson.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Mike Pavlakis, Carson City,
for Stoddard Jacobsen.
1. Vendor and Purchaser.
Where vendor purported to sell land which she mistakenly thought she owned, measure of purchasers' damages would be amount
of their out-of-pocket loss.
2. Damages.
Damages are awarded to make aggrieved party whole.
3. Damages.
Out-of-pocket damages are measured by difference between amount paid by aggrieved party and actual value of that which was
received.
Finding that purchasers did not make reasonable effort to mitigate losses after determining that vendor sold them land which
vendor did not own was clearly erroneous. Purchasers removed virtually every item of value they had placed on property that was
reasonably removable, and deducted value thereof from their damages. Cost of restoring house after removal of items by purchasers
was irrelevant since vendor had no ownership interest in house from which salvaged items had been taken.
Fair rental value of house was improperly deducted in determining purchasers' out-of-pocket loss when it was determined that
vendor did not own land upon which house was located. House was uninhabitable at time of purchase and purchasers endured living
conditions while they restored premises that would not have induced them onto property as renters.
6. Damages.
As general rule, party cannot recover damages for losses that reasonable effort could have avoided.
Ordinarily, fair rental value of property would be proper offset against payments ineffectually applied to purchase price of property
during its occupancy by putative purchaser.
8. Master and Servant.
Vendor's predecessor who hired surveyor was not liable to purchasers for surveyor's negligent survey under doctrine of respondeat
superior. Surveyor was independent contractor whose negligence could not be imputed to vendor's predecessor.
9. Frauds, Statute of.
Legal description contained in grant, bargain and sale deed referring to survey showing parcel as consisting of 5.88 acres, and
promissory note between vendor and purchasers corroborating sale of 5.88 acres, satisfied statute of frauds, and evidenced contract for
sale of property containing 5.88 acres. NRS 111.210.
Statute of frauds does not require existence of formal written contract to validate land sale transaction as long as some note or
memorandum memorializing transaction exists. NRS 111.210.
11. Deeds.
Doctrine of merger by deed did not apply to relieve vendor of contractual obligation to convey parcel consisting of 5.88 acres.
Deed expressly conveyed parcel shown on record of survey, and record of survey showed that parcel contained 5.88 acres. Moreover,
terms of deed and contract were not at variance as all purported to convey 5.88 acres, and purchasers expected to receive, and vendor
expected to convey, 5.88 acres of land.
12. Deeds.
When terms of deed cover same subject matter as earlier contract and two are at variance, deed controls.
13. Deeds.
Whether doctrine of merger by deed is applicable depends upon intention of parties and intention in such cases is question of fact
to be determined by examination of instruments and from facts and circumstances surrounding their execution.
14. Boundaries.
Substantial evidence supported determination that surveyor failed to meet requisite standard of care in locating boundary of
property in relying on calls and distances contained in field notes after locating monuments.
15. Evidence.
Allowing cadastral surveyor for Bureau of Land Management to testify as expert as to standard of care required of surveyor was
not error even though witness was not licensed surveyor in Nevada. Employees of federal government who have been authorized under
federal law to conduct surveys need not be licensed unless they are performing private surveys within state. NRS 625.490(4).
District court is better suited to rule on qualifications of persons presented as expert witnesses and reviewing court will not
substitute its evaluation of witnesses' credentials for that of district court absent showing of clear error.
17. Boundaries.
Surveyor engaged by vendor's predecessor had duty to purchasers as foreseeable subsequent purchasers of property and was liable
for damages resulting from negligent survey.
18. Boundaries.
Having determined that negligence of surveyor engaged by vendor's predecessor was actual and legal cause of damages to
subsequent purchaser, it was error to assess damages only against vendor and not against surveyor.
19. Limitation of Actions.
The catch-all, four-year statute of limitations applied to purchasers' claim for damages against surveyor whose negligence was
cause of damage to purchasers. NRS 11.203-11.205, 11.220.
OPINION
Per Curiam:
FACTS
This action results from a negligently performed survey and subsequent conveyance of the inaccurately described real property. The
subject property is part of a tract of land located in the Pinenut Range of Douglas County. Respondent Stoddard Jacobsen acquired the tract
in 1950. In 1965, Jacobsen retained respondent Robert Downer to prepare a survey map and record it in the official records of Douglas
County. Downer prepared the survey with the understanding that the tract would be subdivided into several parcels.
into several parcels. Prior to commencing the survey, Downer obtained plats, notes, and prior
surveys from the Bureau of Land Management (BLM). When surveying the property,
Downer found and rejected the monuments, accessories, and corners because they did not
comport to the field notes of the original survey and because he believed them to be
fraudulent.
1
Thus, Downer relied almost exclusively on the calls and distances in the field
notes and upon plats in determining the northern boundary of Jacobsen's property.
The property at issue (the property) is shown on the Downer map as consisting of 5.88
acres; it is one of the parcels created by Jacobsen's subdivision. In late 1966 or early 1967,
Jacobsen conveyed the property to Frank Frazier, a well driller, in exchange for services
rendered by Frazier. However, the conveyance from Jacobsen to Frazier was never officially
memorialized because Frazier was illiterate. In 1971, Frazier sold the property to respondent
Maxine Swenson for $9,500.00. At Frazier's request, Jacobsen deeded the property directly to
Swenson by a grant, bargain and sale deed.
In 1976, Swenson sold the property to the appellants, Eldon and Patricia Hanneman, for
$35,000.00.
2
The Hannemans gave Swenson $7,500.00 and executed a promissory note for
$27,500.00, to be paid in monthly installments of $200.00. Both Swenson and the
Hannemans believed that the property consisted of 5.88 acres, upon which was situated a
dilapidated and uninhabitable house. The well on the property was inoperative, the water
pipes were broken, the access road was nearly inaccessible, the flat roof on the old house
leaked, and the kitchen and bathroom were in shambles.
Hanneman, a carpenter by trade, repaired the well, water pipes, and road, constructed a
gable roof, installed custom-built kitchen cabinets, and made sundry repairs to the kitchen
and bathroom.
__________

1
A corner is a point determined by the surveying process, which sets or establishes the boundaries of a
subdivision. A monument is a physical object that marks the corner point. Types of monuments include a
marked wooden stake or post, a marked stone, an iron post with an inscribed cap, a marked tree, or a rock with
an X at the exact corner point. Accessories are part of corner monuments and consist of bearing trees or
objects, mounds of stone and pits dug in the sod or soil, that aid in identifying the corner position. Bureau of
Land Management, U.S. Dep't of Interior, Technical Bulletin 6, Manual of Instructions for the Survey of the
Public Lands of the United States, Ch. V, 5-4, p. 129. Field notes are the written record of the survey that
identifies and describes the lines and corners of the survey and the procedures by which they were established.
Id. at Ch. VIII, 8.1, p.183.

2
The Hannemans were divorced in 1976 and unless otherwise stated, Hanneman refers to Eldon Hanneman.
kitchen cabinets, and made sundry repairs to the kitchen and bathroom. He also installed new
siding, two windows, a sliding window door, a wood stove, light fixtures, and a concrete
patio.
In 1981, Hanneman learned that a private survey performed by Veta Grande Mines
revealed that over four acres of the property (including the house and well) belonged to the
federal government. Hanneman contacted Swenson and informed her of the defective survey
performed by Downer. Swenson defended Downer's survey but rejected Hanneman's offer to
continue paying for the property on condition that Swenson agree to reimburse him if
Downer's survey proved to be incorrect. Hanneman stopped making payments in April of
l982.
3
At that time, the unpaid balance on the note held by Swenson was $26,019.48. Shortly
thereafter, the BLM confirmed the accuracy of the Veta Grande survey. Ultimately, the
Interior Board of Land Appeals (IBLA) affirmed the accuracy of both the Veta Grande
Mines survey and BLM resurvey.
Hanneman continued to occupy the premises on a sporadic basis until the autumn of 1985,
when he abandoned the property entirely. In a effort to mitigate his damages, Hanneman
removed the kitchen cabinets, bathroom vanity, light fixtures, wood stove, washer and dryer,
and other items of personal property. In leaving the premises, Hanneman made no provision
for protecting the property against vandalism or the elements. During trial, Odd Kjell Kelly
Larson, a carpenter called by Swenson, testified that it would cost over $12,000.00 to repair
the damage caused by Hanneman's mitigation. Swenson eventually foreclosed upon the
property and now owns the remaining 1.5 acres, which are narrow, steep, and valued at
$1,000.00.
The Hannemans filed the underlying action on July 31, 1984, in which they asserted
claims against Swenson for misrepresentation, breach of the sales agreement, and breach of
warranty of title. The Hannemans also complained against Jacobsen for negligence and
breach of warranty of title, and alleged negligence against Downer. The action sought
$120,000.00 in damages, consisting of the market value of the property on the date of the
complaint, and attorney's fees.
Swenson counterclaimed against the Hannemans for breach of the promissory note.
Swenson also filed cross-claims against Jacobsen and Downer seeking indemnification for
breach of warranty of title and a negligent property survey, respectively. Finally, Jacobsen
cross-claimed against Downer for indemnification based upon the negligent survey.
__________

3
Hanneman initially deposited the monthly payments into a bank account; however, Hanneman withdrew the
funds in 1988 and used them to purchase his current residence.
At the close of the Hannemans' case-in-chief, Jacobsen moved for an NRCP 41(b)
dismissal on grounds that: (1) no privity existed between the Hannemans and Jacobsen or
between Swenson and Jacobsen to support a breach of warranty of title claim; (2) Hannemans
had failed to present evidence of Jacobsen's negligence; and (3) Jacobsen was not liable for
Downer's negligence, if any, because Downer was an independent contractor. The district
court granted the motion and dismissed Jacobsen from the case.
At the conclusion of the bench trial, the district court found that Swenson had contracted
to sell the Hannemans 5.88 acres, and that Swenson's inability to convey 5.88 acres was a
breach of that contract due to a failure of consideration. Accordingly, the district court
ordered Swenson to pay the Hannemans' out-of-pocket costs of $7,500.00. Swenson's liability
to the Hannemans, however, was offset by her judgment against Downer for $7,500.00, with
interest, which the district court specifically designated as the amount of Swenson's liability
to the Hannemans. The court found that Downer negligently performed the survey and
ordered him to pay Swenson the unpaid balance of the promissory note from the Hannemans
($26,019.48 minus the $1,000 value of the remaining land). Finally, the district court ordered
Downer to pay attorney's fees to the Hannemans and to Swenson in the amount of $10,000.00
each, together with taxable costs.
DISCUSSION
The parties have raised several issues on appeal, only the following of which need
resolution. The Hannemans impute error to the district court's calculation of damages and its
decision to dismiss Jacobsen from the action. Swenson contends on cross-appeal that the
court erred when it awarded damages to the Hannemans and failed to award Swenson
damages for breach of contract. Finally, Downer insists that the district court erred in finding
that he negligently performed the property survey and that his liability extends to subsequent
purchasers of the affected property.
1. The Hannemans' damages
[Headnotes 1-3]
Under the peculiar facts of this case, where Swenson purported to sell land which she
mistakenly thought she owned, the district court correctly determined that the measure of the
Hannemans' damages would be the amount of their out-of-pocket loss. However, damages
are awarded to make the aggrieved party whole, and the district court's award, although
pursuant to the correct standard, did not adequately reflect the "out-of-pocket" loss
sustained by the Hannemans.
whole, and the district court's award, although pursuant to the correct standard, did not
adequately reflect the out-of-pocket loss sustained by the Hannemans. See Hornwood v.
Smith's Food King No. 1, 107 Nev. 80, 84, 807 P.2d 208, 211 (1991). Out-of-pocket
damages are measured by the difference between the amount paid by the aggrieved party and
the actual value of that which was received. Randono v. Turk, 86 Nev. 123, 130, 466 P.2d
218, 223 (1970).
[Headnotes 4, 5]
The Hannemans were dispossessed of property concerning which they had expended
approximately $53,000.00.
4
Nevertheless, the district court limited the Hannemans' damages
to $7,500.00 based upon findings that the Hannemans had failed to mitigate their damages
when they abandoned the property, and that the monthly mortgage payments were
completely offset by the reasonable rental value they received in occupying the property.
[Headnote 6]
As a general rule, a party cannot recover damages for losses that a reasonable effort could
have avoided. Conner v. Southern Nevada Paving, 103 Nev. 353, 355, 741 P.2d 800, 801
(1987). Our review of the record compels us to conclude that the district court clearly erred in
finding that the Hannemans did not make a reasonable effort to mitigate their losses. The
Hannemans removed virtually every item of value they had placed on the property that was
reasonably removable, and deducted the value thereof from their damages. As a result, the
damages were mitigated by approximately $8,000.00. Given the circumstances of this case,
the Hannemans could have done little else by way of mitigation.
Moreover, the district court's reliance upon Mr. Kjell's testimony was misplaced. The cost
of restoring the house after the removal of items by the Hannemans represented an irrelevant
consideration by Swenson since she had no ownership interest in the house from which the
salvaged items had been taken. Hanneman's mitigative actions were beneficial to Swenson,
and thus could not serve to further reduce Swenson's liability to the Hannemans.
__________

4
In addition to the $7,500.00 down payment, the Hannemans paid Swenson $200.00 per month for
approximately seven years, paid all taxes and insurance on the property for approximately eleven years, and
purchased approximately $15,000.00 of building materials. Moreover, the Hannemans spent in excess of 2,000
hours improving the property. Hanneman conservatively valued his time at $10.00 per hour (he was then making
between $15.00 and $18.00 per hour as a carpenter).
[Headnote 7]
Ordinarily, a fair rental value of the property would be a proper offset against payments
ineffectually applied to the purchase price of the property during its occupancy by the putative
purchaser. In this instance, however, we have determined that such an offset is unwarranted.
The Hannemans agreed to purchase property that included a house that was uninhabitable.
They lived and worked on the property under conditions that were substantially less than
desirable. The Hannemans not only made the road to the property usable, they worked in
excess of 2,000 hours in an effort to restore the premises to a habitable condition.
Although we have concluded that the Hannemans must receive as damages, an award for
the time and materials expended on the property, they will not be compensated for the period
of time they had to endure living conditions that would not have induced them onto the
property as renters. As buyers, they executed and made payments under a promissory note
that was to result in their eventual ownership of 5.88 acres. The Hannemans relied upon their
contract with Swenson and invested approximately $53,000.00 into what they thought would
be their permanent home. There is no evidence in the record that would support the
proposition that the Hannemans, as temporary renters, would have invested the same amount
of time and money in the dilapidated and uninhabitable house at issue. Swenson's breach of
the contract to convey 5.88 acres deprived the Hannemans of the opportunity to purchase and
make habitable a home in which they could build an equity and enjoy the pride of ownership.
Thus, we conclude that the district court clearly erred when it calculated the amount of the
Hannemans' out-of-pocket damages. Hermann Trust v. Varco-Pruden Buildings, 106 Nev.
564, 566, 796 P.2d 590, 591-92 (1990). The Hannemans are entitled to the total amount of
their investment, less the amount of their mitigation, together with interest from July 22,
1976. Therefore, we affirm Swenson's liability to the Hannemans, but direct the district court,
upon remand, to recalculate the actual out-of-pocket damages suffered by the Hannemans.
The amount of Swenson's $7,500.00 judgment against Downer must also be increased
accordingly.
2. The court's decision to dismiss Jacobsen
[Headnote 8]
The Hannemans also contend that the district court erred in dismissing their action against
Jacobsen. The contention is based upon Jacobsen's alleged vicarious liability for Downer's
negligent survey under the doctrine of respondeat superior. However, the doctrine does not
apply where, as here, there is no relationship of "superior and subordinate, or, as it is
generally expressed, of master and servant, in which the latter is subject to the control of
the former.
the doctrine does not apply where, as here, there is no relationship of superior and
subordinate, or, as it is generally expressed, of master and servant, in which the latter is
subject to the control of the former. The responsibility is placed where the power exists.
Wells, Inc. v. Shoemake, 64 Nev. 57, 64, 177 P.2d 451, 455 (1947).
Downer was an independent contractor over whom Jacobsen exercised no control.
Moreover, the precision and expertise with which surveyors must perform their work does not
lend itself to control by laypersons. As one author noted:
The surveyor is isolated in his calling and therein lies his responsibility . . . . Dishonesty
in ordinary business life cannot long be hid and errors in accounts quickly come to
light, but the false or faulty survey may pass unchallenged through the years, for few
but a surveyor himself are qualified to judge it.
Walter G. Robillard and Lane J. Bouman, Clark on Surveying and Boundaries 2.04, p. 30
(6th ed. 1992) (quoting A.C. Mulford, Boundaries and Landmarks 88, 89 (1912)).
Additionally, NRS 625.330(3) makes it unlawful for a surveyor to sign, stamp or seal any
plat, map, report or document relating to land surveying which the surveyor himself did not
prepare or for which he did not have responsible charge of the work.
For the reasons stated above, we affirm the district court's finding that Downer acted as an
independent contractor whose negligence cannot be imputed to Jacobsen. The action against
Jacobsen was properly dismissed by the district court.
3. The doctrine of merger
[Headnote 9]
Swenson challenges the district court's finding that her failure to convey 5.88 acres of land
to the Hannemans was a breach of contract. Swenson argues that no legal or factual bases
exist to support the court's finding because no written contract for the sale of real property
was introduced at trial. Swenson cites NRS 111.210, the statute of frauds respecting real
property, to support her argument. That section provides in relevant part:
1. Every contract . . . for the sale of any lands, or any interest in 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.
NRS 111.210(1).
[Headnote 10]
Swenson's reliance upon the foregoing statute is misplaced. The statute of frauds does not
require the existence of a formal written contract to validate a land sale transaction as long as
some note or memorandum memorializing the transaction exists. See Ray Motor Lodge v.
Shatz, 80 Nev. 114, 119, 390 P.2d 42, 44 (1964) (stating that separate writings considered
together may satisfy statute of frauds even if neither is a sufficient memorandum in itself).
In the instant case, the district court concluded that the property description in the sales
listing, together with the surrounding circumstances of the land sale transaction, created a
contract for the sale of 5.88 acres. The legal description contained in the grant, bargain and
sale deed refers to the Record of Survey which Downer filed in 1966 and which shows Parcel
H (the subject parcel) as consisting of 5.88 acres. Additionally, the promissory note between
Swenson and the Hannemans corroborates the sale of 5.88 acres. These writings, when
considered together, satisfy the statute of frauds and evidence a contract for the sale of the
subject property.
[Headnote 11]
Swenson further argues that even if a contract did exist, its terms merged into the deed as a
matter of law. She contends, therefore, that under the doctrine of merger, any obligations she
owed to the Hannemans derived solely from the deed. Since the property was conveyed to the
Hannemans by grant, bargain and sale deed, Swenson claims to have warranted only that she
had not conveyed the same real property to another and that the property was free from
encumbrances.
5
Swenson also insists that if, after delivery and acceptance of a deed
containing no express or implied warranties, the title proves defective, a buyer generally has
no remedy for failure of consideration unless elements of fraud or rescission are present.
Swenson claims that there was no showing that she breached the special warranties contained
in the grant, bargain and sale deed, and that the Hannemans failed to plead either fraud
or rescission in any event.
__________

5
NRS 111.170 states, in relevant part:
1. The words grant, bargain and sell in all conveyances made after December 2, 1861, in and by which
any estate of inheritance or fee simple is to be passed, shall, unless restrained by express terms contained in
such conveyances, be construed to be the following express covenants, and none other, on the part of the
grantor, for himself and his heirs to the grantee, his heirs, and assigns:
(a) That previous to the time of the execution of the conveyance the grantor has not conveyed the same real
property, or any right, title, or interest therein, to any person other than the grantee.
(b) That the real property is, at the time of the execution of the conveyance, free from encumbrances, done,
made or suffered by the grantor, or any person claiming under him.
grant, bargain and sale deed, and that the Hannemans failed to plead either fraud or rescission
in any event.
[Headnotes 12, 13]
Swenson's argument is overly simplistic and fails to take into account the exceptions to
which the doctrine of merger by deed is subject. The merger by deed doctrine has been
described as follows:
The general rule concerning a contract made to convey the property is that once a
deed has been executed and delivered, the contract becomes merged into the deed,
because it has accomplished the purpose for which it was created. The terms in the deed
which follows the contract of sale become the sole memorial of the agreement which
was once contained in the contract of sale. This does not mean that a contract no longer
exists, just that the deed controls as the contract, rather than the terms of the prior sales
contract.
Clark v. Cypress Shores Develop. Co., 516 So.2d 622, 626 (Ala. 1987) (citations omitted;
emphasis added). Stated differently, when the terms of the deed cover the same subject matter
as the earlier contract and the two are at variance, the deed controls. Dobrusky v. Isbell, 740
P.2d 1325, 1326 (Utah 1987). Whether merger is applicable depends upon the intention of
the parties, and intention in such cases is a question of fact to be determined by an
examination of the instruments and from the facts and circumstances surrounding their
execution. Webb v. Graham, 510 P.2d 1195, 1197 (Kan. 1973); see also Szabo v. Superior
Court, 148 Cal.Rptr. 837, 840 (Cal.Ct.App. 1978) (courts have looked to the intention of the
parties to determine whether or not the deed was intended as the complete and final
embodiment of the agreement); Kartheiser v. Hawkins, 98 Nev. 237, 239, 645 P.2d 967, 968
(1982) (stating that parties' intentions are determined from all the circumstances surrounding
the transaction).
Consonant with the foregoing authorities, Swenson's attempt to avoid her contractual
obligations to the Hannemans by resort to the doctrine of merger by deed is without merit for
several reasons. First, although a grant, bargain and sale deed contains only two express
warranties, the Swenson deed expressly conveyed to the Hannemans the land shown on
Parcel H' on that certain Record of Survey recorded November 25, 1966, as File No. 34665,
Official Records of Douglas County, Nevada. As indicated previously, the Record of Survey
shows that Parcel H contains 5.88 acres. Second, the terms of the deed and contract are not
at variance. The deed and the documents that compose the contract all purport to convey 5.88
acres to the Hannemans. Finally, the record reflects that the Hannemans expected to receive,
and Swenson intended to convey, 5.SS acres of land, upon which was situated a
"fixer-upper" house.
expected to receive, and Swenson intended to convey, 5.88 acres of land, upon which was
situated a fixer-upper house. Indeed, Swenson admitted that she believed she was selling
the Hannemans 5.88 acres and that no one would have paid $35,000.00 for only 1.5 acres.
For the reasons noted above, we conclude that the district court correctly determined that
Swenson breached her agreement to convey 5.88 acres to the Hannemans.
4. Downer's negligence
[Headnote 14]
Downer contends that his actions did not fall below the standard of care for licensed
surveyors because he made the proper assumptions when reaching his conclusions concerning
the location of the northern boundary of Jacobsen's property. In particular, Downer claims
that field notes are presumptively correct until rebutted by a preponderance of the evidence
and, therefore, he was required to assume that the calls and distances contained in the field
notes were accurately measured and recorded. In contrast, the district court heard expert
testimony that Downer was not entitled to rely upon the calls and distances in the field notes
once he located the monuments and, if he could not locate a monument, he was required to
reset the monument by a double proportionate measurement.
We conclude that substantial evidence supports the district court's determination that
Downer failed to meet the requisite standard of care. In addition to the cumulative evidence
presented at trial, we have previously recognized that the location of monuments prevails
over calls and distances:
The trial court thus fully recognized, as a matter of law, that the original monument
evidencing the corner common to sections 16, 17, 20 and 21, if found and identified
(or, if destroyed or obliterated, if its location could be fixed), would control the
situation irrespective of the field notes and, undoubtedly, irrespective of the testimony
of the defendants' witnesses hereinafter referred to.
Backer v. Gowen, 73 Nev. 34, 39, 307 P.2d 765, 768 (1957).
6

[Headnote 15]
Moreover, the district court expressly disbelieved Downer's testimony and relied instead
upon the testimony of Neil Forsythe, a cadastral surveyor for the BLM, who indicated that
the standard of care requires a surveyor to establish the four corners of a given section by
identifying the location of the original survey monuments.
__________

6
We also noted in Backer that the trial court's conclusion was supported by the U.S. Department of Interior,
Bureau of Land Management, Manual of Survey Instructions 354 (1947), which provided the controlling
methodology for Downer's survey.
a cadastral surveyor for the BLM, who indicated that the standard of care requires a surveyor
to establish the four corners of a given section by identifying the location of the original
survey monuments. Downer contends that Forsythe was not qualified to render an opinion as
to the standard of care because he is not a licensed surveyor in Nevada. Downer's contention
lacks merit for two reasons: First, a person need not be licensed to qualify as an expert;
rather, the witness must simply possess special knowledge, skill, experience, training or
education relating to the subject matter. NRS 50.275. Forsythe, a BLM surveyor for over
thirty-five years, was qualified to testify on the subject of surveying methods. Second,
employees of the federal government who have been authorized under federal law to conduct
surveys need not be licensed unless they are performing private surveys within the state. NRS
625.490(4).
7

[Headnote 16]
The district court is better suited to rule on the qualifications of persons presented as
expert witnesses and we will not substitute our evaluation of a witness's credentials for that of
the district court absent a showing of clear error. The district court did not err in allowing
Forsythe to testify as an expert.
5. Downer's duty to subsequent purchasers
[Headnote 17]
Downer contends that he owed no duty to subsequent purchasers of the subject property.
We disagree. Surveyors may be held liable for the damages that result from their mistakes,
misrepresentations, or negligence. See generally Dag E. Ytreberg, Annotation, Surveyor's
Liability for Mistake in, or Misrepresentation as to Accuracy of, Survey of Real Property, 35
A.L.R.3d 504 (1971). Lack of contractual privity between the parties is not a defense in an
action for tortious negligence. Long v. Flaningan Warehouse Co., 79 Nev. 241, 245, 382 P.2d
399, 402 (1963) (the absence of contractual privity is not a defense to tort liability).
__________

7
1. Any state, county, city or district employee directly responsible to a professional land surveyor.
2. Any subordinate to a professional land surveyor of this state, insofar as he acts as a subordinate.
3. Registered professional mining engineers engaged solely in surveys made for mining and milling
purposes or facilities pertaining thereto.
4. Officers and employees of the United States Government who have qualified under federal regulations
and have been authorized to make surveys for the government, but such a governmental employee shall
not engage in private practice as a land surveyor in Nevada unless he is registered under this chapter.
tort liability). A surveyor's duty has been held to extend to subsequent purchasers who relied
upon the survey to their detriment. Rosney v. Marnul, 250 N.E.2d 656 (III. 1969); Cook
Consultants, Inc. v. Larson, 700 S.W.2d 231 (Tex.Ct.App. 1985). Downer fully understood
that his survey would affect future purchasers of the divided Jacobsen tract.
[Headnote 18]
We conclude, consistent with the authorities cited above, that Downer indeed had a duty to
the Hannemans as foreseeable subsequent purchasers of the property, and that Downer
breached that duty, thereby causing damage to the Hannemans. Unfortunately, the district
court properly found that Downer's negligence was the actual and legal cause of the
Hannemans' damages, yet inexpicably assessed damages only against Swenson. This was
error. Upon remand, the district court shall enter judgment for the amount of Hannemans'
recalculated damages against both Swenson and Downer, jointly and severally. Of course, the
modified judgment must again provide that Swenson may recover over against Downer any
and all sums the Hannemans recover from Swenson.
[Headnote 19]
Finally, Downer invokes the statute of limitations as a bar to the Hannemans' claims
against him. Downer's references to NRS 11.203, 11.204, and 11.205 are misplaced. These
three statutes all apply to actions related to an aspect of construction that eventuates in
damage to the plaintiff. Our legislature has not enacted a specific period of limitations for
surveyors, and therefore the catch-all statute, NRS 11.220, applies.
8
The Hannemans were
placed on notice that they may have had a cause of action against Downer in 19S1.
__________

8
NRS 11.220 entitled Actions for relief not otherwise provided for provides: An action for relief, not
hereinbefore provided for, must be commenced within 4 years after the cause of action shall have accrued.
In Woods v. Lable Investment Corp., 107 Nev. 419, 812 P.2d 1293 (1991), the parties were involved in a
boundary problem that resulted in an encroachment on an adjacent lot. Although a surveyor was not sued, in the
course of the decision we stated that NRS 11.190 provides a six-year limitation period for contract actions and a
two-year limitation on tort actions. The reference to a two-year period of limitation for tort actions was
overbroad, as 11.190(4)(d) (the two-year provision) applies only to personal injury and wrongful death actions.
NRS 11.190(3)(d) provides a three-year period of limitation for fraud which, of course, is a tort. Moreover, we
have expressly held that NRS 11.220 (the so-called catch-all statute) is the applicable statute for suits
concerning tortious damage to real property. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 621, 668 P.2d
1075, 1078 (1983). To the extent that our statement in Woods may be construed to apply to tort actions other
than those for personal injury or wrongful death, it is hereby disapproved. Tort actions, such as the instant
action, that are not expressly addressed by a specific statute of limitations are subject to the four-year period of
limitations provided under NRS 11.220, the catch-all statute.
mans were placed on notice that they may have had a cause of action against Downer in 1981.
The complaint against Downer was filed by the Hannemans in 1984, well within the four-year
period of limitations specified under NRS 11.220. Therefore, Downer's attempt to avoid
liability based upon the expiration of the period of limitations is meritless.
We have reviewed the remaining issues not heretofore discussed and have determined that
they are without merit and need not be addressed.
CONCLUSION
For reasons discussed above, we reverse the inadequate award of damages to the
Hannemans, and remand to the district court with instructions to recalculate and increase the
damage award to the Hannemans consistent with the views expressed in this opinion. The
district court is also directed to enter judgment against Downer for the full amount of
Hannemans' damages so that Swenson and Downer are jointly and severally liable for
Hannemans' total damages. The district court shall also provide judgement in favor of
Swenson against Downer for any and all sums that the Hannemans may recover against
Swenson in satisfaction or partial satisfaction of their judgment. The judgement entered
below is affirmed in all other respects.
____________
110 Nev. 181, 181 (1994) Dennison v. Allen Group Leasing Corp.
TIMOTHY DENNISON, Appellant, v. ALLEN GROUP LEASING CORP., Respondent.
No. 23548
March 30, 1994 871 P.2d 288
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Jeffrey D.
Sobel, Judge.
Lessee of automobile repair equipment appealed from summary judgment entered by the
district court awarding deficiency judgment to lessor. The supreme court held that: (1)
summary judgment could not be sustained in view of discrepancy between description of
property in lease and notice of sale, and (2) question of fact existed as to commercial
reasonableness of public sale.
Kevin C. Sewell, Las Vegas, for Appellant.
Wanderer & Wanderer and Nancy Killeen, Las Vegas, for Respondent.
1. Judgment.
Summary judgment for lessor for deficiency following repossession and sale of leased equipment could not be sustained in view of
discrepancy between description of property in lease and notice of sale. NRCP 56(c).
2. Secured Transactions.
Public sales of repossessed equipment must be commercially reasonable and should reflect calculated effort to promote sales price
that is equitable to both debtor and secured creditor.
3. Secured Transaction.
Quality of publicity, price obtained at auction, and number of bidders in attendance are important factors to consider when
analyzing commercial reasonableness of public sale.
Invoice showing that lessor was responsible for nine-line advertisement of public sale of repossessed equipment did not
conclusively prove that lessor complied with California notice statute; without the actual advertisement, court could conclude only that
quality of publication was not sufficient to render public sale commercially reasonable.
Absent evidence as to price obtained by lessor at public sale of equipment repossessed from lessee, and as to number of bidders in
attendance at public sale, court could not conclude that public sale was commercially reasonable.
OPINION
Per Curiam:
FACTS
On April 1, 1987, appellant Timothy Dennison entered into a sixty-month lease with respondent Allen Group Leasing Corp. (Allen)
for two pieces of automobile repair equipment: a Model #53-500 EPA Monitoring Machine (plus 02) and a Model #62-010 Smart Engine
Analyzer. Allen claims that Dennison quit making lease payments in August of that same year. Dennison insists that he made timely
payments until December, 1987, when he left the failing business to a partner. In any event, Allen repossessed the equipment from
Dennison's former partner in early 1988.
On March 3, 1988, Allen sent to Dennison's home address a notice of public sale of repossessed personal property. The notice
informed Dennison that the repossessed equipment, identified as an Allen Engine Analyzer Model #53-350; 62-110; 60-080, would be
sold on April 8, 1988. Dennison, denying receipt of the notice, did not attend the sale.
The equipment identified in the notice of sale may or may not be the same equipment
Dennison leased from Allen. The lease identified two pieces of equipment; the notice of sale
only identified one. Moreover, the equipment title and model numbers in the notice of sale
are different from the title and model numbers contained in the lease, and the serial numbers
identified in the notice of sale do not exactly correspond to the serial numbers identified in
the lease.
The discrepancy between the equipment specified in the lease and the items repossessed
and purportedly resold was widened by the financing statement Allen filed with the California
Secretary of State. Like the notice of sale, the financing statement only refers to one piece of
leased equipment, an Allen Engine Analyzer, which is not so described or identified in the
lease. Unlike the notice of sale, however, the financing statement refers to Model #62-010,
which does correspond to the model number of the engine analyzer set forth in the lease.
Allen sought to dispel the apparent inconsistencies between the various documents by
submitting affidavits from two of its employees.
1

According to Allen, Dennison's total obligation under the lease at the time the equipment
was sold was $27,637.68. The equipment allegedly resold for $16,234.87, leaving a
deficiency of $11,402.8l. However, a rebate of unearned interest reduced the deficiency
amount to $5,590.26. There are no details of the public sale in the record and there is no
record evidence to support Allen's contention that Dennison's total liability was $27,637.68 at
the time of the sale, or that the repossessed equipment was sold for $16,234.87.
Both parties agree that California law applies. Section 9504(3) of the California
Commercial Code requires Allen to publish notice of the public sale in a newspaper of
general circulation published in the county in which the sale is to be held. Allen presented an
invoice from the L.A. Times that it claims is a true and correct copy . . . proving
advertisement of the sale of the repossessed equipment."
__________

1
The affidavit of Rene Garret simply states:
The equipment listed on the face of Mr. Dennison's lease is the same equipment which was repossessed
and sold at the public auction in California. The model number of the engine analyzer 53-500 is the same
equipment as model number 53-350.
The affidavit of Richard Schoren is similarly brief:
On the face of the lease and on the face of [sic] lease application form in my handwriting I entered the
description of the equipment. The model number 53-500 EPA machine plus 02 Smart Engine Analyzer is
the same model 53-350 of the same piece of equipment. I also wrote quantity two (2) of item number
62-010. This is the short hand description for two (2) components with model numbers 62-110 and
60-080 which complete the engine analyzer system. These two (2) items are the rack that the analyzer sits
on and the tool box combo.
and correct copy . . . proving advertisement of the sale of the repossessed equipment. The
invoice contains no reference to Dennison, Dennison's business, or the subject equipment.
More importantly, the invoice does not reveal the content of the purported advertisement, nor
is a copy of the advertisement found in the record. Absent Allen's above-referenced assertion,
there is no discernible relationship between the invoice and Dennison or the leased
equipment. In fact, there is nothing in the record to indicate that a public sale of the
repossessed equipment ever occurred.
Allen filed a very brief, one and one-half page motion for summary judgment, with no
supporting documents or affidavits.
2
Dennison responded by challenging the identification
of the equipment that was repossessed and purportedly resold, the reasonableness of the
public sale, and the amount of the deficiency. The district court granted summary judgment in
favor of Allen and this appeal followed.
DISCUSSION
Summary judgment is only appropriate when no genuine issues of material fact remain for
trial and the moving party is entitled to judgment as a matter of law. NRCP 56(c). When
considering a motion for summary judgment, district courts must review the record in the
light most favorable to the party against whom the summary judgment is sought. A party is
entitled to a trial when there is the slightest doubt as to any material facts. Walker v.
American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).
Dennison concedes that the lease is in default and that he may owe a deficiency payment to
Allen. However, Dennison contests Allen's depiction of the facts and argues that genuine
issues of material fact exist with regard to the identity of the equipment resold by Allen, the
commercial reasonableness of the sale, and Allen's calculation of the deficiency amount.
Allen, minifying Dennison's assignments of error as non-issues, claims there are no genuine
issues of material fact because Dennison admits signing the subject lease, he has produced no
evidence that the debt has been paid, and he has not produced any evidence to show that he is
not liable for the deficiency resulting from the sale.
Although each of the material facts Dennison discusses may eventually be resolved in
favor of Allen, they are currently in dispute and necessitate remanding the matter back to the
district court for trial.
__________

2
Allen's response to Dennison's opposition contained the Allen employee affidavits.
1. The improperly identified equipment
[Headnote 1]
The lease specifically identifies two pieces of equipment; in contrast, the notice of sale
identifies only one. It is impossible to determine from the record if the two documents refer to
the exact same equipment. The notice of sale differs from the lease, in part, with respect to
the equipment name and serial numbers, and is completely different with respect to the model
numbers. Moreover, neither the financing statement filed by Allen nor the Deficiency
Balance statement produced by Allen contain exact references to the equipment identified in
the original lease. In sum, there is no telling what equipment was sold by Allen at the public
sale, and based upon our holding in Clauson v. Lloyd, 103 Nev. 432, 743 P.2d 631 (1987), we
refuse to accept the Allen employee affidavits as being dispositive of the issue.
In Clauson, a medical doctor was sued for malpractice. The doctor was granted summary
judgment on the basis of his own self-serving affidavit that he had performed according to
the standard of practice, learning, and skill ordinarily practiced by medical practitioners in the
community. Id. at 433, 743 P.2d at 632. We reversed the summary judgment because the
affidavit was too general to show there were no genuine issues of material fact. More
importantly, we refused to rely upon the affidavit without an accompanying means of
validation:
Were we to hold that the affidavit in this case is strong enough to support a summary
judgment motion, the effect would be chilling: any defendant physician could come
into court, file a motion for summary judgment alleging solely that he conformed to the
applicable standard of care without any valid supporting documentation and if the
plaintiff did not procure an expert to refute the charge, his case would be thrown out.
Id. at 435, 743 P.2d at 633.
Although Clauson deals with medical malpractice, the chilling effect mentioned therein is
equally applicable to this case. Allen failed to show why the equipment listed on the face of
Mr. Dennison's lease is the same equipment which was repossessed and sold at public auction
in California, and we refuse to affirm a summary judgment that is premised upon a bare
record and unsupported affidavits.
2. The commercial reasonableness of the public sale
[Headnotes 2-4]
We have previously held that public sales of repossessed equipment must be commercially
reasonable. Savage Constr. v. Challenge-Cook, 102 Nev. 34, 37
Challenge-Cook, 102 Nev. 34, 37, 714 P.2d 573, 574 (1986) (construing California
Commercial Code 9504(3)). The conditions of a commercially reasonable sale should
reflect a calculated effort to promote a sales price that is equitable to both the debtor and the
secured creditor. Id. at 38, 714 P.2d at 575. The quality of the publicity, the price obtained at
the auction, [and] the number of bidders in attendance are important factors to consider
when analyzing the commercial reasonableness of a public sale. Id. at 37, 714 P.2d at 574. It
is impossible to determine the quality or potential efficacy of Allen's publicity concerning the
sale because we are unable to review the actual advertisement that was purportedly published
in the L.A. Times. Allen simply argues that the invoice conclusively proves that it complied
with the California notice statute. We disagree.
The invoice does not contain any reference to Dennison or the particular equipment that
was due to be sold; it only shows that Allen was responsible for a nine-line advertisement
published on April 3, 1988. The content of the advertisement is critically important to its
purpose: attracting the proper kinds of prospective bidders. Without the advertisement, we
must conclude that the quality of the publication was deficient.
[Headnote 5]
A further indication of commercially unreasonable publicity may be found in the price
obtained for the equipment and the number of bidders in attendance at the public sale. The
record is bereft of evidence concerning these two aspects of the sale, thus preventing a
meaningful analysis of the subject. We disagree with Allen's assertion that, [i]t is . . .
undisputed that [Allen] recovered the Engine Analyzer and sold it in Santa Fe Springs for
$16,224.87. The only evidence of the purchase price is provided by an inadequate one-line
entry in Allen's Deficiency Balance statement. Dennison acknowledges Allen's statement,
but emphasizes the dearth of corroborative evidence in the record. Finally, the record is
completely devoid of any evidence relating to the bidding process or participants.
CONCLUSION
It is possible that the equipment sold at public sale by Allen was not the same equipment
leased to Dennison. It is equally possible that the public sale was not commercially
reasonable. We are simply unable, on this record, to fairly review these issues in support of
the summary disposition entered below. Therefore, we need not examine Allen's calculation
of Dennison's remaining liability, the accuracy of which is also subject to question at this
point. The party moving for summary judgment has the burden of establishing the
non-existence of any genuine issue of material fact, and Allen has failed to meet this
burden.
establishing the non-existence of any genuine issue of material fact, and Allen has failed to
meet this burden.
For reasons discussed above, the summary judgment is reversed and the matter is
remanded to the district court for trial.
____________
110 Nev. 187, 187 (1994) Fernandez v. Infusaid Corp.
VIRGINIA T. FERNANDEZ, ROMAN FERNANDEZ, JR., EVELYN FERNANDEZ, and
ALLAN FERNANDEZ, as Sole Heirs of Roman P. Fernandez, Decedent, Appellants,
v. INFUSAID CORP, a Massachusetts Corporation, and INFUSAID DIVISION OF
METAL BELLOWS CORP.; PFIZER, INC., a Delaware Corporation and Successor
in Interest to Infusaid, and Infusaid Division of Metal Bellows Corp., Respondents.
No. 23670
VIRGINIA T. FERNANDEZ, ROMAN FERNANDEZ, JR., EVELYN FERNANDEZ and
ALLAN FERNANDEZ, as Sole Heirs of Roman P. Fernandez, Decedent, Appellants,
v. PFIZER, INC., a Delaware Corporation, as Successor in Interest to Infusaid
Corporation and Metal Bellows Corporation, Respondents.
No. 23671
March 30, 1994 871 P.2d 292
Appeal from an order of the district court granting a motion to dismiss in a products
liability case, and an order granting NRCP 54(b) certification. Second Judicial District Court,
Washoe County; Deborah A. Agosti and Mills Lane, Judges.
Appeal was taken from orders of the district court dismissing manufacturer from products
liability action arising out of alleged defect in a pump which was used to provide continuous
dosage of liquids and medication and which was surgically inserted into patient. The supreme
court held that: (1) it lacked jurisdiction to review on appeal an order certifying as final an
order dismissing manufacturer, and (2) district court in one department erred in dismissing
manufacturer on basis of two identical actions pending at the same time.
Peter J. Sferrazza, Reno, for Appellants.
Perry & Spann, Reno, for Respondents.
Supreme court lacks jurisdiction to review on appeal order dismissing fewer than all parties to action unless district court properly
certifies order as final. NRCP 54(b).
In the absence of proper certification of finality, interlocutory order dismissing fewer than all parties cannot be challenged on
appeal until final judgment is entered fully and finally resolving all claims against all parties. NRCP 54(b).
District court erroneously certified as final an order dismissing one defendant from products liability action and, thus, supreme
court lacked jurisdiction to review that order on appeal. After order had become final and unreviewable on appeal due to plaintiffs'
decision not to seek appellate review of order, district court no longer had power to certify order as final. NRCP 54(b).
Right to appeal is statutory and where no statute or court rule authorizes appeal, no right to appeal exists.
There is no right of appeal from order certifying as final an order directing judgment as to one or more but fewer than all parties.
NRCP 54(b).
Where party is uncertain as to propriety of district court's certification of finality of judgment as to one or more but fewer than all
parties, party should first protect right to appeal by filing timely notice of appeal from order that has been certified as final. Party
should then move supreme court to determine whether district court properly certified that order as final and whether supreme court's
appellant jurisdiction has been properly invoked. NRCP 54(b).
7. Abatement and Revival.
Manufacturer should not have been dismissed from products liability action on basis that there was identical action pending in
different department of district court at same time. Manufacturer had been dismissed from other action and that dismissal became final
and unreviewable on appeal when appeal period expired, and that occurred before instant motion to dismiss was filed.
OPINION
Per Curiam:
FACTS
Roman Fernandez, Sr., (Roman) was admitted to Washoe Medical Center on November 19, 1985, for digestive problems. An
Infusaid pump, which is a device used to provide a continuous dosage of liquids and medication, was surgically inserted into his chest.
Roman was released on December 2, 1985. He was later readmitted and underwent a number of operations for leakage and bleeding around
the pump. Dr. Mark Kozar, who performed the surgery, later discovered the pump was apparently defective.
surgery, later discovered the pump was apparently defective. Roman died on October 17,
1986.
Prior to his death, Roman had filed a medical malpractice action in Department 9 of the
Second Judicial District Court on December 31, 1985, against his original physicians, Dr.
William H. Admirand and Dr. Michael K. Dames. Saint Mary's Hospital was added as a
defendant on August 28, 1986. After Roman's death, his heirs, who are the appellants in this
action, filed a complaint with the Medical Legal Screening Panel in 1987. Appellants claim
that it was only when Dr. Kozar filed his response to the Medical Legal Screening Panel
complaint on November 16, 1987, that they learned the Infusaid pump was defective.
1
On
October 10, 1986, respondent Pfizer, Inc., purchased the rights to the Infusaid pump, thus
becoming the successor in interest to Infusaid.
Appellants moved to substitute into the action as plaintiffs pursuant to NRCP 25, and this
motion was granted on April 22, 1988. On October 6, 1988, appellants moved to amend their
Department 9 complaint to add claims against Dr. Kozar and Washoe Medical Center for
medical malpractice and against Infusaid for products liability.
On the same day, appellants filed a complaint in Department 3 of the Second Judicial
District Court, naming as defendants Dr. Admirand, Dr. Daines, Saint Mary's Hospital, Dr.
Kozar, Washoe Medical Center and Infusaid. The causes of action against Drs. Admirand and
Daines and Saint Mary's Hospital were identical to the existing Department 9 causes of
action.
Department 9 denied appellants' motion to amend their complaint on October 27, 1988, for
failure to pay a $5,000 bond which was required at that time for certain medical malpractice
actions. The court later reconsidered this order and appellants were granted leave to amend
their complaint on April 19, 1989. However, appellants never served the amended complaint.
Meanwhile, Saint Mary's Hospital and Washoe Medical Center were dismissed from the
Department 3 action on February 27, 1989. Appellants moved to consolidate the Department
3 action with the Department 9 action on March 17, 1989. Department 3 denied this motion
on June 1, 1989, in addition to dismissing Drs. Kozar, Admirand and Daines. At that point,
only Infusaid remained as a defendant in the Department 3 action.
Shortly thereafter, on July 24, 1989, appellants filed another motion to amend the
complaint pending in Department 9 to add as defendants Dr.
__________

1
The Medical Legal Screening Panel issued its decision on September 23, 1988, finding that there was no
reasonable probability of medical malpractice by any of the doctors or hospitals involved.
defendants Dr. Kozar, Washoe Medical Center and Pfizer. Other than the addition of Pfizer,
this motion was identical to the motion that had already been granted in Department 9 on
April 19, 1989. The district court granted this motion and the new amended complaint was
filed on August 18, 1989. On January 4, 1990, the district court entered summary judgment
dismissing Dr. Kozar and Washoe Medical Center from the Department 9 action. The district
court certified the summary judgment as final pursuant to NRCP 54(b), and the appellants
perfected a timely appeal. On June 27, 1991, this court reversed the summary judgment and
remanded the matter to Department 9 for further proceedings. See Fernandez v. Kozar, 107
Nev. 446, 814 P.2d 68 (1991). The remittitur issued from this court on July 16, 1991.
The same day that it entered summary judgment in favor of Dr. Kozar and Washoe
Medical Center, January 4, 1990, the district court also entered an order dismissing Pfizer
from the Department 9 action. The district court held that because of the differences between
the original complaint and the second amended complaint, appellants could not avoid the date
of filing of the original complaint. The court noted that the second amended complaint was
filed more than two years after the death of Roman, named new defendants, and contained
entirely different charging allegations.
Unlike the summary judgment entered in favor of Dr. Kozar and Washoe Medical Center,
however, the district court did not certify the order dismissing Pfizer from the Department 9
action as a final judgment pursuant to NRCP 54(b). Thus, in an order filed June 26, 1990, this
court concluded that appellants could not properly perfect an appeal at that time from the
order dismissing Pfizer because as of that date no appealable judgment in favor of Pfizer had
been entered in the district court. Accordingly, this court deleted Pfizer, Inc. from the caption
of the appeal in Fernandez v. Kozar, 107 Nev. 446, 814 P.2d 68 (1991).
Meanwhile, on March 13, 1990, appellants had filed a motion in Department 3 to
substitute Pfizer for Infusaid in appellants' Department 3 action. This motion was granted in
Department 3 on April 10, 1990. On April 12, 1990, Pfizer filed a motion to dismiss in
Department 3 on the ground that there were two identical actions pending in Departments 3
and 9. On March 24, 1992, the district court entered an order granting Pfizer's motion.
Appellants now appeal from that order.
On July 13, 1990, Saint Mary's Hospital was dismissed from the Department 9 action. On
July 31, 1990, after a two-day trial, Dr. Admirand and Dr. Daines were also dismissed from
the Department 9 action. Thus, upon the entry of the order dismissing Drs. Admirand and
Daines, appellants' Department 9 action was fully and finally resolved as to all claims
asserted against all parties.
was fully and finally resolved as to all claims asserted against all parties. Therefore, the order
dismissing Drs. Admirand and Daines constituted a final, appealable judgment in the
Department 9 action.
Appellants filed a timely appeal to this court from the final judgment dismissing Drs.
Admirand and Daines from the Department 9 action. Although appellants could have
challenged the prior interlocutory order dismissing Pfizer in the context of that appeal, they
neglected to do so. On December 3, 1992, this court reversed the district court's dismissal of
appellants' claims against Drs. Admirand and Daines and remanded the matter to Department
9 for further proceedings. See Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992).
The remittitur issued from this court on December 22, 1992.
Following its dismissal from the Department 3 action, Pfizer filed a motion in Department
9 requesting that court to certify its prior order of January 4, 1990, dismissing Pfizer from the
Department 9 action, as final pursuant to NRCP 54(b). On May 29, 1992, that court entered
an order certifying the prior order as final in accordance with NRCP 54(b). On June 29, 1992,
appellants filed a notice of appeal from the order of the [district court] granting Defendant
Pfizer's motion for certification . . . .
Thus, there are two separate appeals presently pending before this court: (1) the appeal
from the order entered in Department 9 certifying as final the order of January 4, 1990,
dismissing Pfizer from the Department 9 action; and (2) the appeal from the order entered in
Department 3 on March 24, 1992, dismissing Pfizer from the Department 3 action. We have
consolidated these appeals for appellate purposes. We now hold (1) that this court lacks
jurisdiction to review on appeal either the order dismissing Pfizer entered in Department 9 on
January 4, 1990, or the order entered in Department 9 on May 29, 1992, certifying as final the
order dismissing Pfizer; and (2) that Department 3 erred in dismissing Pfizer from the
Department 3 action. We will discuss each holding in turn.
DEPARTMENT 9
[Headnotes 1, 2]
NRCP 54(b) provides that when multiple parties are involved in an action, the district
court may direct the entry of a final judgment as to one or more but fewer than all the parties
only upon an express determination that there is no just reason for delay and upon an express
direction for the entry of judgment. This court lacks jurisdiction to review on appeal an order
dismissing fewer than all the parties to an action unless the district court properly certifies the
order as final pursuant to NRCP 54{b).
54(b). See Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 797 P.2d 978 (1990). In the
absence of a proper certification of finality, an interlocutory order dismissing fewer than all
the parties cannot be challenged on appeal until a final judgment is entered in the action fully
and finally resolving all the claims against all the parties.
[Headnote 3]
As noted above, the action in Department 9 was fully and finally resolved as to all parties
and all claims on July 31, 1990, when the district court entered an order dismissing the only
two defendants remaining in the action at that time, Drs. Admirand and Daines. As appellants
concede in their reply brief, Final judgment was entered in this case on July 31, 1990 . . . .
As appellants also concede in their reply brief, No appeal was filed from that judgment, with
respect to Pfizer, Inc. and therefore the dismissal entered on January [4], 1990 in Department
9 was final.
Moreover, after the order of January 4, 1990, had become final and unreviewable on
appeal due to appellants' decision not to seek appellate review of the order, the district court
no longer had the power to certify the order as final pursuant to NRCP 54(b). The order was
no longer amenable to certification pursuant to the rule. See, e.g., Taylor Constr. Co. v. Hilton
Hotels, 100 Nev. 207, 678 P.2d 1152 (1984) (the district court, through certification, cannot
create finality when the order is not amenable to certification; the district court does not have
the power to transform an order which does not come within the rule into a final judgment).
We conclude therefore that the district court erroneously certified the order of January 4,
1990, as final pursuant to NRCP 54(b), and that this court lacks jurisdiction to review that
order on appeal.
[Headnotes 4-6]
We further note that no statute or court rule authorizes an appeal from an order certifying
an order as final pursuant to NRCP 54(b). The right to appeal is statutory and where no
statute or court rule authorizes an appeal, no right to appeal exists. See Bates v. Nevada
Savings & Loan Ass'n, 85 Nev. 441, 456 P.2d 450 (1969). Where an appellant is uncertain as
to the propriety of a district court's certification of finality pursuant to NRCP 54(b), the
appellant should first protect the right to appeal by filing a timely notice of appeal from the
order that has been certified as final. Then the appellant should move this court to determine
whether the district court properly certified that order as final and whether this court's
appellate jurisdiction has been properly invoked. See Hallicrafters Co. v. Moore, 102 Nev.
526, 728 P.2d 441{19S6).
441(1986). Accordingly, we dismiss the appeal from the order certifying the order of January
4, 1990, as final pursuant to NRCP 54(b).
DEPARTMENT 3
[Headnote 7]
In its dismissal of Pfizer, Department 3 cited Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d
721 (1958). Fitzharris held that it would be contrary to fundamental judicial procedure to
permit two actions to remain pending between the same parties upon the identical cause. Id.
at 376, 333 P.2d at 724. In this case, the causes of action in Departments 9 and 3 against
Pfizer were identical. Both involved products liability claims derived from the same allegedly
defective pump. However, unlike Fitzharris, the Department 9 action and the Department 3
action were not pending at the same time.
As we noted earlier, a final judgment was entered on July 31, 1990, in the Department 9
action when the district court dismissed the last two remaining defendants from that action. In
their appeal from that final judgment, appellants did not challenge the prior interlocutory
order dismissing Pfizer from the Department 9 action. Thus, Pfizer's dismissal from the
Department 9 action became final and unreviewable on appeal when the appeal period
expired. Hence, when Department 3 granted Pfizer's motion to dismiss on March 24, 1992, no
action was then pending against Pfizer in Department 9. Although on June 27, 1991, this
court had reversed Department 9's summary judgment as to Dr. Kozar and Washoe Medical
Center and had remanded that matter to Department 9, that remand did not serve to revive
what had become a final judgment in favor of Pfizer.
Therefore, we hold that Department 3 erred in dismissing Pfizer on the basis of two
identical actions pending at the same time. No other action was pending against Pfizer on the
date Department 3 granted Pfizer's motion to dismiss. We therefore reverse Department 3's
dismissal of Pfizer, and we remand that matter for further proceedings consistent with this
opinion.
____________
110 Nev. 194, 194 (1994) Murphy v. State
WILLIAM MILTON MURPHY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23662
March 30, 1994 871 P.2d 916
Appeal from a judgment of conviction pursuant to a jury verdict of one count of felony
possession of stolen property. Fifth Judicial District Court, Esmeralda County; John P. Davis,
Judge.
The supreme court held that: (1) trial court erred by permitting state to file information by
affidavit, and (2) prosecution was not initiated within applicable statute of limitations.
Reversed.
Evan Beavers, Minden, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Victor Schulze, District Attorney,
Esmeralda County, for Respondent.
1. Indictment and Information.
Statute permitting state to file information by affidavit after accused has been discharged by magistrate contemplates safeguard
against egregious error by magistrate in determining probable cause; it is not, however, device to be used by prosecutor to satisfy
deficiencies in evidence at preliminary hearing through affidavit. NRS 173.035(2).
Trial court erred by permitting state to file information by affidavit following determination by justice court that probable cause
did not exist to bring to trial charge of possession of stolen cattle. State failed to make showing that justice court's refusal to bind over
defendant for trial was egregious error, and record supported justice court's conclusion that state had utterly failed to produce evidence
to show probable cause existed that defendant had possessed stolen cattle. NRS 173.035(2).
3. Receiving Stolen Goods.
Statute defining possession of stolen property as theft could not be applied retroactively. NRS 205.0832.
4. Constitutional Law; Criminal Law.
Before statute of limitations for criminal offense expires, legislature may amend statute and extend limitations period without
violating ex post facto clause. U.S. Const. art. 1, 9, cl. 3, 10, cl. 1.
5. Statutes.
Generally, statute must be construed to have only prospective effect, unless contrary legislative intent is clearly indicated by
express terms of statute.
6. Criminal Law.
Criminal statutes of limitations are to be construed in favor of accused.
OPINION
Per Curiam:
On November 9, 1988, appellant William Milton Murphy (Murphy) was driving his blue
pickup truck (pickup) on grazing land owned by the federal government in Esmeralda
County, Nevada. Employees of a nearby ranch became suspicious of Murphy and called the
sheriff. The sheriff determined that Murphy was cattle rustling; thus, Murphy was arrested
and charged with grand larceny, conspiracy to commit grand larceny, and three counts of
possession of a controlled substance.
Two and one-half years later, and immediately preceding trial, the district attorney
dismissed the grand larceny and conspiracy charges because he did not believe those charges
could be proved beyond a reasonable doubt. Murphy was acquitted on the remaining drug
possession charges. Five months later, the district attorney filed a criminal complaint against
Murphy for possession of stolen cattle. A preliminary hearing was held at which the justice of
the peace discharged Murphy because the State's case failed to establish probable cause to
bind over Murphy for trial. Undaunted, the district attorney filed an information upon
affidavit, charging Murphy with the same offense. Murphy went to trial and was convicted of
possession of stolen cattle. He was sentenced to five years in the Nevada State Prison, but
placed on probation, fined $9,400.00, and ordered to perform 600 hours of community
service.
For reasons stated hereafter, the judgment of conviction is reversed.
FACTS
Lida Livestock Ranch (Lida) leases the grazing rights to approximately 900,000 acres of
federal government land (grazing land) managed by the Bureau of Land Management (BLM).
This grazing land is located in western Nevada and eastern California. Stephen Sheppeard
(Sheppeard) is the cowhand boss for Lida.
On November 9, 1988, Sheppeard and another cowhand were inspecting Lida's cattle near
Tule Canyon when they discovered a pickup attached to a gooseneck trailer,
1
in a remote
area on the grazing land. The gooseneck trailer was backed up to Roosevelt Corral with its
tailgate down.
2
Sheppeard drove towards Roosevelt Corral to get a closer look, and noticed
two men crouching inside the corral, in an apparent attempt to evade discovery.
__________

1
Gooseneck trailers are used to haul cattle and horses.

2
Roosevelt Corral is used as a watering place for Lida's cattle.
crouching inside the corral, in an apparent attempt to evade discovery. Sheppeard drove to
Lida Junction where he reported his observations, over the telephone, to Glenn Penson,
Sheriff of Esmeralda County (the Sheriff).
Forty-five minutes later, the Sheriff met Sheppeard at Lida Ranch. Together, they set off
for Roosevelt Corral. On the way there, the Sheriff noticed tire tracks on the grazing land.
Therefore, he followed those tracks past Tule Corral to an old talc mine. Once there, the
Sheriff spotted the pickup and gooseneck trailer travelling at a slow rate of speed. As the
Sheriff's car got closer to the pickup, the driver swung his side of his vehicle to the left, in a
semi-circle and back towards the approaching Sheriff's car. At this point the pickup was
approximately one mile away from the Sheriff's car. After the pickup stopped, six calves
appeared to come out of the escape door on the right side of the gooseneck trailer.
3
The
Sheriff eventually caught the pickup; inside were the driver, appellant Murphy, and his
companion, Lonny Johnson. Murphy was taken into custody and charged with grand larceny,
conspiracy to commit grant larceny, and three counts of felony possession of a controlled
substance.
4

On January 31, 1991, shortly before trial was to commence, the new district attorney of
Esmeralda County filed a motion to dismiss the grand larceny and conspiracy charges against
Murphy.
5
Murphy stood trial on the remaining drug possession charges and was found not
guilty.
On July 22, 1991, following the dismissal of the grand larceny and conspiracy charges, and
following the acquittal on the drug possession charges, the Sheriff filed a criminal complaint
against Murphy alleging possession of stolen cattle, a felony under NRS 205.275. On
December 9, 1991, a preliminary hearing was held in the Justice Court of Esmeralda
Township before Judge Solan Terrell. Judge Terrell concluded tat the evidence against
Murphy was inadequate to bind over Murphy for trial. Accordingly, the possession of stolen
cattle charge against Murphy was discharged. In response, the district attorney filed a
Motion for Leave to File an Information by Affidavit" with the district court.
__________

3
Sheppeard testified at Murphy's trial that he never saw the calves inside the trailer, but that it looked like the
calves came out of the escape door on the trailer. Additionally, Sheppeard testified that he never saw Murphy
steal cattle, nor did he see Murphy in possession of any cattle.

4
It was alleged that inside Murphy's pickup truck the Sheriff discovered small quantities of cocaine,
methamphetamine, and marijuana.

5
Victor Schulze assumed the office of District Attorney of Esmeralda County on January 7, 1991. In his motion
for dismissal, Mr. Schulze states: [U]pon review of the instant matter, your Affiant [Schulze] is of the opinion
that the evidence will not support the charges of grand larceny and conspiracy to commit grand larceny to a
degree beyond a reasonable doubt.
Leave to File an Information by Affidavit with the district court. The district court granted
that motion and Murphy was tried for possession of stolen cattle. Ultimately, Murphy was
convicted and sentenced to five years in the Nevada State Prison, but was placed on
probation, fined $9,400.00 and ordered to perform 600 hours of community service.
LEGAL DISCUSSION
Whether the trial court erred by permitting the State to file an information by affidavit
following a determination by the justice court that probable cause did not exist to bring the
case to trial.
[Headnotes 1, 2]
NRS 173.035(2), in pertinent part reads:
If, however, upon the preliminary examination the accused has been discharged . . .
the district attorney may, upon affidavit of any person who has knowledge of the
commission of an offense, and who is a competent witness to testify in the case, setting
forth the offense and the name of the person or persons charged with the commission
thereof, upon being furnished with the names of the witnesses for the prosecution, by
leave of the court first had, file an information . . . .
This statute contemplates a safeguard against egregious error by a magistrate in determining
probable cause. It is not, however, a device to be used by a prosecutor to satisfy deficiencies
in evidence at the preliminary hearing through an affidavit. Cranford v. Smart, 92 Nev. 89,
545 P.2d 1162 (1976).
In Cranford, appellant Cranford was charged with being an ex-felon in possession of a
firearm. After preliminary examination, Cranford was ordered to stand trial. On appeal, this
court reversed the denial of habeas corpus relief because the record contained neither
probative nor demonstrative evidence that Cranford was an ex-felon. Thereafter, the
prosecutor, pursuant to NRS 173.035(2), obtained leave in the district court to file an
information upon affidavit, charging Cranford with the same offense. On the second appeal,
this court stated:
if the prosecuting attorney had evidence that Cranford was an ex-felon, he was not
precluded from instituting new charges in the justice's court, or from seeking an
indictment before a grand jury. However, he could not proceed under NRS 173.035(2).
That statute contemplates a safeguard against egregious error by a magistrate in
determining probable cause, not a device to be used by a prosecutor to satisfy
deficiencies in evidence at a preliminary examination, through affidavit.
Cranford, 92 Nev. at 90-91, 545 P.2d at 1163 (citations omitted) (footnote omitted).
The State has failed to make a showing that Judge Terrell's refusal to bind over Murphy
for trial was an egregious error. Moreover, the record supports Judge Terrell's conclusion that
the State had utterly failed to produce evidence to show probable cause existed that Murphy
had possessed stolen cattle.
6
Pursuant to our holding in Cranford, the proper way for the
State to bring the charges against Murphy would have been by filing a second complaint or by
indictment. Instead, the State filed an information upon affidavit. That device is not to be
used by a prosecutor to satisfy deficiencies in evidence at the preliminary hearing.
Consequently, we conclude that the district court erred when it granted the State's motion for
leave to file an information upon affidavit.
Whether appellant's prosecution was initiated within the applicable statute of limitations
period.
[Headnote 3]
Murphy argues that his prosecution for possession of stolen goods was barred by the
applicable statute of limitations period.
7
Murphy contends that the alleged crime took place
on November 9, 1988, and that the State did not file an information upon affidavit until
December 31, 1991, more than three years after the commission of the alleged offense.
Pursuant to NRS 171.085(2), Murphy argues that the filing of the information was barred by
the statute of limitations periodthus, the district court lacked subject matter jurisdiction.
__________

6
At the preliminary hearing, the State could not produce anyone who saw Murphy in possession of stolen cattle.
Sheriff Glenn Penson, the State's key witness, gave the following testimony:
Q. Did [Murphy] ever tell you that he intended to steal somebody's cattle?
A. No.
Q. And you actually never saw Murphy in possession of anybody else's cattle, did you?
A. No.
In addition, the Sheriff testified that he never saw cattle inside Murphy's trailer.

7
NRS 171.085 sets forth the following statute of limitations:
1. Theft, robbery, burglary, forgery, arson or sexual assault must be found, or an information or
complaint filed, within 4 years after the commission of the offense.
2. 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.
Conversely, the State argues that possession of stolen property is statutorily defined as
theft. NRS 205.0832.
8
That statute was not enacted until June 28, 1989, eight months after
Murphy's arrest, and the events that led to the possession of stolen goods charge. If
retroactively applied, that statute would have the effect of increasing the limitations period on
possession of stolen property from three to four years. Indeed, the State asserts that the
four-year limitations period for theft under NRS 171.085(1) applies.
9

[Headnotes 4, 5]
Before the statute of limitations for a criminal offense expires, a legislature may amend the
statute and extend the limitations period without violating the ex post facto clause. See Falter
v. United States, 23 F.2d 420 (2d Cir. 1928), cert. denied, 277 U.S. 590 (1928). Contra State
v. Creekpaum, 732 P.2d 557 (Alaska Ct.App. 1987) (criminal statutes of limitations are not
merely procedural, but operate as substantive right for ex post facto purposes). Generally,
however, a statute must be construed to have only prospective effect, unless a contrary
legislative intent is clearly indicated by express terms of the statute. Shepley v. Warden, 90
Nev. 93, 518 P.2d 619 (1974); see also Hasset v. Welch, 303 U.S. 303 (1938).
The Nevada Legislature did not express its intention that the definition of theft was to have
retroactive application. 1989 Nev. Stat., ch. 567, 13 at 1204. Moreover, criminal statutes of
limitations are to be construed in favor of the accused. Toussie v. United States, 397 U.S.
112, 114-15 (1970). In light of these considerations, this court has held that an amendment to
a criminal statute of limitations, silent on the question of its retroactive application, must be
construed as prospective only, and cannot apply to an offense committed before its effective
date. State v. Merolla, 100 Nev. 461, 686 P.2d 244 (1984); see also United States v.
Richardson, 393 F.Supp. 83 (W.D.Pa. 1974), aff'd 512 F.2d 105 (3d Cir 1975).
Prior to 1989, possession of stolen property was among the crimes designated as any
other felony in NRS 171.085(2).
__________

8
In pertinent part, NRS 205.0832 provides that a person commits theft if without lawful authority, he
knowingly:
1. Controls any property of another person with the intent to deprive that person of the property.
. . . .
5. Controls property of another person knowing or having reason to know that the property was stolen.

9
Prior to the enactment of NRS 205.0832, possession of stolen goods was not classified as theft.
Thus, Murphy's prosecution for possessing stolen cattle was barred by the running of the
three-year statute of limitations.
10

CONCLUSION
The lower court's judgment of conviction is reversed, and further prosecution is barred by
the applicable statute of limitations.
____________
110 Nev. 200, 200 (1994) McKellar v. McKellar
JAMES A. KIM McKELLAR, Appellant, v. BARBARA RAND McKELLAR, n/k/a
BARBARA RAND METZLER, Respondent.
No. 23785
March 30, 1994 871 P.2d 296
Appeal from a judgment of the district court awarding child support arrearages. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Former wife sued to collect child support arrearages accumulated over fourteen years. The
district court found that wife was entitled to retroactive application of amendment to statute
which eliminated limitations period for seeking child support. Appeal was taken. The
supreme court held that: (1) wife did not waive right to seek child support arrearages, and (2)
statutory amendment which eliminated limitations period for actions to collect child support
arrearages did not apply retroactively.
Foley & Jones and Daniel Foley, Las Vegas, for Appellant.
Jimmerson, Davis & Santoro, Las Vegas, for Respondent.
1. Parent and Child.
Equitable defenses such as estoppel or waiver may be asserted by obligor in proceeding to reduce child support arrearages to
judgment.
2. Estoppel.
To establish valid waiver as equitable defense, party asserting defense must show that there has been intentional relinquishment of
known right.
__________

10
The filing of the information with the district attorney's affidavit did not relate back to the criminal complaint
filed on July 22, 1991, because the information upon affidavit was based on a ground inconsistent with NRS
173.035(2).
3. Estoppel.
While waiver asserted as equitable defense may be subject of express agreement, it may also be implied from conduct which shows
intention to waive right or by conduct which is inconsistent with any other intention than to waive right.
4. Estoppel.
Whether there has been valid waiver, as asserted as equitable defense, is question for trier of fact.
5. Divorce.
Fact that former wife waited almost 14 years before initiating action to collect child support arrearages was not dispositive of
whether implied waiver of right to arrearages occurred.
6. Divorce.
Finding that there was no implied waiver of right to collect child support arrearages, even though former wife waited almost 14
years before initiating action to collect past due support, was supported by evidence that wife had continually requested that husband
make required payments and had previously offered to forgive past and future child support obligations if former husband would allow
child's adoption by wife's new husband.
7. Statutes.
General presumption exists in favor of prospective application of statutes unless legislature clearly manifests contrary intent or
unless intent of legislature cannot otherwise be satisfied.
8. Statutes.
For purposes of determining if statute applies retroactively, elimination of provision is instructive although not conclusive on issue
of legislative intent.
9. Limitation of Actions.
Statutory amendment which eliminated limitations period for actions to collect child support arrearages did not apply retroactively
so that general six-year statute of limitations controlled to bar former wife's recovery of child support arrearages accrued more than six
years before initiation of action. NRS 11.190, 125B.050.
OPINION
Per Curiam:
This appeal raises two issues. The first is whether respondent waived her right to collect child support arrearages. The second is
whether the amendment to NRS 125B.050, enacted July 1, 1987, may be retroactively applied.
Appellant James A. Kim McKellar (McKellar) and respondent Barbara Rand Metzler (Metzler) were divorced on August 27,
1974. McKellar was ordered to pay $300 per month in child support for the parties' only child, Erin. McKellar was also ordered to pay
medical and educational expenses. In July 1977, McKellar ceased making child support payments and on May 8, 1991, almost 14 years
later, Metzler filed an action to collect arrearages from McKellar dating back to 1977.
Hearings were held before a Domestic Relations Referee. The Referee found that Metzler
did not waive her right to collect arrearages and awarded her child support arrearages with
prejudgment and post-judgment interest, medical and schooling expenses with post-judgment
interest and attorney's fees. McKellar filed Objections to the Referee's Report and
Recommendation and in April 1992, the district court upheld the Referee's decision. The
district court awarded Metzler $122,521.71.
[Headnotes 1-4]
McKellar first claims that Metzler waived her right to collect child support payments. This
court has held that equitable defenses such as estoppel or waiver may be asserted by the
obligor in a proceeding to reduce child support arrearages to judgment. Parkinson v.
Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231 (1990). To establish a valid waiver, the
party asserting the defense must show that there has been an intentional relinquishment of a
known right. Id. Additionally, while a waiver may be the subject of express agreement, it may
also be implied from conduct which evidences an intention to waive a right, or by conduct
which is inconsistent with any other intention than to waive a right. Id. Whether there has
been a waiver is a question for the trier of fact. Id.
[Headnotes 5, 6]
In the case at bar, there was no express agreement between the parties that Metzler waived
her right to collect child support payments. Therefore, the question is whether the district
court erred in finding that there was no implied waiver. The record contains ample evidence
to support the district court's conclusion that Metzler's conduct neither demonstrated an intent
to waive her right to collect child support payments nor was it inconsistent with any other
intention than to waive that right. Although Metzler waited almost 14 years before initiating
an action to collect arrearages, this fact is not dispositive of whether an implied waiver
occurred. While the amount of time elapsed is certainly one factor in determining whether
there exists an implied waiver, it is not the only factor. During the years Erin went without
the benefit of child support payments, Metzler consistently requested that McKellar make the
payments required by the divorce decree. In fact, in 1983, Metzler contacted McKellar and
offered to forgive McKellar's past and future child support obligations provided that
McKellar would consent to the adoption of Erin by Metzler's new husband. McKellar refused.
In light of these facts, we hold that Metzler did not intentionally relinquish her right to collect
child support arrearages from McKellar.
McKellar next contends that even if Metzler did not waive her right to collect payments,
the district court erred in reducing to judgment arrearages dating back to July 1977. He claims
that the amendment to NRS 125B.050 (effective July 1, 1987), which eliminated the statute
of limitations in actions to collect child support arrearages, does not apply retroactively.
1
Therefore, McKellar asserts, the general six-year statute of limitations should control in this
case to bar recovery of arrearages accrued more than six years prior to the initiation of this
action. See NRS 11.190. We agree.
[Headnotes 7, 8]
There is a general presumption in favor of prospective application of statutes unless the
legislature clearly manifests a contrary intent or unless the intent of the legislature cannot
otherwise be satisfied. See Convention Properties v. Washoe Co. Assessor, 106 Nev. 400,
402, 793 P.2d 1332, 1333 (1990); Holloway v. Barrett, 87 Nev. 385, 390, 487 P.2d 501, 504
(1971). It cannot be said that the legislature clearly manifested an intent that the amendment
to NRS 124B.050 apply retroactively. Indeed, the legislature appears to have considered and
rejected retroactive application. An earlier draft of NRS 125B.050 included a subsection
reading, (4) This section applies retroactively to all orders. Nevada Assembly Committee
on Judiciary, Minutes of April 21, 1987, at 1956. This subsection was subsequently deleted.
While the legislature's elimination of a provision is not conclusive on the issue of legislative
intent, it is instructive. See Crespin v. Kizer, 276 Cal.Rptr. 571, 580 (Ct.App. 1990); State v.
Barnard, 612 P.2d 1073, 1075 (Ariz.Ct.App. 1980).
Nor can we conclude that retroactive application is necessary to satisfy the legislature's
intent. In amending NRS 125B.050, the legislature intended to eliminate the statute of
limitations for actions to collect child support payments, beginning on the effective date of
the amendment. Prospective application advances the legislature's intent, despite the resulting
preclusion of recovery for time-barred claims. We therefore hold that the amendment to NRS
125B.050 does not apply retroactively and that NRS 11.190
__________

1
The July 1, 1987 amendment added the following provision to NRS 125B.050 (formerly NRS 126.263):
3. If a court has issued an order for the support of a child, there is no limitation on the time in which an
action may he commenced to:
(a) Collect arrearages in the amount of that support; or
(b) Seek reimbursement of money paid as public assistance for that child.
1987 Nev. Stat., ch. 808, 41 at 2252.
applies to preclude recovery for any of Metzler's claims which were time-barred at the
commencement of her action.
Accordingly, we affirm the district court's finding that Metzler did not waive her right to
collect child support arrearages, and reverse the district court's retroactive application of NRS
125B.050. We remand this case to the district court for a determination of the amount of child
support arrearages owed Metzler.
____________
110 Nev. 204, 204 (1994) Sack v. Tomlin
CATHERINE P. SACK, Appellant and Cross-Respondent, v. RICKEY RANDELL
TOMLIN, Respondent and Cross-Appellant.
No. 23856
March 30, 1994 871 P.2d 298
Appeal and cross-appeal from a judgment dividing the proceeds from the sale of real
property. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Suit for partition of real property was commenced seeking proper division of net proceeds
from sale of residence between unmarried cohabitants. The district court divided proceeds.
Appeal was taken. The supreme court held that: (1) doctrine of quantum meruit did not apply
to apportion proceeds; (2) doctrine of contribution did not apply; (3) deed creating joint
tenancy did not estop one tenant from claiming more than one-half interest; (4) the
presumption that tenants in common hold equal interests did not apply; (5) cotenant awarded
18% of proceeds was not prevailing party and could not recover attorney fees; and (6)
cotenant was entitled to contribution for mortgage payments.
Affirmed in part; modified in part and remanded.
Julian C. Smith, Jr., Carson City, for Appellant and Cross-Respondent.
Robert A. Grayson, Carson City, for Respondent and Cross-Appellant.
1. Implied and Constructive Contracts.
Doctrine of quantum meruit generally applies to action for restitution involving work and labor performed which is founded on
an oral promise on the part of the defendant to pay the plaintiff as much as a plaintiff reasonably deserves for his labor in the absence
of an agreed upon amount.
Doctrine of quantum meruit did not apply to dispute between unmarried cohabitants concerning division of proceeds
from sale of residence.
110 Nev. 204, 205 (1994) Sack v. Tomlin
unmarried cohabitants concerning division of proceeds from sale of residence. There was no expressed or tacit agreement between
parties to compensate one another for household services.
3. Partition.
Doctrine of contribution for community property apportionment did not apply to dispute between unmarried cohabitants
concerning division of proceeds from sale of residence. Cohabitants were not married, did not hold themselves out as being married, no
community property was ever held, and they purposely held title to residence as tenants in common.
4. Partition.
Proceeds from sale of residence used by unmarried cohabitants who owned property as tenants in common was divided in
proportion to amount contributed by each to purchase residence.
5. Partition; Tenancy in Common.
Statute requiring that grantor covenant that property being conveyed is not burdened by encumbrances did not estop one
cohabitant from claiming equity in house used as residence which was accumulated before that cohabitant conveyed house to herself
and other cohabitant as tenants in common. No encumbrances were transferred with conveyance, existing mortgage debts were
extinguished and statute does not require grantor to convey equal interests to grantees. NRS 111.170.
6. Covenants.
Statute mandating that grantor covenant that property being conveyed is not burdened by any encumbrances does not require
grantor to convey equal interests to grantees. NRS 111.170.
7. Tenancy in Common.
Fractional shares held by tenants in common are presumed to be equal unless circumstances indicate otherwise.
Unequal contributions to acquisition of property by tenants in common who are not related and show no donative intent can rebut
presumption that fractional shares are held equally.
Evidence that one cohabitant did not intend to make gift of one half of accumulated equity to other cohabitant in executing deed
creating tenancy in common, together with evidence that grantor/cohabitant's contributions exceeded grantee's by nearly $100,000,
rebutted presumption that fractional shares were held equally. Presumption that cohabitants intended to share in proportion to amount
each contributed to purchase price controlled.
10. Costs.
District court has discretionary power to award attorney fees to prevailing party. NRS 18.010(2).
11. Partition.
Unmarried cohabitant who was awarded 82% of net proceeds from sale of residence in suit for partition of real property was
prevailing party and, thus, cohabitant awarded 18% split of proceeds was not entitled to discretionary award of attorney fees. NRS
18.010(2), 39.010.
Erroneous failure to state reason for denial of attorney fees in suit for partition of real property was harmless given that party
requesting fees did not prevail in partition action. NRS 18.010(2), 39.010.
110 Nev. 204, 206 (1994) Sack v. Tomlin
Where one cotenant is in sole but not adverse possession, other cotenants are generally liable for percentage of mortgage payments.
Unmarried cohabitant who possessed residence was entitled to reimbursement from other cohabitant for one half of mortgage
payments made by cohabitant in possession without contribution.
Cohabitant who left house was not entitled to offset rental value of house from cotenant's obligation to reimburse tenant who made
entire mortgage payments without contribution in absence of agreement that cotenant who possessed house and made mortgage
payments agreed to pay rent following cotenant's departure.
OPINION
Per Curiam:
Appellant Catherine P. Sack (Cathy) and respondent Rickey Randell Tomlin (Rickey) commenced living together in March of 1984.
Six months later Cathy obtained a divorce from her husband, William Sack (William). Pursuant to the divorce decree, Cathy received fee
simple ownership to a house in Carson City, Nevada. In exchange, Cathy gave William a lump sum promissory note, in the amount of
$43,082.00, due and payable on September 30, 1990. As the due date on the promissory note drew closer, Cathy contemplated her two
viable alternatives: refinance or sell the house. After discussing the matter with Rickey, they collectively decided to refinance. On May 10,
1990, Cathy conveyed the house to herself and Rickey as tenants in common. Together, they obtained a new loan for the house in the
amount of $126,000.00.
Eventually, differences arose between them and Rickey moved out of the house in late February, 1991. Rickey continued to make
one-half mortgage contributions through October, 1991. The house was sold in April, 1992. Cathy made the final five mortgage payments
entirely by herself. Thereafter, a dispute arose over the apportionment of the proceeds from the sale of the house. Applying the doctrine of
quantum meruit, the district court concluded that Rickey had bought-in to 18% of the house's equity and it ordered the proceeds
apportioned accordingly. It also denied Cathy's request for contribution towards mortgage payments and denied Rickey's request for
attorney's fees. Both parties appealed the district court's order.
For reasons stated hereafter, the district court's denial of respondent's request for attorney's fees is affirmed. In addition, appellant is
entitled to contribution for one-half of the last five mortgage payments that she made alone.
110 Nev. 204, 207 (1994) Sack v. Tomlin
mortgage payments that she made alone. Further, the district court's apportionment of the sale
of the house is modified and remanded for action consistent with this opinion.
FACTS
Cathy and Rickey began living together in March of 1984, in a house (the house) located at
1510 Valencia Court, Carson City, Nevada.
1
At the time, Cathy was separated from her
husband with whom she owned the house in joint tenancy.
2
Pursuant to a September 14,
1984, divorce decree, the house was transferred to Cathy, thus vesting in Cathy full fee
simple ownership.
3

As the maturity date on the promissory note to William drew closer, Cathy contemplated
her two viable alternatives: refinance or sell the house. After discussing the matter with
Rickey, they collectively decided to refinance the house. On May 10, 1990, Cathy conveyed
the house to herself and Rickey as tenants in common. Together, they obtained a new loan for
the house in the amount of $126,000.00. The outstanding promissory notes to First Interstate
Bank and William were retired.
4

In late February, 1991, Rickey moved out of the house after differences arose between him
and Cathy. Following the separation and through October, 1991, Rickey continued to make
one-half of the mortgage payment due each month. In November, 1991, the house was listed
for sale.
5
Five months later, the house was sold for $185,000.00, leaving a net equity of
$46,278.00. The dispute concerns the ownership of this equity interest.
__________

1
Over the next 84 months, Cathy and Rickey resided together and they made separate and unequal
contributions towards their combined living expenses. Under this arrangement they maintained a higher standard
of living than they could have maintained individually.

2
Cathy and her husband, William C. Sack, acquired this house on November 10, 1977, for $88,000.00.

3
Cathy became vested with full fee simple ownership subject to a first deed of trust, which secured a
promissory note in favor of First Interstate Bank of Nevada, for $42,951.00; and a second deed of trust, which
secured a promissory note in favor of William for $43,082.00 The promissory note to William was due and
payable in one lump sum on September 30, 1990. For property settlement purposes, the district court appraised
the value of the house at $150,000.00, on September 14, 1984.

4
The promissory note to William was for $43,082.00. However, by May 10, 1990, interest accumulations
brought the principal balance on the note to $72,500.00. In addition, the $39,782.00 promissory note to First
Interstate Bank was retired. The remaining $13,718.00 borrowed on the new mortgage was spent by the parties
on vacations, home improvements, and personal items.

5
From November, 1991, through March, 1992, Rickey did not make a contribution towards the mortgage
payment.
110 Nev. 204, 208 (1994) Sack v. Tomlin
Cathy contends that the May, 1990, conveyance of the house to herself and Rickey as
tenants in common was not intended to transfer to Rickey any of the equity that Cathy had
accumulated from 1977 to 1990; instead, it was only intended to transfer an equal portion of
the future appreciation of the house.
6
Conversely, Rickey contends that he is entitled to
one-half of the equity by virtue of the grant, bargain and sale deed conveying the house to
him as a tenant in common.
The district court concluded that Cathy did not intend to make a gift to Rickey of one-half
of her accumulated equity. However, the district court noted that Rickey contributed 36% of
the funds applied towards the total expenditures of both parties during the period of
cohabitation.
7
Applying the doctrine of quantum meruit, the district court determined that
Rickey was essentially buying-in to one-half of Cathy's equity, and awarded Rickey 18% of
the total net equity from the sale of the house, or $8,330.04. This left Cathy $37,947.96 of the
net equity.
LEGAL DISCUSSION
Whether the district court erred in applying the doctrine of quantum meruit to the
apportionment of the proceeds from the sale of the house.
[Headnote 1]
Both appellant and respondent assert that the district court erroneously applied the doctrine
of quantum meruit to the facts in this case. The doctrine of quantum meruit generally applies
to an action for restitution involving work and labor performed which is founded on a oral
promise on the part of the defendant to pay the plaintiff as much as the plaintiff reasonably
deserves for his labor in the absence of an agreed upon amount. See, e.g., Herman v. Blase,
77 Nev. 127, 359 P.2d 745 (1961); United Tungsten v. Corp. Svc., 76 Nev. 329, 353 P.2d 452
(1960).
[Headnote 2]
This court has previously addressed the doctrine of quantum meruit in the context of
property rights of unmarried cohabitants.
__________

6
Cathy and Rickey prepared separate loan applications for the May, 1990, mortgage. Cathy's loan application
lists the house as an asset, with a value of $170,000.00. Rickey's loan application indicates that he had no
ownership interest in the house.

7
The district court does not indicate how it calculated the 36% contribution. Bank statements show that during
the period of cohabitation (1984-1991) that Cathy contributed $164,789.00 (71.46%) and Rickey contributed
$65,802.00 (28.54%) towards total joint living expenses of $230,591.00. Cathy's contributions amount to
84.46% of her total income of $195,118.00, while Rickey's contributions amount to 30.55% of his total income
of $215,407.00.
110 Nev. 204, 209 (1994) Sack v. Tomlin
meruit in the context of property rights of unmarried cohabitants. Hay v. Hay, 100 Nev. 196,
678 P.2d 672 (1984); Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978). In Hay, this court
stated:
The courts should enforce express contracts between nonmarital partners except to
the extent that the contract is explicitly founded on the consideration of meretricious
sexual services . . . In the absence of an express contract, the courts should inquire into
the conduct of the parties to determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or some other tacit understanding
between the parties. The courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or resulting trusts, when warranted by the facts
of the case.
Hay, 100 Nev. at 199, 678 P.2d at 674 (quoting Marvin v. Marvin, 557 P.2d 106, 122-23
(Cal. 1976)).
In Marvin, the California Supreme Court held that a non-marital partner may recover in
quantum meruit for the reasonable value of household services rendered less the reasonable
value of support received if he can show that he rendered services with the expectation of
monetary reward. Marvin, 557 P.2d at 122-23.
In the instant case, the district court did not find an expressed or tacit agreement between
the parties to compensate one another for household services. Instead, the district court based
its apportionment of the net equity of the house solely on the cash contributions made by each
party towards their total living expenses during the period of cohabitation. There is nothing in
the record which indicates that either party promised or expected compensation for their
contribution of household services. Nor is there any evidence in the record to indicate that
whatever services were provided by one party were not reduced by equivalent services
rendered by the other party. In addition, recovery for household services was not an issue
before the district court. Under Marvin and Hay, the doctrine of quantum meruit does not
apply to the factual circumstances in the instant case.
Whether the proceeds should have been apportioned pursuant to the doctrine of contribution.
[Headnote 3]
Cathy and Rickey lived together under circumstances of mutual convenience. Each was
able to enjoy a lifestyle and standard of living that neither could afford individually. They did
not, however, hold themselves out to be husband and wife. There was no written income
pooling agreement between the parties. The record reflects that there was conflicting
testimony regarding the expectations of Rickey's contributions to household expenses.
110 Nev. 204, 210 (1994) Sack v. Tomlin
record reflects that there was conflicting testimony regarding the expectations of Rickey's
contributions to household expenses. Rickey characterizes his contributions as pooling of
income. Cathy characterizes Rickey's contributions as payment for rent and a fair share of the
household expenses. Rickey testified that the rental value of Cathy's home, at least to him,
was $700.00 in 1984 and $1,500.00 in 1992. During this period, Rickey contributed an
average of $783.00 per month.
8
During that same period, Cathy contributed an average of
$1,962.00 per month.
9
Consequently, Cathy considers Rickey's contributions as a quid pro
quo for lodging and meals.
The community property apportionment method enunciated by this court in Malmquist v.
Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), is not applicable to the instant case because:
these parties were not married, nor did they hold themselves out as being married; no
community property was ever held by the parties and they purposely held title to the house as
tenants in common.
10
Accordingly, the apportionment dispute in the instant case is more
analogous to those instances where cotenants unequally contribute to the purchase price of
real property.
[Headnote 4]
Many cases have held that where cotenants unequally contribute to the purchase price of
real property, that a presumption arises that the cotenants intended to share in proportion to
the amount contributed by each to the purchase price. See Williams v. Monzingo, 16 N.W.2d
619 (Iowa 1944); see also Milian v. DeLeon, 226 Cal.Rptr. 831 (Cal.Ct.App. 1986);
Cummings v. Andersen, 590 P.2d 1287 (Wash.Ct.App. 1979); cf. Kershman v. Kershman, 13
Cal.Rptr. 290 (Cal.Ct.App. 1961); Moran v. Thomas, 117 N.Y.S. 190 (N.Y.App.Div. 1952).
The courts have also held that in the absence of an agreement between two unmarried parties
living together to pool their incomes and share equally in joint accumulations, each party is
entitled to share in the property jointly accumulated in the proportion that his or her funds
contributed towards the acquisition. Beckman v. Mayhew, 122 Cal.Rptr.
__________

8
Rickey's total contributions were $65,802.00 ($65,802.00 84 months = $783.00 per month).

9
Cathy's total contributions were $164,789.00 ($164,789.00 84 months = $1,962.00 per month).

10
The new mortgage loan application prepared by First Interstate Bank for Cathy and Rickey initially indicated
that the house would be held in joint tenancy. However, Cathy insisted that title be held as tenants in common
because she wanted the equity that she had accumulated between 1977 and 1990 to inure to the benefit of her
survivors. Rickey acquiesced, and initialled the change to how title would be held.
110 Nev. 204, 211 (1994) Sack v. Tomlin
122 Cal.Rptr. 604 (Cal.Ct.App. 1975); Barlow v. Collins, 333 P.2d 64 (Cal.Ct.App. 1958);
Hill v. Estate of Westbrooke, 213 P.2d 277 (Cal.Ct.App. 1950); see also Valera v. Valera,
134 P.2d 761 (Cal. 1943); cf. Keller v. Porchey, 560 S.W.2d 257 (Mo.Ct.App. 1977) (where
title is conveyed to unmarried cohabitants as husband and wife, the property is to be
apportioned on the basis of contribution).
In Kershman, the court described its approach to situations where cotenants
11
contribute
unequally to the purchase price of real property:
The proper approach would be to first determine the respective ownership interests of
the parties whether equal or otherwise. Upon sale of the property there should be a
determination of the share of each in the net proceeds according to those interests. Then
any claims that one party may have against the other should he deducted from the share
of the party to be charged and that of the other party should be increased accordingly.
Kershman, 13 Cal.Rptr. at 294. Under the Kershman formula, Rickey and Cathy would
respectively have 63/170 and 107/170 interests in the house.
12

The net proceeds from the sale of the house were $172,715.63. Applying the Kershman
formula, Rickey would receive $787.60, and Cathy would receive $45,490.46.
13
This result
is consistent with the district court's finding that Cathy did not intend to make a gift of
one-half her equity to Rickey and is also a fair and equitable distribution of the proceeds
of the house sale.
__________

11
In Kershman v. Kershman, 13 Cal.Rptr. 290 (Cal.Ct.App. 1961), the parties were joint tenants who made
unequal contributions towards the purchase of real property.

12
The record only reflects the source of funds deposited into Cathy's bank account, i.e., Rickey or Cathy. The
record does not reflect, however, how those funds were applied. For instance, from March of 1984 through
December of 1990, Rickey and Cathy jointly deposited $194,878.00 into Cathy's bank account. During this
period, the total mortgage payments on the house was approximately $53,600.00 (principal, interest, taxes and
insurance). Consequently, over $141,000.00 was spent on food, clothing, entertainment, etc. Therefore, the only
logical way to determine what these parties actually contributed towards the house, is to look to the amount of
debt acquired by the new mortgage and to the market value of the house on the date of the conveyance to
Rickey.
On May 10,1990, the house had an appraised value of $170,000.00, and a mortgage debt of $126,000.00.
Rickey's share of the new mortgage debt was $63,000.00. Thus, he contributed $63,000.00 towards the
$170,000.00 value of the house; giving him a 63/170 interest in the house. Cathy's share of the mortgage debt
was also $63,000.00, and in addition, Cathy had $44,000.00 in equity accumulated in the house. Thus, Cathy's
total contribution was $107,000.00 ($63,000.00 + $44,000.00); giving her a 107/170 interest in the house.

13
Apportionment under the Kershman formula:
110 Nev. 204, 212 (1994) Sack v. Tomlin
with the district court's finding that Cathy did not intend to make a gift of one-half her equity
to Rickey and is also a fair and equitable distribution of the proceeds of the house sale.
Whether appellant is estopped from claiming more than a one-half interest in the house after
the execution of the grant, bargain and sale deed.
Rickey asserts that Cathy is estopped from claiming any prior equity in the house by virtue
of the grant, bargain and sale deed by which Cathy conveyed the house to herself and Rickey
as tenants in common. Rickey asserts that the deed cut off any prior interest Cathy had in the
house. In support of this proposition Rickey cites to NRS 111.170.
14
However, Rickey's
reliance on this statute is misplaced.
15

[Headnotes 5, 6]
Under NRS 111.170, a grantor covenants that the property being conveyed is not burdened
by any encumbrances. Cathy did not transfer any encumbrances when she conveyed the house
to herself and Rickey. The existing mortgage debts were extinguished, and a new mortgage
was acquired by Cathy and Rickey. Nothing in NRS 111.170 requires a grantor to convey
equal interests to grantees. For example, a grantor could convey a 3/4 interest to one grantee
and only a 1/4 interest to another. NRS 111.170 only requires that the grantor convey the
property to the grantees without encumbrances.
__________
Sale price of house $185,000.00
Selling expenses 12,284.37
Net proceeds $172,715.63
Cathy (107/170) Rickey (63/170)
Share of net proceeds $108,709.25 $64,006.38
Less: Mortgage debt (63,218.79)
(63,218.78)
Apportionment $45,490.46 $787.60

Since Cathy and Rickey mutually benefitted from their cohabitation, no offset is required.

14
In relevant part, NRS 111.170 states;
1. The words grant, bargain and sell in all conveyances made after December 2, 1861, in and by which
any estate of inheritance or fee simple is to be passed, shall, unless restrained by express terms contained
in such conveyances, be construed to be the following express covenants, and none other, on the part of
the grantor, for himself and his heirs to the grantee, his heirs, and assigns:
. . . .
(b) That the real property is, at the time of the execution of the conveyance, free from encumbrances,
done, made or suffered by the grantor, or any person claiming under him.

15
It is noteworthy that Rickey did not cite any case law to support this proposition.
110 Nev. 204, 213 (1994) Sack v. Tomlin
grantees without encumbrances. Cathy did. Accordingly, NRS 111.170 does not estop Cathy
from claiming more than one-half interest in the house.
Whether the presumption that tenants in common hold equal interests or the presumption
contained in NRS 47.250(2) bind appellant.
It is a disputable presumption that a person intends the ordinary consequences of his
voluntary act. NRS 47.250(2). Consequently, Rickey contends that when Cathy conveyed the
house to herself and Rickey without expressly stating in the deed that she retained her
accumulated equity, that it is presumed that she conveyed all of her equity.
[Headnotes 7, 8]
The fractional shares held by tenants in common are usually equal and are presumed to be
equal unless circumstances indicate otherwise. Sanders v. Knapp, 674 P.2d 385
(Colo.Ct.App. 1983); see also Caito v. United Cal. Bank, 576 P.2d 466 (Cal. 1978);
Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Ct.App. 1974). However, unequal
contributions toward acquisition of property by cotenants who are not related and show no
donative intent can rebut the presumption of equal shares. Cummings v. Anderson, 590 P.2d
1287 (Wash.Ct.App. 1979); see also People v. Varel, 184 N.E. 209 (Ill. 1932); Williams v.
Manzingo, 16 N.W.2d 619 (Iowa 1944); Taylor v. Taylor, 17 N.W.2d 745 (Mich. 1945).
In Williams, the Iowa Supreme Court held:
[W]e find the rule to be that where a conveyance to purchasers of a tenancy in common
is silent these purchasers are presumed to take equal shares. However, this presumption
is a rebuttable one and does not prevent proof from being introduced that the respective
holdings and the interests of the parties are unequal. In a showing of unequal
contribution, in the absence of further proof the prior presumption is overcome and
another presumption arises; that is, that the parties intended to share in proportion to the
amount contributed by each to the purchase price.
Williams, 16 N.W.2d at 622-23.
[Headnote 9]
The district court concluded that Cathy did not intend to make a gift of one-half of her
accumulated equity to Rickey. There is substantial evidence in the record to sustain that
conclusion. In addition, Cathy's contributions exceeded Rickey's by nearly $100,000.00.16
The presumptions asserted by Rickey have been overcome.
110 Nev. 204, 214 (1994) Sack v. Tomlin
$100,000.00.
16
The presumptions asserted by Rickey have been overcome. In the absence of
further proof to the contrary, the presumption that Cathy and Rickey intended to share in
proportion to the amount each contributed to the purchase price controls the instant case.
Whether the district court erred in not awarding respondent attorney's fees and costs.
Rickey contends that the district court erred when it failed to state a reason for denying
him attorney's fees and costs. In support of this contention he cites to Lyon v. Walker
Baldwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972), where this court held that the
failure of the district court to state a reason for refusing to award attorney's fees constitutes
abuse of discretion. See also Jones v. Jones, 86 Nev. 879, 885, 478 P.2d 148, 152 (1970)
(when denying the prevailing party attorney's fees, the district court must state its reason for
doing so, so that it is subject to review on appeal, and failure to do so is an abuse of
discretion).
[Headnote 10]
The district court has the discretionary power to award attorney's fees to a prevailing party.
NRS 18.010(2).
17
The problem with Rickey's contention is that it assumes that he was the
prevailing party. This court has held that [a] plaintiff may be considered the prevailing party
for attorney's fee purposes if it succeeds on any significant issue in litigation which achieves
some of the benefit is sought in bringing the suit. Hornwood v. Smith's Food King, 105 Nev.
188, 192, 772 P.2d 1294 (1989) (quoting Women's Federal S & L Ass'n. v. Nevada Nat.
Bank, 623 F.Supp. 469, 470 (D. Nev. 1985)); see also Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Women's Federal S & L Ass'n. v. Nevada Nat. Bank, 623 F.Supp. 469, 470 (D.
Nev. 1985).
__________

16
See supra note 7.

17
In relevant part, NRS 18.010(2) states:
2. In addition to the cases where an allowance is authorized by specific statute, the court may make an
allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000; or
(b) Without regard to the recovery sought, when the court finds that the claim, counterclaim, cross-claim
or third-party complaint or defense of the opposing party was brought without reasonable ground or to
harass the prevailing party.
(Emphasis added.)
110 Nev. 204, 215 (1994) Sack v. Tomlin
[Headnote 11]
The instant case involved the partition of real property under NRS 39.010. Cathy wanted
99% of the proceeds from the sale of the house. Rickey wanted 50% of the proceeds. The
district court made a 82%/18% split of proceeds in favor of Cathy. Under Hornwood, Cathy
is considered the prevailing party. This court has also held that where the net amount awarded
to plaintiff, after deducting the amount found due defendant on counterclaim, exceeded
$300.00, that plaintiff was the prevailing party entitled to costs under NRS 18.020. Humphrey
v. Sagouspe, 50 Nev. 157, 254 P. 1074 (1927). Under Humphrey, Cathy is considered the
prevailing party, and considering our conclusion on the division of the net equity, Cathy is
clearly the prevailing party.
[Headnote 12]
It was error for the district court to deny attorney's fees without stating a reason for the
denial. Lyon, 88 Nev. at 650, 503 P.2d at 1221. However, the error was harmless because
Rickey was not the prevailing party.
Whether the district court erred in failing to award appellant contribution or credit in the
apportionment of the proceeds where appellant made the entire mortgage payment for five
months preceding the sale of the house.
After Rickey and Cathy separated in February, 1991, Cathy continued to live in the house.
Rickey continued to make one-half of the monthly mortgage payment through October, 1991.
From November, 1991, through March, 1992, Cathy alone, made the entire mortgage
payment. Cathy asked the district court for a credit in the apportionment of the proceeds for
the five months preceding the sale in which she made the entire mortgage payment. Rickey
admitted that he owed half of those payments under the traditional rules of contribution
between tenants-in-common. However, he urged the district court to deduct the reasonable
rental value of the house during this period because he had been ousted by Cathy. The district
court rejected the notion that Rickey had been ousted, but its Memorandum of Decision did
not provide any credit for Cathy's excess contribution during the five months preceding the
sale of the house.
[Headnote 13]
The general rule is that where one cotenant is in sole but not adverse possession, the other
cotenants are liable for their percentage of mortgage payments. Gilmore v Gilmore, 328
N.E.2d 562 (Ill.App.Ct. 1875); see also Wilmon v. Koyer, 143 P. 694 (Cal. l914); Conley v.
Sharpe, 136 P.2d 376 (Cal.Ct.App. 1943); 4 George W. Thompson, Thompson on Real
Property 1S07 {1979).
110 Nev. 204, 216 (1994) Sack v. Tomlin
1807 (1979). In Lanigir v. Arden, 85 Nev. 79, 450 P.2d 148 (1969), this court stated:
The majority rule is that in the absence of an agreement to pay, or ouster by the
co-tenant in possession, a tenant in common who occupies all or more than his
proportionate share of the common premises is not liable, because of such occupancy
alone, to his co-tenant for rent or the use and occupation of the premises.
An exception to that rule is that where the co-tenant in possession seeks contribution
from the co-tenant out of possession for funds expended for the betterment of the
common estate, he must deduct, as an offset, the value of the use of the premises.
Id. at 81, 450 P.2d at 149 (citations omitted).
[Headnotes 14, 15]
Cathy did not ask for contributions towards improvements of the house. She asked the
district court for reimbursement for one-half of the last five mortgage payments that she made
alone. Cathy and Rickey had no agreement that Cathy would pay rent after Rickey left the
house. Thus, under Lanigir there should be no offset for rental value. Consequently, the
district court erred when it ignored Cathy's request for contribution.
CONCLUSION
The district court's denial of respondent's request for attorney's fees is affirmed. In
addition, appellant is entitled to reimbursement for one-half of the last five mortgage
payments that she made alone. Further, the district court's apportionment of the sale of the
house is modified and remanded for action consistent with this opinion.
____________
110 Nev. 216, 216 (1994) SIIS v. Giles
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. KENNETH GILES; and DEPARTMENT OF ADMINISTRATION
HEARINGS DIVISION APPEALS OFFICER, Respondents.
No. 23893
March 30, 1994 871 P.2d 920
Appeal from an order of the district court denying a petition for judicial review, and
upholding the decision of a State Industrial Insurance System appeals officer.
110 Nev. 216, 217 (1994) SIIS v. Giles
Insurance System appeals officer. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
State Industrial Insurance System (SIIS) appealed from order of the district court
upholding decision of appeals officer that awarded sole proprietor benefits based on his actual
wages, rather than his statutory deemed wage. The supreme court held that sole proprietor
who paid workers' compensation premiums based on statutory deemed wage of $500 per
month and also inadvertently paid premiums based on his actual wages was entitled to
compensation based only on his deemed wage.
R. Scott Young, General Counsel, and Arleen N. Kaizer, Associate General Counsel,
King, Clark, Gross & Sutcliffe, Ltd., Las Vegas, for Respondents.
1. Workers' Compensation.
Sole proprietor who paid workers' compensation premiums based on statutory deemed wage of $500 per month and also
inadvertently paid premiums based on his actual wages was entitled to compensation based only on his deemed wage, where proprietor
never notified State Industrial Insurance System (SIIS) that he was paying additional premiums to increase his deemed wage and never
indicated that any overpayments should be applied toward increasing his coverage, but simply made overpayments in error. NRS
616.085(2), 616.114, 616.317.
State Industrial Service System (SIIS) was not estopped to deny coverage based upon sole proprietor's actual wages, rather than his
statutory deemed wage, by accepting premium overpayments based on actual wages. Premium overpayments were made in error, SIIS
was not aware of error until audit uncovered fact that proprietor had been making double payments, and did not intend that proprietor
would act or fail to act because of SIIS's acceptance of the payments. NRS 616.085(2), 616.114, 616.317.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying a petition for judicial review and letting stand the decision of a State
Industrial Insurance System (SIIS) appeals officer. We conclude that the appeals officer erred in awarding a wage higher than that
authorized by statute. Therefore, we reverse.
Respondent Kenneth Giles (Giles) is the sole proprietor of Kenny Construction Company (Kenny). Giles applied for SIIS wage
compensation benefits after he injured himself on a Kenny construction site.
110 Nev. 216, 218 (1994) SIIS v. Giles
construction site. Before the injury Giles had paid premiums to SIIS based on a statutory
deemed wage of $500 per month for a sole proprietor. He had also inadvertently paid
premiums based on his actual wages.
Upon review of Giles's claim for wage compensation after the injury, SIIS determined that
Giles's average monthly wage was the statutory deemed wage, and that Giles could be
compensated on that wage basis alone. SIIS also determined that the premium payments that
Giles had made based on his actual wages had been made and accepted in error. SIIS
refunded the overpayments, set Giles's average monthly wage at $500 under the statute, and
awarded a lump sum figure as compensation, based solely on the statute.
Giles appealed the SIIS determination to an appeals officer, claiming that SIIS was
estopped from compensating him on the statutory wage alone, because SIIS had accepted the
premiums based on Gile's actual wages. In response SIIS argued that the statute provides that
sole proprietors may recover only a deemed wage, and that the payments had been accepted in
error. The appeals officer agreed with Giles, reversed the SIIS determination and remanded
for recalculation of Giles's compensation award.
SIIS filed a petition for judicial review in the district court, seeking a reversal of the SIIS
appeals officer's decision. The district court denied SIIS's petition for judicial review and let
stand the decision of the appeals officer. SIIS appeals the district judge's denial of its petition.
A reviewing court may set an agency decision aside if the decision is affected by error of
law. NRS 233B.135(3)(d). In addition, review in this court on a question of law is de novo.
Id.; American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983);
see also State, Dep't of Motor Vehicles v. Torres, 105 Nev. 558, 560, 779 P.2d 959, 960-61
(1989).
[Headnote 1]
The Industrial Insurance chapter of the Nevada Revised Statutes provides that if an
independent contractor is a sole proprietor he shall be deemed to receive a wage of $500 per
month for the purposes of SIIS wage compensation. NRS 616.085(2), 616.114.
1
Giles is an
independent contractor and sole proprietor of his company.
__________

1
2. If the subcontractor is a sole proprietor or partnership licensed pursuant to chapter 624 of NRS, the
sole proprietor or partner shall be deemed to receive a wage of $500 per month for the purposes of this
chapter.
110 Nev. 216, 219 (1994) SIIS v. Giles
of his company. As a result, Giles is deemed for purposes of SIIS wage compensation to earn
$500 per month, the statutory wage.
Sole proprietors may increase their deemed wage by following set procedures mandated by
statute. See NRS 616.317. This statute, which also provides generally for election of SIIS
benefits by sole proprietors,
2
reads:
616.317 Election by sole proprietor; physical examination; payment of premiums;
effect of failure to pay premiums; withdrawal of election.
1. A sole proprietor may elect to be included within the terms . . . of this chapter for
the purpose of personally securing compensation equivalent to that to which an
employee is entitled for any accidental injury sustained by the sole proprietor . . . by
filing a written notice of election with the system.
. . .
6. For purposes of this chapter, a sole proprietor shall be deemed to be receiving a
wage of $300 per month unless, at least 90 days before any injury for which he requests
coverage, he files written notice with the system that he elects to pay an additional
amount of premiums for additional coverage. If the system receives the additional
premiums it requires for such additional coverage, the sole proprietor shall be deemed
to be receiving a wage of $1,800 per month.
(Emphasis added.) Although paragraph one appears to grant a sole proprietor the opportunity
to secur[e] compensation equivalent to that to which an employee is entitled . . . .,
paragraph six expressly provides that a sole proprietor's deemed wage is $300.
3
Paragraph
six also allows a sole proprietor to increase the deemed wage through paying added
premiums.
__________
Sole proprietor means a self-employed owner of an unincorporated business and includes working
partners and members of working associations. Coverage remains in effect only if the sole proprietor
remains a domiciliary of Nevada.

2
Sole proprietors are not automatically covered by the SIIS scheme; they are excluded persons who may elect
coverage under NRS 616.317. See also NAC 616.212.

3
NRS 616.085 provides that contractors who are sole proprietors are deemed to receive $500 in monthly
wages. This statutory deemed wage is $200 higher than the deemed wage for sole proprietors who are not also
independent contractors. NRS 616.317, the election provision allowing a covered individual to increase the
statutory deemed wage, applies to sole proprietors generally and we assume, for purposes of this discussion, that
the opportunity to increase the deemed wage under this election provision is extended also to contractors who
are sole proprietors.
110 Nev. 216, 220 (1994) SIIS v. Giles
deemed wage through paying added premiums. Under the statute, however, SIIS must be
formally notified in writing, and a specific amount in premium payments must be remitted.
See NRS 616.317(6); NAC 616.212(2). Even then, the deemed wage will only be increased to
a ceiling of $1,800. NRS 616.317(6).
Giles never notified SIIS that he was paying additional premiums to increase his deemed
wage, and he never indicated that any overpayments should be applied toward increasing his
coverage. Instead, Giles inadvertently paid premiums on a monthly wage of nearly $15,000,
well beyond the increased statutory deemed wage. Giles's overpayments were simply made in
error. Therefore, the appeals officer erred in concluding that Giles was entitled to more than
$500 per month in wage compensation.
[Headnote 2]
Giles argues that SIIS is estopped to deny coverage based upon Giles's actual wages
because it accepted premium overpayments based on those wages. This court has stated that
[e]quitable estoppel against a government [is intended] to avoid manifest injustice and
hardship to the injured party. Southern Nev. Mem. Hosp. v. State, 101 Nev. 387, 390, 705
P.2d 139, 141 (1985). In addition, this court enumerated four elements required to invoke
equitable estoppel against an agency. They are:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, . . . (3) the party asserting [estoppel] must be ignorant
of the true state of facts; [and] (4) [that party] must have relied to his detriment on the
conduct of the party to be estopped.
Id. at 391, 705 P.2d at 142.
SIIS was not apprised of the true facts regarding the overpayments. The payments were
simply made in error, and SIIS was not aware of the error until an audit uncovered the fact
that Giles had been making double payments. In addition, SIIS does not appear to have
intended that Giles would act or fail to act because of SIIS's acceptance of the payments.
The only factor in Giles's favor is the third, that Giles was ignorant of the true state of
facts. The payments were undoubtedly made in error, and everyone was ignorant of this fact.
Finally, Giles did not act to his detriment as a result of SIIS accepting the payments.
Accordingly, the requirements for invoking equitable estoppel against SIIS are absent, and no
manifest injustice or hardship exists to require SIIS to compensate Giles based on his actual
wages.
We therefore reverse the district judge's order denying the petition for judicial review and
remand this case to SIIS for a recalculation of Giles's award consistent with this opinion.
110 Nev. 216, 221 (1994) SIIS v. Giles
petition for judicial review and remand this case to SIIS for a recalculation of Giles's award
consistent with this opinion.
____________
110 Nev. 221, 221 (1994) Ewish v. State
JOSEPH ANTHONY EWISH and TIMOTHY EDWARD WEBB, Appellants, v. THE
STATE OF NEVADA, Respondent.
No. 23153
March 30, 1994 871 P.2d 306
Appeal from judgments of conviction entered pursuant to jury verdicts against appellants
Joseph Anthony Ewish and Timothy Edward Webb. Eighth Judicial District Court, Clark
County; Jeffrey D. Sobel, Judge.
Defendants were convicted before the district court of two counts of arson and two counts
of murder with a deadly weapon, and they appealed. The supreme court, Young, J., held that:
(1) one defendant was entitled to instruction on lesser related offense of explosive destruction
with respect to one of two fire bombings, warranting reversal of arson conviction for that fire
bombing; (2) although rules of criminal procedure did not authorize empaneling multiple
juries, as was done in instant case, convictions obtained by use of such procedure would be
upheld absent specific instance of reversible prejudice; and (3) any prejudice that resulted
from use of multiple jury procedure was harmless, given overwhelming evidence of guilt.
Affirmed in part, reversed in part and remanded.
[Rehearing pending]
Laura W. FitzSimmons, Las Vegas, for Appellant Ewish.
Mace J. Yampolsky, Las Vegas, for Appellant Webb.
Tufteland, Chief Deputy District Attorney, and Melanie Andress, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Trial court must instruct jury on lesser related offense when three factors are established: lesser offense must be closely related to
offense charged; defendant's trial defense must be consistent with lesser related offense; and evidence must reasonably support guilt for
the lesser related crime.
110 Nev. 221, 222 (1994) Ewish v. State
2. Criminal Law.
Lesser related instruction is not required where defendant completely denies culpability and is either guilty of charged crime or not
guilty at all.
3. Criminal Law.
Defendant charged with aiding and abetting arson in connection with two fire bombings was not entitled to instruction on lesser
related offense of explosive destruction, where defendant flatly denied any active participation in either crime. NRS 202.830, 205.010.
4. Criminal Law.
Defendant charged with arson in connection with two fire bombings was not entitled to instruction on lesser related offense of
explosive destruction with respect to one fire bombing as to which he denied any participation, claiming that he was passed out in back
seat of codefendant's car. NRS 202.830, 205.010.
5. Criminal Law.
Defendant who was charged with arson in connection with two fire bombings was entitled to instruction on lesser related offense
of explosive destruction with respect to one of the two incidents; as to that incident, his trial defense was consistent with explosive
destruction, as he took the stand and admitted committing a culpable act of throwing a Molotov cocktail at home, but that due to his
voluntary intoxication, he could not have formed requisite specific intent necessary to commit arson. If believed, only crime defendant
could have committed was explosive destruction, a general intent offense. NRS 202.830, 205.010.
6. Criminal Law.
Conviction obtained by use of multiple jury process will be upheld absent specific instances of reversible prejudice.
7. Criminal Law.
Generally, defendants are not entitled to a retrial simply because their defense is antagonistic to that of codefendant. Some form of
prejudice always exists in joint trial and such occurrences are subject to harmless error review.
8. Criminal Law.
Although use of multiple jury process in prosecution of defendants convicted of arson and murder with a deadly weapon might
have resulted in some prejudice, it was harmless considering overwhelming evidence that defendants were guilty; one defendant took
the stand and admitted throwing Molotov cocktail into home, and neither defendant disputed that they were present at time of both fire
bombings. There was testimony that defendants bragged about the killings and admitted to their direct involvement in the crimes.
9. Criminal Law.
Without guidelines authorized by supreme court or sanction from the legislature, courts of Nevada are instructed to refrain from
conducting trials using multiple jury procedures.
Indictment alleging that codefendant threw Molotov cocktails into homes while defendant and codefendant encouraged his
actions, and that defendant entered into agreement with codefendants to act as lookout, was sufficient to inform defendant that he was
being charged as aider and abettor, notwithstanding that charges did not expressly list aiding and abetting.
110 Nev. 221, 223 (1994) Ewish v. State
OPINION
By the Court, Young, J.:
FACTS
At approximately 4:30 a.m. on March 3, 1990, appellants Joseph Anthony Ewish
(Ewish) and Timothy Edward Webb (Webb), accompanied by Mitchell Nelson
(Nelson), threw a Molotov cocktail into the home of Eppie Lopez (Lopez) in Las Vegas.
The resulting fire killed Lopez and his father. Six other persons were in the house at the time
of the fire.
After leaving the Lopez residence, all three men drove to Ricky Newton's home in Las
Vegas and threw another Molotov cocktail through a bedroom window. A corresponding fire
erupted at approximately 4:53 a.m. and was extinguished. No injuries resulted. Three people
were in the Newton home at the time of the fire.
The firebombing of the Lopez household was the result of a dispute over marijuana. On an
earlier date, Webb was intoxicated and drove Ewish's car into the lube pit of a Las Vegas
service station. The station workers summoned the police. Fearful of police involvement,
Webb entrusted his friend Lopez with a quarter pound of marijuana resting in the trunk of
Ewish's car, Lopez climbed the wall of the service station, with marijuana in hand, and
escaped police detection. Later, both Webb and Ewish confronted Lopez about the
contraband's whereabouts. Lopez claimed he lost the marijuana during the confusion of his
escape. Disbelieving their friend, Webb and Ewish threw a Molotov cocktail into Lopez's
house.
With respect to the firebombing of Ricky Newton's household, the motive is not as clear.
Apparently, a feud broke out between two factions of friends, with Ricky Newton being at
odds with Nelson, Webb, and Ewish. Disparaging comments were made about someone's
girlfriend. The dispute escalated into a scheduled street fight which took place at a Las Vegas
junior high school in February 1990. This fight erupted into many tangential scufflings, and,
in the middle of these events, Ewish pointed a rifle at Newton's van and threatened to shoot
it up. Webb was in Ewish's car at this time. This exchange was apparently the precursor to
the Newton firebombing.
Ewish, Webb, and Nelson were all charged with two counts of arson, two counts of
murder with a deadly weapon, and nine counts of attempted murder with a deadly weapon
(the nine counts equalling the number of uninjured people occupying the Lopez and
Newton households).
110 Nev. 221, 224 (1994) Ewish v. State
counts equalling the number of uninjured people occupying the Lopez and Newton
households). The district court refused to try the three defendants separately, wanting to retain
the administrative advantages of a joint trial. Yet to protect against the somewhat antagonistic
trial defenses of the defendants, the court opted to utilize a multiple jury system. In
accordance therewith, three juries were empaneled and assigned to an individual defendant.
Common evidence was presented to all three juries. Yet when the court felt that justice or
procedure required it, the juries were separated and individually considered evidence
particular to their defendant's trial.
At trial, the State provided overwhelming evidence establishing Webb's direct
involvement in both crimes. In fact, Webb himself took the stand and admitted that he threw
the Newton firebomb. He also admitted being present at the Lopez bombing. In addition,
there was testimony establishing that Webb wanted to get even with Lopez and even boasted
about his participation in starting the fires.
Webb's sole defense at trial was that he was too intoxicated to form the specific intent
necessary to commit arson or murder. Webb testified that he had been drinking heavily and
smoking primos (cocaine mixed with marijuana) for two days prior to the firebombings.
Webb claimed that he was passed out in the back seat of Ewish's car during the Lopez
firebombing and had no recollection of those surrounding events. He allegedly regained
consciousness sometime thereafter, immediately before throwing the Molotov cocktail into
the Newton home. Webb maintained that he was in a cocaine coma and his only
recollection was being handed the firebomb and throwing it through a bedroom window.
This aspect of Webb's testimony was corroborated to a limited degree. His counsel
presented expert testimony characterizing Webb as a chronic alcoholic who could have
been experiencing an intoxication blackout during the crimes. There was also testimony that
one of the three defendants was passed out during some of the night's events.
Although Ewish did not testify in his own behalf, he presented a similar defense at trial. In
essence, Ewish claimed that due to his mental impairment, meek personality, and intoxication
on the night of the crimes, he could not have formed the specific intent necessary to aid in
and abet murder or arson. Ewish presented both expert and lay witness testimony in an
attempt to support this theory. These witnesses testified that Ewish had a mental age of
thirteen, a sixth grade reading level, was susceptible to control of others, and had other related
mental deficiencies.
The State refuted these claims by providing overwhelming evidence establishing Ewish's
direct and active participation in both firebombings.
110 Nev. 221, 225 (1994) Ewish v. State
evidence establishing Ewish's direct and active participation in both firebombings. It was
established that Ewish was present during both criminal events, had a motive for the Lopez
firebombing, acted as a lookout, and later boasted about his involvement in the crimes. In
addition, the State presented evidence that Ewish was holding down a job, could write and
spell with accuracy, had served in the military, and had no mental deficiencies prohibiting
him from acting willfully and with deliberation.
After considering the evidence, each of the three juries returned individual verdicts. Ewish
was convicted of two counts of murder while using a deadly weapon, two counts of arson,
and nine counts of attempted murder.
1
Webb was convicted of two counts of arson and two
counts of murder while using a deadly weapon, but was acquitted of the attempted murder
charges. Nelson was acquitted of all charges and is not a party to this appeal.
Webb and Ewish each received two life sentences with the possibility of parole for the first
degree murder convictions. These sentences were enhanced with two consecutive terms of
life for using a deadly weapon. Additionally, each received two twelve-year prison sentences
for their respective arson convictions.
As a result of the multiple jury process, the trial lasted four weeks and fostered a variety of
issues for appeal. Webb and Ewish capitalize on this fact and each presents a derivation of the
following arguments on appeal: (1) the district court improperly denied a requested jury
instruction describing a lesser related offense to arson; (2) the district judge lacked the
authority to empanel multiple juries; (3) the multiple jury process resulted in undue reversible
prejudice; and (4) there was insufficient evidence to support their respective convictions.
Separately, Ewish makes two additional arguments. First, he claims that the district court
improperly instructed the jury regarding use of a deadly weapon, and thus, his sentence was
erroneously enhanced. Second, Ewish claims that the State's indictment allegations did not
match its aiding and abetting theory of conviction at trial.
We disagree with all Ewish's arguments and accordingly affirm his convictions and
corresponding sentences. Similarly, we disagree with all Webb's arguments related to the
Lopez firebombing and affirm his corresponding arson and murder convictions. However, we
conclude that the trial court erred by rejecting a proposed jury instruction with respect to
Webb's involvement in the Newton fire.
__________

1
Ewish successfully moved for a new trial on the attempted murder convictions. However, the State opted not
to pursue a new trial on those charges.
110 Nev. 221, 226 (1994) Ewish v. State
proposed jury instruction with respect to Webb's involvement in the Newton fire. Therefore,
we reverse Webb's arson conviction stemming from his involvement in that crime.
DISCUSSION
I. Lesser related instruction
At the close of evidence, Webb and Ewish introduced a jury instruction describing
malicious destruction of property using an explosive device, codified in NRS 202.830
(hereinafter explosive destruction).
2
The proposed instruction mirrored the elements
appearing in the statute. Webb and Ewish argued that explosive destruction was a lesser
related crime to arson, and thus, they were entitled to the instruction being presented to the
jury. The district court held otherwise, and appellants renew their contentions on appeal.
[Headnote 1]
The trial court must instruct the jury on a lesser related offense when three factors are
established: (1) the lesser offense must be closely related to the offense charged; (2) the
defendant's trial defense must be consistent with the lesser related offense; and (3) evidence
must reasonably support guilt for the lesser related crime. Stanifer v. State, 109 Nev. 304, 849
P.2d 282 (1993); Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989). This court adopted the
lesser related instruction requirement in Moore, and an examination of the facts therein
illustrates application of these three factors.
In Moore, several persons were charged with the beating and murder of a woman at a Reno
apartment complex. Codefendant Mayfield presented evidence that he had arrived at the
scene after the fatal blow was struck and had merely dragged the dead body behind a fence.
Mayfield appealed his murder conviction, arguing that the district court improperly rejected a
jury instruction describing accessory after the fact. Moore, 105 Nev. at 379-80, 776 P.2d at
1237.
This court reversed Mayfield's conviction. First, accessory after the fact was a lesser
related offense to murder. Second, Mayfield's defense was consistent throughout trial that
he did not participate in the beatings and was only an accessory after the victim was
killed.
__________

2
In pertinent part, NRS 202.830 reads as follows:
Any person who maliciously damages or destroys, or attempts to damage or destroy, by means of an
explosive, any building, vehicle or real property in the state:
1. If no substantial bodily harm results, shall be punished by imprisonment in the state prison for not less
than 2 years nor more than 10 years . . . .
2. If substantial bodily harm results, shall be punished by imprisonment in the state prison for not less
than 2 years nor more than 20 years . . . .
110 Nev. 221, 227 (1994) Ewish v. State
Mayfield's defense was consistent throughout trial that he did not participate in the beatings
and was only an accessory after the victim was killed. Finally, evidence existed supporting
Mayfield's guilt for the lesser related offense. There was testimony that Mayfield arrived at
the scene more than five minutes after the beatings took place. This testimony, coupled with
medical evidence, established that Mayfield had in fact arrived after the victim had died. Id.
at 384, 776 P.2d at 1239.
A. Ewish's convictions and Webb's convictions for the Lopez firebombing
In the instant case, application of Moore indicates that the district court properly rejected
the lesser related instruction with respect to all Ewish's charges and Webb's charges solely
related to the Lopez firebombing. In short, all three Moore factors are not satisfied.
Applying the first factor, we conclude that explosive destruction is a lesser related offense
to arson.
3
Nevada's arson statute, NRS 205.010, prohibits the willful and malicious burning
of a dwelling. Similarly, explosive destruction, NRS 202.830, prohibits the malicious
destruction of real property using and explosive. NRS 202.750 defines explosive as any
incendiary devices . . . that ignition by fire, by friction, by concussion, by percussion, or by
detonation of the compound, mixture or device or any part thereof may cause an explosion.
Throwing a Molotov cocktail into a house and causing a fire is prohibited conduct under both
statutes.
[Headnote 2]
By contrast, the second and third Moore factors are not satisfied. Webb's defense to the
Lopez firebombing and Ewish's overall defense are wholly inconsistent with the lesser related
crime. Webb denied any participation in the Lopez incident, claiming that he was passed out
in the back seat of Ewish's car. Similarly, Ewish defended against the State's aiding and
abetting charges by flatly denying any active participation in either crime. Ewish also claimed
that he was mentally incapable of forming the specific intent to aid in or abet any criminal
activity.
__________

3
Contrary to the State's contentions, explosive destruction is a lesser crime than arson simply because one
convicted thereunder cannot apparently be convicted of felony murder. Nevada's felony murder rule codified in
NRS 200.030(1)(b) does not list explosive destruction as a felony subject to application of the statute. Arson is a
listed offense. While we do not conclude that this list is exhaustive, we merely reference this point to illustrate
that explosive destruction is a lesser related crime than arson.
Moreover, an explosive destruction conviction only carries a maximum penalty of ten years in prison where no
substantial bodily harm results. First degree arson carries a maximum penalty of fifteen years.
110 Nev. 221, 228 (1994) Ewish v. State
specific intent to aid in or abet any criminal activity. If believed, Webb's and Ewish's
respective defenses would refute murder, arson, and even explosive destruction. The lesser
related instruction is simply not required where a defendant completely denies culpability and
is either guilty of the charged crime or not guilty at all. See, e.g., State v. Williams, 698 P.2d
724, 731 (Ariz. 1985); People v. Geiger, 199 Cal.Rptr. 45, 58 (Ct.App. 1984).
In addition, there is no evidence in the record rationally supporting a conviction for the
lesser related offense. Although Webb and Ewish presented evidence that they were not guilty
of arson or aiding and abetting, this did not support an explosive destruction conviction. For
example, all the evidence introduced in Webb's defense, if anything, established that he was
passed out in the back seat of Ewish's car while Lopez's house was firebombed. From this
posture, Webb could not have committed any crime. In turn, Ewish presented evidence
refuting any active complicity in the night's events. If accepted, this evidence provided Ewish
with a defense to any criminal activity.
[Headnotes 3, 4]
In view of this rationale, we conclude that the district court did not err by refusing to issue
the lesser related instruction. This conclusion applies to all Ewish's convictions and Webb's
convictions stemming from the Lopez firebombing.
B. Webb's arson conviction for the Newton firebombing
[Headnote 5]
Conversely, this same conclusion does not apply with respect to Webb's convictions for
the Newton fire. After analysis under Moore, we conclude that Webb was entitled to the
lesser related instruction.
Webb's trial defense to the Newton firebombing was consistent with explosive destruction.
He took the stand and admitted committing a culpable act by throwing the Molotov cocktail
at Newton's home. Webb then claimed that due to his voluntary intoxication, he could not
have formed the requisite specific intent necessary to commit arson. This was a viable
defense to a specific intent crime, and the jury was instructed accordingly. If believed, the
only crime Webb could have committed was explosive destruction, a general intent offense.
4
See Geiger, 199 Cal.Rptr. at 47 {lacking specific intent to commit robbery was consistent
with lesser related general intent offense of vandalism, thus requiring vandalism
instruction).
__________

4
NRS 202.830 defines malicious destruction in general intent terms, describing one who maliciously damages
or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle or real property . .
. . (Emphasis added.)
In addition, the general provisions chapter of Nevada's criminal code, NRS 193.0175, defines maliciously as
follows:
110 Nev. 221, 229 (1994) Ewish v. State
Cal.Rptr. at 47 (lacking specific intent to commit robbery was consistent with lesser related
general intent offense of vandalism, thus requiring vandalism instruction). Moreover, the trial
evidence reasonably supported Webb's guilt for the lesser related crime. There was testimony
that Webb had been drinking and smoking cocaine and marijuana for several hours prior to
the firebombing. Expert testimony also characterized Webb as a chronic alcoholic who may
have been suffering from an intoxication blackout.
For the reasons noted above, we conclude that Webb was entitled to the lesser related
instruction. Rejecting such an instruction was an abuse of the trial court's discretion,
warranting the reversal of Webb's arson conviction for the Newton firebombing.
II. Use of the multiple jury system
The utilization of the multiple jury process is an issue of first impression in this court.
Therefore, a brief discussion regarding the device's history and current status in other
jurisdictions is appropriate.
The multiple jury procedure is a fairly recent development in this country. It was designed
to combat the problem where a codefendant's out-of-court admission was introduced at trial
and implicated the accused. David Carl Minnernan, Annotation, Joint TrialMultiple Juries,
41 A.L.R. 4th 1189 (1985). This dilemma was first described in Bruton v. United States, 391
U.S. 123 (1968), where the Supreme Court held that the accused's right to confrontation
under the Sixth Amendment was violated by admitting such a statement at a joint trial. By
empaneling multiple juries, codefendants can still be tried together and the court can screen
one jury from hearing the out-of-court admission by simply removing the affected jury from
the courtroom.
Due to apparent popularity, however, the device has developed in areas outside the
Bruton-type dilemma.
__________
Malice and maliciously import an evil intent, wish or design to vex, annoy or injure another person.
Malice may be inferred from an act done in willful disregard of the rights of another, or an act
wrongfully done without just cause or excuse, or an act or omission of duty betraying a willful disregard
of social duty.
(Emphasis added.)
Although this definition does refer to intentional conduct, it also includes conduct betraying a social duty. Yet
whatever this latter language means, the important fact is that maliciously is not consumed by intentional
conduct. Thus, the crime malicious destruction does not require the specific intent to commit some further act,
beyond the prohibited conduct itself. State v. Cantrell, 673 P.2d 1147 (Kan. 1983), cert. denied, 469 U.S. 817
(1984); Jennings v. State, 806 P.2d 1299, 1303 (Wyo. 1991) (articulating general definition of specific intent).
110 Nev. 221, 230 (1994) Ewish v. State
in areas outside the Bruton-type dilemma. For example, the ABA Standards for Criminal
Justice advocate using multiple juries where general problems of prejudicial evidence may
present themselves in joint trials. ABA Standards for Criminal Justice, 13-3.2, commentary
at 13-36 (2d ed. 1980). Moreover, several reported decisions reference the ability to conserve
judicial resources by empaneling more than one jury in a single proceeding. See, e.g., United
States v. Hayes, 676 F.2d 1359, 1367 (11th Cir.), cert. denied, 459 U.S. 1040 (1982);
Hedlund v. Sheldon, 840 P.2d 1008, 1011 (Ariz. 1992); State v. Beam, 710 P.2d 526, 533-34
(Idaho 1985), cert. denied, 476 U.S. 1153 (1986).
The multiple jury procedure has received both praise and criticism in recent appellate court
decisions scattered throughout the country. Some courts view the process as an attractive way
of preserving the joint trial method of prosecution by eliminating the impact of codefendants'
antagonistic defenses. See, e.g., United States v. Lebron-Gonzales, 816 F.2d 823, 830-31 (1st
Cir.), cert. denied, 484 U.S. 843 (1987); People v. Wardlow, 173 Cal.Rptr. 500 (Ct.App.
1981); Feeney v. State, 359 So.2d 569 (Fla.Dist.Ct.App. 1978). Other courts characterize the
procedure as ladened with administration difficulties and an aggravator of what it was
designed to eliminateunfair prejudice. See, e.g., United States v. Lewis, 716 F.2d 16, 19
(D.C.Cir.), cert. denied, 464 U.S. 996 (1983); Scarborough v. State, 437 A.2d 672 (Md.
1981); People v. Ricardo B., 518 N.Y.S.2d 843, 847 (N.Y.App.Div.), appeal granted, 514
N.E.2d 1376 (N.Y. 1987), order affirmed by, 535 N.E.2d 1336 (N.Y. 1989).
Aside from this competing commentary, these same courts universally agree that the
multiple jury process is constitutional and that a conviction obtained thereunder will be
upheld, absent specific instances of reversible prejudice.
5
California's approach to this issue
aptly illustrates the point.
In People v. Harris, 767 P.2d 619 (Cal. 1989), the court examined use of multiple juries in
a murder, kidnapping, and robbery trial. The issue was one of first impression at the
California Supreme Court level. As a result, the opinion serves as a thorough and historical
review of the multiple jury device.
Defendant Harris and his confederate Davidson were charged with the robbery,
kidnapping, and murder of a seventeen-year-old individual. Both men abducted the victim
during a dairy/convenience store holdup. They drove the victim to a secluded part of the
desert and shot him in the back as he was attempting to flee.
__________

5
We have not uncovered one decision where a court has held that the multiple jury device is inherently
prejudicial, warranting automatic reversal of the subject conviction.
110 Nev. 221, 231 (1994) Ewish v. State
flee. Harris and Davidson were tried together with the trial court empaneling two juries.
Multiple juries were used because extrajudicial statements made by Davidson implicated
Harris. The prejudicial impact of these statements was effectively eliminated by excusing the
Harris jury when this evidence was introduced at trial. Harris was convicted of all three
crimes. Id. at 623-30.
On appeal, Harris attacked the validity of using multiple juries, claiming that it was unduly
prejudicial. Specifically, he alleged that the procedure was cumbersome, increased the
duration of the trial, frustrated the jurors with unnecessary delay, and invited individual jurors
to speculate that damaging evidence was being considered by the court while they were
excluded. Harris also asserted that the procedure was not expressly authorized under
California law. Id. at 633-34.
The court rejected all these contentions and held that empaneling multiple juries was an
acceptable way to facilitate the mandate of California Penal Code 1098, which requires that
the accused be tried jointly, unless the court orders separate trials. The court reasoned that
multiple juries eliminated the prejudice of antagonistic defenses of codefendants and still
maintained the advantages of a joint trial. The court specifically referenced saving judicial
resources, diminishing inconvenience to witnesses and public authorities, and avoiding delay
in the administration of justice. Harris, 767 P.2d at 633.
The court also reasoned that it was wrong to summarily dismiss the multiple jury process
based on novelty alone. Instead, it adopted the universal position taken in other jurisdictions
that using multiple juries is not inherently prejudicial. Id. at 634-37. Rather, convictions
obtained by using the device would be upheld unless the defendants could identify particular
instances of reversible prejudice.
The Harris court then subjected appellants' claims of prejudice to individual examination
and the harmless error rule. In short, the court determined that Harris simply did not
substantiate that his trial was unduly prejudicial. The record indicated that the process was
administered effectively, the issues were not procedurally complex, the jurors were separately
instructed and advised regarding the process, and the call of witnesses was scheduled to
minimize continual shuffling of jurors. In light of the overall record, the court held that Harris
could not prove that his trial results would have been more favorable had he been tried in a
separate proceeding. Id. at 637.
[Headnote 6]
In essence, we agree with the California Supreme Court's approach to appellate review of
convictions obtained using the multiple jury process.
110 Nev. 221, 232 (1994) Ewish v. State
multiple jury process. A conviction obtained thereunder will be upheld absent specific
instances of reversible prejudice.
Yet unlike the Harris decision, we do not share the California Supreme Court's apparent
optimism regarding the use of multiple juries. The case at hand illustrates that the device can
become a breeding ground for confusion in process and results alike. What should have been
a relatively simple trial took four weeks to conduct in the lower court. Much of the time,
expense, and confusion complained of on appeal was the natural result of having three
different defense lawyers practicing law in front of three different juries. The length of the
trial, the curious results of the verdicts, and the length of this appeal indicate that the multiple
jury process should be engaged with great caution.
In addition to these administrative concerns, the Nevada Rules of Criminal Procedure do
not authorize empaneling multiple juries. Unlike some federal courts and state courts in other
jurisdictions, our rules do not contain any provisions or language sanctioning the procedure.
See, e.g., United States v. Sidman, 470 F.2d 1158, 1170 (9th Cir. 1972) (finding authority
under Fed. R. Crim. P. 57, granting trial court power to proceed in any manner not
inconsistent with rules), cert. denied, 409 U.S. 1127 (1973); Harris, 767 P.2d at 633
(interpreting California Penal Code 1098, requiring that defendants must be tried jointly,
unless the court orders separate trials). NRS 174.165 merely states that the trial court may
grant separate trials and provide whatever relief justice requires. This language cannot
mean that a trial judge has the authority to empanel thirty-six jurors and alternates to hear the
joint trial of three codefendants.
Our skepticism is further enhanced by the fact that this court has not approved any
guidelines for steering the district court through such an ambitious and complicated process.
Jurisdictions outside Nevada have cautioned against experimentation with multiple juries in
the absence of instructive guidelines. See, e.g., State v. Watson, 397 So.2d 1337, 1342 (La.),
cert denied 454 U.S. 903 (1981). Again, our trepidation has been solidified by the facts of the
instant appeal. The court below empaneled three juries to hear the respective trials of Webb,
Ewish, and Nelson. As a result, the threat of prejudice and impropriety was multiplied by
three. The procedure is administratively cumbersome with two juries present, and it appears
nearly unworkable ushering thirty-six individuals plus alternates in and out of the courtroom.
Based upon the foregoing, we conclude that the trial court's maiden voyage with the
multiple jury device was unauthorized by Nevada's Rules of Criminal Procedure and this
court. Yet remaining consistent with the great weight of authority in other jurisdictions, we
conclude that novelty alone is not enough to reverse appellants' respective convictions.
110 Nev. 221, 233 (1994) Ewish v. State
jurisdictions, we conclude that novelty alone is not enough to reverse appellants' respective
convictions. See, e.g., Hayes, 676 F.2d at 1359; Smith v. DeRoberts, 758 F.2d 1151 (7th
Cir.), cert. denied, 474 U.S. 838 (1985); United States v. Rimar, 558 F.2d 1271 (6th Cir.),
cert. denied, Barber v. United States, 434 U.S. 984 (1977); United States v. Rowan, 518 F.2d
685 (6th Cir.), cert. denied, Jackson v. United States, 423 U.S. 949 (1975); People v.
Wardlow, 173 Cal.Rptr. 500 (Ct.App. 1981). Therefore, we turn to the specific claims of
prejudice forwarded by Webb and Ewish.
III. Prejudice as result of the multiple jury process
Webb and Ewish both claim that using multiple juries denied them their right to a fair trial.
In essence, appellants argue that cross-examination of all common witnesses by each defense
lawyer in front of all three juries resulted in unwarranted finger pointing. Without offering an
exhaustive list of examples, the following were specifically referenced by appellants on
appeal.
Webb filed a motion in limine to exclude any references to his gang affiliation. The court
delayed its ruling. At trial, the following questioning took place during the direct testimony of
Benjamin Strebel (Strebel) before all three juries:
Q. What do you remember Tim Webb saying?
A. He pulled up and said, What's up, Blood? And I had just off [sic] work from the
car wash and I had my car wash uniform on. He said, Why are you wearing all that
red?
Follow-up led to this question:
Q. Now, what is it after the initial conversation which you have described about what
you were wearing, why you were wearing all the red, what was it after that that Tim
Webb said about Bobby Blackwell?
Webb's counsel objected to the reference of the words blood and red, claiming that
they indicated Webb's gang involvement. The court disagreed and found these statements
spontaneous. Yet after urging from Webb's counsel, the court apparently granted the motion
in limine and advised that no further gang references could be made in the presence of the
Webb jury.
Later, cross-examination of Strebel, by Ewish's counsel, resulted in a second gang
reference:
Q. And he [meaning defendant Webb] also said, What's up, Blood? and he started
sweating you, is that correct?
A. Yes.
On appeal, Webb claims that the above line of questioning violated the court's
prohibition of gang references and would not have occurred in a separate trial.
110 Nev. 221, 234 (1994) Ewish v. State
violated the court's prohibition of gang references and would not have occurred in a separate
trial.
Ewish also makes claims of undue prejudice. As an example, Ewish asserts that
cross-examination of Eppie Lopez's mother resulted in improper testimony being admitted
against him. Specifically, Maria Lopez referenced her son's friendship with codefendant
Nelson. Ewish asserts that testimony of this friendship not only exonerated Nelson, but
improperly implicated him in the firebombings. Ewish correctly points out that this testimony
would not have been presented to his jury if the trials had been severed.
[Headnote 7]
While we agree that there was additional antagonism at trial directly attributable to the
multiple jury process, such instances do not merit reversal. As a general proposition,
defendants are not entitled to a retrial simply because their defense is antagonistic to a
codefendant. Some form of prejudice always exists in joint trials and such occurrences are
subject to harmless error review. NRS 178.598 (any trial defect not impacting substantial
rights is disregarded); see also Mitchell v. State, 105 Nev. 735, 738-39, 782 P.2d 1340,
1342-43 (1989) (harmless error standard applied to joinder of claims; court tacitly recognized
that same standard applied to joinder of defendants); Abram v. State, 95 Nev. 352, 356, 594
P.2d 1143, 1145 (1979) (reversal unwarranted where appellant could not prove prejudicial
testimony made a difference in his conviction).
[Headnote 8]
In the instant case, the few references to blood and wearing red were innocuous,
considering that the statements were made during the course of a four-week trial. See
Emmons v. State, 107 Nev. 53, 807 P.2d 718 (1991) (one ambiguous reference to defendant's
incarceration during four-day trial was harmless error). Moreover, this language did not
directly label Webb as a gang member, and it is unclear whether or not a jury would
understand the comments as being gang related. The district judge properly characterized the
impact to the jury by the following comments made while considering a related motion for
mistrial: The gang references, frankly, [were] so inconsequential, to me . . . that I didn't even
remember it after your points and authorities.''
Similarly, Maria Lopez's reference to her son's friendship with codefendant Nelson was
also inconsequential considering the length and complexity of the overall trial. Certainly,
such statements, and any inference drawn therefrom, did not make a difference in Ewish's
convictions.
110 Nev. 221, 235 (1994) Ewish v. State
Each of the foregoing examples illustrates the natural form of antagonism inherent in
nearly every joint criminal trial. We conclude that the examples, and all other claimed
instances of prejudice appearing in appellants' briefing papers, are harmless in light of the
overall record. Simply, appellants would not have fared any better at separate trials. The
allegedly improper cross-examination testimony did not differ significantly from the
testimony brought out on direct examination. Webb and Ewish would still have faced the
same incriminating statements coming from the same witnesses in separate proceedings.
More importantly, there was overwhelming evidence that Webb and Ewish were guilty of
arson and murder. Webb took the stand and admitted throwing the Molotov cocktail into the
Newton home. Both Webb and Ewish did not dispute the fact that they were present at the
time of both firebombings. The three codefendants were using Ewish's car. There was
testimony that Ewish and Webb bragged about the killings and admitted to their direct
involvement in the crimes. Considering this evidence and the weak nature of appellants'
respective defenses (voluntary intoxication and lack of capacity to form specific intent for
aiding and abetting), any prejudice experienced by appellants does not warrant reversing their
respective convictions.
[Headnote 9]
In spite of the above conclusion, we dissuade any reader from misconstruing this
disposition. This opinion is not an endorsement of the multiple jury device. If not
implemented carefully or in the proper circumstances, using multiple juries to administer
criminal trials becomes a breeding ground for curious results, tainted justice, and issues for
appeal. Without guidelines authorized by this court or sanction from our state's legislature,
the courts of this state are instructed to refrain from conducting trials in this manner.
IV. Remaining allegations of error
In addition to the above, Webb and Ewish make other allegations of error that do not merit
extended discussion. First, both appellants contend that their respective convictions were not
supported by sufficient evidence. The record on appeal, as indicated above, proves otherwise.
In light of the overwhelming evidence supporting Webb's and Ewish's guilt, we conclude that
appellants' respective convictions were supported by substantial evidence. Bolden v. State, 97
Nev. 71, 73, 624 P.2d 20, 20 (1981). Certainly, a reasonable jury could have convicted both
appellants on all counts at issue in this appeal. Edwards v. State, 90 Nev. 255, 259, 524 P.2d
328, 331(1974).
110 Nev. 221, 236 (1994) Ewish v. State
Second, Ewish separately claims that his jury was improperly instructed on deadly
weapons sentence enhancement, codified in NRS 193.165. As a result, he claims his murder
sentences were improperly increased. Ewish forwards this contention of error without having
objected to the instruction at trial. He also failed to offer any alternative instruction for the
district court's consideration. The subject instruction did not amount to plain error, and thus,
we will not consider the intricacies of Ewish's argument on appeal. Johnston v. State, 101
Nev. 94, 95, 692 P.2d 1307, 1307 (1985).
[Headnote 10]
As a final point of error, Ewish claims that the State's indictment allegations did not match
its aiding and abetting theory of conviction at trial. He asserts that the State's indictments
allege that he was directly responsible for the acts constituting arson. Thus, he was
inadequately apprised of the State's theory of conviction. Ewish cites this court's opinion in
Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), as authority.
We disagree. The State's indictments alleged that Nelson threw the Molotov cocktails
while Ewish and Webb encouraged the actions. The indictments also stated that Ewish
entered into an agreement with the other two codefendants and acted as a lookout. While
these charges do not expressly list aiding and abetting, it is clear that this was one of the
State's theories of conviction.
Unlike the facts of Barren where the defendant was purposely disadvantaged by the State
in not apprising him of the theory of conviction until the opening statements at trial, Ewish
was adequately informed, considering the extent of the State's knowledge, of the nature and
nuances of the State's charges against him. In addition, even assuming that there was some
defect in the charging allegations, Ewish does not allege that he suffered any prejudice at trial
as a result. See Point v. State, 102 Nev. 143, 149, 717 P.2d 38, 43 (1986) (appellant must
show how insufficient indictment proved prejudicial). In fact, the record shows that Ewish
was aptly represented and put on a thorough defense to the aiding and abetting charges.
Having found no impropriety in the charging allegations or any prejudice in the record, we
conclude that this claimed point of error fails.
CONCLUSION
In light of the foregoing, we conclude that all Ewish's arguments on appeal lack merit.
Although the multiple jury system may have resulted in some form of prejudice, this was
harmless considering the overall trial record. Accordingly, we affirm Ewish's convictions for
arson and murder and his accompanying sentences.
110 Nev. 221, 237 (1994) Ewish v. State
Ewish's convictions for arson and murder and his accompanying sentences.
Similarly, we affirm Webb's arson and murder convictions stemming from the Lopez
firebombing. Any improprieties in Webb's trial were rendered harmless by the strength of the
State's overall case. However, we reach a different conclusion concerning Webb's arson
conviction for his involvement in the Newton incident. Concerning that charge, the district
court erred by not instructing the jury on the lesser related crime of explosive destruction.
Therefore, we reverse Webb's arson conviction for the Newton firebombing and remand for a
new trial.
Rose, C. J., and Steffen, J., concur.
Shearing, J., with whom Spinger, J., joins, concurring:
I concur in the result of this case, but I do not agree that the courts of this state should
refrain from using multiple juries. Our courts should be encouraged to be innovative in
reducing time and expense of trials, as long as the basic rights of the defendants are
preserved. Trials with multiple juries are particularly beneficial to the victims because they
are not subject to repeated court appearances.
The majority opinion suggests that having multiple juries took more time and expense than
three separate trials would have taken. I do not believe the appellate court is in the position to
make that determination. The trial judge is in the best position to determine whether the
advantages of multiple juries outweigh the benefits. The trial judge should be given
maximum discretion to conduct trials in the most efficient manner possible.
____________
110 Nev. 238, 238 (1994) Boulder City v. Cinnamon Hills Assocs.
BOULDER CITY, NEVADA and JON C. PORTER, Mayor of Boulder City, Nevada;
DOUGLAS H. CHRISTENSEN, ROBERT S. FERRARO, ERIC L. LUNDGAARD,
JOHN F. PILGRIM, and Each of Them in Their Capacity as Councilmen of the City
Council of Boulder City, Nevada, Appellants, v. CINNAMON HILLS ASSOCIATES
and CINNAMON HILLS ASSOCIATES II, IDAHO LIMITED PARTNERSHIPS;
and GREG LUCE and BRIAN SELLERS, as General Partners of Cinnamon Hills
Associates and Cinnamon Hills Associates II, Respondents.
No. 23951
March 30, 1994 871 P.2d 320
Appeal from findings of fact, conclusions of law, and judgment against appellants in a
dispute over the denial of a building permit. Eighth Judicial District Court, Clark County;
Jack Lehman, Judge.
Developer brought action against city, alleging that city arbitrarily and capriciously denied
developer's application for building permit to construct senior citizen housing complex. The
district court entered judgment in favor of developer, and city appealed. The supreme court
held that: (1) denying city's request to present live witness testimony was abuse of discretion;
(2) city's denial of developer's request for building permit was not unconstitutional taking
without just compensation; (3) grant of building permit to construct apartment complex for
the elderly was discretionary under city's zoning ordinances; and (4) city's denial of
developer's application did not violate equal protection.
B. G. Andrews, City Attorney, Boulder City; Harrison, Kemp and Jones and Derek C.
Ence, Las Vegas, for Appellants.
Vargas & Bartlett, and Georlen K. Spangler, Las Vegas, for Respondents.
1. Trial.
Denying city's request to present live witness testimony was abuse of discretion in developer's action challenging denial of
building permit as arbitrary and capricious, despite city's prior agreement to rest upon submitted paper record. Proposed testimony
from individual city council members would have helped city defend against developer's affirmative claims for relief. NRS 278.0233.
Supreme court may examine constitutional issues on appeal that substantially impact rights of litigants.
3. Civil Rights.
Litigant may state viable claim under federal civil rights statute if denied building permit in violation of protected constitutional
rights. 42 U.S.C. 1983.
4. Eminent Domain.
City's denial of developer's request for building permit to construct apartment complex for the elderly was not unconstitutional
taking without just compensation, in violation of Fifth Amendment. Even assuming that developer had exercised its option to purchase
development property, denial of permit did not destroy all viable economic value of property. U.S. Const. amend. 5.
5. Constitutional Law; Zoning and Planning.
Grant of building permit to construct apartment complex for the elderly was discretionary under city's zoning ordinances, so that
city's denial of developer's application for building permit to construct such complex did not violate substantive due process. Although
city's growth control ordinance indicated allotment allocation exception for senior citizens housing, it required such exception to be
approved by city,'' and resolution defining what was meant by eligible housing project for the elderly did not automatically entitle
developer to building permit regardless of size or desirability of project. U.S. Const. amend. 5.
City's denial of developer's application for building permit to construct housing complex for the elderly did not violate equal
protection, although city approved another senior citizen development. City rejected permit request due to citizen opposition and glut
of proposed development projects for the elderly. U.S. Const. amend. 14; 42 U.S.C. 1983.
OPINION
Per Curiam:
FACTS
This appeal arises out of a dispute over the denial of a building permit. Cinnamon Hills Associates applied for a permit to build a
senior citizens housing complex in Boulder City, Nevada. The permit was denied. As a result, respondents Cinnamon Hills Associates and
its individual general partners (collectively Cinnamon Hills) filed state and federal claims against appellants Boulder City, Nevada,
Mayor Jon C. Porter, the City Council, and individual City Council members (collectively Boulder City) in the Eighth Judicial District
Court.
In 1979, the municipality of Boulder City, Nevada, adopted a growth control ordinance, BCMC 11-37-1 et seq. (Growth Control
Ordinance), to limit commercial and residential growth in its community. The ordinance limited the number of multi-unit construction
projects (apartment complexes, hotels, and motels) that could be developed in the municipality during any one year.
that could be developed in the municipality during any one year. The ordinance established
this limit at 120 allotments (living units), with a single developer able to obtain only 30
allotments per year. The ordinance also set up an allotment allocation procedure, whereby a
prospective builder would submit an allotment application to the Citizens Development
Allotment Committee (Allotment Committee).
Aside from these generalities, the Growth Control Ordinance included an exception to the
allotment allocation process with the following pertinent language essential to this appeal:
APPLICABILITY: This Chapter [Growth Control Ordinance] and the provisions
thereof shall apply to all dwelling and hotel-motel developments in the City . . . except
for the development of: (A) Elderly housing and facilities for the handicapped
approved by the City.
(Emphasis added.)
In an effort to define this exception, the City Council passed Resolution 638 in August
1979. The resolution described five requirements that had to be met before a building project
for the elderly could be considered for an exception to the Growth Control Ordinance:
1. The development must consist of five units or more.
2. The development must be part of a government sponsored or assisted program
restrictive to elderly and/or the handicapped.
3. The applicant shall demonstrate that the development is not being used to
circumvent the Growth Control Ordinance.
4. The applicant shall provide restrictive covenants in favor of Boulder City,
Nevada, insuring the continued use of the property for purposes of housing the elderly
and/or handicapped.
5. That the Boulder City Council shall approve each building permit issued under
said Section.
Cinnamon Hills wanted to build a 52-unit apartment complex for senior citizens in
Boulder City, Nevada. After obtaining an option to purchase two parcels of development
property, Cinnamon Hills applied for a building permit in January 1988. Cinnamon Hills did
not go through the normal allotment application process, however, claiming that it fell within
the exception established by the Growth Control Ordinance and Resolution 638.
The application was referred to the Allotment Committee for a public hearing and
consideration. At this February 29, 1988 hearing, committee members showed concern that
the proposed development would diminish property values in the area.
hearing, committee members showed concern that the proposed development would diminish
property values in the area. The project would house low-income elderly individuals and be
subsidized by the federal government.
1
In addition, citizens complained that the building site
was three miles from the municipality's essential services (hospitals, doctors, post offices,
etc.) and that the steep terrain of the area was not conducive to a living complex for the
elderly.
Cinnamon Hills responded by pointing out that it had substantially complied with the
requirements of Resolution 638 and was therefore entitled to a permit. The municipality's
urban planner agreed with Cinnamon Hills' position and recommended to the Allotment
Committee that a building permit be issued. After balancing these competing positions, the
Allotment Committee advised the City Council to reject Cinnamon Hills' permit application.
Cinnamon Hills pushed forward by placing its request on the City Council's official
agenda. On April 12, 1988, the City Council considered the application at a public meeting.
Municipality residents again voiced their opposition to the Cinnamon Hills project (e.g., site
not suitable for elderly housing because it was far from essential services, no adequate public
transportation from complex to town, and site consisted of steep terrain, making it difficult
for senior citizens to traverse). Cinnamon Hills rebutted these complaints with one
argumentits proposal fell within the exception carved out by the Growth Control Ordinance
and Resolution 638. Therefore, issuing a building permit was mandatory.
The City Council denied the requested permit. Mayor Jon C. Porter (Mayor Porter)
reasoned that the underlying purposes of the Growth Control Ordinance did not allow
granting an exception to the allotment allocation process when there were plenty of
allotments available. He suggested that Cinnamon Hills proceed with an application for
allotments and abandon its attempt to obtain an exception to the Growth Control Ordinance.
The municipality could then evaluate the concerns from its citizenry regarding the desirability
of the Cinnamon Hills project.
Instead of accepting this advice, Cinnamon Hills filed a complaint against Boulder City in
the Eighth Judicial District Court on May 9, 1988, listing three claims for relief. First,
Cinnamon Hills requested a writ of mandamus instructing the City Council to issue a building
permit. Second, Cinnamon Hills sought damages pursuant to NRS 278.0233, claiming that
denial of the permit was "arbitrary and capricious.
__________

1
To qualify for Cinnamon Hills living, an elderly tenant would have to make less than $15,300 per year.
permit was arbitrary and capricious.
2
Third, Cinnamon Hills asserted a 42 U.S.C. 1983
(1988) (hereinafter 1983) cause of action, alleging that denial of the permit infringed
upon its equal protection and due process rights and amounted to a taking of property without
just compensation.
On July 13, 1988, a hearing was held in district court regarding the writ of mandamus
request. The sole evidence considered was the transcript of the City Council meeting on April
12, 1988, where the City Council officially denied the building permit. The district judge
determined that the municipality's rationale behind the denial of the permit was not apparent.
Therefore, he remanded the matter to the City Council.
The City Council responded by issuing a formal document on July 26, 1988. Therein, the
City Council claimed that it retained discretion to accept or reject Cinnamon Hills' request for
a permit, even in light of the Growth Control Ordinance exclusionary language and
Resolution 638. Moreover, the City Council asserted that it had received other allotment
requests and was aware of other potential requests totaling over 300 construction units. Due
to this glut of proposed housing projects for the elderly and the threat to the overall purpose
of the Growth Control Ordinance, the City Council denied Cinnamon Hills' permit
application. Buttressing this reasoning, the City Council also cited widespread criticism of
the project from its citizenry.
On September 14, 1988, a second writ of mandamus hearing was held in district court to
examine this written response. Again, the trial judge was dissatisfied and remanded for
clarification of what other applications were before the City Council when it rejected
Cinnamon Hills' requested permit.
The City Council then submitted a written affidavit from Mayor Porter on September 19,
1988. Mayor Porter specifically stated that at the time Cinnamon Hills' building permit was
rejected, the City Council was aware of a 152-unit complex for the elderly being
considered by Boulder City Hospital.
__________

2
NRS 278.0233 establishes a cause of action for the arbitrary and capricious denial of a building permit with
the following pertinent language:
1. Any person who has any right, title or interest in real property, and who has filed with the
appropriate state or local agency an application for a permit which is required by statute or an ordinance,
resolution or regulation . . . before that person may improve, convey or otherwise put that property to use,
may bring an action against the agency to recover actual damages caused by:
(a) Any final action, decision or order of the agency which imposes requirements, limitations or
conditions upon the use of the property in excess of those authorized by ordinances, resolutions or
regulations . . . in effect on the date the application was filed, and which:
(1) Is arbitrary or capacious, or
(2) Is unlawful or exceeds lawful authority. . . .
rejected, the City Council was aware of a 152-unit complex for the elderly being considered
by Boulder City Hospital. Additionally, the City Council had already committed to issuing
allotments and an exception to accommodate a 181-unit development for the elderly called
the Villages. Based upon the Villages commitment, Boulder City Hospital's expected
proposal, and Cinnamon Hills' refusal to comport with the normal allotment allocation
process, Mayor Porter stated that the City Council decided to reject Cinnamon Hills' permit
request. Mayor Porter claimed the decision was made in an effort to advance the purpose
underlying the Growth Control Ordinance.
On October 6, 1988, a third hearing was held in district court. In light of Mayor Porter's
affidavit, the district judge denied the writ of mandamus request. He reasoned that it was
undisputed that at the time of denial, there were other proposed housing complexes for the
elderly under consideration. In the face of these other proposals, Boulder City did not act
arbitrarily and capriciously.
Cinnamon Hills appealed. On April 6, 1990, this court dismissed that appeal because the
issue was moot. Cinnamon Hills had lost its option to purchase the development property.
However, this court did order the matter reassigned to a different district judge for a trial on
the merits to consider Cinnamon Hills' other remaining claims for relief.
After remand, the trial was bifurcated, and the parties stipulated to limit evidence at the
liability trial to the documentation and transcripts already appearing in the record. Less than a
week before trial, Boulder City tried to back out of this arrangement by moving for a
continuance so that it could arrange for live witness testimony. Boulder City wanted to call
individual City Council members to testify. The district court rejected the request.
On April 27, 1992, the liability issues were tried in district court. Essentially, the trial
resembled a hearing with each counsel presenting arguments and referencing submitted
documentation. The pertinent documentary evidence consisted of the following: (1) transcript
of the Allotment Committee's hearing on February 29, 1988; (2) transcript of the City
Council's meeting on April 12, 1988 (when the permit was officially denied); (3) transcripts
of all three writ of mandamus hearings in district court (where no live witnesses testified); (4)
a copy of the City Council's written reasons for denying the building permit; (5) a copy of
Mayor Porter's affidavit, including supporting documents; and (6) the pleadings of the
respective parties.
On this evidence alone, the district court found in favor of Cinnamon Hills on all its claims
for relief. The court entered findings of fact and specifically concluded the following: (1)
having met all the requirements of Resolution 63S, issuance of a building permit to
Cinnamon Hills was mandatory; {2) Boulder City ignored the requirements of Resolution
63S and the Growth Control Ordinance and, therefore, arbitrarily and capriciously denied
the building permit;
having met all the requirements of Resolution 638, issuance of a building permit to
Cinnamon Hills was mandatory; (2) Boulder City ignored the requirements of Resolution 638
and the Growth Control Ordinance and, therefore, arbitrarily and capriciously denied the
building permit; (3) this arbitrary and capricious denial violated NRS 278.0233, entitling
Cinnamon Hills to damages; (4) Boulder City unconstitutionally infringed upon Cinnamon
Hills' due process property rights; (5) Boulder City infringed upon Cinnamon Hills' equal
protection rights by discriminating against low-income elderly; (6) denial of the permit
amounted to an unconstitutional Fifth Amendment taking without just compensation; and (7)
Boulder City's unconstitutional actions violated 42 U.S.C. 1983, entitling Cinnamon Hills
to damages and attorney's fees.
After a separate trial on damages, the district judge awarded Cinnamon Hills over
$500,000. This amount included approximately $138,000 in attorney's fees. The court found
that Cinnamon Hills' successful 1983 cause of action preempted any statutory cap on
liability codified by NRS 41.035 (establishing $50,000 liability limit for a municipality's
tortious conduct).
Boulder City appeals the district court's judgment and forwards several arguments. Of
particular note, Boulder City argues that the district court erred by disallowing live witness
testimony at the liability stage of trial. We agree with this contention. As a result, we reverse
the district court's decision and remand for further proceedings.
Yet, as a related matter, we sua sponte dismiss Cinnamon Hills' 1983 cause of action.
Boulder City did not infringe upon Cinnamon Hills' constitutional rights.
DISCUSSION
A. Refusal to allow live witness testimony
[Headnote 1]
As indicated, a few days before the liability trial commenced, Boulder City petitioned the
district court for a delay so that it could prepare live witness testimony. Boulder City was
trying to back out of its prior agreement to rest upon a submitted paper record. The district
court rejected the request, reasoning that the scope of review applied to an administrative
proceeding was limited to transcript testimony. The court also found that the submitted record
sufficiently addressed all issues surrounding Cinnamon Hills' respective claims for relief.
We conclude that the district court abused its discretion. By constricting the liability trial
to a paper record, the court did not afford Boulder City an adequate opportunity to fend off
charges that its conduct was arbitrary and capricious. Tighe v. Von Goerken, 10S Nev. 440,
444
Goerken, 108 Nev. 440, 444, 833 F.2d 1135, 1137 (1992) (incomplete record did not evince
arbitrary and capricious denial of a permit and, therefore, further proceedings were
warranted). The proposed testimony from individual City Council members would have
proved invaluable in defending against Cinnamon Hills' affirmative claims for relief. As a
result of the district court's actions, we cannot conclude whether Boulder City arbitrarily and
capriciously denied the subject building permit.
Contrary to Cinnamon Hills' contentions on appeal, resolution of this matter is not limited
to reviewing the City Council hearing transcripts. Cinnamon Hills must remember that it filed
suit against the municipality, the City Council, and individual City Council members, seeking
more than $500,000 in damages. Certainly, Boulder City is not limited to a submitted paper
record in fending off such complex affirmative claims for relief.
Accordingly, we remand to the district court for a complete trial on all the liability issues
remaining after this appeal.
B. Cinnamon Hills' constitutional claims
[Headnote 2]
Although only touched upon in the litigants' briefing papers, this court may examine
constitutional issues on appeal that substantially impact the rights of the litigants.
McCullough v. State, 99 Nev. 72, 74, 657 F.2d 1157, 1158 (1983). Exercising this
prerogative, we find it inappropriate to allow this case to proceed at the trial court level
encumbered by Cinnamon Hills' legally deficient, constitutionally based claims for relief.
[Headnote 3]
In accordance with 42 U.S.C. 1983 (1988), a litigant has a federal cause of action for
damages when an official acting under the color of state law infringes upon a protected
constitutional right. Moreover, a litigant may state a viable 1983 claim if denied a building
permit in violation of protected constitutional rights. Bateson v. Geisse, 857 F.2d 1300, 1303
(9th Cir, 1988); Scott v. Greenville County, 716 F.2d 1409, 1421 (4th Cir. 1983). Yet absent
any constitutional infringement, a 1983 claim fails.
[Headnote 4]
In the instant case, we conclude that Boulder City did not violate any of Cinnamon Hills'
constitutional rights. First, denial of a building permit was not an unconstitutional taking
without just compensation in violation of the Fifth Amendment. Even assuming that
Cinnamon Hills had exercised its option to purchase the development property, denial of a
permit to build living quarters for the elderly did not destroy all viable economic value of the
prospective development property.
of the prospective development property. Bello v. Walker, 840 F.2d 1124, 1131 (3rd Cir.)
(denial of building permit does not destroy all economic use of property in violation of
Takings Clause), cert. denied, 448 U.S. 851 (1988); see also Scott, 716 F.2d at 1421. Hence,
there was no Fifth Amendment takings violation.
[Headnote 5]
Second, Boulder City could not have violated Cinnamon Hills' substantive due process
rights. The grant of a building permit was discretionary. Therefore, under the applicable land
use laws, Cinnamon Hills did not have a vested entitlement to a constitutionally protected
property interest.
This point is aptly illustrated by Gardner v. Baltimore Mayor & City Council, 969 F.2d 63
(4th Cir. 1992). In Gardner, a developer filed a 1983 claim against the Baltimore City
Council for allegedly infringing upon its substantive due process property rights by denying
the developer a building permit. In upholding summary judgment in favor of the City
Council, the Fourth Circuit Court of Appeals reasoned that the developer had to show an
entitlement to the permit before any substantive due process interest was created. If the City
Council had any discretion in granting or denying the permit, there could be no entitlement
and no constitutionally protected interest. Id. at 69. The court opined that the constitution was
not a tool for obtaining damages in matters of pure legislative and local concernland use
management:
Several circuits have applied Roth's [Board of Regents v. Roth, 408 U.S. 564, 577
(1972)] claim of entitlement standard to substantive due process challenges to
municipal land-use decisions. Under this approach, whether a property-holder possesses
a legitimate claim of entitlement to a permit or approval turns on whether, under state
and municipal law, the local agency lacks all discretion to deny issuance of the permit
or to withhold its approval.
. . . .
[This] standard represents a sensitive recognition that decisions on matters of local
concern should ordinarily be made by those whom local residents select to represent
them in municipal governmentnot by federal courts. It also recognizes that the
Fourteenth Amendment's Due Process Clause does not function as a general overseer of
arbitrariness in state and local land-use decision.
Id. at 68-69 (emphasis in original); see also Mackenzie v. City of Rockledge, 920 F.2d 1558,
1559 (11th Cir. 1991).
As evidenced by Gardner, resolution of Cinnamon Hills' substantive due process claim is
a matter of statutory interpretation. At issue is the exclusionary language of the Growth
Control Ordinance and Resolution 638. After examining these two rules, it is clear that
Boulder City retained discretion in granting a building permit to Cinnamon Hills. The
language of the Growth Control Ordinance indicates that an allotment allocation exception
for senior citizens housing must be approved by the City. This evinces an intention to retain
control over the municipality's senior citizens housing developments, even in light of any
language carving out an exception to the allotment process. See Bd. of County Comm'rs v.
CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983) (court should read every
sentence, word, and phrase of ordinance within context of the purpose of the legislation).
Additionally, this intention is not thwarted by any of the language contained in Resolution
638. Resolution 638 merely defines what is meant by an eligible housing project for the
elderly. It cannot mean that any time a developer meets the criteria therein, it is automatically
entitled to a building permit regardless of the size or desirability of the project. This
conclusion would affront the entire purpose behind the Growth Control Ordinance and what
Resolution 638 was meant to promote.
3

Finally, aside from the foregoing ordinance interpretation analysis, Boulder City certainly
thought that it had discretion to accept or reject Cinnamon Hills' permit application. Boulder
City's interpretation of its own land use laws is cloaked with a presumption of validity and
will not be disturbed absent a manifest abuse of discretion. McKenzie v. Shelly, 77 Nev. 237,
242, 362 P.2d 268, 270 (1961); see also State v. State Engineer, 104 Nev. 709, 713, 766 P.2d
263, 266 (1988) (administrative agency afforded great discretion in interpreting statute that it
is charged with enforcing). We cannot conclude that Boulder City manifestly abused its
discretion in interpreting the Growth Control Ordinance and Resolution 638. While the
subject language is not a model of clarity, it would certainly accommodate the interpretation
that Boulder City had the discretion to accept or reject Cinnamon Hills' permit request.
In light of our interpretation of these land use laws and Boulder City's broadly defined
zoning powers, we conclude that the City Council had discretion to accept or reject
Cinnamon Hills' permit request.
__________

3
The preamble to Resolution 638 states that the City Council has received the recommendations of
administrative staff and the controlled growth ordinance committee concerning the interpretation and intent of
the Ordinance and methods in which said exemptions may be applied without subverting the purpose of the
Ordinance . . . . (Emphasis added.)
Council had discretion to accept or reject Cinnamon Hills' permit request. As a result,
Cinnamon Hills did not have an entitlement protected by the Due Process Clause of the
Constitution.
[Headnote 6]
As a final point, we also conclude that Boulder City did not violate Cinnamon Hills' equal
protection rights. With no suspect classification at issue, Cinnamon Hills faced a heavy
burden to prove that Boulder City intentionally discriminated on the basis of class and its
actions were not rationally related to any legitimate state interest. Village of Belle Terre v.
Boraas, 416 U.S. 1, 7-8 (1973); see also Southern Pacific v. City of Los Angeles, 922 F.2d
498, 507 (9th Cir. 1990), cert. denied, 502 U.S. 943, 112 S. Ct. 382 (1991); Eide v. Sarasota
County, 908 F.2d 716, 722 (11th Cir. 1990); Carpenter v. Tahoe Regional Planning Agency,
804 F.Supp. 1316, 1329 (D. Nev. 1992).
Cinnamon Hills failed in this task. We have searched the record on appeal and find no
evidence establishing or even suggesting that Boulder City was motivated by intentional
class-based discrimination. New Burnham Prairie Homes v. Village of Burnham, 910 F.2d
1474, 1481 (7th Cir. 1990) (simple disparate treatment from another developer does not
present an equal protection claim). Moreover, even assuming that Boulder City was so
motivated, its actions do not fail rational basis scrutiny. From the inception of the Cinnamon
Hills project, there was opposition to the development from the municipality's citizenry. At
the initial Allotment Committee meeting on February 29, 1988, and again at the City Council
meeting on April 12, 1988, town residents complained that the development was not suited
for a senior citizen community, located too far from essential services and not supported by
public transportation. In addition, it is undisputed that when the City Council rejected
Cinnamon Hills' building permit, it had already committed to a 181-unit development
proposed by the Villages. Boulder City claimed that all these factors indicated the need to
reject the permit in furtherance of the Growth Control Ordinance. Mackenzie, 920 F.2d at
1559-60 (denial of a permit in an effort to limit commercial development is sufficient
rationale to defeat equal protection constitutional attack on zoning decision); see also
Christian Gospel Church v. San Francisco, 896 F.2d 1221, 1226 (9th Cir.), cert. denied, 498
U.S. 999 (1990).
Cinnamon Hills responds to this analysis, claiming that the unconstitutional nature of
Boulder City's action is evidenced by the different treatment afforded to the Villages
development. There is evidence that the City Council was swayed by negotiations and
pressuring from the Villages. In fact, this led to the City Council reaching a compromise
with that developer, issuing an allotmentJexception combination so that the Villages
could construct a 1S1-unit senior citizens living complex.
Council reaching a compromise with that developer, issuing an allotment/exception
combination so that the Villages could construct a 181-unit senior citizens living complex.
Cinnamon Hills also alleges that Boulder City's claim that it was considering several other
proposed housing projects for the elderly was contrived after two different orders of remand
from the district court.
Cinnamon Hills' contentions are unpersuasive. Any conflict of evidence or allegations of
contrived rationale are irrelevant to this court when considering the constitutional
implications of Boulder City's actions. It is well-settled under rational basis scrutiny that the
reviewing court may hypothesize the legislative purpose behind legislative action. United
States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179 (1980); see also Brandwein v.
California Bd. of Osteopathic Ex'rs, 708 F.2d 1466, 1470-71 (9th Cir. 1983). Additionally,
simply admitting that facts supporting the governmental action are arguable or in dispute is
enough to constitutionally justify the state action. Vance v. Bradley, 440 U.S. 93, 111 (1979).
The record indicates that Boulder City rejected Cinnamon Hills' permit request due to
citizen opposition and a glut of proposed development projects for the elderly. The fact that
the Villages development was approved by the City Council, and the Cinnamon Hills
development was not, does not support a 1983 equal protection cause of action. The United
States Constitution simply does not forbid democratic government to succumb to individual
and public pressures in reaching land use decisions that work to the detriment of an individual
litigant. Greenbriar, LTD. v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir. 1989)
(upholding permit denial decision under substantive due process attack).
Based upon the foregoing, we conclude that Boulder City did not violate any rights
afforded Cinnamon Hills by the Equal Protection Clause of the Constitution.
4

CONCLUSION
Having determined that Boulder City's conduct could not have violated any of Cinnamon
Hills' constitutional rights, we dismiss Cinnamon Hills' 19S3 cause of action.
__________

4
Our conclusion that Boulder City's actions did not offend rational basis scrutiny in no way impacts the
standard of judicial review with respect to Cinnamon Hills' remaining state law causes of action. Whether
Boulder City acted arbitrarily and capriciously under NRS 278.0233 is a different question from whether the
municipality's actions violated the Equal Protection Clause of the Constitution. See, e.g., Tighe, 108 Nev. at 442,
833 P.2d at 1137 (city council's permit decisions will not be disturbed unless arbitrary, capricious, or a manifest
abuse of discretion); Henderson v. Henderson Auto, 77 Nev. 118, 122, 359 P.2d 743, 745 (1961). Certainly,
equal protection rational basis examination of Boulder City's actions is a more stringent and deferential standard
than that required under NRS 278.0233.
violated any of Cinnamon Hills' constitutional rights, we dismiss Cinnamon Hills' 1983
cause of action.
5
However, as indicated, the district court erred by not examining Cinnamon
Hills' state-based claims for relief in a complete trial on liability. Therefore, we reverse the
district court's decision and remand for a new trial and examination of the issues remaining in
dispute after this appeal. In fairness to the district court judge and the litigants, we order this
matter assigned to a different district court judge upon remand.
In light of our conclusions in this opinion, it is not necessary to address Boulder City's
other contentions of error.
____________
110 Nev. 250, 250 (1994) McCraney v. State
MELVIN McCRANEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24131
March 30, 1994 871 P.2d 922
Appeal from a judgment of conviction pursuant to a jury verdict of one count of first
degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County;
Lee A. Gates, Judge.
The supreme court held that: (1) evidence was sufficient to warrant jury instruction on
accidental homicide; (2) prosecutor's use of defendant's post-Miranda silence during
cross-examination of defendant and closing arguments for purpose of impeaching defendant's
credibility violated defendant's right to due process.
Wright, Judd & Winkler, Las Vegas, for Appellant.
Tufteland, Chief Deputy, Robert L. Langford, Deputy, Clark County, for Respondent.
__________

5
This conclusion obviously impacts any future Cinnamon Hills damages award. As noted, the trial court ruled
that a substantiated federal 1983 claim preempted Nevada's limit on tort liability extended to Boulder City
under NRS 41.035. Owen v. City of Independence, 445 U.S. 622, 647-48 (1980) (considering a municipality's
non-discretionary constitutional violations, the Court determined that 1983 liability overcame protection of
state sovereign immunity). However, absent the preemptive force of this federal claim, the $50,000 limitation on
tort liability constricts Cinnamon Hills' potential recovery.
Laura Wightman FitzSimmons, Las Vegas, for Amicus Curiae Nevada Trial Lawyers
Association and Nevada Attorneys for Criminal Justice.
1. Homicide.
Evidence that shot which killed victim may have been fired while victim was passenger in car at time defendant was shooting
driver in self-defense was sufficient to warrant jury instruction on accidental homicide in murder prosecution. NRS 175.161(3).
2. Criminal Law.
Defendant has right to have jury instructed on his or her theory of case as disclosed by evidence, no matter how weak or incredible
that evidence may be.
3. Criminal Law.
Failure to instruct jury on theory of case supported by the evidence presented is reversible error.
Prosecutor's use of defendant's post-Miranda silence during cross-examination of defendant and closing arguments for purpose of
impeaching defendant's credibility violated defendant's right to due process and required reversal in murder prosecution. U.S. Const.
amend. 14.
OPINION
Per Curiam:
Appellant Melvin McCraney (McCraney) was convicted of first degree murder with the use of a deadly weapon in the killing of
Kinnie Poole (Kinnie), but was acquitted of the murder of Kinnie's cousin, Tony Poole (Tony). For reasons stated below, we reverse
McCraney's conviction and remand for a new trial.
FACTS
On September 18, 1991, McCraney's brother, Lorne, and his friend, Ronald Williams (Williams), went to McCraney's new house on
Duchess Street in Las Vegas. Not finding McCraney at home, the two went to the nearby house of a friend who told them McCraney was in
the desert riding in a four-wheeler with Derrick Hicks (Hicks). Lorne and Williams returned to McCraney's house to retrieve Lorne's car.
As Lorne was backing his car out of McCraney's driveway, another car came down the street and stopped behind him, blocking his
way. Tony's brother, Anthony Crockett (Crockett), and a friend got out of the car and approached Lorne. Crockett was carrying a gun.
After an exchange of words, Crockett and Lorne began struggling for the gun. The gun went off, injuring Lorne's finger. At that point,
Lorne jumped into the back seat of his car. He claimed that Crockett then took $300.00 from him and left.
After Crockett's departure, Lorne left his car and went to a nearby friend's house. Lorne then
contacted Hicks by phone and told him that Anthony Poole (not Anthony Crockett) had
shot him.
Meanwhile, Williams, who had fled when Crockett's gun went off, saw McCraney and
Hicks driving by. Williams ran to the car and told McCraney that his brother, Lorne, had been
shot and might be hurt. Fearing the worst, McCraney, Hicks and Williams immediately raced
to McCraney's house.
On the way to his house, McCraney attempted to call 911 on his cellular phone, but was
nervous and unable to dial properly. However, unbeknownst to McCraney and the others, the
call to 911 had connected and all subsequent events were recorded throughout the first ten
minutes following the homicides.
When McCraney arrived at his house, Lorne was not there, but his car was blocking the
driveway. Thinking Lorne might be at the hospital, the three decided to move Lorne's car so
they could drive McCraney's car to the hospital to look for Lorne. McCraney, Hicks and
Williams went into the house to retrieve Hicks' Tech 9mm semi-automatic handgun that
Hicks had stored in McCraney's den. The reason for retrieving the gun was apparently to
provide protection from Crockett on the way to the hospital. As they were leaving the house,
Hicks fired one shot to make sure the gun was loaded. One block away, Lorne heard the shot
and headed back to McCraney's house.
Elsewhere at this time, Crockett and a friend joined Tony and Kinnie and decided to take
Crockett's gun home. Tony and Kinnie left in Tony's gray Cadillac; Crockett and his friend
left in another car, and the four headed toward Duchess Street. Tony and Kinnie drove east on
Duchess toward McCraney's house, while Crockett drove east on Rossmoyne, a street running
parallel to Duchess. Crockett heard shots which driving down Rossmoyne, left his car and
headed toward Duchess.
Meanwhile, Lorne arrived at McCraney's house as McCraney and Hicks were pushing his
car out of the driveway. At that point, Williams, who was waiting in another car, shouted to
the others that he could see Tony's Cadillac coming slowly toward them on Duchess.
McCraney recognized Tony, and as the car approached, McCraney shouted to Hicks to shoot.
Hicks froze, so McCraney grabbed the gun and approached the driver's side of the Cadillac.
McCraney and Tony exchanged words. McCraney testified that he saw Tony reach to the
floor of the car and come up with a gun. McCraney then rapid-fired Hicks' gun through the
driver's side window. McCraney testified that after he fired the shots, Tony said, Man, I'm
going to get you, and took off down the street in the car. During this burst of gunfire,
McCraney had shot Tony in the chest and Kinnie, who was riding in the passenger seat, in
the left side.
in the chest and Kinnie, who was riding in the passenger seat, in the left side.
Tony drove rapidly down Duchess, lost consciousness and crashed into a tree, dying
almost immediately from his bullet wounds. At some point, Kinnie had jumped out of the car.
As Tony drove off, Kinnie was left standing in the street. McCraney testified that Kinnie ran
toward him, whereupon he shot Kinnie. Kinnie fell face down to the street.
McCraney testified that at that moment, Lorne grabbed the gun and shot Kinnie several
times in the back as Kinnie lay dying in the street. McCraney did not tell his attorneys this
until after Lorne testified at McCraney's trial that McCraney was the sole shooter.
After the shooting, McCraney, Lorne, Williams and Hicks jumped into Williams' car and
drove to Williams' house. At this point 911 was still recording the incident. McCraney
commented to Lorne that one of the victims was straight shooting at me. Lorne asked,
Why didn't you shoot Tony? McCraney responded that he had. McCraney also said he
wanted to go to the police since he had acted in self-defense. Shortly thereafter, McCraney
dialed his mother's number, thereby disconnecting the 911 call.
Meanwhile, back at the shooting scene, a crowd of more than one hundred had gathered by
the time the police arrived, thus making preservation of the evidence difficult at best.
Detectives at the scene testified that they found no weapons or identification of any kind on
the victims. Crockett had arrived at the scene having heard the gunshots and told the police
that the shooting had been done by the man who owned the Honda (Lorne). However,
Crockett later testified that McCraney had done the shooting, although it was never
established that Crockett had actually witnessed the shootings.
A jury acquitted McCraney of the murder of Tony, finding that McCraney had acted in
self-defense. However, the jury found him guilty of the first degree murder of Kinnie with the
use of a deadly weapon. McCraney was sentenced to life with the possibility of parole. His
sentence was enhanced pursuant to NRS 193.165 with a consecutive sentence of life with the
possibility of parole for the use of a deadly weapon. McCraney now appeals, making
numerous assertions of error including: (1) the district court erred in refusing to give
McCraney's proffered jury instruction on accidental homicide; and (2) the State improperly
made use of McCraney's post-Miranda silence for impeachment purposes.
We now conclude that there are two separate and independent grounds for reversal in this
case. We will discuss each in turn.
DISCUSSION
[Headnote 1]
We first address the issue of the district court's refusal to instruct the jury on accidental
homicide. McCraney offered the following instruction:
All persons are liable to punishment except those persons who committed the act
through misfortune or by accident, when it appears that there was no evil design,
intention or culpable negligence.
The court refused to give this instruction, holding that the instruction was vague, confusing,
and not specifically applicable to the facts of the case and the charges.
McCraney now claims that the shot that killed Kinnie may have been fired when Kinnie
was in the car and McCraney was firing at Tony in self-defense, thus making Kinnie's death
accidental. The State argues that McCraney was not entitled to an accidental homicide
instruction because his theory of defense was self-defense. Further, he presented no evidence
of accidental homicide.
However, McCraney correctly points out that there was evidence presented that the shot
that might have killed Kinnie was fired while Kinnie was still in the car. Medical Examiner
Giles Green testified that a gunshot wound sustained by Kinnie to his left side was fatal since
it pierced the heart. He also testified that Kinnie could have gotten out of the car after being
hit before losing consciousness. In addition, Medical Examiner Green testified that the
gunshot through Kinnie's left side travelled the same path as one which went through Tony's
side. Finally, Ted Raymond, identification specialist for the City of North Las Vegas Police
Department, testified that there was blood spattering on the passenger door and seatbelt coil,
thereby illustrating that Kinnie had been shot while still in the car.
[Headnote 2]
We have held that a defendant has a right to have the jury instructed on his theory of the
case as disclosed by the evidence, no matter how weak or incredible that evidence may be.
Margetts v. State, 107 Nev. 616, 818 P.2d 392 (1991). Further, NRS 175.161(3) states that
either party may present a proposed instruction and request it be given, and if the court thinks
the instruction is correct, it must be given. In the instant case, evidence was presented that
could have allowed the jury to find that McCraney might have shot and killed Kinnie
accidentally.
The State maintains that McCraney did not present evidence himself that Kinnie's death
was accidental; therefore, he was not entitled to the instruction.
entitled to the instruction. The State is incorrect. To require a defendant to introduce evidence
in order to be entitled to a specific jury instruction on a defense theory would violate the
defendant's constitutional right to remain silent by requiring that he forfeit that right in order
to obtain instructions.
[Headnote 3]
Failure to instruct the jury on a theory of the case supported by the evidence presented is
reversible error. Margetts, 107 Nev. at 619, 818 P.2d at 395. We therefore hold that the
district court erred in refusing to instruct McCraney's jury on accidental homicide after
evidence was presented that could have allowed the jury to reach such a verdict. Accordingly,
we reverse McCraney's conviction and remand for a new trial.
[Headnote 4]
We next address additional error in the form of prosecutorial misconduct. Specifically, we
address what we hold to be a violation of Doyle v. Ohio, 426 U.S. 610 (1976), and further
hold this violation merits reversal and remand for a new trial.
Following his arrest, McCraney was read his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966), but chose to remain silent. Prior to Lorne's testimony that McCraney was the
sole shooter, McCraney had told no one that Lorne had fired the final shots into Kinnie.
McCraney testified at trial that Lorne had taken the gun from him and had fired the final shots
into Kinnie as Kinnie lay face down in the street. During cross-examination by the State, the
following exchange took place.
Q. You're testifying under oath that your brother Lorne was one of the shooters?
A. Yes.
Q. My question is: Why didn't you say something sooner?
A. I didn't want to snitch on my brother.
. . . .
Q. So you are testifying that despite your knowledge of your brother's involvement,
you didn't tell anyone about that?
A. No.
Q. On September 19, 1991, did you tell the police that your brother, Lorne McCraney,
was also involved as a shooter of Kinnie Poole?
A. No.
Q. You had an opportunity to do that, didn't you?
A. No.
Q. You could have done it, couldn't you?
A. They didn't ask me no questions.
Q. Then you didn't volunteer any information?
A. Right.
During closing arguments, the State again commented on McCraney's post-Miranda silence:
He's had almost eight months, 240 days, 3,360 hours, or whatever; eight months with
the discovery, with the benefit of counsel, with all the witness statements, and for the
first time he tells the story claiming self-defense.
McCraney did not object to the State's questions and comments at trial, and thus, the State
argues that McCraney failed to preserve this issue for appeal. However, we have held that
where prosecutorial misconduct is prejudicial, the court may intervene sue sponte to protect
the defendant's right to a fair trial. Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235
(1986); see also Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991) (this court may
address plain error or issues of constitutional dimension sue sponte).
In Doyle, the United States Supreme Court held that the use for impeachment purposes of
a defendant's silence at the time of arrest and after receiving Miranda warnings violates the
Due Process Clause of the Fourteenth Amendment. Recently, the Supreme Court held that an
error under Doyle fits within the category of constitutional violations characterized as trial
error. Brecht v. Abrahamson,
------
U.S.
------
, 113 S.Ct. 1710, 1717 (1993) (citing Arizona
v. Fulminante, 499 U.S. 279 (1990)). For this reason, such a violation must be analyzed under
the harmless error standard found in Chapman v. California, 386 U.S. 18 (1967). Brecht,
------
U.S.
------
, 113 S.Ct. at 1717; see also Aesoph v. State, 102 Nev. 316, 721 P.2d 379
(1986).
We have repeatedly condemned such prosecutorial misconduct as occurred in the instant
case. See, e.g., Neal v. State, 106 Nev. 23, 787 P.2d 764 (1990); Aesoph v. State, 102 Nev.
316, 721 P.2d 379 (1986); McGee v. State, 102 Nev. 458, 725 P.2d 1215 (1986); Mahar v.
State, 102 Nev. 488, 728 P.2d 439 (1986). In Neal, a case very similar to the instant case, we
held that prosecutorial misconduct of this kind is not harmless beyond a reasonable doubt
when the defendant's credibility is crucial to his defense and the prosecutor's comments are
deliberate and repetitious as they were here. Neal, 106 Nev. at 25-26, 787 P.2d at 765.
In the instant case, McCraney's credibility was essential to his defense of self-defense.
Indeed, any time a defendant is testifying in his own defense, his credibility is vital. Here, the
prosecutor persisted in questioning McCraney regarding his post-Miranda silence as well as
mentioning it in closing arguments, all for the purpose of impeaching McCraney's credibility.
We cannot conclude beyond a reasonable doubt that the jury would have reached the same
verdict absent the prosecutor's improper comments.
Therefore, it is clear that the Doyle violation in this case did not constitute harmless error.
Accordingly, we hold that the prosecutor infringed upon McCraney's Fourteenth Amendment
right to due process by making use of McCraney's post-Miranda silence for impeachment
purposes in both cross-examination and closing arguments. Such a violation compels us to
order a new trial. See Neal, 106 Nev. 26, 787 P.2d 765.
CONCLUSION
In conclusion, we hold that the district court erred in refusing to instruct the jury on
accidental homicide when evidence was presented that would have allowed the jury to reach
such a verdict. We also hold that McCraney's Fourteenth Amendment right to due process
was violated by the prosecutor's use of McCraney's post-Miranda silence for impeachment
purposes in violation of Doyle. We have carefully considered McCraney's other assertions of
error and find them to be without merit.
Accordingly, we reverse McCraney's conviction and remand for a new trial.
____________
110 Nev. 257, 257 (1994) Mirage v. State, Dep't of Administration
THE MIRAGE CASINO-HOTEL d/b/a THE MIRAGE, Appellant, v. NEVADA
DEPARTMENT OF ADMINISTRATION APPEALS OFFICER; and CAROLE LONG,
Respondents.
No. 24258
March 30, 1994 871 P.2d 317
Appeal from an order of the district court denying a petition for judicial review in a
worker's compensation case. Eighth Judicial District Court, Clark County; Jack Lehman,
Judge.
Worker requested recalculation of her worker's compensation benefits, and employer
declined to recalculate benefits. The district court affirmed appeals officer's determination
that accident and disability did not occur simultaneously. Employer appealed. The supreme
court held that employee became eligible for benefits when employee was no longer able to
continue working due to occupational disease, and, therefore, proper period from which to
calculate average monthly wage was period immediately preceding employee's date of
disability.
Affirmed.
William B. Werner and Salvatore A. Basile, Las Vegas, for Appellant.
Nancyann Leeder, Nevada Attorney for Injured Workers, and Robert L. Hempen, Deputy,
Carson City, for Respondents.
In reviewing agency decision, supreme court is free to address purely legal questions without deference to agency's decisions.
Under statute which defines disablement for purposes of occupational diseases, worker did not become disabled until she was no
longer able to work, and fact that she gave earlier date as her injury date was irrelevant since she was not injured on earlier date,
but rather suffered from occupational disease. NRS 617.060.
Under statute which defines disablement for purposes of occupational diseases, only after worker becomes disabled does it
become necessary to look to statute regarding method of calculating worker's average monthly wage. NRS 616.010 et seq., 617.010 et
seq.
Worker became eligible for worker's compensation benefits when worker was no longer able to continue working due to
occupational disease and, therefore, proper twelve-week period from which to calculate average monthly wage was period immediately
preceding employee's date of disability. NRS 616.010 et seq., 617.010 et seq.
OPINION
Per Curiam:
This appeal involves a dispute as to the date an employee becomes entitled to worker's compensation benefits in the event of an
occupational disease, as well as the proper period from which to calculate the employee's average monthly wage for purposes of such
benefits. We hold that the employee becomes eligible for benefits when the employee is no longer able to continue working due to the
occupational disease. Therefore, the proper twelve-week period from which to calculate the average monthly wage is the period
immediately preceding the employee's date of disability.
The facts of this case are not in dispute. Respondent Carole Long (Long) began working for appellant The Mirage Casino-Hotel
(Mirage) as a poker dealer in November 1989. In January 1990, Long began experiencing pain in her right hand. She consulted her
doctor and was prescribed medication. Four months later, Long's physician informed her that her condition was related to her work.
Thereafter, Long accepted Mirage's offer of another position that did not require dealing poker.
In June 1991, Long returned to her previous job as a poker dealer but was assigned to a different shift. Shortly after she resumed
working as a dealer, she began to experience pain in both arms and wrists. In November 1991, Long filled out an employee accident
report.
employee accident report. On the report she was required to give an injury date which she
gave as November 15, 1991. Long continued to work, and in January 1992, she returned to
her original shift as a dealer (7 p.m. to 3 a.m.).
On April 21, 1992, Long's physician excused her from work due to the worsening of her
condition which, by this time, had been diagnosed as carpel tunnel syndrome. Thereafter,
Mirage commenced paying Long temporary total disability benefits amounting to two-thirds
of her average monthly wage (including tips) over the period immediately preceding her
reported injury date, November 15, 1991.
Long requested recalculation of her benefits, claiming that the proper period from which to
calculate payments was the period preceding April 21, 1992, the date she ceased working due
to her disability. She had reported no tips on her pay sheets during the earlier period from
September 1, 1991, to November 10, 1991. However, she had reported tips in the amount of
$4,200 during the period immediately preceding the date she stopped working.
The hearing officer remanded the case for review and recalculation. After Mirage declined
to recalculate Long's benefits, Long appealed to the appeals officer. The appeals officer held
that when the accident and the disability do not occur simultaneously, the wage at the time of
disability should be used to calculate benefits. Therefore, Long's benefits should have been
calculated from the period prior to April 21, 1992, the date she stopped working. The district
court affirmed the appeals officer's decision. Mirage appeals.
[Headnote 1]
The issue before this court is a question of law as to the proper period from which to
calculate disability benefits in the event of an occupational disease. In reviewing an agency
decision, this court is free to address purely legal questions without deference to the agency's
decision. Town of Eureka v. State Engineer, 108 Nev. 163, 826 P.2d 948 (1992).
NRS Chapter 616 governs industrial insurance, while NRS Chapter 617 governs
occupational diseases. Mirage contends that NRS Chapter 617 contains no modification of
the method of calculating the amount of disability benefits to which an employee is entitled
under NRS Chapter 616. Therefore, Mirage maintains that the calculation is necessarily
controlled by NRS Chapter 616. Specifically, Mirage argues that benefits must be calculated
in accordance with NRS 616.027 which defines average monthly wage as the wage
received on the date of the accident or injury, and NAC 616.678 which provides that such
wage is calculated by averaging the employee's wages for the preceding twelve-week period.
Thus, Long's average monthly wage should be calculated from the twelve weeks preceding
November 15, 1991, the date she gave as her "injury date."
be calculated from the twelve weeks preceding November 15, 1991, the date she gave as her
injury date.
We disagree. We note that although NRS Chapter 617 does not contain a precise method
for the calculation of disability benefits for occupational diseases, its provisions provide
sufficient guidance for determining the date of eligibility for such benefits.
[Headnote 2]
Initially, we look to NRS 617.060 which defines disablement for purposes of occupational
diseases as the event of becoming physically incapacitated by reason of an occupational
disease arising out of and in the course of employment . . . . Under this statute, Long did not
become disabled until she was no longer able to work on April 21, 1992. The fact that she
gave an earlier date as her injury date is irrelevant since she was not injured on the earlier
date, but rather suffered from an occupational disease.
[Headnote 3]
As to benefits, NRS 617.420 requires that in order to become eligible for disability
benefits, the employee must be incapacitated by the occupational disease for at least five
cumulative days within a twenty-day period earning full wage. This statute also provides that
in such cases, compensation in terms of average monthly wage must be computed from the
date of disability.
1
Only after the employee becomes disabled does it become necessary to
look to NRS Chapter 616 for the method of calculating the employee's average monthly
wage.
[Headnote 4]
In the instant case, Long continued to work until April 21, 1992. Therefore, she was
neither disabled nor eligible for benefits in accordance with NRS 617.420 until she ceased
working for at least five cumulative days during a twenty-day period. Hence, Long's wage
could be calculated only after she was disabled; i.e., unable to continue working. Indeed, it
would be illogical to calculate her average monthly wage from the period preceding her
injury date of November 15, 1991, which was five months prior to the date her condition
forced her to stop working. Such a method of calculation would be contrary to NRS 617.420.
Finally, we note that Mirage claims that the driving force behind this litigation is Long's
desire to have her average monthly wage calculated from a period during which she reported
substantial tip income. Long did not report tip income during the period preceding her
"injury date."
__________

1
We do not address the definition of cumulative days as would apply to employees whose working hours are
gradually decreased due to an occupational disease. Nor do we address the computation of the average monthly
wage in such situations.
preceding her injury date. Mirage's speculation as to Long's motives is irrelevant to this
appeal. The issue before this court is the proper method of calculating Long's average
monthly wage, not her motivation in pursuing greater benefits.
In conclusion, we hold that the district court did not err in denying Mirage's petition for
judicial review. The appeals officer correctly determined that Long became eligible for
benefits on April 21, 1992, the date she ceased working due to her occupational disease.
Therefore, her average monthly wage should be calculated from the period immediately
preceding her date of disability.
Accordingly, we affirm the decision of the district court.
____________
110 Nev. 261, 261 (1994) Geary v. State
MELVIN JOSEPH GEARY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24277
March 30, 1994 871 P.2d 927
Appeal from a conviction of one count of first degree murder, pursuant to a jury verdict,
and a sentence of death. Second Judicial District Court, Washoe County; Mills Lane, Judge.
The supreme court held that: (1) defendant's confessions were not impermissibly
involuntary; (2) defendant was not entitled to his proposed state-of-mind instruction; and (3)
aggravating circumstance instructions at penalty hearing were not impermissibly duplicative
so as to violate constitutional prohibition against double jeopardy.
Affirmed.
[Rehearing granted September 29, 1994]
Michael R. Specchio, Public Defender, Jane McKenna, Chief Appellate Deputy Public
Defender, Janet Cobb Schmuck, Deputy Public Defender, Washoe County, for Appellant.
Attorney, David Wayment, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Murder defendant's confessions to former girlfriend and detectives were not impermissibly involuntary, despite contentions that
defendant was intoxicated, was deprived of food and sleep, and was never told that he could contact friends or family. Defendant
recognized other people at police department and spoke cordially with them, defendant was allowed to sleep when he asked,
defendant's requests for coffee and cigarettes were granted, and, even if defendant's first three confessions were tainted by intoxication,
defendant was sober during fourth confession.
110 Nev. 261, 262 (1994) Geary v. State
2. Homicide.
First degree murder defendant was not entitled to state-of-mind instruction, stating that evidence of an abnormal mental
condition, not amounting to insanity, tending to prove defendant did not entertain specific state of mind at time of act should be
considered. Proposed instruction would invite jury to confuse defendant's capacity to premeditate with question of whether he did
premeditate.
3. Criminal Law.
Defendant is entitled, upon request, to jury instruction on his theory of case so long as there is some evidence, no matter how weak
or incredible, to support it.
4. Criminal Law.
Defendant is not entitled to instruction which incorrectly states the law.
5. Homicide.
Relevant question to be posed in state-of-mind instruction in first degree murder prosecution is: assuming that defendant was
capable of premeditating, did he in fact premeditate.
6. Criminal Law.
Murder defendant was not entitled to mistrial on ground that juror wrote short note to her daughter during penalty phase, where
issue of guilt was not close, juror testified that note was very brief and that she did not miss a word said during hearing, and jury
foreperson testified that juror participated constructively in deliberations.
7. Double Jeopardy.
Aggravating circumstance instructions at penalty hearing, regarding whether murder was committed while defendant was on
parole and whether defendant had previously been convicted of another murder, were not impermissibly duplicative so as to violate
constitutional prohibition against double jeopardy in first degree murder prosecution. U.S. Const. amend. 5.
8. Homicide.
Jury may impose death sentence in first degree murder prosecution only if it finds beyond a reasonable doubt that there is at least
one aggravating circumstance and further finds that there are no mitigating circumstances which outweigh aggravating circumstances.
9. Homicide.
Once jury finds death penalty eligibility in first degree murder prosecution, by finding at least one aggravating circumstance and
further finding that there are no mitigating circumstances, then, ultimately, discretion of whether to impose death penalty belongs to
jury.
10. Homicide.
Jury was entitled to impose death penalty in first degree murder prosecution, despite possibility that jury could have considered
defendant's impaired mental state and addiction to alcohol as mitigating circumstances which might have led to more lenient
disposition, in light of defendant's prior history with alcohol, murder, and criminal justice system. NRS 177.055.
OPINION
Per Curiam:
On July 21, 1992, appellant, Melvin Joseph Geary (Geary) came to the house of his former girlfriend, Pam Johnson (Ms.
110 Nev. 261, 263 (1994) Geary v. State
Johnson), with blood on his pants. Geary appeared intoxicated and stated that he had been in
a fight. Geary returned to Ms. Johnson's house on July 23, 1992, and told her that he had
killed Edward Theodore Colvin (Colvin), the man with whom he was living. Ms. Johnson
testified that Geary drank whiskey and talked with her until she called the police around
midnight. Officer Larry Johnson (Officer Johnson) responded to the call and testified that
he advised Geary of his Miranda rights and that Geary then confessed to killing Colvin. After
hearing from two fellow officers, who were investigating Colvin's apartment and had
discovered Colvin's body, Officer Johnson arrested Geary.
Upon Geary's arrival at the Sparks Police Department, Detective Gary Potter again read
Geary his Miranda rights and then questioned Geary. Detective Potter testified that Geary
appeared to be heavily intoxicated, but that he was able to respond to questions in a coherent
manner and was in control of his faculties. Geary's subsequent confession was audiotaped and
then played to the jury during trial. The following day Geary was again given his Miranda
warnings and interviewed again on videotape by Detective Torres. A boning knife with
Geary's initials on it was found at Colvin's home; tests revealed that there was human blood
on the knife.
On March 26, 1993, following a jury trial, Geary was convicted of the murder of Colvin
and sentenced to death. A jury found Geary to be eligible for the death penalty because he had
committed a prior murder in 1974, because he was on parole at the time he murdered Colvin,
and because he murdered Colvin at random and without apparent motive. The jury further
found that mitigating circumstances did not outweigh aggravating circumstances and
ultimately exercised its discretion and imposed the death penalty.
On appeal, Geary raises four assignments of error: (1) the district court improperly allowed
the jury to hear involuntary statements by Geary; (2) the district court improperly instructed
the jury on the state of mind necessary for first-degree murder; (3) the verdict at the penalty
phase was impermissibly tainted by juror misconduct; and (4) the district court allowed the
jury to consider duplicative aggravators at the penalty phase.
GUILT PHASE ISSUES
[Headnote 1]
Geary asserts that his confession to Ms. Johnson was involuntary because he was
intoxicated, that his confession to Detective Potter was involuntary because he (Geary) was
intoxicated and was deprived of food and sleep and because he was never told that he could
contact friends or family. Finally, Geary argues that his confession to Detective Torres was
involuntary because Geary was confused and could not remember details.
110 Nev. 261, 264 (1994) Geary v. State
was confused and could not remember details. Geary argues that the district court should have
excluded his confessions under Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323
(1987), and that, therefore, his conviction must be overturned.
In response, the State contends that Detective Potter only questioned Geary for two hours,
that Geary never requested food, only coffee and cigarettes, which he was given, and that
when Geary asked to sleep, he was allowed to do so. The State also asserts that Geary never
asked to speak to family or friends.
Passama lists several factors which are relevant in determining whether a defendant's
statement was voluntary:
[t]he youth of the accused; his lack of education or his low intelligence; the lack of any
advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the deprivation of
food or sleep.
103 Nev. at 214, 735 P.2d at 323. None of these factors are present here. Geary's allegations
of error center around his interrogation by Detective Potter. Detective Potter testified that
Geary recognized other people at the police department and spoke cordially with them; he
also testified that when Geary asked to sleep, he was allowed to do so, and that Geary's
requests for coffee and cigarettes were granted. Moreover, even if Geary's first three
confessions were tainted by his intoxication, Geary was certainly sober during his fourth
confession to Detective Torres the following day. We conclude that the district court did not
err in allowing the jury to consider Geary's statements.
1

[Headnotes 2-5]
Next Geary argues that the jury was given an improper state-of-mind instruction. The
district court gave the following instruction on state of mind:
Evidence which tends to prove that the Defendant did not, in fact, entertain the specific
intent or state of mind at the time of the act, which is by definition a requisite element
of the crime charged, should be considered for the purpose of determining whether the
crime charged was, in fact, committed.
Geary contends that the instruction should have begun as follows: Evidence of an abnormal
mental condition, not amounting to insanity, which tends to prove . . . . (Emphasis added.)
Geary properly points out that [a] defendant in a criminal case is entitled, upon request, to a
jury instruction on his theory of the case so long as there is some evidence, no matter how
weak or incredible, to support it."
__________

1
We do not consider Geary's argument as to whether the admission of an involuntary confession is subject to
harmless error analysis because it is so clear that none of Geary's statements were involuntary.
110 Nev. 261, 265 (1994) Geary v. State
case so long as there is some evidence, no matter how weak or incredible, to support it.
Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990). However, a criminal
defendant is not entitled to an instruction which incorrectly states the law. In the instant case,
the proposed defense instruction is an incorrect statement of law because it refers to
diminished capacity rather than state of mind. The abnormal mental condition language
proffered by Geary invites the jury to confuse capacity with state of mind. As this court stated
in Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975), the relevant question to be posed in a
state-of-mind instruction is [a]ssuming that the defendant was capable of premeditating, did
he in fact premeditate? Id. at 792, 544 P.2d at 423 (emphasis added). Geary's proposed
instruction invites the jury to confuse Geary's capacity to premeditate with the question of
whether he did, in fact, premeditate. Accordingly, we conclude that the district court did not
err in refusing to give Geary's proposed instruction to the jury. The murder conviction is
affirmed.
PENALTY PHASE ISSUES
[Headnote 6]
Geary contends that the jury's penalty phase verdict is tainted because one of the jurors
wrote a short note to her daughter during the penalty phase. Geary cites Rowbottom v. State,
105 Nev. 472, 474-75, 779 P.2d 934, 942-43 (1989), for the proposition that any juror
misconduct requires reversal. This misstates Rowbottom; in Rowbottom this court reversed a
conviction because one of the jurors read newspaper accounts of the trial and communicated
those accounts to other members of the jury. Id. at 486, 779 P.2d at 943. Rowbottom set forth
the factors to be considered in determining whether juror misconduct constitutes harmless
error or prejudicial error: whether the issue of innocence or guilt is close, the quantity and
character of the error, and the gravity of the crime charged. Id. at 486, 779 P.2d at 943
(citation omitted). This court further held that the question was one of fact to be determined
by the trial court, and its determination will not be disturbed on appeal in the absence of a
showing of an abuse of discretion. Id., 779 P.2d at 943 (citation omitted).
Applying Rowbottom to the case at bar, we conclude that the issue of guilt or innocence in
this case is not close. Geary has confessed to the murder several times, and the murder
weapon found at the victim's home had Geary's initials on it and bore traces of human blood.
We also conclude that the juror misconduct in this case was not egregious. Geary, however,
compares it to Paine v. State, 107 Nev. 998, 823 P.2d 281 (1991), where this court reversed a
death penalty judgment because of allegations that one member of the three-judge panel slept
during the penalty phase hearing. Id. at 1001, S23 P.2d at 2S3.
110 Nev. 261, 266 (1994) Geary v. State
phase hearing. Id. at 1001, 823 P.2d at 283. In Paine, however, this court relied on the Code
of Judicial Conduct and expressly held that our holding today will not be expanded beyond
these extraordinary circumstances. Had an evidentiary hearing been held immediately after
the penalty hearing, we may have arrived at a different result. Id., 823 P.2d at 283. Here, the
district court did hold an evidentiary hearing. The juror testified that the note was written to
her daughter and was very brief and that she did not miss a word that was said during the
hearing. Furthermore, the foreperson of the jury also testified that the juror participated
constructively in deliberations. Finally, although the gravity of the crime charged here
certainly weighs in Geary's favor on this issue, we conclude that, on balance, the district court
did not abuse its discretion in refusing to grant Geary's motion for mistrial based on juror
misconduct.
[Headnote 7]
Geary also claims that the trial court erred in the penalty hearing by allowing the jury to
consider two duplicative aggravating circumstance instructions. Accordingly to Geary these
duplicative instructions violated his right to be free of double jeopardy. The State responds
that these aggravators are not duplicative, and that even if they are, this court should reweigh
the mitigating and aggravating circumstances and impose the death penalty. The instruction at
issue put the following aggravators before the jury:
1. The murder of EDWARD COLVIN was committed by defendant MELVIN
JOSEPH GEARY while he was under sentence of imprisonment in that defendant
MELVIN JOSEPH GEARY was on parole from the Nevada State Prison.
2. The murder of EDWARD COLVIN was committed by defendant MELVIN
JOSEPH GEARY who was previously convicted of another murder in 1974 in the State
of Nevada.
Geary contends that both aggravators deal with Mr. Geary's prior conviction for murder.
While this is true, that fact alone does not make the aggravators duplicative; the first
aggravator allows the jury to find Geary death-eligible if they find that he was on parole from
a Nevada prison when he killed Colvin. The second aggravator allows the jury to find Geary
death-eligible if they find that he committed a previous murder in Nevada. One can conjure
up numerous hypotheticals to illustrate the differences between these two aggravators. For
example, Geary could have been on parole for another felony such as burglary. Or Geary
might have been fully pardoned for the murder and, therefore, not on parole.2 In addition,
the jury also found another aggravator to be present: "The murder was committed upon
one or more persons at random and without apparent motive."
110 Nev. 261, 267 (1994) Geary v. State
therefore, not on parole.
2
In addition, the jury also found another aggravator to be present:
The murder was committed upon one or more persons at random and without apparent
motive. Geary has not challenged this particular aggravator on appeal.
We conclude that the district court did not give the jury duplicative aggravators to
consider. Geary does not deny that he was on parole at the time of the murder or that he had
been previously convicted of another murder. Nor does he complain that any other error was
made in instructing the jury at the penalty phase. Given the inherent gravity of death penalty
appeals, however, we will proceed to consider whether the jury instructions at the penalty
phase were otherwise proper.
PROPRIETY OF PENALTY INSTRUCTIONS
[Headnote 8]
From a reading of the penalty instructions it appears that the jury was first properly
instructed that it may impose a sentence of death only if it finds beyond a reasonable doubt
that there is at least one aggravating circumstance and further finds that there are no
mitigating circumstances which outweigh aggravating circumstance(s). (Instruction No. 12;
emphasis added.) After instructing the jury that it had the power to impose the sentence of
death only after it made the two stated findings, the trial court correctly instructed the jury
that if it found that the aggravating circumstances are outweighed by the mitigating
circumstances, then you do not need the death verdict form.
3
The jury was, accordingly,
properly instructed that it may impose the death penalty only if the two conditions for
death-eligibility were found beyond a reasonable doubt and that if these conditions were not
met, it could no longer consider the death penalty as an option.
Because the second death-eligibility requirement, that there are no mitigating
circumstances which outweigh the aggravating circumstance{s)," is not challenged or
argued by Geary's defense lawyers, we do not have to consider this point.
__________

2
The State also points out that [t]hese [t]wo aggravating circumstances address different state interests. The
first state interest is in punishing more harshly defendants who have committed another murder, and the second
state interest is in punishing more harshly defendants who have received the gift of parole.'' We agree.

3
The trial court should have, of course, to be consistent, further instructed the jury that if it did not find at least
one aggravating circumstance, the jury would likewise not be in need [of] the death verdict form. Defense
counsel apparently did not notice this failure and did not object to it. Because, as said, the trial court did instruct
the jury, in the first part of Instruction No. 12, that it could impose death only if it found at least one
aggravating circumstance, we find no prejudicial error in the trial court's referring only to the second
death-eligibility factor (mitigating not outweighing aggravating circumstances) and neglecting to include, in
Instruction No. 12, the death-eligibility requirement of at least one aggravating circumstance.
110 Nev. 261, 268 (1994) Geary v. State
are no mitigating circumstances which outweigh the aggravating circumstance(s), is not
challenged or argued by Geary's defense lawyers, we do not have to consider this point. We
are prompted to say, however, that in this case it would be asking a lot of an appellate court to
ask that we declare, as a matter of law, that mitigating circumstances in this case
4
outweigh
aggravating circumstances, when the aggravating circumstances are comprised of a two-time
murderer having committed a random and motiveless murder while he was on parole.
[Headnote 9]
It is important to recognize that in the overall scheme of the penalty instructions given by
the court, the jury was properly advised that once it found death-eligibility, by finding at
least one aggravating circumstance and further find[ing] that there are no mitigating
circumstances which outweigh the aggravating circumstance(s), then [u]ltimately the
discretion of whether to impose the death penalty belongs to the jury.
A remaining question, and, again, a question that was not raised by Geary himself, is
whether the jury went beyond the bounds of its discretion in imposing the death penalty in
this case, that is to say, whether the death penalty in this case is, as a matter of law, excessive.
We are required in all cases to review carefully the imposition of death, even where
applicable points on appeal are not raised by defense counsel. NRS 177.055 (supreme court
must consider, inter alia, [w]hether the sentence of death is excessive, considering both
the crime and the defendant"); see e.g.,
__________

4
The jury was instructed on the following mitigating circumstances:
NRS 200.035 provides that murder of the first degree may be mitigated by any of the following
circumstances:
1. 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.
7. Any other mitigating circumstance.
(Instruction No. 9.) The record does not disclose that any of the explicit mitigating circumstances were present
in this case. Certainty the jury did not so find. Various persons did testify favorably for Geary at the penalty
hearing. The jury heard testimony that Geary was a model prisoner and helped with younger offenders, that he
was an excellent employee who had considerable responsibilities, and that he was honest and hardworking. The
jury expressly found that these mitigating circumstances did not overcome the three aggravating circumstances.
110 Nev. 261, 269 (1994) Geary v. State
of death is excessive, considering both the crime and the defendant); see e.g., DePasquale v.
State, 106 Nev. 843, 803 P.2d 218 (1990). We do so now.
Although this is the second time that Geary has engaged in a homicidal rampage, it is at
least arguable that because Geary has a severe problem with alcohol and claims to have had
no recollection of the murder, that he is not deserving of the death penalty. Even the
prosecutor conceded that apparently [Geary] is a really nice guy when he's sober and that
this would not be a death penalty case on a first offense; however, it is impossible to ignore
Geary's prior history with alcohol, murder, and the criminal justice system. In 1974 Geary
was convicted of the first-degree murder of Annette Morris, a stranger whom Geary took
home and stabbed to death with a boning knife while he was grossly intoxicated. He was
sentenced to life without the possibility of parole. Because of Geary's admirable conduct in
prison, and because he had ceased to consume alcohol, the Pardons Board commuted Geary's
sentence to life with the possibility of parole. Geary was then released on parole by the Parole
Board in 1986, subject to the condition that he not consume any alcohol. In 1990 Geary
violated his parole by consuming alcohol and was put back in jail. After four months, he was
again released by the Parole Board. In 1991 he started drinking again, but completed an
alcohol treatment program and was not reincarcerated. He began drinking again in 1992, and
was again arrested and again paroled in June 1992. On July 24, 1992 he was arrested for the
murder of Colvin.
[Headnote 10]
In considering the question of excessiveness of the death penalty under the circumstances
of this case, it appears that a jury was justified in concluding that clemency was not in order
in this case. The jury certainly could have considered in mitigation Geary's impaired mental
state and his addiction to alcohol as mitigating circumstances which might have led the jury
to be more lenient in its disposition. The jury declined, however, to do so; and we are
reluctant to second guess a jury under these circumstances. Furthermore, it does not appear
that the jury's decision was imposed under the influence of passion, prejudice or any
arbitrary factor. NRS 177.055. As a consequence, we will not interdict the jury verdict in
this case. The judgment of conviction and sentence of death are affirmed.
____________
110 Nev. 270, 270 (1994) Stuhmer v. Centaur Sculpture Galleries
J. CHRISTOPHER STUHMER, INC., Appellant, v. CENTAUR SCULPTURE
GALLERIES, LTD., INC., a California Corporation, and CENTAUR SCULPTURE
GALLERIES, LTD., INC., a Nevada Corporation, Respondents.
No. 24323
March 30, 1994 871 P.2d 327
Appeal from a judgment, entered pursuant to a bench trial, denying relief in a construction
contract dispute. Eighth Judicial District Court, Clark County; John J. McGroarty, Judge.
Nevada contractor that entered into contract for construction of art gallery in California
brought action against owner for money due under contract or under theory of quantum
meruit. The district court entered judgment in favor of owner, and contractor appealed. The
supreme court held that: (1) evidence was sufficient to establish that Nevada corporation,
rather than related California corporation, entered into construction contract, and (2) Nevada
contractor that administered California construction project and ensured that design was
correctly carried out did not assign its rights and duties under contract to California contractor
that performed actual construction work.
Reversed and remanded with instructions.
[Rehearing denied June 16, 1994; rehearing granted September 14, 1994]
John M. Sacco, Las Vegas, for Appellant.
Albert D. Massi, Ltd. and Allen A. Cap, Las Vegas, for Respondents.
1. Contracts.
Evidence was sufficient to establish that Nevada corporation, rather than related California corporation, entered into construction
contract to construct building in California, although wording of contract did not indicate whether corporation was a Nevada
corporation or a California corporation. Provision entitled owner and assigned on behalf of corporation listed Las Vegas address that
was principal place of business of Nevada corporation, and contractor had previously dealt with Nevada corporation when constructing
building in Las Vegas.
2. Assignments.
Evidence did not support finding that Nevada contractor that administered California construction project and ensured that design
was correctly carried out assigned its rights and duties under contract to California contractor that performed actual construction work.
Nevada contractor paid California contractor, paid subcontractor's materialmen, answered questions from owner, visited construction
site, and did not manifest intention to transfer its rights in contract.
OPINION
Per Curiam:
Appellant J. Christopher Stuhmer, Inc. (Stuhmer Inc.) entered into a written contract with
Centaur Galleries, Ltd., Inc. (Centaur) for the construction of a retail art gallery in the Horton
Plaza in San Diego, California. The parties agreed that Pacific Coast Builders (PCB) would
do the construction work, while Stuhmer Inc. would supervise the project. When Centaur
failed to pay in full, Stuhmer Inc. filed suit seeking $51,687.89 for money due under the
contract or alternatively, under the theory of quantum meruit. The district court found that
Stuhmer Inc. had contracted with Centaur's California corporation and had assigned all its
rights under the contract to PCB, and accordingly denied Stuhmer Inc.'s request for damages.
We reverse and remand to the district court with instructions to enter judgment for Stuhmer
Inc. against Centaur's Nevada corporation in the amount of $51,587.89
FACTS
Stuhmer Inc. built the Centaur Sculpture Galleries retail store in The Fashion Show Mall
in Las Vegas. After the completion of this gallery Richard Perry (Perry) of Centaur contacted
Stuhmer Inc., requesting that Stuhmer Inc. construct the new Centaur gallery in San Diego
based on the same design used in the Las Vegas construction. Because Stuhmer Inc. was not
licensed as a contractor in California the parties agreed that PCB, a California company
owned by Stuhmer's brother, would perform the construction work, while Stuhmer Inc. would
supervise the project. Stuhmer and his brother (Steve Stuhmer) verbally agreed that PCB
would get a $20,000.00 flat fee for its services plus 50% of the profit on the project.
On October 18, 1988, Stuhmer Inc. and Centaur entered into a written construction
contract for the amount of $268,140.90. Centaur's address was listed as 3200 Las Vegas
Boulevard, Las Vegas, Nevada 89109, throughout the contract, and Perry's signature appeared
in the block entitled owner The project began.
Centaur made a payment to Stuhmer Inc. of $80,442.00 when the contract was signed, and
subsequently Stuhmer Inc. invoiced Centaur Galleries in Las Vegas on a number of occasions
and was paid the additional sum of $152,724.09. Stuhmer Inc. paid PCB and answered
questions from Perry regarding the project. Stuhmer visited the San Diego job site during the
design process, prior to construction commencing, and when the construction was about
75% completed.
prior to construction commencing, and when the construction was about 75% completed.
PCB had its own crew on the job during construction and also hired other subcontractors and
tradesmen to work on the project. PCB submitted all of its subcontractor and tradesmen bills
to Stuhmer Inc., who directly paid these laborers.
After the construction was completed in February of 1989, Perry continued to
communicate directly with Stuhmer Inc. in Las Vegas regarding items that he claimed needed
to be completed, and regarding construction extras that Stuhmer Inc. provided at a cost of
$10,113.89. Additionally, Centaur's attorneys communicated with Stuhmer Inc. in writing
regarding the project.
On November 2, 1990, Stuhmer filed suit against Centaur-Nevada seeking $51,687.89 in
damages for money due under the contract, or for the reasonable value of services and
materials provided under the theory of quantum meruit.
1
Pursuant to a bench trial, the
district court found that Stuhmer Inc. had entered into the contract with Centaur's California
corporation (Centaur-California) rather than Centaur's Nevada corporation (Centaur-Nevada),
and that Stuhmer Inc. had assigned its interest in the contract to PCB. The district court
therefore concluded that Stuhmer Inc. lacked standing to claim contract damages, and entered
judgment in favor of Centaur-Nevada and Centaur-California, denying Stuhmer Inc.'s request
for damages. This appeal followed.
DISCUSSION
Whether the district court erroneously found that the contract was between Stuhmer Inc. and
Centaur-California.
[Headnote 1]
Centaur-California has closed its San Diego gallery and its corporate operations, and is
apparently without any assets. Centaur, in an attempt to escape paying a judgment, asserts
that Centaur-California rather than Centaur-Nevada contracted with Stuhmer Inc.
__________

1
Stuhmer Inc. arrived at this figure by adding $10,113.89 for construction extras to the contract price of
$268,140.00 and deducting the payments received from Centaur ($233,166.00) to get $45,087.89. Stuhmer Inc.
then added the approximate balance due ($6,500.00) on an art trade-out which never occurred. Stuhmer Inc. has
made an error in computation, as these figures total $51,587.89the figure appearing in the recap of Patricia
Cava's (Cava) testimony contained in Appellant's Appendix.
This figure of $51,587.89 was verified at trial. Cava, Stuhmer Inc.'s administrative assistant and office manager,
testified that based on the office balance sheets, $51,587.89 was the balance due under the contract. Steve
Stuhmer testified that $10,113.89 was the cost of the construction extras performed by PCB, and that this price
was reasonable for the work done. Stuhmer testified that $6,500.00 was the amount due for the art trade-out that
never occurred.
Centaur-California rather than Centaur-Nevada contracted with Stuhmer Inc.
It is undisputed that the wording of the contract did not indicate whether Centaur was a
Nevada corporation or a California corporation. However, the block entitled owner and
signed by Perry on behalf of Centaur lists a Las Vegas address that is the principal place of
business of Centaur-Nevada.
In reaching the conclusion that Stuhmer Inc. contracted with Centaur-California, the
district court found that the term owner in the contract referred to the tenant in the lease of
the premises in San Diego, which was Centaur-California. These lease agreements were
plaintiff's Exhibits 9, 10, and 11, which were never offered or admitted into evidence and
accordingly, the district court erred in relying on them.
The district court further found that the fact that all payments to Stuhmer Inc. were made
from a separate bank account maintained by Centaur-California supported its conclusion.
2
Though there is evidence supporting this factual finding, the district court erred in failing to
consider Stuhmer's unrefuted testimony regarding the circumstances surrounding the contract.
The best approach for courts to use in interpreting a contract that is ambiguous is to delve
beyond the express terms of a written contract and examine the circumstances surrounding
the parties' agreement in order to determine the true mutual intentions of the parties. Hilton
Hotels v. Butch Lewis Productions, 107 Nev. 226, 231, 808 P.2d 919, 921 (1991). This
includes not only the circumstances surrounding the execution of the contract, but also
subsequent acts and declarations of the parties. Transwestern Leasing v. Corrao Construction
Co., 98 Nev. 445, 447, 652 P.2d 1181, 1183 (1982).
Stuhmer's unrefuted testimony regarding the circumstances of the agreement clearly shows
that Stuhmer Inc. contracted with Centaur-Nevada.
3
Stuhmer testified that it was his
understanding that he was contracting with the same entity that he had previously dealt with
when building the Centaur Sculpture Galleries in Las Vegas, and that the first time he heard
of Centaur-California was after the subject litigation was filed. See Water Rights v. North
Colorado Water Conservancy District, 677 P.2d 320, 327 (Colo. 1984) (It is also
well-established that the parties' construction of a contract before a dispute arises is a
particularly persuasive aid in determining the true meaning of the agreement.). The
correspondence to Stuhmer Inc. not only from Perry, but also from Centaur's attorneys prior
to the institution of this lawsuit, never distinguished between a California and Nevada
corporation.
__________

2
Stuhmer testified that he never saw these checks, as his office manager was responsible for depositing them.

3
Perry, who signed the contract on behalf of Centaur, failed to testify at trial. Notably, Centaur failed to present
any witnesses on its behalf.
Perry, but also from Centaur's attorneys prior to the institution of this lawsuit, never
distinguished between a California and Nevada corporation. In fact, a letter from Mr. Todd
Bingham (Bingham), Centaur-Nevada's District Manager states:
This company retained Mr. Stuhmer's services to construct a second gallery location in
San Diego's Horton Plaza. . . .
(Emphasis added.) The plain meaning of this language is that Centaur-Nevada hired Stuhmer
Inc.
The district court further concluded that the fact that Centaur-California, Inc. was the
contracting party is also supported by the fact that Stuhmer amended its complaint . . . after
first filing against only Centaur California, Inc. (Emphasis added.) This statement is
factually erroneous. The original complaint in this case was filed against Centaur-Nevada, as
Stuhmer had never heard of Centaur-California's existence at that point in time. The
complaint was changed by stipulation of the parties to name Centaur-California only after
Centaur's attorney informed Stuhmer Inc. that it had sued the wrong party. Following the
discovery that Centaur-California had closed its gallery and its corporate operations, Stuhmer
Inc. amended its complaint to name both Centaur-Nevada and Centaur-California.
The evidence clearly shows that Stuhmer Inc. believed it was contracting with
Centaur-Nevada, and that Centaur's conduct at the time of the signing of the contract and
throughout the relationship never indicated otherwise, until the institution of the present
lawsuit. Therefore, we conclude that the district court erred in finding that Stuhmer Inc.
contracted with Centaur-California rather than Centaur-Nevada.
Whether the district court erred in concluding that Stuhmer Inc. assigned all of its rights and
duties under the construction contract to PCB.
[Headnote 2]
The district court's conclusion that Stuhmer Inc. assigned all of its rights and duties under
the construction contract to PCB, and therefore lacked standing to pursue this action, was
based on a finding that all of the work that was performed under the contract was performed
by [PCB]. [PCB] obtained all of the permits and contracted with all of the subcontractors.
The first part of this finding is clearly erroneous. The evidence shows while PCB completed
the actual construction, Stuhmer Inc. administered the project and ensured that the design was
correctly carried out. Stuhmer Inc. paid PCB, paid the subcontractors and materialmen, and
answered questions from Perry. Additionally, Stuhmer visited the San Diego job site during
the design process, prior to the construction commencing, and when the construction was
about 75% complete.
ing the design process, prior to the construction commencing, and when the construction was
about 75% complete.
Moreover, the record reveals an absolute lack of evidence that a legal assignment took
place. It is essential that in order for there to be a legal assignment of rights, the obligee must
manifest an intention to transfer the right to another person. Restatement (Second) of
Contracts 324 at 37 (1979). Stuhmer Inc.'s ongoing involvement in the project is directly
contrary to any manifestation of an intention to transfer its rights in the contract to PCB.
Additionally, Centaur's conduct prior to the institution of the present lawsuit is further
evidence that there was no assignment. Upon execution of the contract Centaur paid
$80,442.00 to Stuhmer Inc., then made four additional payments totalling approximately
$135,145.00 to Stuhmer Inc. All correspondence from Centaur and its attorneys was directed
to Stuhmer Inc., not to PCB. Also, a letter from Centaur's counsel to Stuhmer Inc. sent before
this lawsuit stated that Stuhmer Inc.'s failure to resolve some problems in the construction
would result immediately in an action being filed against Stuhmer Inc., not PCB.
Accordingly, the district court's finding that there was an assignment was error. Stuhmer
Inc. is clearly the party in interest.
4

CONCLUSION
We conclude that based on Stuhmer Inc.'s unrefuted testimony and the evidence
introduced at trial, Centaur-Nevada owes Stuhmer Inc. a total of $51,587.89 for the remainder
due under the contract, the additional work done, and the amount due under the art trade-out
that never occurred.
3
Accordingly, we reverse the decision of the district court and remand
with instructions to enter judgment against Centaur-Nevada for Stuhmer Inc. in the amount of
$51,587.89.
__________

4
Additionally, the district court's earlier denial of Centaur's motion to dismiss Stuhmer Inc.'s action pursuant to
NRCP 17(a) supports our conclusion.

5
Because we reach this conclusion, we do not address appellant's contentions that the district court erred in
ruling that certain documents introduced by Stuhmer Inc. were inadmissible hearsay or that it erred by failing to
award Stuhmer Inc. damages under the theory of quantum meruit.
____________
110 Nev. 276, 276 (1994) State, Dep't Taxation v. Kelly-Ryan, Inc.
THE STATE OF NEVADA, THE NEVADA DEPARTMENT OF TAXATION, and THE
NEVADA TAX COMMISSION, Appellants, v. KELLY-RYAN, INC., a Washington
Corporation, Respondent.
No. 24421
March 30, 1994 871 P.2d 331
Appeal from a district court order granting summary judgment in favor of a taxpayer in a
use tax refund case. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
General contractor for construction of federal housing project brought declaratory
judgment action against State, Department of Taxation, and Tax Commission, seeking state
use tax refund on basis of federal tax immunity. Parties moved for summary judgment. The
district court entered summary judgment for contractor. State, Department, and Commission
appealed. The supreme court held that: (1) contractor was subject to Nevada use tax when it
purchased modular housing units in Washington from manufacturer, rather than subject to
Nevada sales tax in its construction contract with prime contracting agent of federal
government, and (2) Nevada's imposition of use tax on contractor did not violate federal tax
immunity and, thus, did not violate supremacy clause.
Frankie Sue Del Papa, Attorney General, and John S. Bartlett, Sr. Deputy Attorney
General, Carson City, for Appellants.
Guild, Russell, Morgan, Gallagher & Fuller, Reno, for Respondent.
1. Taxation.
Under supremacy clause, individual state cannot impose tax directly upon federal government. U.S. Const. art. 6, cl. 2.
2. Taxation.
State is not prohibited under supremacy clause from imposing taxes directly upon private entity that is contracting with federal
government. U.S. Const. art. 6, cl. 2.
3. Taxation.
In examining constitutionality of state taxation under supremacy clause, dispositive question is whether incidence of taxation falls
directly upon federal government or upon private contracting entity. U.S. Const. art. 6, cl. 2.
4. Taxation.
General contractor for construction of federal housing project was subject to Nevada use tax when it purchased modular housing
units in Washington from manufacturer, rather than subject to Nevada sales tax in its construction contract with prime contracting
agent of federal government, where contractor was paid flat fee for construction of modular housing complex, and contractor
did not derive its profit from sale of product that it manufactured, but from using housing units that it
purchased to complete construction contract with agent.
modular housing complex, and contractor did not derive its profit from sale of product that it manufactured, but from using housing
units that it purchased to complete construction contract with agent. NRS 372.105, 372.185, 372.225.
5. Taxation.
State may constitutionally, under supremacy clause, impose tax on contractor that uses tangible personal property in performance
of contract with federal government, and it makes no difference whether title to such property is vested in federal government or
nonagent contractor. U.S. Const. art. 6, cl. 2.
6. Taxation.
For purposes of determining constitutionality under supremacy clause of state's imposition of use tax on contractor that uses
tangible personal property in performance of contract with federal government, it is constitutionally irrelevant that federal government
shoulders entire economic tax burden by reimbursing nonagent contractor for expenditures. U.S. Const. art. 6, cl. 2.
7. Taxation.
In determining constitutionality under supremacy clause of state's imposition of use tax on contractor that uses tangible personal
property in performance of contract with federal government, only relevant determination is whether tax burden falls directly upon
federal government. U.S. Const. art. 6, cl. 2.
8. Taxation.
Nevada's imposition of use tax on general contractor for construction of federal housing project, due to contractor's use of modular
housing units contractor purchased in Washington from manufacturer, did not violate tax immunity and, thus, did not violate
supremacy clause. General contractor was not constituent part of federal government when it purchased units, as contractor was
privately-owned corporation, federal government did not run contractor's day-to-day operations, and federal government did not have
ownership interest in contractor. U.S. Const. art. 6, cl. 2; NRS 372.105.
9. Taxation.
State use taxes directly imposed upon entity dealing with federal government are generally constitutional under supremacy clause.
U.S. Const. art. 6, cl. 2.
10. Taxation.
Only exception to general rule, that state use taxes directly imposed upon entity dealing with federal government are constitutional
under supremacy clause, is when contractor subject to use tax is constituent part of federal government. U.S. Const. art. 6, cl. 2.
11. Taxation.
Constituent part test, for determining constitutionality under supremacy clause of state use tax imposed upon contractor dealing
with federal government, only applies when court is examining constitutionality of use tax. U.S. Const. art. 6, cl. 2.
12. Taxation.
Under constituent part test, for determining constitutionality under supremacy clause of state use tax imposed upon contractor
dealing with federal government, incidence of use taxation does not fall upon constituent part of federal government when contractor is
privately-owned corporation, federal government does not run contractor's day-to-day activity, and government has no ownership
interest in contractor's operations. U.S. Const. art. 6, cl. 2.
OPINION
Per Curiam:
FACTS
In 1987, Reynolds Electrical and Engineering Company, Inc. (REEco) was acting as a
prime contracting agent of the United States Government/Department of Energy. In this
capacity, REEco solicited bids for the construction of a modular housing complex on the
Tonopah Test Range in Nye County, Nevada. The construction site was located on federal
land.
REEco sent a bid request to respondent Kelly-Ryan, Inc. (Kelly-Ryan), a Washington
State general contractor. Before submitting its bid, Kelly-Ryan wrote a letter to the Nevada
Department of Taxation seeking advice on the state taxation consequences of contracting
with REEco and the federal government. Kelly-Ryan presented three different contracting
scenarios. In its first inquiry, Kelly-Ryan asked about the tax consequences if it purchased the
modular housing units from an out-of-state manufacturer. The Nevada Department of
Taxation responded by advising Kelly-Ryan that under such an arrangement, it would have to
pay a use tax on the entire invoice price of the modular housing units purchased out of state.
Kelly-Ryan submitted a bid and later won the contracting rights to build the complex at the
test range. On July 7, 1987, Kelly-Ryan signed a contract with REEco. The agreement called
for the construction of seventeen buildings consisting of 500 sleeping rooms. Essentially,
Kelly-Ryan was to be paid a flat fee of $14,210,000.00.
In performance of its contract obligations with REEco, Kelly-Ryan entered into a
subcontract in Washington State with American Modular Systems, Inc. (American
Modular). American Modular manufactured and sold housing units to Kelly-Ryan in
Washington. Kelly-Ryan then transported these units to Nevada for further assembly and
installation.
Over the course of the next two years, Kelly-Ryan made several purchases from American
Modular totaling $8,656,830.00. In accordance with Nevada use tax laws and relying on the
advice it had received from the Nevada Department of Taxation, Kelly-Ryan submitted
quarterly use tax payments to the State of Nevada. The entire amount of use tax Kelly-Ryan
remitted equalled $511,606.83 or six percent of the $8,656,830.00 amount paid to American
Modular.
1

__________

1
This six percent taxation amount was adjusted for collection allowances and other credits.
In 1991, this court decided Scotsman Mfg. v. State, Dep't of Taxation, 107 Nev. 127, 808
P.2d 517 (1991), cert. denied,
------
U.S.
------
, 112 S.Ct. 1184 (1992) (Scotsman I). In
Scotsman I, we held that it was unconstitutional to impose a Nevada sales tax on the direct
sale of modular housing units from a manufacturer to an instrumentality of the United States
Government. In such a transaction, the sales tax fell directly upon the federal government in
violation of the Supremacy Clause of the United States Constitution. Scotsman I, 107 Nev. at
134, 808 P.2d at 521.
Relying upon the Scotsman I decision, Kelly-Ryan filed for a use tax refund from the
Nevada Department of Taxation on December 31, 1991. The Nevada Department of Taxation
rejected the claim by letter on January 17, 1992. Kelly-Ryan's petition for judicial review of
the department's decision was later rejected by the district court.
On February 20, 1992, Kelly-Ryan filed a declaratory action against appellants the State of
Nevada, the Nevada Department of Taxation, and the Nevada Tax Commission (collectively
the State) in the First Judicial District Court. Kelly-Ryan alleged that it was a retailer of
modular housing units to an instrumentality of the United States Government (REEco). Thus,
consistent with Scotsman I, Nevada taxation of that particular transaction was
unconstitutional.
Both the State and Kelly-Ryan moved for summary judgment. Kelly-Ryan's argument
rested upon what it asserted was the controlling authority of Scotsman I. The State responded
by claiming that Kelly-Ryan was not a retailer of tangible personal property. Rather,
Kelly-Ryan was a construction contractor subject to a use tax on all tangible personal
property used while performing its contract with REEco. The State claimed that the use tax
was directly imposed upon Kelly-Ryan and not an instrumentality of the federal government.
Therefore, federal tax immunity did not apply.
Alternatively, the State argued that Kelly-Ryan's request for a refund was procedurally
barred by NRS 372.635(1), which requires a taxpayer to request a refund within three years
after the close of the tax payment period. The State pointed out that Kelly-Ryan had paid
$426,454.96 in quarterly use taxes more than three years before it filed for an administrative
refund with the Nevada Department of Taxation on December 31, 1991.
On March 3, 1993, the district court partially ruled in Kelly-Ryan's favor. The court
examined the contracts between the Department of Energy, REEco, and Kelly-Ryan and
determined that Kelly-Ryan was acting as a retailer of tangible personal property to the
federal government. Thus, the use taxes paid, in reality, were unconstitutional sales taxes.
Kelly-Ryan had sold modular housing units to REEco, a taxable transaction no different
from the one found unconstitutional in Scotsman I.
modular housing units to REEco, a taxable transaction no different from the one found
unconstitutional in Scotsman I.
The district court deferred ruling on the State's procedural limitations argument until this
court delivered its opinion in State, Dep't of Taxation v. Scotsman Mfg., 109 Nev. 252, 849
P.2d 317 (1993) (Scotsman II).
2
Within the particular factual context of Scotsman II, we
concluded that a statute of limitations could not bar a taxpayer from obtaining a refund of
sales taxes unconstitutionally assessed against the federal government. Id.
On April 2, 1993, the district court entered final judgment in favor of Kelly-Ryan. In light
of its holding that Kelly-Ryan was unconstitutionally taxed, the district court concluded that
the statute of limitations could not bar the State from issuing a refund. Accordingly, the
district court ordered the State to refund the $511,606.83 in use taxes paid by Kelly-Ryan.
The State appeals and claims that the district court erred by misinterpreting Scotsman I and
Nevada's taxation laws. It argues that the tax at issue was a use tax directly imposed upon
Kelly-Ryan and not an unconstitutionally collected sales tax. We agree and accordingly
reverse the district court's decision.
DISCUSSION
Under Nevada law, sales and use taxes are complementary, yet mutually exclusive. Sales
tax applies to the sale of tangible personal property within the state. NRS 372.105.
Conversely, use tax applies to the use, storage, and consumption of tangible personal property
within the state. NRS 372.185. The amount of use tax equals a percentage of the invoice price
paid for goods used within Nevada.
3
The use tax complements the sales tax so that all
tangible personal property sold or utilized in Nevada is subject to taxation. Use taxation is
also a way for Nevada to tax transactions outside the state that would otherwise escape sales
taxation. The incidence of Nevada's use tax falls directly upon the party that makes the
out-of-state purchase and uses the property within the state.
[Headnotes 1-3]
It is well-settled under the Supremacy Clause of the United States Constitution that an
individual state cannot impose a tax directly upon the federal government. United States v.
New Mexico, 455 U.S. 720, 733 (1982); Scotsman I, 107 Nev. at 130, 808 P.2d at 519.
However, a state is not prohibited from imposing taxes directly upon a private entity that is
contracting with the federal government.
__________

2
Scotsman II involved the same underlying dispute as Scotsman I.

3
At the time of this dispute, the use and sales tax rates in Nye County equaled six percent of invoice.
federal government. In examining the constitutionality of state taxation under the Supremacy
Clause, the dispositive question is whether the incidence of taxation falls directly upon the
federal government or upon the private contracting entity.
In the instant appeal, the answer to this fundamental question hinges upon another inquiry:
Was Kelly-Ryan subject to a Nevada use tax or a Nevada sales tax? If Kelly-Ryan was merely
using modular housing units to obtain a profit under a commercial construction contract, then
the applicable tax was a use tax. Consequently, the taxable event was defined by Kelly-Ryan's
purchase of modular housing units from American Modular in Washington State and the use
of those products in Nevada. Under such a scenario, Kelly-Ryan would have the direct
taxation burden, and thus, the tax would be constitutional. See United States v. Boyd, 378
U.S. 39, 44 (1964) (state use taxes imposed on private contractors were constitutional even
where contractors were using government property in performing government contracts).
On the other hand, if Kelly-Ryan was only selling tangible personal property directly to
REEco, then the district court properly ruled that the State imposed an unconstitutional sales
tax on that particular transaction. This point is specifically illustrated by our opinion in
Scotsman I.
Due to the import of Scotsman I to the merits of this appeal, an extended examination of
that decision is warranted. In Scotsman I, Scotsman Manufacturing Company, Inc. entered
into a subcontract with REEco to supply modular housing units for construction on the
Tonopah Test Range. Scotsman Manufacturing was a California corporation that
manufactured modular housing units. Throughout the course of its dealings on the test range,
Scotsman Manufacturing collected a sales tax from REEco equalling a percentage of the
modular housing sales price. It paid these amounts to the Nevada Department of Taxation.
Scotsman Manufacturing later challenged the constitutionality of the tax in district court. The
district court entered summary judgment in favor of the State of Nevada, ruling that REEco
was not a constituent part of the United States and therefore the tax was not directly
imposed on the federal government. Scotsman I, 107 Nev. at 128-29, 808 P.2d at 518.
We reversed on appeal, reasoning that the district court erred by examining the sales tax
under the wrong constitutional frame-work. The district court improperly utilized the
constituent part test, which only applies when the court is considering the constitutionality
of a use tax. Id. at 133, 808 P.2d at 521. This court recognized that the tax at issue was a sales
tax. Scotsman Manufacturing was a retailer of tangible personal property, selling modular
housing units as a commodity to REEco. Therefore, the district court should have applied
"legal incidence" analysis to determine whether the sales taxation burden fell directly
upon an instrumentality of the federal government.
the district court should have applied legal incidence analysis to determine whether the
sales taxation burden fell directly upon an instrumentality of the federal government. Id.
We described the legal incidence standard as requiring examination of the following
factors: (1) whether the prime contractor (REEco) identified itself as a procurement agent of
the federal government; (2) whether title to the property sold passed directly to the United
States; (3) whether the purchase orders declared that the federal government was liable on the
sale; and (4) whether the prime contractor (REEco) was not directly liable to the
manufacturer for the payment of the purchase price. Id. at 131, 808 P.2d at 519-20 (citing
Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 119-22 (1954)). In application, it became
clear that REEco was an instrumentality of the federal government purchasing modular
housing units directly from Scotsman Manufacturing. Hence, taxation of that particular
transaction was prohibited by the Supremacy Clause of the United States Constitution. The
incidence of sales taxation fell directly upon the United States Government. Scotsman I, 107
Nev. at 134, 808 P.2d at 521.
[Headnote 4]
Even though Kelly-Ryan did not manufacture the housing units in the instant appeal, it
claims that it was selling tangible personal property to REEco. Thus, Kelly-Ryan urges that
the taxable transaction at issue is no different from the transaction found to be
unconstitutional in Scotsman I.
Kelly-Ryan supports this argument by asserting that the contract in Scotsman I and the
contractual arrangements in the present case are, for all intents and purposes, identical.
Kelly-Ryan attaches the Scotsman Manufacturing subcontract with REEco as an appendix to
its answering brief. Kelly-Ryan then cites boilerplate language from that subcontract and
concludes that the document is identical to the REEco/Kelly-Ryan contract in the case at bar.
Not only is this an improper reference to documentation outside the record, but
Kelly-Ryan's substantive conclusion is flawed. NRAP 28(e) (reference to pages in appendix
must be accompanied by reference to pertinent pages in record on appeal); see also Carson
Ready Mix v. First Nat'l Bk., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981) (court will not
consider evidence not appearing in the record on appeal). The Scotsman Manufacturing
subcontract was a purchase agreement between a manufacturer of modular housing and the
federal government. The federal government paid Scotsman Manufacturing on a per unit
basis. Scotsman Manufacturing's profit was derived from, and built into, the unit purchase
price.
The same cannot be said about the Kelly-Ryan/REEco contract. Kelly-Ryan was paid a flat
fee for the construction of a modular housing complex. The amount of compensation listed in
the contract does not depend upon any type of unit pricing. In fact, the price of an individual
housing unit is not mentioned anywhere in the document. Kelly-Ryan did not derive its profit
from the sale of a product that it manufactured. Rather, Kelly-Ryan obtained its profit from
using housing units that it purchased from American Modular to complete its construction
contract with REEco. See Maecon, Inc. v. State, Dep't of Taxation, 104 Nev. 487, 761 P.2d
411 (1988) (general engineering subcontractor was subject to Nevada use tax for use of
materials in performance of its contract with the United States Government, Department of
the Navy).
In light of this fact, Nevada's taxation laws clearly provided that Kelly-Ryan was subject to
a use tax when it purchased modular housing units from American Modular in Washington
State. Under NRS 372.185, a use tax is imposed upon the storage, use or other consumption
in this state of tangible personal property. The tax applies to all property which was acquired
out of state in a transaction that would have been a taxable sale if it had occurred within this
state. Moreover, under NRS 372.225, it is presumed that tangible personal property sold by
any person for delivery in this state is sold for storage, use or other consumption in this state
until the contrary is established.
Complementing these statutes, NAC 372.200(1) subjects all construction contractors to a
use tax for the use of tangible personal property in improving real property:
A construction contractor is the consumer of all the tangible personal property
purchased for use in improving real property pursuant to a construction contract for
improvement to real property and the tax applies to the total sales price of the property
to the contractor.
(Emphasis added.)
At the time of the subject dispute, NAC 372.190 defined these terms with the following
pertinent language:
372.190 Construction contractors: Definitions. For the purposes of NAC 372.190
to 372.210, inclusive:
1. Construction contractor means any person who acts solely in his professional
capacity or through others to construct, alter, repair, add to, remodel or otherwise
improve any real property and the term:
(a) Includes a subcontractor, an interior decorator and a specialty contractor.
(b) Does not include:
. . .
(4) A manufacturer of:
(I) Modular homes;
(II) Sectionalized housing;
(III) Prefabricated homes; or
(IV) Any other factory-built home or unit, who joins, installs or affixes the
prefabricated unit to the real property.
2. Construction contract for improvement to real property means a contract for
erecting, constructing or affixing a structure or other improvement on or to real
property . . . .
(Emphasis added.)
In the instant case, we conclude that Kelly-Ryan was clearly acting as a construction
contractor improving real property and was therefore required to pay a use tax. First, the
definition of a construction contract for the improvement of real property includes affixing a
structure or other improvement on or to real property. This is precisely what Kelly-Ryan was
doing on the Tonopah Test Range. Second, it is undisputed that Kelly-Ryan was not a
manufacturer of the modular housing units. It purchased such units from American Modular
in Washington. Thus, Kelly-Ryan did not fall within the specific exclusion to the definition of
a construction contractor appearing above in NAC 372.190(1)(b)(4).
Third, as early as May 26, 1987, the Nevada Department of Taxation informed Kelly-Ryan
that it would have to pay use tax on modular housing purchases it made from an out-of-state
vendor in fulfilling its contract with REEco. Fourth, Kelly-Ryan registered as a general
construction contractor and not as a retailer when it first started doing business in Nevada.
Lastly, Kelly-Ryan remitted two years of quarterly use taxes on use taxation forms. It was not
charging or remitting sales tax.
Kelly-Ryan tries to combat this analysis with an argument that glosses over a plain reading
of the statutes and regulations. Kelly-Ryan claims that it falls within the exclusion of NAC
372.190(1)(b)(4) even though the language only applies to manufacturers of modular
housing. It asserts that the spirit of the exclusion includes its contractual duties with REEco
and that such a hyper-technical reading of the regulation cannot support circumvention of
federal tax immunity.
4

__________

4
Kelly-Ryan cites this court's opinion in Nevada Tax Comm'n v. Harker, 101 Nev. 229, 232, 699 P.2d 112, 114
(1985), for this general proposition. There, the court held that a contractor could not be charged a use tax
because it did not exercise complete ownership over the property used in fulfilling its government contract. The
case hinged upon NRS 372.100, which required ownership before a use tax applied. NRS 372.100 was
repealed in November 1986 along with other changes to Nevada use tax law. 1985 Stat. Nev. ch. 513, sec. 3, p.
1563.
The change in the law drastically undermines the holding in Harker.
Kelly-Ryan's argument lacks merit. The United States Supreme Court in recent opinions
has held that a state can in fact circumvent federal taxation immunity by shifting the direct
taxation burden away from the government and imposing it directly upon the contractor in the
form of a use tax. See, e.g., United States v. California,
------
U.S.
------
,
------
, 113 S.Ct.
1784, 1788 (1993); Washington v. United States, 460 U.S. 536 (1983) (Washington tax
scheme that shifted sales and use tax burdens to contractor when contractor dealt with federal
government was not an unconstitutional circumvention of federal tax immunity). A plain
reading of the regulations and the statutes at issue leads to the conclusion that this is precisely
what is contemplated by Nevada's taxation laws.
In light of the foregoing, we conclude that Kelly-Ryan properly paid use taxes for the
utilization of modular housing units that it had purchased out of state from American
Modular. Kelly-Ryan was not a manufacturer of modular housing merely selling a product to
an instrumentality of the federal government. This conclusion removes this dispute from the
purview of Scotsman I and has a profound impact on the substantive constitutional analysis
necessary for resolving this appeal. Stated differently, finding that Kelly-Ryan was subject to
Nevada use taxes defines the taxable event to be constitutionally examined. Contrary to the
district court's decision, the taxable event was not the transactions between Kelly-Ryan and
REEco, but rather, the transactions between Kelly-Ryan and American Modular. See
Scotsman I, 107 Nev. at 130, 808 P.2d at 519 (court recognizing critical difference between
constitutional analysis of sales and use taxes).
[Headnotes 5-7]
As we have indicated, a state may constitutionally impose a use tax on a contractor that
uses tangible personal propeny in the performance of a contract with the federal government.
See, e.g., New Mexico, 455 U.S. at 739. It makes no difference whether title to such property
is vested in the United States or the non-agent contractor. Boyd, 378 U.S. at 44. In addition, it
is constitutionally irrelevant that the United States shoulders the entire economic tax
burden by reimbursing the non-agent contractor for expenditures. California,
------
U.S. at
------
, 113 S.Ct. at 1788. The only relevant determination is whether the tax burden falls
directly upon the government. Id.
__________
Under the current status of Nevada tax law, complete ownership of property is no longer required before the
state can impose a use tax on an entity contracting with the federal government. See Maecon, 104 Nev. at 492,
761 P.2d at 413-14 (contractor could be charged tax for use of construction materials, even where title to
materials vested in the Navy upon arrival at the job site).
[Headnote 8]
Application of these principles to the instant appeal is succinctly illustrated by federal
circuit court precedent almost directly on point. In In Re Howell, 731 F.2d 624 (9th Cir.),
cert. denied, 496 U.S. 933 (1984), Howell Electric Company (Howell) was a California
electrical contractor doing business with the United States. Under California law, Howell was
subject to sales and use taxes on materials that it purchased for fulfilling its government
contract. Howell went into bankruptcy and challenged the constitutionality of the taxes in
bankruptcy court. In an eventual appeal to the Ninth Circuit Court of Appeals, Howell
claimed that the taxes were impermissible because they fell directly upon the federal
government.
The court of appeals disagreed and upheld the taxes as being constitutional. In Re Howell,
731 F.2d at 628. The court reasoned that the taxable transaction was not the sale of materials
to the government, but rather, the sales transaction between Howell and its supplier:
The cases cited by Howell [footnote omitted] to demonstrate instances in which taxes
have been struck down as direct taxes on the United States are inapposite. Each of those
cases involved the taxation of a direct transaction between the United States and some
instrumentality. In each instance, the court found that the legal incidence of the tax
fell upon the United States and thus was impermissible. Here, the transaction between
Howell and the United States is not taxed at all; the tax is imposed on the transfer of
property from a supplier to Howell.
Id. (emphasis added).
[Headnotes 9, 10]
As evidenced by Howell and the other above-noted precedent, state use taxes directly
imposed upon the entity dealing with the federal government are constitutional. The only
exception to this proposition is where the contractor subject to the use tax is a constituent
part of the federal government. Scotsman I, 107 Nev. at 132-33, 808 P.2d at 520.
[Headnotes 11, 12]
Kelly-Ryan was not a constituent part of the United States when it purchased modular
housing units from American Modular. This fact is not in dispute. Kelly-Ryan is a privately
owned corporation; the federal government does not run Kelly-Ryan's day-to-day operations,
nor does the federal government have an ownership interest in Kelly-Ryan.
5

__________

5
The constituent part test, as described by the Supreme Court in New Mexico, 455 U.S. at 739-40, only
applies when a court is examining the
CONCLUSION
In light of the foregoing, we conclude that the district court erred in its interpretation and
application of Nevada tax law and Scotsman I. Kelly-Ryan fell squarely within the definition
of a construction contractor and was required to pay a Nevada use tax on modular housing
unit purchases made from an out-of-state vendor. Thus, the incidence of Nevada taxation fell
upon Kelly-Ryan and not the federal government. Accordingly, we reverse the district court's
decision and remand with instructions that judgment be entered in favor of the State.
Having disposed of this appeal on substantive grounds, we need not address the merits of
the State's procedural argument.
____________
110 Nev. 287, 287 (1994) Weintraub v. State
LLOYD GARY WEINTRAUB, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24504
March 30, 1994 871 P.2d 339
Appeal from a judgment of conviction of possession of a controlled substance. Ninth
Judicial District Court, Douglas County; David R. Gamble, Judge.
The supreme court held that inventory produced by officer was not true inventory of
defendant's personal property in his vehicle and thus, officer's search of vehicle did not
qualify as valid inventory search.
Reversed.
Joseph I. Cronin, Minden, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W Doyle, District Attorney,
Kristine L. Brown, Deputy District Attorney, Douglas County, for Respondent.
Police officers need not comply with Fourth Amendment's probable cause and warrant requirements when they are conducting
inventory search of automobile in order to further some legitimate caretaking function. U.S. Const. amend. 4.
__________
constitutionality of a use tax. Thereunder, the incidence of use taxation does not fall upon a constituent part of the federal government
where (1) the contractor is a privately owned corporation; (2) the federal government does not run the contractors' day-to-day activity; and
(3) the government has no ownership interest in the contractors' operations. New Mexico, 455 U.S. at 739-40; see also Scotsman I, 107
Nev. at 132-33, 808 P.2d at 520.
Inventory search of automobile must be carried out pursuant to standardized official department procedures and must be
administered in good faith in order to pass constitutional muster. U.S. Const. amend, 4.
Inventory of automobile listing some eight items was not true inventory of defendant's personal property in vehicle since
defendant's vehicle contained approximately 100 items, including valuable items that one would expect to appear on reasonable
inventory list such as defendant's wallet which contained money and identification and $150 in cash found in center console, and thus,
officer's search of defendant's vehicle did not qualify as valid inventory search. U.S. Const. amend 4.
OPINION
Per Curiam:
Appellant Lloyd Gary Weintraub was arrested by Douglas County Sheriff's Deputy Michael Nicholas for driving under the influence.
Deputy Nicholas testified that he instructed a fellow officer, Deputy Kumagai, to impound Weintraub's vehicle. Deputy Kumagai then
searched the trunk of the vehicle and found a plastic bag containing marijuana, inside a See's candy bag, which was inside a cardboard box.
Deputy Kumagai testified that he stopped searching as soon as he found the marijuana. Deputy Kumagai subsequently impounded the
vehicle and filled out an impound report.
Weintraub was charged with one count of possession of a controlled substance. He then filed a pre-trial motion to suppress the
marijuana, asserting that it was seized in violation of his Fourth Amendment rights. The State responded that the marijuana was found
during a routine inventory search, and that therefore the Fourth Amendment's warrant requirements did not apply. The district court denied
Weintraub's pretrial motion to suppress the marijuana, and Weintraub entered a conditional plea of guilty which preserved his right to
appeal the district court's decision to allow the marijuana into evidence. On appeal Weintraub argues that Deputy Kumagai's search does
not fall within the inventory search exception to the Fourth Amendment's warrant requirement.
[Headnotes 1, 2]
It is well-established that police officers need not comply with the Fourth Amendment's probable cause and warrant requirements when
they are conducting an inventory search of an automobile in order to further some legitimate caretaking function. See, e.g., South Dakota v.
Opperman, 428 U.S. 364 (1976). The inventory search must be carried out pursuant to standardized official department procedures and
must be administered in good faith in order to pass constitutional muster. Colorado v. Bertine, 479 U.S. 367, 374 (1987).
The Douglas County Sheriff's Office has such an official department policy regarding
inventory searches; Weintraub argues, however, that the Douglas County Sheriff's Office may
not take refuge behind its policy regarding inventory searches in this case because Deputy
Kumagai's inventory search was merely a ruse for conducting an otherwise impermissible
search.
This court has held that a police officer must produce an actual inventory when she or he
conducts an inventory search. State v. Greenwald, 109 Nev. 808, 858 P.2d 36 (1993)
(following Florida v. Wells, 495 U.S. 1, 4 (1990) (holding that a policy or practice
governing inventory searches should be designed to produce an inventory)). Without an
inventory, opined the Greenwald court, we can have no inventory search. l09 Nev. at 811,
858 P.2d at 38 (citation omitted).
[Headnote 3]
The inventory prepared by Deputy Kumagai the night of Weintraub's arrest lists some
eight items: a yellow flashlight, a red flashlight, six silver gas cans, a dipper, a
black rag, numerous clothing, misc[ellaneous] tools, a black briefcase and
misc[ellaneous] papers. Weintraub's vehicle contained approximately one hundred items
including valuable items that one would expect to appear on any reasonable inventory list,
such as Weintraub's wallet which contained money and identification, an additional $150.00
in cash found in the center console, and an adding machine. In fact, even the district court
found that the purposes of an inventoryprotecting the car owner's property, protecting the
police against charges of theft, and protecting the police from possible dangerwere not met
by the instant search.
We conclude that because the inventory produced by the officer cannot be fairly and
accurately described as a true inventory of the personal property in the vehicle, the instant
search does not qualify as a valid inventory search. The district court therefore erred in
admitting the marijuana seized from Weintraub's vehicle. The judgment of conviction is
reversed.
____________
110 Nev. 289, 289 (1994) Bellows v. State
MARION HENRY BELLOWS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21923
March 30, 1994 871 P.2d 340
Appeal from a judgment of conviction pursuant to a jury verdict of one count of second
degree murder. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
The supreme court held that new trial was not appropriate since defendant's escape prior to
sentencing and appeal had led to loss of his trial transcripts.
Dismissed.
Philip H. Dunleavy, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant is normally entitled to new trial if trial transcript has been lost or destroyed and transcript cannot be adequately
reconstructed.
2. Criminal Law.
New trial was not appropriate since defendant's escape prior to sentencing and appeal had led to loss of his trial transcripts.
Defendant could not benefit from his attempt to elude the law.
3. Criminal Law.
Not every case involving convicted defendant who escapes prior to sentencing and appeal requires dismissal. Dismissal is
appropriate in those cases in which escaped defendant's conduct significantly interferes with operation of the appellate process and
substantial interference with appellate process occurs when escape results in loss of trial transcript.
4. Criminal Law.
When escape results in loss of trial transcript, no persuasive reason exists why supreme court should proceed to adjudicate merits
of case after convicted defendant escapes from restraints placed upon him pursuant to conviction.
OPINION
Per Curiam:
On September 30, 1982, a jury found appellant guilty of one count of second degree murder. The district court apparently granted
appellant bail prior to the sentencing hearing. Appellant absconded while on bail. Authorities located appellant in Georgia almost eight
years later on February 1, 1990. Appellant was then extradited to this state.
On June 12, 1990, the district court sentenced appellant to a term in the Nevada State Prison of fifteen years for murder and a
consecutive term of fifteen years for the use of a deadly weapon. The district court also ordered appellant to pay restitution in the amount of
$3,324.37. This appeal followed.
After filing the notice of appeal, appellant's counsel filed a motion with the district court to withdraw. Although the appeal had been
docketed in this court, the district court, acting without authority, purported to grant the motion. On June 21, 1991, this court dismissed
appellant's appeal because of his counsel's failure to file an opening brief and to respond to orders of this
court.
court dismissed appellant's appeal because of his counsel's failure to file an opening brief and
to respond to orders of this court. Bellows v. State, Docket No. 21923 (Order Dismissing
Appeal, June 21, 1991).
On December 27, 1991, appellant filed a proper person motion in this court to compel the
production of the transcript of his trial and to appoint appellate counsel. In his motion,
appellant explained the circumstances concerning the withdrawal of his former counsel.
Appellant also indicated that either the district court refused to send him the transcript of his
trial or that his former counsel had lost the transcript.
Appellant subsequently learned that the clerk of the district court stored the transcripts of
appellant's trial for several years and then destroyed the transcripts pursuant to the clerk's
normal procedures. The court reporter at appellant's trial also destroyed his notes after he left
the employ of the district court.
After learning of the peculiar circumstances regarding the withdrawal of appellant's
counsel, this court reinstated appellant's appeal on February 20, 1992. The order reinstating
the appeal also directed the district court to appoint appellate counsel to assist appellant. The
district court complied with this court's order and appellant is now represented by counsel.
DISCUSSION
[Headnote 1]
Appellant contends that this court must order the district court to conduct a new trial
because the loss of the trial transcripts has effectively denied him his right to appeal his
conviction. A criminal defendant is normally entitled to a new trial if a trial transcript has
been lost or destroyed and the transcript cannot be adequately reconstructed pursuant to
NRAP l0(c).
1
Lopez v. State, 105 Nev. 68, 74, 769 P.2d 1276, 1280 (1989). Appellant
contends that he must receive a new trial because no record of his trial exists and the trial
transcript cannot be reconstructed.
[Headnote 2]
A new trial is not appropriate under the circumstances of this case.
__________

1
NRAP 10(c) provides:
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable,
the appellant may prepare a statement of the evidence or proceedings from the best available means,
including his recollection. The statement shall be served on the respondent, who may serve objections or
propose amendments thereto within ten (10) days after service. Thereupon the statement and any
objections or proposed amendments shall be submitted to the district court for settlement and approval
and as settled and approved shall be included by the clerk of the district court in the record on appeal.
case. In Arvey v. State, 94 Nev. 566, 583 P.2d 1086 (1978), we addressed an almost identical
situation as this case and concluded that the appellant could not pursue an appeal following
an escape. In that case, a convicted defendant absconded while on bail pending appeal. Id. at
567, 583 P.2d at 1087. The state then moved to dismiss the appeal. This court reasoned that
[a]n appellate court is vested with broad discretion in its disposition of appeals by escaped
convicted felons. Id. This court then granted the state's motion to dismiss and ordered the
appellant's bail forfeited.
Arvey can be distinguished from this case because appellant escaped prior to sentencing
and before this court had jurisdiction over his appeal. Nevertheless, several state and federal
courts have ruled that appellants abandon their right to appeal when they escape regardless of
whether the escape occurred before or after perfecting an appeal. See, e.g., Subel v. State, 567
So.2d 404 (Ala.Crim.App. 1990); State v. Gurican, 576 So.2d 709, 712 (Fla. 1991). Sound
policies support these decisions.
Allowing an appeal after an escape flouts the judicial process and encourages other
prisoners to escape. United States v. Persico, 853 F.2d 134, 137 (2nd Cir. 1988); see also
United States v. Holmes, 680 F.2d 1372, 1374 (11th Cir. 1982), cert. denied, 460 U.S. 1015
(1983); State v. Gurican, 576 So.2d 709, 712 (Fla. 1991). In addition, the delay in prosecuting
an appeal caused by an escape may result in lost or destroyed records such as in this case.
Delays caused by an escape further increase the difficulty of conducting a new trial because
evidence may become lost or stale and memories fade.
[Headnote 3]
The United States Supreme Court has recently ruled in a case involving federal criminal
procedure that escaping prior to sentencing and before appeal does not necessarily result in
dismissal of an appeal. The court ruled that dismissal is appropriate when the escape renders
a meaningful appeal impossible or disrupt[s] the appellate process so that an appellate
sanction is reasonably imposed. Ortega-Rodriguez v. United States,
------

U.S.
------
,
------
, 113 S.Ct. 1199, 1208-09 (1993). We agree that not every case involving a convicted
defendant who escapes prior to sentencing and appeal requires dismissal. Instead, dismissal is
appropriate in those cases in which the escaped defendant's conduct significantly interferes
with the operation of the appellate process. Id. at
------
, 113 S.Ct. at 1209.
When an escape results in the loss of a trial transcript, a substantial interference with the
appellate process results. We thus adopt the reasoning in State v. Moore, 534 P.2d 1124
(N.M.Ct.App. 1975), which we cited with approval in Lopez v. State, 105 Nev. 6S, 74
State, 105 Nev. 68, 74, 769 P.2d 1276, 1280 (1989). The New Mexico Court of Appeals
suggested that the following three factors be considered when determining whether to grant a
new trial after a trial transcript has been lost or destroyed: (1) whether the appellant has
complied with the procedures for perfecting an appeal; (2) whether the transcript can be
reconstructed; and (3) whether the appellant's conduct has led to the inability to obtain the
transcript. Id. at 1125.
Because appellant's absence led to the loss of his trial transcripts, he may not benefit from
his attempt to elude the law. Allowing appellant to avoid any negative repercussions from his
escape operates as an affront to the dignity of [this] court's proceedings. Ortega-Rodriguez,
------
U.S. at
------
, 113 S.Ct. at 1207. When an escape results in the loss of a trial transcript,
[n]o persuasive reason exists why this Court should proceed to adjudicate the merits of a
criminal case after the convicted defendant . . . escapes from the restraints placed upon him
pursuant to the conviction. Molinaro v. United States, 396 U.S. 365, 366 (1970).
Accordingly, we dismiss this appeal. See Arvey v. State, 94 Nev. 566, 567, 583 P.2d 1086,
1087 (1978).
____________
110 Nev. 293, 293 (1994) Pearson v. Pearson
GALE LAWRENCE PEARSON, Appellant, v. THOMAS M. PEARSON, Respondent.
No. 23635
March 30, 1994 871 P.2d 343
Appeal from custody order. Second Judicial District Court, Washoe County; Jerry Carr
Whitehead, Judge.
Mother filed divorce action. The district court awarded permanent physical custody of
children to father, and mother appealed. The supreme court, Steffen, J., held that serious
nature of child custody determination and fact that mother may have received inadequate
representation by virtue of her counsel's filing form requesting submission of matter to trial
court for decision warranted remand of matter so that mother could voice her views prior to a
permanent custody determination.
Richard W. Young, Reno, for Appellant.
Ronald J. Logar, Reno, for Respondent.
1. Divorce.
Since Mother's attorney filed form requesting submission of child custody matter to trial court for decision, mother could not be
heard to complain on appeal of trial court's decision which resulted from her own attorney's request.
2. Divorce.
Serious nature of child custody determination and fact that mother may have received inadequate representation precluding her
from presenting her position at a hearing by virtue of her counsel's filing form requesting submission of child custody matter to trial
court for decision warranted remand of child custody matter so that mother could voice her views prior to a permanent custody
determination.
OPINION
By the Court, Steffen, J.:
Appellant, Gale Lawrence Pearson (Lawrence), filed a complaint for divorce against respondent Thomas M. Pearson (Pearson). In
an atmosphere of hostility between the parties, the district court issued a divorce decree and a temporary order of custody requiring both
parties to submit reports regarding permanent custody. A psychological report was also received by the district court. Based upon preceding
court hearings, the reports and filings of both parties and the psychological report, the district court awarded permanent physical custody to
Pearson. Lawrence appeals, claiming no notice or opportunity to be heard and improper ex parte communication between the judge and the
psychologist. For reasons unrelated to the rulings of the district court judge, we reverse and remand this matter to the Washoe County
Family Court for a custody hearing.
STATEMENT OF FACTS
Lawrence and Pearson were united in marriage in 1977 and later two children blessed their union. However, in 1988, while Lawrence
was in medical school at the University of Nevada, Reno, the marriage soured and divorce proceedings were initiated. The desire of each
parent to obtain primary physical custody of the children has been hotly disputed and forms the basis for this appeal. On August 14, 1990,
after nearly two years of discordant hearings and interactions between the parties (and to an extent counsel), the district court issued its
findings of fact, conclusions of law, judgment and decree of divorce. The district court indicated that the custody provisions, as set forth in
the decree, were temporary and that custody would be reevaluated one year later. In addition, the district court ordered both parties to
submit a report to the court pointing out specific efforts made during the preceding year to facilitate a better environment
for the children.
during the preceding year to facilitate a better environment for the children.
In accordance with the divorce decree, both parties filed their respective reports with the
district court in May of 1991. Several months later, each party filed a Request for
Submission of Motion. Under the rules of court pursuant to which the form notice was
provided, the form request was used to inform the court that the matter was being submitted
for decision by the court. See Second District Court Rule 12.
In March of 1992, at the direction of the district court, Dr. Robert McQueen began
evaluations of Pearson, Claudia (Pearson's new wife), the Pearson children and Claudia's
daughter. Lawrence received a letter from Dr. McQueen dated March 30, 1992, inviting her to
meet with him at her convenience, mornings, afternoons, evenings or weekends, and advised
her that he would be submitting his report to Judge Whitehead during the first half of May.
Lawrence failed to respond to Dr. McQueen's invitation. Nearly two months later, Lawrence's
attorney, Richard Young, sent a letter to Dr. McQueen dated May 26, 1992, advising him that
Lawrence would be quite willing to interview with you [Dr. McQueen] to assist in any way
possible. However, by that time, the report had already been submitted to the district court.
Remarkably, no further action was taken by Young until the district court issued the order
from which this appeal is taken.
The purpose of Dr. McQueen's evaluation was to assist the court in reaching a custody
determination. See NRS 125.490(3). The record indicates that Dr. McQueen retained the
assistance of Dr. Helen L. Krell, Associate Clinical Professor of Psychiatry, University of
California Davis Medical School, who had previously evaluated and provided treatment for
the elder Pearson child. A letter from Dr. McQueen to Lawrence's attorney indicates that this
report was completed and delivered to Judge Whitehead a day or two before May 15th,
1992.
On July 23, 1992, the district court filed its order which modified the temporary custody
order of August 14, 1990, and provided that Pearson would have primary physical custody.
The July 23rd order provoked this appeal by Lawrence. She alleges that the district court's
failure to provide notice and a hearing prior to determining the issue of primary custody
violated her constitutional due process rights. Additionally, Lawrence contends that the
district court's reliance on the reports, which were not provided to the parties, inappropriately
prevented her from testing their validity by cross-examining the individuals who prepared
them. Finally, she alleges that because Judge Whitehead reviewed a phantom and/or fugitive
report that he in some way placed himself in a position of bias that requires his
disqualification in the event this court decides to remand the matter for further
proceedings.
placed himself in a position of bias that requires his disqualification in the event this court
decides to remand the matter for further proceedings.
DISCUSSION
Lawrence contends that her due process rights were ignored because she did not receive
notice, a hearing or the right to be heard prior to the court's determination of custody. We
conclude that this assertion is at best disingenuous.
The record makes it abundantly clear that as early as August 31, 1989, Judge Whitehead
was contemplating the appointment of an independent expert to assist him in reaching a
custody determination.
1
(See Appendix A.) It is equally clear, contrary to attorney Young's
representations at oral argument, that both parties were fully aware of the fact that the court
would invite an independent psychological evaluation which would be submitted directly to
the court. Moreover, as indicated above, in March of 1992, Dr. McQueen sent Lawrence a
letter informing her of the evaluations and inviting her to participate at any time convenient to
her schedule.
Presumably advised by Lawrence that a report was to be submitted to Judge Whitehead in
the first half of May, Young did not respond to the doctor until May 26, 1992. Dr. McQueen
answered Young's letter from his Colorado vacation spot indicating, in part:
When I received no response from [Lawrence] to my letter I frankly felt it would be
presumptuous of me to press her further and I did not do so. I did, however, continue
the schedule of meetings I had outlined in my letter to her and a report of those
interviews was delivered to Judge Whitehead's chambers a day or two before May 15th,
1992 (emphasis added).
It is thus clear that Lawrence and her counsel did in fact know that psychological
evaluations had been taking place and that a report had been delivered to Judge Whitehead. If
Lawrence was as surprised and outraged over the submission of Dr. McQueen's report as her
counsel indicated at oral argument, she should understand that Young did nothing to express
his or his client's concern to the district court judge regarding the submission of the report.
__________

1
The actions of the district court are sanctioned by NRS 125.490(3), which provides:
3. For assistance in making a determination whether an award of joint custody is appropriate, the court
may direct that an investigation be conducted.
report. Furthermore, Young admitted that no contact was made with the district court to
ascertain the whereabouts or the contents of the psychological report, nor did he request a
copy of the report or a hearing to discuss the substance of the report.
We are troubled by the combination of Young's inaction and his unsupported, strident and
reckless comments against the district court judge expressed in his appellate briefs and at oral
argument. As an attorney with extensive experience in family law, Young must know the
procedures necessary to protect his client's rights. It ill behooves counsel to attempt to shift
the blame for his own derelictions on to the trial judge whose diligence and fairness in this
matter is amply attested to in the record. The record clearly reveals that if indeed there were
any deficiencies in the proceedings below, they were clearly invited by Young's acts of
commission and omission.
[Headnote 1]
The doctrine of invited error embodies the principle that a party will not be heard
to complain on appeal of errors which he himself induced or provoked the court or the
opposite party to commit. It has been held that for the doctrine of invited error to apply
it is sufficient that the party who on appeal complains of the error has contributed to it.
In most cases application of the doctrine has been based on affirmative conduct
inducing the action complained of, but occasionally a failure to act has been referred to.
5 Am.Jur.2d Appeal and Error 713 (1962), pp. 159-60. See People v. Marshall, 790 P.2d
676, 687 (Cal. 1990), cert. denied, 1110 (1991); Pettingill v. Perkins, 272 P.2d 185, 186
(Utah 1954). Furthermore:
The rule that error induced or invited by the appellant is not a proper subject of review
on appeal has been applied, in both civil and criminal cases, to a large variety of trial
errors, including claimed misconduct of the judge, or alleged error having to do with
the jury.
5 Am.Jur.2d Appeal and Error 721 (1962), p. 165. Since Young, on behalf of his client,
filed the form requesting submission of the matter to the court for decision, Lawrence may
not be heard to complain of the decision which resulted from her own attorney's request.
Nevertheless, and despite Young's failure to provide a basis for relief for his client on appeal,
we have elected to remand this action for other reasons.
At the outset of his argument on appeal, Young launched an unseemly attack on the trial
judge and attempted to bury his own derelictions in the din.
derelictions in the din. Young thus attempted to portray the trial judge as having engaged in a
secret maneuver to deprive Lawrence of her right to due process in the contest for custody
of the children. The record is utterly devoid of support for Young's effusive and irresponsible
comments. We are nevertheless left with an attorney's public representation that his client, the
mother of the children whose interests are paramount to this court, as they obviously were to
Judge Whitehead, did not have an opportunity to personally urge her position on the subject
of custody in the district court. It is clear from the record that Judge Whitehead never denied
Lawrence a hearing and there is no reason to assume that the judge would have refused
Lawrence a hearing if her attorney had been motivated to ask for one rather than do nothing
other than stand on the form previously filed requesting that the matter be submitted for
decision. Nevertheless, given the seriousness of issues of custody of children and the fact that
Lawrence did not previously take advantage of seeking a hearing prior to the court's decision
on the issue of custody (and now erroneously claims that she was denied that opportunity), we
are forced to consider whether perceptions of justice may have been obscured by the distorted
picture painted by Young in his briefs and during oral argument.
Mr. Young insisted that the psychologist's report came out of the clear blue sky.
However, Young's statement is thoroughly belied by the record. Lawrence and her counsel
were well aware of the appointment of an independent psychologist, both through discussion
with the court and, as noted above, through direct correspondence with Dr. McQueen.
Moreover, with the exception of one psychologist, attorney Young stated to Judge Whitehead
that he did not care who the judge appointed to conduct the evaluation.
We attach by way of an appendix to this opinion a transcript of contradictory statements
made by Young at oral argument. (See Appendix B.) A careful review of all documents
before us indicates that Judge Whitehead set forth a procedure whereby permanent custody
would be determined, complete with a provision for a hearing. Pursuant to that procedure,
Pearson and Lawrence filed their reports on May 2, 1991, and May 21, 1991, respectively. At
the time of filing, Young attached a cover page to his client's report which reads: Plaintiff,
GALE LAWRENCE PEARSON, by and through her attorney, RICHARD W. YOUNG,
ESQUIRE, hereby respectfully submits her written report, with exhibits attached thereto.
Over two months after the filing of the aforementioned reports, Pearson and Lawrence
both filed a Request for Submission of Motion" which instructs the court that the
"above-entitled matter be submitted to the Court for decision."
Motion which instructs the court that the above-entitled matter be submitted to the Court
for decision. (Emphasis added.) Thereafter, the district court did precisely what was asked of
it. Incredibly, at oral argument Young attempted to persuade this court that, despite his
extensive experience in family law, he felt that the form he used was the only way to submit
something to the court. We reject as inherently unbelievable counsel's explanation for using
the printed form, the purpose for which is clear on its face, over two months after he had
submitted the Lawrence report to the court with the cover sheet referred to above.
Approximately one year after counsel had submitted the matter, the report of Dr. McQueen
was sent directly to Judge Whitehead according to the procedure which had previously been
explained and agreed upon by counsel. It is evident, and we so conclude, that Judge
Whitehead, upon seeing form requests from both parties for a decision, properly proceeded to
issue a permanent custody order as requested by counsel. Moreover, the procedure which the
judge outlined, and which was approved by counsel, was followed until the court received,
from both parties, requests that the matter be submitted to the court for decision.
In order to maintain an orderly flow of cases through the judicial system, the district court
must be able to rely upon the procedural requests of counsel in resolving matters. To assume
that Judge Whitehead or any other district court judge could have divined Young's
unexpressed and contradictory intent to have a hearing from the plain terms of the submission
form is, at best, totally unrealistic. Moreover, the travesty is compounded by attempting to
blame the district judge for not somehow sensing the thought processes of counsel and
scheduling a hearing contrary to the written request that the matter be submitted for a
decision.
[Headnote 2]
In light of the serious nature of a child custody determination and because of the
inadequate representation received by Lawrence, which may have precluded her from
presenting her position at a hearing, we feel constrained to remand this matter so that she may
voice her views prior to a permanent custody determination.
The Washoe County Family Court was created on January 4, 1993, and empowered with
exclusive jurisdiction to preside over child custody matters. See NRS 3.0105 and NRS 3.223.
Although Judge Whitehead could properly complete this custody determination that he has
presided over for such a lengthy period, we do not consider it fair to him that he do so. This
matter has been sufficiently tainted by distorted public comments to make it extremely
difficult for the judge to carry out his responsibilities in an atmosphere conducive to an
objective determination of the best interests of the children.
extremely difficult for the judge to carry out his responsibilities in an atmosphere conducive
to an objective determination of the best interests of the children. We nevertheless encourage
the family court, upon remand, to become intimately familiar with the voluminous record of
prior proceedings in this matter. Great expenditures of time, energy and scarce financial and
judicial resources have resulted from the bitter perpetuation of this litigation. Moreover, the
acrimony exhibited in this particular case has given rise to what may fairly be described as
inappropriate conduct. The family court should carefully scrutinize this conduct in an effort to
reach a custody resolution which will best serve the interests of the Pearson children. We also
note that we remand this matter with a substantial degree of reluctance given Lawrence's
failure to participate in the interviewing process with Dr. McQueen and Young's derelictions
and lack of candor as an officer of the court.
CONCLUSION
After careful review of the record and oral argument, we conclude that the district court
acted properly in this action and genuinely sought to promote the best interests of the children
in an atmosphere otherwise only incidentally attuned to their welfare. We nevertheless
conclude, for reasons stated above, that the order issued below will be vacated and the matter
remanded to the family court for further proceedings consistent with this opinion. In the
interim, however, the children shall remain in the custody of Pearson in accordance with the
district court's determination. The family court is directed to thoughtfully consider all relevant
documentation before it and to conduct a hearing for the purpose of determining the parent
best suited to have primary custody of the children.
2

Young, and Springer, JJ., concur.
__________

2
The concurring opinion concluding that the district judge did not follow the law draws inferences unwarranted
from the record. Although it is true that the procedures outlined in the trial held in August 1989 and in the
August 1990 decree were not followed, it is clear that the deviation resulted from further discussions between
the district court judge and counsel for both parties. Despite attorney Young's denial of the mention of Dr.
McQueen in the June, 1991 in-chambers conference (after the dates for other procedural arrangements had
passed) discussed by the parties in their respective briefs and during oral argument, it is clear that Young never
contacted Judge Whitehead to object to Dr. McQueen's evaluation or to express surprise or disapproval of the
procedure followed by the court. It is also clear that the attorneys for both parties filed requests with the court for
submission of the motion without argument or a hearing.
Contrary to the concurring justice's opinion, the trial judge never once deprived the parties of the right to be
heard. Attorney Young never asked for a copy of the McQueen report, never asked for a hearing and the
opportunity
APPENDIX A
The following colloquy transpired at the end of the presentation of evidence by both
parties. There Judge Whitehead indicated:
The Court: What would the parties think to the Court appointing a psychiatrist to
interview both the plaintiff and the defendant in this matter and report directly to the
Court?
Mr. Logar: Your Honor, I would have no objection to that. . . .
. . . .
Mr. Young: We have no objection to an outside psychiatric evaluation, your Honor.
. . . .
The Court: Let me ask you both: Mechanically, do you wantI'm trying to think
both how to move this along and keep your costs down. I'm sure they're astronomical
anyway. Do you want a physician to simply send me written reports and submit it? Do
you want him called back in to testify and be cross-examined?
. . . .
The Court: My next question was: Mechanically, do we do itdo we ask the doctor
to submit written reports directly to the Court and close it, or do you want to call him in
and both of you take a shot at him? Mr. Young?
. . . .
Mr. Young: That's a difficult one to answer, your Honor, because it obviously
depends upon what Mr. Logar is going to do.
The Court: I think you both should do the same thing.
Mr. Young: I'm sure we would.
The Court: What I meant, would agree right now, just submit it or to agree right
now to have a hearing in which the expert would testify.
__________
to cross-examine Dr. McQueen, never asked the court to reopen the evaluation process so that Lawrence could
be interviewed by Dr. McQueen, never complained to the district court judge that the custody order was issued
contrary to the procedure he expected the court to follow, and not only failed to object to Dr. McQueen's
participation, but to the contrary, expressed a very belated willingness on the part of his client to be interviewed
by Dr. McQueen. Moreover, it is equally clear that both parties knew that the district court judge had sought the
evaluations of Dr. McQueen in order to assist him in reaching a decision concerning the issue of permanent
custody. The original custody order entered as part of the divorce decree on August 14, 1990, specified that the
provision regarding custody was strictly temporary. Neither party has asserted the nonsensical proposition that
they assumed that Dr. McQueen's evaluative report was without purpose or the product of the court having
nothing better to do.
Finally, I recall no place in the record where appellant's counsel has contended that he did not ask Judge
Whitehead for a hearing or for the reconsideration of his ruling because he felt such a request would have been
futile.
submit it or to agree right now to have a hearing in which the expert would testify.
. . . .
The Court: Okay. Let me just set the procedures: I will appoint a physician to report
back to the Court in writing. Within five days after the reporting, present it to counsel.
They areif they want to file a request for an oral hearing and state the reasons, the
Court will consider at that time whether the reasons warrant having an oral hearing.
That will be the procedure.
. . . .
Mr. Young: Your Honor, I understand the process.
. . . .
APPENDIX B
The following colloquy took place at oral argument before this court:
Justice Steffen: You're telling me there wasn't even a conference in chambers and
you didn't know there was a professional and that Dr. McQueen surfaced out of the
blue. Is that correct?
Mr. Young: . . . there very well may have been discussions about what we were
going to do with this case, and there may have been discussions about the possible use
of a mediator, a referee or something else. . . .
. . . .
Thereafter, Mr. Logar was addressed as follows:
Justice Steffen: Counsel, before we get to that (inaudible), Mr. Young, as an officer
of the court, recalls no mention of Dr. McQueen in a conference in chambers and
indicates that there may have been a discussion about the possibility of a mediator or
someone being brought in, period. Now, in your brief, you indicate that Judge
Whitehead specifically informed counsel for the parties that he was appointing Dr.
McQueen to act as a mediator, to meet with both of the parties and the trial judge
directed the parties to meet with Dr. McQueen. . . . Is that correct?
Mr. Logar: Yes. Counsel's recollection may be faulty. Mine is not. Specifically, in
chambers on June 19, the district judge indicated to us that he wanted to appoint a
professor at the University of Nevada named McQueen, who is a clinical psychologist
that he had used in the past to do assessments, he called it, in custody matters and was
going to appoint Mr. McQueen, at which time there was no objection by either counsel
made.
tion by either counsel made. He indicated that he wanted the parties to contact
McQueen and make arrangements with him so that he could do his assessment and that
he would make a report to the court. We never anticipated that the report would be
made public, and by that I mean sent to the parties or their counsel. We considered, at
least on the respondent's side, that that report would be held in camera by the court, as
such assessments are, and that we would be notified when the report had been
submitted. And at that point we could request copies of it, make objections, have a
hearing if we decided to, and that was the procedure that was discussed.
. . . .
Justice Steffen: Mr. Logar, if I can interrupt you here. I assume that this is a
transcript. We are informed that the judge met with both parties and the following
colloquy occurred. First, by the judge:
The Court: What would the parties think to the court appointing a psychiatrist to
interview both the plaintiff and the defendant in this matter and report directly to the
court? Mr. Logar?
Mr. Logar: Your Honor, I would have no objection to that.
. . . .
The Court: Mr. Young?
Mr. Young: We have no objection to an outside psychiatric evaluation, your Honor.
. . . .
The Court: My next question was: Mechanically, do we do itdo we ask the doctor
to submit written reports directly to the court and close it, or do you want to call him in,
and both of you take a shot at him? Mr. Young?
. . . .
The Court: Okay. Let me just set the procedures: I will appoint a physician to report
back to the Court in writing. Within five days after the reporting, present it to counsel.
They areif they want to file a request for an oral hearing and state the reasons, the
Court will consider at that time whether the reasons warrant having an oral hearing.
That will be the procedure.
Justice Steffen: So, evidently, this was discussed.
. . . .
Justice Steffen: . . . So, if this is correct, the entire procedure was discussed with
both attorneys. Neither made an objection. . . . Rather than asking for hearing, [the
motion to submit form] is in effect saying that the matter is submitted as it states
right in here, to the court for decision.
motion to submit form] is in effect saying that the matter is submitted as it states right
in here, to the court for decision.
. . . .
Mr. Logar: Your interpretation is correct. What you are referring to are comments
made at the conclusion of the trial back in 1990. . . .
. . . .
Justice Steffen: And then after this occurred, later on there was the conference in
chambers where Judge Whitehead specifically mentioned the name of Dr. McQueen?
Mr. Logar: Exactly.
Then on rebuttal, Mr. Young represented to this court the following:
Mr. Young: I absolutely disagree that there was a meeting with respect to the
appointment of this particular man McQueen with all of the procedures, etc., set forth
by Mr. Logar. That didn't happen. That did not happen.
. . . .
Mr. Young: And it has never, I am telling you as an officer of this court and many
other courts, that was never, never, ever the agreement.
Justice Steffen: Well, Mr. Logar says that it was.
. . . .
Justice Steffen: So what are we to do?
Mr. Young: Mr. Logar is wrong, because that was not the agreement, ever.
Justice Steffen: Well, I understand that it is a very, it's a very complex thing, Mr.
Young, but it appears to me that there are some strange things that occurred. Because
clearly you knew that Dr. McQueen was involved. . . .
Shearing, J., with whom Rose, C. J. joins, concurring:
I agree that the custody order issued by the district court should be vacated and the case
remanded to the family court for a redetermination of custody. However, I do not agree with
the majority opinion that the proceedings below conformed to the law of this state.
After a long and acrimonious trial, the district court issued Findings of Fact, Conclusions
of Law, Judgment and Decree of Divorce which were filed on August 14, 1990. The
document contained an order for child custody which was to be effective until June 1, 1991.
The parties were to have joint physical and legal custody of their two sons, but the mother
was to have primary care, custody and control of James, while the father was to have primary
care, custody and control of Cameron.
to have primary care, custody and control of Cameron. The order spelled out a detailed
visitation schedule. The order also required the parties to submit a written report to the court
describing in detail certain actions in relation to their children. The court further ordered that
a hearing will be held in the month of June, 1991, in this Court, for the purpose of reviewing
the . . . child custody and visitation order.
The reports required by the order were filed by the parties, but the court-ordered hearing
was never held. Custody remained the same until July 23, 1992, at which time the district
court issued an order granting the father primary physical care, custody and control of both
boys. The change in custody was largely based on a report by clinical psychologist, Robert
McQueen, which was dated May 11, 1992. There is apparently no dispute that the court gave
no notice to the mother or her counsel either that McQueen had been appointed or that a
report had been prepared or submitted.
Three years earlier at the trial in August 1989, the court and counsel had discussed the
possibility of the court appointing a psychiatrist to interview the parties and submit a report.
The court outlined a procedure whereby the court would appoint a physician to report back to
the court; within five days, it would present the report to counsel; then counsel could file a
request for an oral hearing which the court would consider. However, the subsequent decree
of August 14, 1990, outlined a different procedure without any mention of an independent
evaluation. Neither the procedure outlined at trial in August 1989 or in the August 1990
decree was followed.
The 1992 order depriving the mother of primary physical custody of her son was issued
without notice that change of custody based on new information was even being considered.
Assuming that the Request for Submission of Motion submitted by counsel in 1991 meant
that the parties had waived the oral hearing which the court had promised, it cannot be
construed to waive any right to any notice or hearing regarding subsequently developed
information known to the court alone.
The mother was given no opportunity to review or contest McQueen's report. McQueen
did send her a letter dated March 30, 1992, informing her that he was preparing a report.
However, under the particular circumstances of this case, the mother did not even have an
opportunity to be consulted before the report was prepared in view of the fact that she was on
a medical school surgical rotation in Las Vegas at the time of the evaluation. When her
attorney contacted McQueen in May, McQueen replied that the report had been submitted and
stated, When I received no response from Ms.
response from Ms. Lawrence to my letter I frankly felt it would be presumptuous of me to
press her further and I did not do so. In other words, he never even bothered to check
whether she had received his letter and the court itself had given no notice of the appointment
to either the mother or her counsel.
There is no dispute that the parties had three years earlier agreed to an examination by
experts, but there was never any waiver of their rights to cross-examine the experts, to present
rebuttal evidence, or to be heard. In fact, the court had outlined a procedure for assuring these
rights, but later did not follow it. That a mother should be deprived of the physical custody of
her child without these basic rights violates the concepts of fundamental fairness and due
process which is basic to our legal system.
This court has made clear that a court making an award of custody without notice or
hearing is acting in excess of its jurisdiction. Matthews v. District Court, 91 Nev. 96, 531
P.2d 852 (1975). In Matthews, the judge had issued a divorce decree reserving a
determination of custody until a later date following psychiatric and/or psychological
examinations and testimony of the parties as stipulated. 91 Nev. at 97, 531 P.2d at 852.
Subsequently, the judge changed the child custody without any further notice to the parties.
This court granted a writ of prohibition restraining enforcement of the order and restraining
any transfer of the parties' children from the plaintiff-petitioner's care without notice and due
opportunity to be heard. Id. at 98, 531 P.2d at 853. Although the decree stated that
permanent custody would be determined later, this court required notice and hearing because
the decree did not specify how expert opinions were to be received by the court, whether the
parties had waived cross-examination of the experts, what rebuttal evidence would be
adduced, nor the time or manner in which the issue of child custody would be brought before
the court for its final consideration. Id. at 97, 531 P.2d at 852.
In the case before us, the degree stated the time and manner in which the issue would be
brought before the court, namely at a hearing in June of 1991, but this hearing never took
place. Instead, a psychologist was appointed apparently much later, and the court made a
decision based on this psychologist's report without notice, without the opportunity for further
input or cross-examination or presentation of rebuttal evidence. This is unacceptable under
our system of justice. This court reaffirmed this view most recently in Moser v. Moser, 108
Nev. 572, 576-577, 836 P.2d 63, 66 (1992), saying: Litigants in a custody battle have the
right to a full and fair hearing concerning the ultimate disposition of a child.
Litigants in a custody battle have the right to a full and fair hearing concerning the
ultimate disposition of a child. Matthews v. District Court, 91 Nev. 96, 97, 531 P.2d
852, 852 (1975). At a minimum, observance of this right requires that before a parent
loses custody of a child, the elements that serve as a precondition to a change of
custody award must be supported by factual evidence. Furthermore, the party threatened
with the loss of parental rights must be given the opportunity to disprove the evidence
presented.
Vacating the custody order and remanding the matter to the family court for a
redetermination of custody is required.
____________
110 Nev. 307, 307 (1994) Maturi v. Las Vegas Metro. Police Dep't
DINO MATURI, Appellant, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT,
Respondent.
No. 24199
March 30, 1994 871 P.2d 932
Appeal from a district court order granting respondent summary judgment. Eighth Judicial
District Court, Clark County; Jeffrey D. Sobel, Judge.
Arrestee brought action against police department, alleging that he was injured as a result
of being handcuffed behind his back. The district court entered summary judgment in favor of
department, and appeal was taken. The supreme court, Springer, J., held that officer's decision
to handcuff prisoner behind prisoner's back, rather than in the front, constituted discretionary
decision that invoked state immunity.
Affirmed.
Rose, C. J., and Shearing, J., dissented.
Fitzgibbons & Anderson, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and Jennifer T Crandell and Peter M. Angulo, Las Vegas, for
Respondent.
Municipal Corporation.
Police officer's decision to handcuff prisoner behind prisoner's back, rather than in the front, constituted discretionary decision
since police manual, which controlled officer's conduct after arrest, specifically granted officer discretion to choose whether to
handcuff prisoner in the front or behind the back and thus, officer was protected by statutory governmental immunity. NRS 41.032.
OPINION
The issue in this case is whether a police officer's decision to handcuff a prisoner behind
the prisoner's back, rather than in the front, constitutes a discretionary decision that invokes
state immunity under NRS 41.032. In this case, the arresting officers' decision to handcuff
behind the prisoner's back was discretionary in nature because the police manual which
controlled the officers' conduct after the arrest specifically granted the officers discretion to
choose whether they would handcuff the prisoner in the front or behind the back. We,
therefore, affirm the judgment of the trial court granting summary judgment in favor of the
Las Vegas Metropolitan Police Department (LVMPD).
LVMPD officers arrested appellant Dino Maturi for discharging a firearm in public.
Maturi had unlawfully fired a gunshot into the air in an apparent attempt to frighten away
some juveniles who, he claimed, had been harassing him. Police officers arrived at the
scene and, in accordance with standard arrest procedures,
1
handcuffed Maturi with his hands
behind his back and placed him in a police vehicle. LVMPD Manual section 5/202.01, in
effect at the time, commanded that no officer place a prisoner in a police vehicle without the
prisoner first being handcuffed, and further commands that all prisoners in police vehicles
must be handcuffed behind the back, unless impractical or impossible due to prisoner
obesity, handicap, or other reason.
Maturi claims that at the time the officers handcuffed him, he warned the officers that he
had suffered a serious back injury and was scheduled to have back surgery soon. Despite
Maturi's pleas and warnings of possible injury and unnecessary discomfort, the officers
handcuffed him behind his back. The officers placed Maturi in a police vehicle and kept him
there for over an hour, during which time he continually complained of pain and pleaded with
the officers to remove the handcuffs or, at least, to place them in front of him.
__________

1
Section 5/202.01 of the LVMPD Manual, under which the officers were operating at the time of the arrest,
reads as follows:
1. Handcuffs
Except under extraordinary situations approved by a superior, no member will permit a prisoner to enter a
Department vehicle without first being handcuffed. Prisoners in police vehicles will be handcuffed behind
the back, unless impractical or impossible due to prisoner obesity, handicap, or other reason. Special
restraints will not be used unless approved by a supervisor.
(Emphasis added.)
with the officers to remove the handcuffs or, at least, to place them in front of him.
Eventually the officers released Maturi from custody and cited him for a misdemeanor.
Maturi claims that he was injured as a result of being handcuffed in this manner and that he
was compelled to cancel the scheduled surgery because of the abuse to his back.
The only issue presented by Maturi in this appeal is whether the police officers are
protected by governmental immunity under NRS 41.032.
2
They are. NRS 41.032 provides
that no action may be brought against any public officer based upon the failure to exercise
or perform a discretionary function . . . whether or not the discretion was abused. It may very
well be that in this case, the officers abused their discretion with regard to the placement of
the handcuffs, but such abuse of discretion may not be the basis for civil liability of peace
officers.
The question of governmental immunity is usually considered by the courts in terms of
whether the acts in question are regarded as discretionary, or quasi-judicial, in character,
requiring personal deliberation, decision and judgment, [or] merely ministerial, amounting
only to obedience to orders, or the performance of a duty in which the officer is left no choice
of his own.' Board of Co. Comm'rs v. Cirac, 98 Nev. 57, 59, 639 P.2d 538, 539 (1982)
(quoting William Prosser, Law of Torts 132, at 988-89 (4th ed. 1971)); see also Travelers
Hotel v. City of Reno, 103 Nev. 343, 345-46, 741 P.2d 1353, 1354 (1987). That the officers'
choice in this case was one requiring personal deliberation, decision and judgment rather
than the performance of [duties] in which the officer[s were] left no choice is demonstrated
by the language of the manual under which they were conducting themselves. Cirac, 98 Nev.
at 59, 639 P.2d at 539. The officers had no discretion when it came to handcuffing Maturi.
They had no choice here.
They did have a choice, however, as to whether they would handcuff Maturi in the front or
in the back, a judgment call, if you will. If the officers had concluded that it was
impractical to handcuff Maturi behind his back, they had the power and discretion to make
this decision. Whether to make the allowable decision to handcuff a prisoner in the front is a
decision that could involve a very large degree of discretion, based on such considerations as
the prisoner's size, strength and, in the judgment of the officer, the potential for violence or
escape.
__________

2
Recognizing that Maturi may have had an affirmative negligence claim, but that governmental immunity
prevented Maturi from recovering damages against LVMPD on that claim, the district court granted LVMPD's
motion for summary judgment. The sole issue Maturi appeals is whether the district court erred in granting
LVMPD summary judgment based on the governmental immunity.
officer, the potential for violence or escape. The expression unless impractical, as stated in
the regulation, necessarily invests in the officers a choice as to whether circumstances
surrounding the arrest are such that safe custody in a police vehicle can be maintained for a
prisoner with handcuffs in the front rather than behind the back. Although it can be argued
that the officers in this case made the wrong choice as to whether rear handcuffing was
impractical, it is clear that they were making a choice, that they were exercising discretion.
Summary judgment in favor of the police department is appropriate, and we affirm the
judgment of the trial court.
Steffen and Young, JJ., concur.
Rose, C.J., with whom Shearing, J., joins, dissenting:
The decision to arrest is discretionary; but once an arrest is made, a LVMPD officer is
required to handcuff the person arrested for transportation. Maturi has sued for his improper
handcuffing by the officers. This was not a discretionary act and the granting of summary
judgment pursuant to NRS 41.032 was improper. Therefore, I dissent from the majority
opinion.
The LVMPD Manual requires that all persons arrested be handcuffed for transportation.
Section 5/202.01 of the LVMPD Manual states:
1. Handcuffs
Except under extraordinary situations approved by a superior, no member will permit a
prisoner to enter a Department vehicle without first being handcuffed. Prisoners in
police vehicles will be handcuffed behind the back, unless impractical or impossible
due to prisoner obesity, handicap, or other reason. Special restraints will not be used
unless approved by a supervisor.
(Emphasis added.)
While an initial decision might be considered discretionary, the subsequent performance of
a duty in which the officer is left no choice is not discretionary. This court has held that:
NRS 41.032(2) might not provide immunity from liability for acts even though they had
their origin in discretionary acts. . . . Although a given act involved the exercise of
discretion and was thus immune from liability, negligence in the operational phase of a
decision would subject the State, its agencies, and employees to liability.
Hagblom v. State Dir. of Motor Vehicles, 93 Nev. 599, 604, 571 P.2d 1172, 1175 (1977).
As we stated in Hagblom, [i]n a close case we must favor a waiver of immunity . . . .'
Id. at 602-03, 571 P.2d at 1175 (quoting State v. Silva, 86 Nev. 911, 914, 478 P.2d 591, 593
(1970)). The district court had difficulty with this decision and clearly indicated that this was
a close case. Following the directives in our prior cases, summary judgment in favor of the
LVMPD should have been denied and the case tried.
____________
110 Nev. 311, 311 (1994) Allstate Insurance Co. v. Pilosof
ALLSTATE INSURANCE COMPANY, Appellant, v. ROCHELLE PILOSOF and
AMERICAN HARDWARE INSURANCE GROUP, Respondents.
No. 24139
March 30, 1994 871 P.2d 351
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Lee A.
Gates, Judge.
Insured brought declaratory judgment action against insured's automobile insurer and
insurer of automobile dealership loaner automobile, seeking clarification as to which insurer
had responsibility of providing primary coverage for accident involving insured and
uninsured motorist while insured drove loaner automobile. Insurer of loaner automobile and
insured moved for summary judgment. The district court granted motion. On appeal, the
supreme court held that statute, providing that liability policy of customer is primary policy
applicable when garageman lends motor vehicle to customer while customer's vehicle is
being repaired or serviced, applies only to policies of liability insurance, not to uninsured
motorist coverage.
Rawlings, Olson & Cannon, and Kendall Steele, Las Vegas, for Appellant.
George T. Bochanis, Ltd. and Scott R. Schreiber, Las Vegas, for Rochelle Pilosof.
Thorndal, Backus, Armstrong & Balkenbush, and Paul F. Eisinger and Brian K. Terry,
Las Vegas, for American Hardware.
1. Insurance.
Statute, providing that liability policy of customer is primary policy applicable when garageman lends motor vehicle to customer
while customer's vehicle is being repaired or serviced, applies only to policies of liability insurance, not to
uninsured motorist coverage.
customer's vehicle is being repaired or serviced, applies only to policies of liability insurance, not to uninsured motorist coverage. NRS
690B.025.
2. Insurance.
Uninsured motorist coverage is first-party coverage that fills void left by uninsured parties who are liable for injuries resulting
from vehicular accidents.
3. Statutes.
It is not within purview of supreme court to infer legislative intent or go beyond ordinary meaning of statute absent ambiguity in
statute.
OPINION
Per Curiam:
On May 6, 1992, respondent Rochelle Pilosof filed a complaint for declaratory relief with the district court against respondent
American Hardware Insurance Group (Hardware) and appellant Allstate Insurance Company (Allstate). The complaint sought
clarification as to which of the two insurers, both of whom denied initial coverage, had the responsibility of providing primary coverage for
an accident involving Pilosof and an uninsured motorist.
Specifically, Pilosof's complaint alleged that on February 5, 1991, while driving a 1986 Cadillac, she was involved in an accident with
an uninsured driver. The Cadillac driven by Pilosof was a loaner car she was using while her vehicle was being repaired. The Cadillac was
owned by Cashman Cadillac Inc. and insured by Hardware. Pilosof also had her own automobile insurance policy with Allstate. Pilosof
filed claims with both companies for injuries sustained in the accident, but both declined coverage, each deferring to the other.
Pilosof argued that NRS 690B.025 controlled the question of which insurer's coverage was primary and which was excess. Hardware,
joined by Pilosof, later filed a motion for summary judgment which likewise asserted that NRS 690B.025 was controlling. The district court
determined that, under the facts at hand, NRS 690B.025 unambiguously designated the Allstate policy as primary and the Hardware policy
as excess. Summary judgment was therefore entered in favor of Hardware and Pilosof. This appeal followed.
The central issue on appeal is whether NRS 690B.025 assigns primary coverage to Allstate, Pilosof's insurer, rather than Hardware,
Cashman Cadillac's insurer, under the facts of this case. NRS 690B.025 provides, in pertinent part, as follows:
Primary and excess coverage; garageman required to post notice.
1. If two or more policies of liability insurance covering the same motor vehicle are
in effect when the motor vehicle is involved in an incident which results in a claim
against the policies:
. . . .
(c) If, while his own vehicle was being repaired or serviced in the bailment of a
garageman engaged in the business of repairing or servicing motor vehicles, the
customer is lent by the garageman a motor vehicle for use during the time required to
complete the repairs or service, the policy issued to the customer shall be deemed to be
primary and all other policies shall be deemed to provide excess coverage. A
garageman engaged in the business of repairing or servicing motor vehicles who loans
his customer a vehicle for use during the time required to complete the repairs or
service shall provide express notice to the customer that the customer's policy of
insurance will provide primary coverage while the customer is operating that vehicle.
. . . .
3. This section applies only to policies of liability insurance issued or renewed on or
after July 1, 1981.
[Headnote 1]
Allstate insists that NRS 690B.025 is inapplicable to the instance case because, by its
terms, it applies only to policies of liability insurance[,] not to uninsured motorist coverage.
We agree. There is clearly a well-recognized difference between liability insurance ([t]hat
type of insurance protection which indemnifies one from liability to third persons as
contrasted with insurance coverage for losses sustained by the insured), Black's Law
Dictionary 915 (6th ed. 1990), and uninsured motorist coverage ([p]rotection afforded an
insured by first party insurance against bodily injury inflicted by an uninsured motorist, after
the liability of the uninsured motorist for the injury has been established). Id. at 1532.
Pilosof and Hardware note that Nevada law requires uninsured motorist coverage to be
provided by every seller of liability insurance and conclude that this makes uninsured
motorist coverage a subpart of liability insurance. See NRS 690B.020(1);
1
NRS
6S7B.145{2)2 This conclusion is incorrect.
__________

1
NRS 690B.020(1) provides, in pertinent part, as follows:
1. Except as otherwise provided in this section and NRS 690B.035, no policy insuring against liability
arising out of the ownership, maintenance or use of any motor vehicle may be delivered or issued for
delivery in this state unless coverage is provided therein or supplemental thereto for the protection of
persons insured thereunder who are legally entitled to recover damages, from owners or operators of
uninsured or hit-and-run motor vehicles, for bodily injury, sickness or
687B.145(2)
2
This conclusion is incorrect. Under NRS 690B.020, uninsured motorist
coverage may be included within the liability insurance policy or be supplemental thereto.
The question of whether uninsured motorist protection is a subset of liability insurance is thus
not addressed by the statute; rather, the provision of such insurance by liability insurers is
simply mandated, either as part of the liability policy or as a supplemental product.
In the present case, for example, the Allstate automobile policy included a separate section
for liability insurance (part 1) and uninsured motorists insurance (part 5). Accordingly, it
appears that this policy structured the two items as separate component parts in an overall
insurance package. Pilosof's claim was against the uninsured motorist section of her Allstate
policy, not the liability insurance section.
[Headnote 2]
Pilosof's contention that uninsured motorist coverage is the equivalent of liability
coverage, since it takes the place of liability coverage, is likewise incorrect. Uninsured
motorist coverage is first-party coverage that fills the void left by uninsured parties who are
liable for injuries resulting from vehicular accidents. UM coverage does not take the place of
the injured insured's own liability insurance.
This court has previously recognized that a difference exists between liability and
uninsured motorist coverage, and why the former, unlike the latter, may not be stacked:
[A]ppellants seek to validate their position by claiming parity with our decisions
permitting stacking in the areas of uninsured motorist coverage . . . . It is manifestly
apparent, however, that no such parity exists. In contradistinction to the first-person
coverage declared stackable under our cases cited above, we are here concerned with
third-party bodily liability coverage available to an insured as a result of the ownership,
use or maintenance of a vehicle.
__________
disease, including death, resulting from the ownership, maintenance or use of the uninsured or hit-and-run
motor vehicle. No such coverage is required . . . where rejected in writing, on a form furnished by the
insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such
a policy unless the coverage is then requested in writing by the named insured. The coverage required in
this section may be referred to as uninsured vehicle coverage.

2
NRS 687B.145(2) provides, in pertinent part, as follows:
2. Insurance companies transacting motor vehicle insurance in this state must offer, on a form approved
by the commissioner, uninsured and underinsured vehicle coverage in an amount equal to the limits of
coverage for bodily injury sold to an insured under a policy of insurance covering the use of a passenger
car. . . .
ownership, use or maintenance of a vehicle. The first-person insurance focuses on the
person of the insured and specified beneficiaries, whereas the third-party liability
coverage derives from the ownership or use by an insured of a vehicle.
Rando v. California State Auto Ass'n, 100 Nev. 310, 314, 684 P.2d 501, 503-504 (1984)
(citing Emick v. Dairyland Ins. Co., 519 F.2d 1317 (4th Cir. 1975)). Furthermore, the insured
may expressly reject uninsured motorist coverage, but must carry liability insurance, absent
proof of self-insured status, under NRS 485.l85.
3

[Headnote 3]
It is possible, as Hardware and Pilosof argue, that the legislature did not specifically
intend, in drafting NRS 690B.025, that liability and uninsured motorist coverage be treated
differently for purposes of determining responsibility for primary coverage in accidents
involving loaner cars. Nevertheless, it is not within the purview of this court to infer
legislative intent or go beyond the ordinary meaning of a statute absent an ambiguity in the
statute which does not exist here. See, e.g., City Council of Reno v. Reno Newspapers Inc.,
105 Nev. 886, 891, 784 P.2d 974, 977 (1989) (citing Cirac v. Lander County, 95 Nev. 723,
729, 602 P.2d 1012, 1015 (1979)).
For the reasons stated above, we conclude that NRS 690B.025 is inapplicable to the facts
of the instant case. We are, however, still left with the task of determining which of the two
policies constitutes primary coverage.
The Court was faced with this same issue in Co-operators Ins. Co. v. Allstate Rent-A-Car,
107 Nev. 17, 804 P.2d 1050 (1991), wherein NRS 690B.025 was found to be inapplicable to
car accidents involving rental vehicles. In that case we resolved the issue by applying the
following rule:
Absent legislative directive, we must look to the individual policies in question.
Where one policy explicitly defines its liability, and the other does not, the policy with
the more specific language controls.
Id. at 19-20, 804 P.2d at 1052.
We are unable to apply the Co-operators Ins. rule in our analysis of the instant appeal
because, for reasons which are not apparent, the Hardware policy was not included in the
record on appeal. Accordingly, the dispositive issue concerning which policy contains "the
more specific language" must be determined in the district court.
__________

3
It is likewise instructive that NRS 485.3091, which specifies what must be included in a motor vehicle
liability policy, does not include uninsured motorist protection in its list of requirements.
icy contains the more specific language must be determined in the district court.
For reasons previously stated, we conclude that NRS 690B.025 does not apply to claims
against uninsured motorist coverage. The relevant standard applicable to the instant case is
that enunciated by this court in Co-operators Ins.
The summary judgment entered below is reversed and the matter is remanded to the
district court for further proceedings consistent with this opinion.
____________
110 Nev. 316, 316 (1994) State, Dep't Human Resources v. Shively
STATE OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, WELFARE
DIVlSION, Appellant, v. HAROLD KENNETH SHIVELY, Respondent.
No. 24523
March 30, 1994 871 P.2d 355
Appeal from an order granting respondent's motion for summary judgment. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
State Department of Human Resources, Welfare Division (NSWD) brought action against
personal representative of Medicaid recipient, alleging that personal representative
fraudulently obtained Medicaid eligibility for recipient when he misrepresented recipient's
financial status on application form. The district court entered summary judgment for
personal representative, and NSWD appealed. The supreme court held that statute of
limitations applicable to fraud cause of action was tolled during administrative process.
Frankie Sue Del Papa, Attorney General, and Martha Shaffer, Deputy Attorney General,
Joseph W. Houston, II, Las Vegas, for Respondent.
Limitation of Actions.
Statute of limitations applicable to fraud cause of action brought by State Department of Human Resources, Welfare Division
(NSWD) against personal representatives of Medicaid recipient was tolled during pendency of administrative process whereby personal
representative was notified regarding suspect asset transfer and possible termination of benefits, and formal hearing was conducted in
administrative forum.
OPINION
Per Curiam:
On March 7, 1988, respondent Harold Kenneth Shively (Shively) sought Medicaid
benefits for his mother, Grace Shively (Grace), from appellant State of Nevada, Department
of Human Resources, Welfare Division (NSWD). Shively was acting as Grace's personal
representative. On the application, Shively represented that his mother had not transferred any
of her personal assets during the prior twenty-four-month period. NSWD determined that
Grace was eligible for Medicaid and commenced paying her benefits.
On August 26, 1988, a confidential source informed NSWD that Grace had transferred
approximately $39,000 from her Dean Witter account to Shively. Pursuant to federal
regulation and state law, NSWD notified Shively that it suspected the funds were transferred
in an effort to understate Grace's financial condition and obtain Medicaid eligibility. NSWD
afforded Shively an opportunity to alleviate this suspicion by proving that the funds had not
been improperly transferred. Dissatisfied with Shively's response, NSWD decided to
terminate benefit payments. Thereafter, a formal hearing was held in administrative court.
On November 6, 1990, the hearing officer issued a decision affirming NSWD's right to
terminate benefits. After numerous attempts to recoup the monies paid, NSWD filed legal
claims against Shively in district court on June 3, 1992. NSWD alleged that Shively
fraudulently obtained Medicaid eligibility for his mother when he misrepresented Grace's
financial status on the application form. NSWD sought to recover the benefits it paid to Grace
as a result of this alleged misrepresentation.
Shively moved for summary judgment, claiming that the statute of limitations had run on
NSWD's cause of action for fraud. Shively asserted that NSWD's claim accrued on August
26, 1988, when it received information regarding the asset transfer. Therefore, when NSWD
filed its complaint on June 3, 1992, the three-year statute of limitations period had expired.
The district court held in favor of Shively and summarily dismissed NSWD's complaint.
NSWD appeals and asserts several different claims of error committed by the district
court. Specifically, NSWD argues that the statute of limitations applicable to its legal claim
for relief was tolled while the litigants were trying to obtain an administrative solution to the
underlying dispute. We agree and accordingly reverse the district court's summary judgment
order.
In accordance with federal regulations and state Medicaid administration statutes, NSWD
was required to notify Shively regarding the suspect asset transfer and its ultimate decision to
terminate benefits. NRS 422.294; see also 45 C.F.R. 205.10 (1992). Moreover, NSWD
could not discontinue benefits or recoup any monies paid before the recipient had a formal
hearing in an administrative forum. NRS 422.294 et seq. In fact, NSWD continued to pay
benefits until the hearing officer rendered a decision affirming the right to terminate.
In light of these facts, we conclude that NSWD cannot now be penalized for pursuing an
administrative resolution to its dispute with Shively. During the pendency of the
administrative process, the limitations period with respect to NSWD's legal cause of action
was tolled.
While Nevada has not specifically addressed this issue, decisions from other jurisdictions
recognize this sound principle. For example, in Myers v. County of Orange, 86 Cal.Rptr. 198
(Ct.App. 1970), the trial court found that a one-year claims limitations statute on plaintiff's
wrongful termination claim had expired, even though the plaintiff had previously pursued an
administrative remedy. On appeal, plaintiff argued that the limitations period was tolled while
she sought review of the same employment termination dispute with the Retirement Board of
the County of Orange. The California Court of Appeals agreed. The court held that even
where exhaustion of administrative remedies was not a prerequisite to filing suit, the
limitations period was tolled while plaintiff was entrenched in the administrative process. The
court reasoned that the law favored resolution of disputes in the administrative forum and that
the plaintiff should not have the clock of limitations tick in his ear while pursuing
administrative action:
When an injured person has several legal remedies and, reasonably and in good faith,
pursues one designed to lessen the extent of the injury or damages, the statute of
limitations does not run on the other while he is thus pursuing the one[.]
Id. at 203-04; see also Zipes v. Transworld Airlines, 455 U.S. 385 (1982) (timely filed
administrative claim tolls limitations period of second action filed in federal court); Campbell
v. Graham-Armstrong, 509 P.2d 689, 694 (Cal. 1973).
As evidenced by the foregoing authorities, it does not make sense for NSWD to lose its
cause of action simply because it was pursuing, and was required to pursue, administrative
remedial action. Policy and equitable considerations support our rationale. For example, the
concerns alleviated by traditional statute of limitations law simply do not apply. The
defendant is not caught off guard when faced with legal claims for relief that were just
examined in the administrative process.
off guard when faced with legal claims for relief that were just examined in the administrative
process. The administrative process puts the defendant on notice that his actions are in
dispute and may spur additional and separate legal battling.
We conclude that the limitations period applicable in the instant case was tolled while the
litigants were entrenched in the administrative process. After learning of the suspect transfer
of funds, NSWD exercised its obligation to notify Shively of the impending threat to the
continued payment of benefits.
1
See 45 C.F.R. 205.10(a)(4)(iv) (1992) (welfare agency
must provide notice to recipient when agency obtains facts indicating that assistance should
be discontinued because of suspected fraud). At the point of notification, NSWD engaged the
administrative process and sought an informal resolution of its dispute with Shively. This
process concluded when the hearing examiner reached a decision on November 6, 1990.
During this entire time, NSWD continued to pay benefits. Thus, even assuming that NSWD
realized its fraud cause of action on August 26, 1988, such an assumption was not fatal to
NSWD's legal claims for relief. In light of the administrative tolling period, the three-year
statute of limitations applicable to NSWD's fraud cause of action had not expired when
NSWD filed its complaint on June 3, 1992.
2

Accordingly, we reverse the district court's summary judgment order and remand for
further proceedings consistent with this decision. Having decided that the limitations period
was tolled during administrative process, we need not address NSWD's other contentions of
error.
__________

1
The record reflects that NSWD officially notified Shively of the suspect asset transfer sometime before March
1, 1989. Although the precise notification date is not specifically memorialized in the record, Shively was given
until March 1, 1989, to rebut NSWD's presumption that the asset transfer was for the improper purpose of
obtaining Medicaid eligibility.

2
In accordance with NRS 11.190(3)(d), an action for fraud must commence within three years from the date the
aggrieved party discovers the facts constituting fraud.
____________
110 Nev. 320, 320 (1994) Moody v. Manny's Auto Repair
DAVID MOODY, Appellant, v. MANNY'S AUTO REPAIR and SHIMON PERESS,
Individually and SHIMON PERESS d/b/a MEADOWS MFG. JEWELERS, INC., a Nevada
Corporation, Respondents.
No. 22938
March 30, 1994 871 P.2d 935
Appeal from an order of the district court granting summary judgment in a negligence
claim. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Police officer who, while giving chase, collided with steel cable strung across entrance to
parking lot brought action against lessee of lot. Lessee filed third-party complaint against
lessor. The district court granted summary judgment in favor of lessor and lessee, and officer
appealed. The supreme court, Rose, C. J., held that: (1) firefighter's rule, as modified by
statute, is still operative and its scope is limited to those instances when negligent act which
injures public servant is the same act which required public servant's presence; (2) acts of
lessor and lessee in erecting cable were unrelated to traffic violation which caused officer to
give chase and therefore, officer's action was not barred by common-law firefighter's rule or
by statutory modifications to that rule; (3) principles of landowner liability based upon status
of person injured on the premises are abandoned; and (4) material issue of fact as to whether
lessor and lessee acted reasonably in erecting cable precluded summary judgment for them.
Albert D. Massi and Patricia L. Bowling, Las Vegas, for Appellant.
Thorndal, Backus, Maupin & Armstrong and Robert Groesbeck, Las Vegas, for
Respondent Manny's Auto Repair.
Rawlings, Olson & Cannon and Peter Angul, Las Vegas, for Respondent Peress.
1. Judgment.
Summary judgment is appropriate only when no genuine issue of material fact remains for trial and movant is entitled to judgment
as a matter of law.
2. Judgment.
District court may not grant summary judgment if reasonable jury could return verdict for nonmovant.
On appeal of summary judgment motion, reviewing court must view evidence in light most favorable to party against whom
summary judgment was sought.
4. Judgment.
While factual allegations of nonmovant for summary judgment must be accepted as true, nonmovant must also allege specific facts
demonstrating that there is genuine material issue for trial.
5. Negligence.
Fireman's rule states that firefighter or peace officer cannot complain of negligence where negligently created risk which results
in public servant's injury is reason for her being at scene where injury occurs.
6. Statutes.
Construction of statute is a question of law.
7. Negligence.
Statute prescribing when peace officer or fireman may bring action for damages for personal injury is a limitation on firefighter's
rule by providing additional exceptions to rule and is not codification of rule. NRS 41.139.
8. Statutes.
Nevada supreme court would presume that Nevada legislature, in adopting statute prescribing when peace officers and firefighters
may bring action for damages for personal injuries and patterning it after California Civil Code section creating exceptions to bar of
firefighter's rule, intended statute to have construction given to California Civil Code section by California courts at time that Nevada
statute was enacted. Since at time statute was enacted California courts interpreted their section to supplement and narrow common
law firefighter's rule and not to replace it, this interpretation would be presumed, absent evidence to the contrary, to have been carried
over in adoption of Nevada statute. NRS 41.139; Cal. Civ. Code 1714.9.
9. Negligence.
Statute prescribing when peace officers and firefighters may bring action for damages for personal injuries supplements common
law firefighter's rule, rather than replacing the common law with statutory law. NRS 41.139(1).
10. Negligence.
Statute prescribing when peace officers and firefighters may bring action for damages for personal injuries is statutory attempt to
narrow firefighter's rule to allow recovery by public servants where recovery was not previously allowed. Statute does not further
restrict ability of public servants to recover for injuries sustained in course of their employment. NRS 41.139.
11. Negligence.
Firefighter's rule, as modified by statute, is still operative in Nevada and its scope is limited to those instances when negligent act
which injures public servant is the same act which required public servant's presence. NRS 41.139.
12. Automobiles; Negligence.
Acts of lessor and lessee of parking lot in erecting steel cable across entrance to parking lot were unrelated to traffic violation
which caused police officer to give chase and therefore, officer's action for personal injuries he sustained in collision with steel cable
while giving chase was not barred by common law firefighter's rule or by statutory modifications to that rule. NRS 41.139.
13. Negligence.
Principles of landowner liability based upon status of person injured on the premises, such as whether that person is trespasser,
licensee or invitee, are abandoned since there is no justification for continuing to adhere to rules of
landowner and occupier liability based upon artificial classifications of plaintiffs and hinging recovery on
this status.
invitee, are abandoned since there is no justification for continuing to adhere to rules of landowner and occupier liability based upon
artificial classifications of plaintiffs and hinging recovery on this status. Owner or occupier of land is held to general duty of reasonable
care when another is injured on his land.
14. Negligence.
Under new principle of landowner and occupier liability, determinations of liability primarily depend upon whether owner or
occupier of land acted reasonably under the circumstances. While reasonable person would take greater precautions to protect one
invited onto her premises than she would a trespasser, status of injured party is not the dispositive factor.
15. Judgment.
Material issue of fact as to whether lessor and lessee of parking lot acted reasonably in erecting steel cable across entrance to
parking lot precluded summary judgment for lessor and lessee with respect to negligence action brought by police officer who, while
giving chase, collided with cable.
OPINION
On the night of April 2, 1988, while riding his motorcycle, appellant David Moody (Moody), an on-duty police officer, turned into the
entrance of a parking lot leased by respondent Manny's Auto Repair (Manny's) and owned by respondent Shimon Peress (Peress) and
collided with a steel cable strung across the entrance to the parking lot. Moody filed a complaint against Manny's and Peress for injuries
sustained in the collision. Peress moved for summary judgment, and after Manny's joined in the motion, the district court granted summary
judgment in favor of Manny's and Peress and against Moody. We conclude that the district court erred in granting summary judgment as:
(1) neither the firefighter's rule nor NRS 41.139 preclude Moody's suit for personal injuries because the event which caused Moody to be
on Manny's and Peress's premises was not the event which injured Moody, and (2) there remains a genuine issue of material fact as to
whether Manny's and Peress acted reasonably under the circumstances in erecting the steel cable or permitting it to be erected.
FACTS
On April 2, 1988, at approximately 10:40 p.m., Moody, an on-duty Las Vegas Metropolitan Police Officer, observed a vehicle proceed
through a red traffic signal. To avoid traffic in front of him and promptly give chase, Moody turned his motorcycle into the entrance of a
parking lot leased by Manny's and owned by Peress.
Peress. Moody collided with a steel cable strung across the entrance to the parking lot. Moody
alleges that the cable was unlit and unmarked.
On January 25, 1990, Moody filed a complaint seeking recovery for personal injuries
sustained in the collision, and on April 26, 1990, Moody filed a first amended complaint
substituting Peress for a Doe defendant. On July 20, 1990, Peress filed a motion to dismiss,
arguing that his substitution as a Doe defendant was barred by the applicable statute of
limitations. On December 21, 1990, the district court granted Peress's motion to dismiss.
On January 28, 1991, Manny's filed a third-party complaint against Peress. On August 21,
1991, Peress filed a motion for summary judgment, which Manny's later joined. Manny's and
Peress argued that NRS 41.139(1) precluded any recovery by Moody for his injuries, and that,
since Moody was a trespasser, no duty of care was owed to him; therefore, as a matter of law,
they could not be liable. On October 8, 1991, the district court granted the summary judgment
motion in favor of Manny's and Peress. Moody appeals the order granting summary judgment
entered October 8, 1991.
DISCUSSION
Standard of review
[Headnotes 1-4]
Summary judgment is appropriate only when no genuine issue of material fact remains for
trial and the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich,
101 Nev. 449, 451, 705 P.2d 662, 663 (1985). Accordingly, a district court may not grant
summary judgment if a reasonable jury could return a verdict for the nonmoving party. Oehler
v. Humana, Inc., 105 Nev. 348, 350, 775 P.2d 1271, 1272 (1987). On appeal, the reviewing
court must view the evidence in the light most favorable to the party against whom summary
judgment is sought. Oak Grove Inc. v. Bell & Gosset Co., 99 Nev. 616, 623, 668 P.2d 1075,
1079 (1983). While the factual allegations of the nonmoving party must be accepted as true,
the nonmoving party must also allege specific facts demonstrating there is a genuine material
issue for trial. Grayson v. Jones, 101 Nev. 749, 751, 710 P.2d 76, 77 (1985).
The firefighter's rule
[Headnote 5]
In Steelman v. Lind, 97 Nev. 425, 428, 634 P.2d 666, 667-68 (1981), we first adopted the
fireman's rule, which states that a firefighter or peace officer cannot complain of
negligence where the negligently created risk which results in the public servant's injury
is the reason for his or her being at the scene where the injury occurs.
firefighter or peace officer cannot complain of negligence where the negligently created risk
which results in the public servant's injury is the reason for his or her being at the scene where
the injury occurs. We stated in Steelman:
A public safety officer . . . cannot base a tort claim upon damage caused by the very
risk that he is paid to encounter and with which he is trained to cope.
Such officers, in accepting the salary and fringe benefits offered for the job, assume
all normal risks inherent in the employment as a matter of law and thus may not recover
from one who negligently creates such a risk.
Id. at 427-28, 634 P.2d at 667 (citations omitted). We further stated:
Whether the negligently created risk which results in a fireman's or policeman's
injury is the reason for his being at the scene in his professional capacity determines the
applicability of the rule.
Id. at 428, 634 P.2d at 668; accord Pottebaum v. Hinds, 347 N.W.2d 642, 646 (Iowa 1984);
Sutton v. Shufelberger, 643 P.2d 920, 926 (Wash.Ct.App. 1982); see also 3 J.D. Lee & Barry
A. Lindahl, Modern Tort Law 39:12 (rev.ed. 1988) (the fireman's rule applies to deny
recovery to a firefighter or police officer whenever their injuries are caused by the very
wrong that initially required the presence of an officer in his official capacity and subjected
him to harm. . . .' The rule . . . does not apply to a third party whose intervening negligence or
intentional conduct causes injury to the official while the officer is performing official duty.
Thus, where a police officer stops a vehicle and is in the process of dismounting a motorcycle
when struck by a third person, the rule does not apply).
Manny's and Peress assert that the firefighter's rule was codified by NRS 41.139, that NRS
41.139 was meant to set forth the firefighter's rule in its entirety, replacing that rule as set
forth in case law, and that NRS 41.139 precludes Moody's recovery in the instant case.
Moody contends that summary judgment should not have been granted because NRS 41.139
does not preclude his cause of action. NRS 41.139(1) states, in pertinent part:
[A] peace officer, fireman or emergency medical attendant may bring and maintain an
action for damages for personal injury caused by the willful act of another, or by
another's lack of ordinary care or skill in the management of his property, if the conduct
causing the injury:
(a) Occurred after the person who caused the injury knew or should have known of
the presence of the peace officer, fireman or emergency medical attendant; {b) Was
intended to injure the peace officer, fireman or emergency medical attendant;
(b) Was intended to injure the peace officer, fireman or emergency medical
attendant;
(c) Violated a statute, ordinance or regulation:
(1) Intended to protect the peace officer, fireman or emergency medical attendant;
or
(2) Prohibiting resistance to or requiring compliance with an order of a peace
officer or firefighter; or
(d) Was arson.
We conclude that NRS 41.139 was intended only to limit the firefighter's rule as set forth in
Steelman, and was not intended as a statement of the rule in its entirety.
[Headnotes 6, 7]
The construction of a statute is a question of law. Nyberg v. Nev. Indus. Comm'n, 100
Nev. 322, 324, 683 P.2d 3, 4 (1984). In Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev.
635, 503 P.2d 457 (1972), we stated:
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained will prevail over the
literal sense. The meaning of words used in a statute may be sought by examining the
context and by considering the reason or spirit of the law or the causes which induced
the legislature to enact it. The entire subject matter and the policy of the law may also
be involved to aid in its interpretation, and it should always be construed so as to avoid
absurd results.
Id. at 637-38, 503 P.2d at 458-59 (citations omitted). An examination of the legislative
history of NRS 41.139 leads us to the inescapable conclusion that the statute was intended as
a limitation on the firefighter's rule and not as a codification of the rule.
The legislative hearings on Assembly Bill 80 (A.B. 80), enacted as NRS 41.139, indicate
that the Legislature specifically contemplated that the rule would continue as set forth in
Steelman. See Hearings on A.B. 80 Before the Nevada Senate Judiciary Committee, 63rd
Session (March 26, 1985); Hearings on A.B. 80 Before the Nevada Assembly Judiciary
Committee, 63rd Session (February 12, 1985). The legislative history of NRS 41.139(1)
suggests that the statute was not meant to preclude recovery for the type of injury which
occurred in the instant case. Rather than expanding the firefighter's rule to preclude recovery
from those occasions where the injury was not related to the public servant's purpose for
being present, NRS 41.139(1) was intended to narrow the firefighter's rule to permit recovery
in instances where recovery was previously precluded. Id. Although not explicitly stated in
NRS 41.139(1), the legislative history of the statute clearly indicates the Legislature only
intended the statute to apply where the injury was caused by the event giving rise to the
public servant's presence.
the statute clearly indicates the Legislature only intended the statute to apply where the injury
was caused by the event giving rise to the public servant's presence. See Hearings on A.B. 80
Before the Nevada Assembly Judiciary Committee, 63rd Session (February 12, 1985).
A.B. 80 is based on California Civil Code section 1714.9,
1
adopted in 1982, which
created exceptions to the bar of the firefighter's rule. Id. California Civil Code section 1714.9,
like NRS 41.139, was not intended to broaden the firefighter's rule, but was intended to
narrow it by providing additional exceptions to the rule. 6 B.E. Witkin, Summary of
California Law, Torts 746 (9th ed. 1988); see Terhell v. American Commonwealth
Associates, 218 Cal.Rptr. 256, 260 (Cal.Ct.App. 1985) (California Civil Code section 1714.9
very strictly limits application of the [firefighter's] rule.). In Comment, The Fireman's Rule:
Defining Its Scope Using the Cost-Spreading Rationale, 71 Cal.L.Rev. 218 (1983), a copy of
which is attached as exhibit E to the Minutes of the Nevada State Legislature, Hearings of the
Assembly Judiciary Committee, February 12, 1985, the commentator states:
The fireman's rule bars tort claims by firefighters and police officers against persons
whose negligence or recklessness causes the fire or other hazard that injures the officer.
. . . [T]he rule only bars actions for injuries caused by the misconduct that prompted the
officer's presence at the scene. An injury that occurs independently of the misconduct to
which the officer responds is outside the scope of the rule and the officer will be
able to proceed in tort.
__________

1
California Civil Code section 1714.9(a) provides, in pertinent part:
(a) Notwithstanding statutory or decisional law to the contrary, any person is responsible not only
for the results of that person's willful acts causing injury to a peace officer, firefighter, or any emergency
medical personnel employed by a public entity, but also for any injury occasioned to that person by the want
of ordinary care or skill in the management of the person's property or person, in any of the following
situations:
(1) Where the conduct causing the injury occurs after the person knows or should have known of
the presence of the peace officer, firefighter, or emergency medical personnel.
(2) Where the conduct causing the injury occurs after the person knows or should have known of
the presence of the peace officer, firefighter, or emergency medical personnel violates a statute, ordinance, or
regulation, and was the proximate cause of an injury which the statute, ordinance, or regulation was designed
to prevent, and the statute, ordinance, or regulation was designed to protect the peace officer, firefighter, or
emergency medical personnel.
. . . .
(3) Where the conduct causing the injury was intended to injure the peace officer, firefighter, or
emergency medical personnel.

(4) Where the conduct causing the injury is arson . . . .
which the officer responds is outside the scope of the rule and the officer will be able to
proceed in tort.
California Supreme Court . . . decisions have reinforced the idea that injuries caused by
independent acts of misconduct fall outside the rule . . . .
Id. at 218 (footnotes omitted). Ever since Walters, California courts have stated that the
fireman's rule only shields the defendant from liability for acts that furnish the occasion for
the officer's presence. Id. at 227.
[Headnote 8]
The California court's interpretations of the nearly identical provisions of Civil Code
section 1714.9 may serve as a guide to this court in interpreting NRS 41.139. Further, this
court must presume that the Nevada Legislature, in adopting NRS 41.139 and patterning it
after California Civil Code section 1714.9, intended NRS 41.139 to have the construction
given to Civil Code section 1714.9 by the California courts at the time NRS 41.139 was
enacted. See Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961). At the time NRS
41.139 was enacted, the California courts had clearly interpreted Civil Code section 1714.9 to
supplement and narrow the common law firefighter's rule, not to replace it. This interpretation
must be presumed, absent evidence to the contrary, to have been carried over in the adoption
of NRS 41.139.
Since the enactment of California Civil Code section 1714.9, the nonstatutory components
of the firefighter's rule have continued to be followed. In particular, even after the enactment
of section 1714.9, the California Courts of Appeal have found the firefighter's rule to be
inapplicable where the act that injures the public servant is independent of the conduct for
which the public servant's presence was required at the accident scene. Gibb v. Stetson, 245
Cal.Rptr. 283, 285-86 (Cal.Ct.App. 1988); Rowland v. Shell Oil Co., 224 Cal.Rptr. 547, 549
(Cal.Ct.App. 1986); City of Redlands v. Sorensen, 221 Cal.Rptr. 728, 730, 733 (Cal.Ct.App.
1985); Terhell v. American Commonwealth Associates, 218 Cal.Rptr. 256, 258-59
(Cal.Ct.App. 1985); Rose v. City of Los Angeles, 206 Cal.Rptr. 49, 52 (Cal.Ct.App. 1984).
[Headnotes 9-12]
Like California Civil Code section 1714.9, NRS 41.139(1) was intended to simply
supplement the common law firefighter's rule, rather than replace the common law with
statutory law. We conclude that NRS 41.139 was intended and understood by the Legislature
to he a statutory attempt to narrow the firefighter's rule to allow recovery by public
servants where recovery was not previously allowed; NRS 41.139 was not intended to
further restrict the ability of public servants to recover for injuries sustained in the course
of their employment.
Legislature to be a statutory attempt to narrow the firefighter's rule to allow recovery by
public servants where recovery was not previously allowed; NRS 41.139 was not intended to
further restrict the ability of public servants to recover for injuries sustained in the course of
their employment. See Hearings on A.B. 80 Before the Assembly Judiciary Committee, 63rd
Session (February 12, 1985) (A.B. 80 was supported by Nevada Trial Lawyers Association,
Federated Firefighters of Nevada, Police Association of Nevada, and seen as additional
protection to the firemen). The firefighter's rule, as set forth in Steelman v. Lind, 97 Nev.
425, 634 P.2d 666 (1981), and as modified by NRS 41.139, is still operative in Nevada, and
its scope is limited to those instances when the negligent act which injures the public servant
is the same act which required the public servant's presence. We hold that in the instant case,
the acts of Manny's and Peress in erecting the cable barrier were unrelated to the traffic
violation which set Moody in motion, and therefore Moody's action is not barred by the
common law firefighter's rule as set forth in Steelman, and is not barred by the modifications
to that rule in NRS 41.139.
Tort liability of owners and occupiers of land
In the district court, Manny's and Peress also moved for summary judgment based on the
argument that Manny's, and Peress as owners and occupiers of land, owed no duty of care to
Moody and, if they did, they did not violate any applicable standard of care. Manny's and
Peress contend that Moody was a trespasser on the property, and therefore no duty of care
was owed to Moody. In the past, we have stated that generally no duty is owed by the
occupant of property to a trespasser, except not to wantonly or wilfully injure [the
trespasser] or fail to exercise due care to prevent his injuries after his presence in a place of
danger [is] discovered. Crosman v. Southern Pac. Co., 44 Nev. 286, 300, 194 P. 839, 843
(1921). Yet, the standard of care owed by owners and occupiers of land toward persons on
that land has become rather murky in recent years.
Traditional landowner liability depended upon the status of the injured person as a
trespasser, licensee, or invitee. See Early v. N.L.V. Casino Corp., 100 Nev. 200, 203, 678
P.2d 683, 684-85 (1984); Sierra Pac. Power Co. v. Rinehart, 99 Nev. 557, 560, 665 P.2d 270,
272 (1983); Brewer v. Annett, 86 Nev. 700, 702, 475 P.2d 607, 608 (1970). In 1985,
however, in Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985), we adopted a doctrine of
landowner liability for landlords independent of the status of the person injured on the land
and free from the rigid categorization which has been a vestige of the early common law.
which has been a vestige of the early common law. In Turpel, the plaintiff was injured when
she attempted to warn residents of a fire which had broken out in a condominium unit owned
by the defendant. Id. at 35-36, 692 P.2d at 1290. The plaintiff alleged that her injuries were
proximately caused by the defendant's failure to install smoke detectors in the condominium
units. Id. at 36, 692 P.2d at 1290. The defendant moved for summary judgment on the sole
ground that the plaintiff was a mere licensee, to whom the defendant owed no duty of due
care, and the motion was granted. Id. In reversing the grant of summary judgment, we quoted
the following passage from Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973):
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.
Turpel, 101 Nev. at 38, 692 P.2d at 1292. We concluded in Turpel:
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.
Id. at 39, 692 P.2d at 1293.
In Turpel, we discussed Swift & Company v. Baldwin, 299 S.W.2d 157 {Tex.Civ.App,
1957), in which the plaintiff was injured while attempting to secure a sign he feared
would fall on school children.
S.W.2d 157 (Tex.Civ.App, 1957), in which the plaintiff was injured while attempting to
secure a sign he feared would fall on school children. The defendant attempted to rely on the
plaintiff's status as an invitee to avoid liability. Id. at 160. We made the following statement
concerning Swift:
The [Swift] court refused to apply the concept [of the status of the injured person] 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.
Turpel, 101 Nev. at 37, 692 P.2d at 1291 (quoting Swift, 299 S.W.2d at 160).
In 1986, in Galloway v. McDonalds Restaurants, 102 Nev. 534, 728 P.2d 826 (1986), we
stated that the following jury instruction embodies the law in Nevada as to the duty of
landowners:
An owner or occupant of land must exercise ordinary care and prudence to render
the premises reasonably safe for the visit of a person invited on his premises for
business purposes. An owner or occupant of land who knows, or in the exercise of
reasonable care should know, of their dangerous and unsafe condition, and who invites
others to enter upon the property, owes to such invitees a duty to warn them of the
danger, where the peril is hidden, latent, or concealed, or the invitees are without
knowledge thereof.
Id. at 537, 728 P.2d at 828. One year after Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290
(1985), we allude to a doctrine of landowner liability based upon the injured person's status
upon the premises. In Ross v. Carson Construction, 106 Nev. 885, 803 P.2d 657 (1990), we
also indicated that the common law status of a person as a trespasser on another's property
may affect the person's ability to recover for personal injuries, but we elect[ed] not to reach
the issue of [the plaintiff's] status under the common law landowner liability classifications.
Id. at 888-89, 803 P.2d at 659.
In 1989, in Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989), we relied on Turpel. In
Wright, a tenant's pit bull dog escaped from the tenant's yard and mauled a young boy. Id. at
612, 781 P.2d at 1142. The plaintiff brought an action against the owner/landlord of the
property, but this action was dismissed. Id. We held that the defendant could not be held
liable as a landlord or by reason of his status as a landlord. Id. at 613, 781 P.2d at 1143.
We stated in Wright: In Turpel we observed correctly that merely because a person had
the legal status of being an owner or landlord, such person did not enjoy immunity from
tort liability.
In Turpel we observed correctly that merely because a person had the legal status of
being an owner or landlord, such person did not enjoy immunity from tort liability. As
put in Turpel, there is no reason to except landlords or property owners from the
general application of the basic principles of tort law. [The land owner], obviously, as
other persons must exercise reasonable care not to subject others to an unreasonable
risk of harm.
The question in this case, then, is not whether [the land owner] is liable to [the
mauled boy] as a landlord, but rather whether he is liable as other persons for the
exercise of due care in not subjecting [the boy] to an unreasonable risk of harm.
Id. at 613-14, 781 P.2d at 1143 (footnote omitted; citations omitted). However, in a footnote
in Wright, we analyzed Turpel as follows:
Obviously the duty to install smoke detectors is related to [the condominium owner's]
status as an owner or landlord, and there would be no duty apart from this status; still,
Turpel is not a case of landlord liability; it is, as stated in the Turpel opinion, one of
general tort liability.
Id. at 613 n.1, 781 P.2d at 1143 n.1.
[Headnote 13]
We find the approach set forth in Turpel and those cases which follow it to be a more
enlightened and equitable means for ascertaining liability. We therefore follow the lead of the
California Supreme Court in Rowland v. Christian, 443 P.2d 561 (Cal. 1968), and abandon
former principles of landowner liability based upon the status of the person injured on the
premises, such as whether that person is a trespasser, licensee, or invitee. In Turpel, we
stated:
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.
Turpel, 101 Nev. at 37-38, 692 P.2d at 1292 (quoting Young v. Garwackie, 402 N.E.2d 1045,
1047 (Mass. 1980)). We also stated, [A]s 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. Turpel, 101 Nev. at 37, 692 P.2d at
1291.
In Rowland, the California Supreme Court rejected a rigid classification system based on
status in determining landowner liability. Rowland, 443 P.2d at 568. The court stated:
One of the areas where this court and other courts have departed from the
fundamental concept that a man is liable for injuries caused by his carelessness is with
regard to the liability of a possessor of land for injuries to persons who have entered
upon that land. It has been suggested that the special rules regarding liability of the
possessor of land are due to historical considerations stemming from the high place
which land has traditionally held in English and American thought, the dominance and
prestige of the landowning class in England during the formative period of the rules
governing the possessor's liability, and the heritage of feudalism.
The departure from the fundamental rule of liability for negligence has been
accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and
then adopting special rules as to the duty owed by the possessor to each of the
classifications. . . .
Id. at 564-65 (citation omitted). The California Supreme Court recognized that rules of
liability based upon the status of the plaintiff is neither strictly logical nor just. We find the
following language from Rowland particularly persuasive:
A man's life or limb does not become less worthy of protection by the law nor a loss
less worthy of compensation under the law because he has come upon the land of
another without permission or with permission but without a business purpose.
Reasonable people do not ordinarily vary their conduct depending upon such matters,
and to focus upon the status of the injured party as a trespasser, licensee, or invitee in
order to determine the question whether the landowner has a duty of care, is contrary to
our modern social mores and humanitarian values. The common law rules obscure
rather than illuminate the proper considerations which should govern determination of
the question of duty.
Id. at 568. Accordingly, the California Supreme Court saw fit to abandon such antiquated
rules for determining liability, stating:
[W]e are satisfied that continued adherence to the common law distinctions can only
lead to injustice or, if we are to avoid injustice, further fictions with the resulting
complexity and confusion. We decline to follow and perpetuate such rigid
classifications. The proper test to be applied to the liability of the possessor of land . . .
is whether in the management of his property he has acted as a reasonable man in
view of the probability of injury to others, and, although the plaintiff's status as a
trespasser, licensee, or invitee may in the light of the facts giving rise to such status
have some bearing on the question of liability, the status is not determinative.
management of his property he has acted as a reasonable man in view of the probability
of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee
may in the light of the facts giving rise to such status have some bearing on the question
of liability, the status is not determinative.
Id.
[Headnote 14]
We discern no justification for continuing to adhere to rules of land owner and occupier
liability based upon the artificial classification of plaintiffs as either trespassers, licensees, or
invitees, and hinging recovery on this status. We conclude that all persons in this society have
an obligation to act reasonably and that an owner or occupier of land should be held to the
general duty of reasonable care when another is injured on that land. While a reasonable
person would take greater precautions to protect from harm's way one invited onto his or her
premises than he or she would to protect a trespasser, the status of the injured party may not
be the dispositive factor. Rather, determinations of liability should primarily depend upon
whether the owner or occupier of land acted reasonably under the circumstances. In the
instant case, Moody's recovery should depend on the reasonableness of the use of the cable
barrier under the circumstances rather than the status of Moody as a trespasser, licensee, or
invitee at the time of the injury.
[Headnote 15]
We hold that the district court erred in ordering summary judgment against Moody. We
conclude, as a matter of law, that neither the firefighter's rule nor NRS 41.139 bars Moody's
suit for personal injuries. We further conclude that there remains a genuine issue of material
fact as to whether Manny's and Peress acted reasonably under the circumstances in erecting,
or allowing to be erected, a cable barrier across the parking lot. Since, following Peress's
dismissal from the action, Peress was rejoined in the litigation by Manny's as a third-party
defendant, we conclude that any contentions as to Peress's dismissal are moot and we decline
to address them further.
We have considered all other contentions on appeal and we conclude that they either lack
merit or need not be addressed in light of this disposition. Accordingly, we reverse the order
of the district court granting summary judgment against Moody and remand for further
Steffen, Young, Springer and Shearing, JJ., concur.
____________
110 Nev. 334, 334 (1994) Sheriff v. Roylance
SHERIFF, CLARK COUNTY, Appellant, v. SHARON KAY ROYLANCE, Respondent.
No. 23865
March 30, 1994 871 P.2d 359
Appeal from an order of the district court granting respondent's pretrial petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
After being indicted for sale of controlled substance and trafficking in controlled
substance, defendant petitioned for pretrial writ of habeas corpus. The district court granted
petition. On appeal, the supreme court, Steffen, J., held that: (1) prosecution did not exhibit
conscious indifference to defendant's rights so as to warrant issuance of pretrial writ of habeas
corpus when prosecution requested continuance of preliminary hearing, and (2) preliminary
hearing record did not contain clear, uncontroverted evidence establishing procuring agent
defense so as to entitle defendant to pretrial writ of habeas corpus for being indicted without
probable cause.
Young and Springer, JJ., dissented.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark
County, for Appellant.
Peter L. Flangas, Las Vegas, for Respondent.
1. Habeas Corpus.
Prosecution did not exhibit conscious indifference to defendant's rights so as to warrant issuance of pretrial writ of habeas corpus
when prosecution requested continuance of preliminary hearing. Prosecutor testified that bailiff told him that subpoenaed undercover
officer that was prosecution's sole witness was ill and asked for continuance when officer failed to appear. There was nothing in record
to suggest that prosecution was not genuinely surprised by officer's absence.
2. Habeas Corpus.
Pretrial writ of habeas corpus may issue when district attorney acts in willful or consciously indifferent manner with regard to
defendant's procedural rights.
3. Criminal Law.
Prosecution must show good cause for securing continuance of preliminary examination.
4. Habeas Corpus.
Supreme court will not disturb decision of district court that prosecution exhibited conscious indifference to defendant's important
procedural rights so as to warrant issuance of pretrial writ of habeas corpus, if there is substantial evidence in record to support district
court's determination.
5. Habeas Corpus.
District court may grant pretrial writ of habeas corpus upon determination that affirmative defense exists as a matter of law based
solely on its review of transcript of preliminary hearing when clear, uncontroverted evidence exists in record which establishes defense.
NRS 34.500(7).
6. Drugs and Narcotics.
Procuring agent is person who acts, not on one's own behalf or for supplier, but solely for recipient.
Procuring agent cannot be guilty of selling or trafficking in controlled substance.
8. Habeas Corpus.
Preliminary hearing record did not contain clear, uncontroverted evidence establishing procuring agent defense so as to entitle
defendant, who had been indicted for sale of controlled substance and trafficking in controlled substance, to pretrial writ of habeas
corpus for being indicted without probable cause, as record was unclear as to reason defendant was providing cocaine to undercover
officer. NRS 34.500(7).
OPINION
This is an appeal from an order of the district court granting respondent's pretrial petition for a writ of habeas corpus.
Respondent Sharon Kay Roylance was indicted for allegedly selling a total of approximately 25 grams of cocaine to an undercover
police officer in five separate transactions between July 5, 1991, and September 5, 1991. On February 13, 1992, Roylance appeared before
the justice's court for the preliminary hearing. The state informed the justice's court that it was unable to proceed because its sole witness,
the undercover officer, was ill. The prosecuting attorney represented that he had been informed of the officer's illness by a bailiff, who had
spoken to the officer. Over Roylance's objection, the justice of the peace continued the preliminary hearing until April 14, 1992. The justice
of the peace stated that Roylance could challenge the validity of the officer's alleged illness at the continued preliminary hearing. The
continued preliminary hearing was never held, however, because the state elected to present the case to the grand jury on February 27,
1992. The undercover officer testified before the grand jury.
At the grand jury proceeding, the officer testified that the first alleged transaction started at a Las Vegas bar where the officer gave
Roylance $225.00 for an eighth of an ounce of cocaine. Roylance departed the bar and returned shortly thereafter. Roylance and the officer
then got in Roylance's vehicle and completed the transaction while driving around the block.
The second alleged transaction started at the same bar. The officer gave Roylance $450.00
for a quarter ounce of cocaine and Roylance arranged to meet the officer outside another bar
in fifteen to twenty minutes. The transaction was again completed in Roylance's vehicle.
The third alleged transaction started at a house which Roylance was listing for sale. The
officer apparently contacted Roylance and told her that he wanted a quarter ounce of cocaine.
They agreed on a price of $425.00. The officer gave Roylance the money at the house and
Roylance told the officer that they should both depart and return shortly. Upon returning, they
reentered the house and Roylance gave the officer the cocaine.
The fourth alleged transaction occurred at an establishment called Ole's. Roylance and the
officer arranged to meet at Ole's so that the officer could purchase a quarter ounce of cocaine.
Roylance saw the officer arrive and approached the officer's car window. The officer gave
Roylance $425.00 and Roylance told the officer to meet her at a bank in 20 to 25 minutes,
where they concluded the transaction.
The fifth alleged transaction occurred at a street intersection. Roylance contacted the
officer and told him that she had a sample of the best cocaine she ever had. Roylance and the
officer met at the intersection and Roylance allegedly told the officer that she had a new
steady source of excellent powder cocaine. The officer paid Roylance $80.00 for one gram of
cocaine.
The grand jury returned a true bill against Roylance, and an indictment was filed the next
day. The indictment charged Roylance with two counts of sale of a controlled substance and
three counts of trafficking in a controlled substance.
Roylance petitioned the district court for a pretrial writ of habeas corpus on two grounds:
(1) that she was a procuring agent, not a seller or trafficker, as a matter of law; and (2) that
the state displayed a conscious indifference to her important procedural rights when it put the
case to the grand jury after being warned by the justice's court that it would have to justify the
continuance of the preliminary hearing. The district court heard argument and held an
evidentiary hearing regarding the propriety of the justice's court's continuance.
At the evidentiary hearing, the undercover officer again failed to appear and the state was
unable to produce any evidence, such as work or medical records, that the officer was ill on
the day in question. The prosecution represented that it had subpoenaed the officer and did
not know why he was not present at the evidentiary hearing. The district court granted
Roylance's petition for a writ of habeas corpus on both the procuring agent and the conscious
indifference grounds.
conscious indifference grounds. We conclude that the district court erred.
CONSCIOUS INDIFFERENCE
[Headnotes 1-4]
A pretrial writ of habeas corpus may issue when a district attorney acts in a willful or
consciously indifferent manner with regard to a defendant's procedural rights. See Sheriff,
Nye County v. Davis, 106 Nev. 145, 787 P.2d 1241 (1990). Good cause must be shown by
the prosecution for securing a continuance of a preliminary examination. Id. We have held
that good cause exists when a prosecutor is genuinely surprised by the absence of a
subpoenaed witness at a preliminary hearing, orally moves for a continuance, and testifies
under oath to the factual matters supporting the motion for a continuance. See Bustos v.
Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971). This court, however, will not disturb a decision
of the district court that the prosecution exhibited conscious indifference to a defendant's
important procedural rights if there is substantial evidence in the record to support the district
court's determination. See State v. Autry, 103 Nev. 552, 746 P.2d 637 (1987); see generally
Sheriff, Nye County v. Davis, 106 Nev. 145, 787 P.2d 1241(1990); Sheriff v. Menendez, 98
Nev. 430, 651 P.2d 98 (1982); McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973).
Nevertheless, we conclude that there is not substantial evidence in the record to support the
district court's decision.
When the subpoenaed undercover officer failed to appear, the prosecutor complied with
Bustos and testified that the bailiff told him that the officer had called to say that he was ill
and asked for a continuance. What occurred at the second hearing and whether the officer was
truly ill are irrelevant. The only question properly before the district court was whether the
prosecution was consciously indifferent to Roylance's important procedural rights when it
requested the original continuance in justice's court. There is nothing in the record to suggest
that the prosecution was not genuinely surprised by the undercover officer's original absence
at the preliminary hearing. Absent evidence indicating that the prosecution was consciously
indifferent to securing the officer's presence so that the preliminary hearing could occur, the
justice's court properly granted the continuance.
PROCURING AGENT
The district court may grant pretrial writs of habeas corpus where a defendant has been
committed or indicted on a criminal charge without probable cause. NRS 34.500(7). The
district court, however, did not determine that there was insufficient cause to bind over
Roylance on the sale or trafficking charges.
court, however, did not determine that there was insufficient cause to bind over Roylance on
the sale or trafficking charges. Rather, the district court determined that the grand jury
evidence proved Roylance was a procuring agent as a matter of law, i.e. the evidence could
only support the conclusion that Roylance was merely a procuring agent and not a seller or
trafficker.
[Headnotes 5-7]
A district court may grant a pretrial writ of habeas corpus upon a determination that an
affirmative defense exists as a matter of law based solely on its review of the transcript of a
preliminary hearing where clear, uncontroverted evidence exists in the record which
establishes the defense . . . . Sheriff v. Gleave, 104 Nev. 496, 498, 761 P.2d 416, 417-18
(1988). A procuring agent is a person who acts, not on one's own behalf or for a supplier, but
solely for the recipient. A procuring agent cannot be guilty of selling or trafficking in a
controlled substance. See Hillis v. State, 103 Nev. 531, 746 P.2d 1092 (1987); Roy v. State,
87 Nev. 517, 489 P.2d 1158 (1971).
[Headnote 8]
We conclude that the district court erred in determining that Roylance was a procuring
agent as a matter of law. Although the state may not have negated the procuring agent
defense, the record does not contain clear, uncontroverted evidence establishing the defense.
The officer, who was the sole witness, did not testify as to Roylance's motives. The record is
unclear as to the reason Roylance was providing cocaine to the undercover officer. It might
have been out of friendship, or it might have been to make a profit. The officer did not
establish through his testimony that Roylance was merely a conduit for the purchaser and in
no way benefitted from the transaction. Dixon v. State, 94 Nev. 662, 664, 584 P.2d 693, 694
(1978). Accordingly, we reverse the order of the district court issuing the writ of habeas
corpus and remand for further proceedings.
Rose, C. J., and Shearing, J., concur.
Young, J., with whom Springer, J., joins, dissenting:
I respectfully dissent from the majority's conclusion that the State did not act in a
consciously indifferent manner toward Roylance's procedural rights. In my opinion, there is
sufficient evidence in the record for this court to defer to the fact-finding of the district court.
The record indicates that Roylance objected to a continuance of the preliminary hearing
due to the officer's illness. Roylance was told she would have the opportunity to challenge the
continuance at the next hearing.
at the next hearing. However, that hearing never took place because the State chose to put the
case to the grand jury. Consequently, Roylance never had the opportunity to challenge the
continuance as promised. For this reason, I disagree with the majority that what occurred at
the second hearing was irrelevant. The second hearing was Roylance's first opportunity to
challenge the State's actions, and in that sense was a continuation of the first hearing despite
the fact that an indictment had already been obtained. However, at this second hearing, the
State failed to fully justify its actions in the first hearing. The district court judge properly
took this into account, as well as the fact that the officer failed to show up a second time.
Indeed, the State did not provide an affidavit from the absent officer as to his illness during
the first hearing until it submitted a motion for rehearing after the writ of habeas corpus was
granted. In my opinion, the totality of the circumstances indicates conscious indifference on
the part of the State.
In addition, I question the sufficiency of the evidence proffered by the State at the first
hearing as reason for the continuance. The evidence consisted of the prosecutor hearing from
the bailiff who heard from the officer that the officer was sick and unable to attend. This was
clearly hearsay. It is doubtful that this evidence alone was sufficient evidence to establish
good cause required to justify a continuance. Therefore, Roylance had every right to
challenge the propriety of the continuance at a second hearing.
Because I conclude that the record contains sufficient evidence to find that the State
behaved in a consciously indifferent manner towards Roylance's procedural rights, I would
affirm the decision of the district court.
____________
110 Nev. 339, 339 (1994) Beets v. State
EDWARD LEE BEETS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25277
March 30, 1994 871 P.2d 357
Appeal from an order of the district court denying appellant's motion for partial summary
judgment on a post-conviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
After affirmance of conviction for first degree murder, attempted murder, mayhem, first
degree kidnapping, sexual assault, sexual assault with minor, and burglary, 107 Nev. 957, 821
F.2d 1044 (1991), petition was filed for writ of habeas corpus.
110 Nev. 339, 340 (1994) Beets v. State
corpus. The district court denied petitioner's motion for partial summary judgment, and
petitioner appealed. On state's motion to dismiss, the supreme court held that: (1) district
court erred in entertaining motion for summary judgment in context of post-conviction
petition for writ of habeas corpus and erred in certifying its order as final, and (2) even if
summary judgment could be utilized in post-conviction context, order of district court
denying motion for partial summary judgment was not independently appealable order and
was not amenable to certification of finality.
Motion to dismiss granted.
Kevin M. Kelly, Las Vegas, for Appellant.
County, for Respondent.
1. Habeas Corpus.
District court erred in entertaining motion for summary judgment in context of post-conviction petition for writ of habeas corpus
and erred in certifying its order as final. Summary judgment is not provided for as method of determining merits of post-conviction
petition for writ of habeas corpus. NRS 34.770, 34.800, 34.810.
2. Habeas Corpus.
Even if summary judgment could be utilized in post-conviction context, district court's order denying motion for partial summary
judgment was not independently appealable order and was not amenable to certification of finality. NRCP 54(b).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's motion for partial summary judgment on a post-conviction
petition for a writ of habeas corpus. The district court certified its order as final pursuant to NRCP 54(b). On March 9, 1994, the state filed
a motion to dismiss this appeal. On March 18, 1994, appellant filed his opposition to the state's motion to dismiss.
On November 7, 1989, the district court convicted appellant, pursuant to a jury verdict, of one count each of burglary, first degree
murder with use of a deadly weapon, attempted murder with use of a deadly weapon, mayhem with use of a deadly weapon, sexual assault
with use of a deadly weapon, and two counts of sexual assault upon a minor under fourteen years of age. A three-judge panel imposed the
death penalty. In addition, the district court sentenced appellant to serve in the Nevada State Prison four consecutive terms of life
in prison with the possibility of parole to be served consecutively to terms totalling fifty years.
110 Nev. 339, 341 (1994) Beets v. State
Prison four consecutive terms of life in prison with the possibility of parole to be served
consecutively to terms totalling fifty years. This court affirmed the convictions and sentence
in Beets v. State, 107 Nev. 957, 821 P.2d 1044 (1991).
On November 22, 1993, appellant filed in the district court a post-conviction petition for a
writ of habeas corpus. On December 7, 1993, appellant filed a motion for partial summary
judgment. Appellant argued that his death sentence is illegal because a majority of this court
failed to issue a majority opinion in which three judges concurred in the finding that
consideration by the penalty jury of improper aggravating circumstances constituted harmless
error. The state opposed the motion for summary judgment. On December 23, 1993, the
district court, after hearing argument from counsel, denied appellant's motion for partial
summary judgment. The district court certified the judgment as final pursuant to NRCP 54(b).
This appeal followed.
[Headnote 1]
The district court erred in entertaining a motion for summary judgment in the context of a
post-conviction petition for a writ of habeas corpus and erred in certifying its order as final
pursuant to NRCP 54(b). [H]abeas corpus is a proceeding which should be characterized as
neither civil nor criminal for all purposes. It is a special statutory remedy which is essentially
unique. Hill v. Warden, 96 Nev. 38, 40, 604 P.2d 807, 808 (1980). This court may look to
general civil or criminal rules for guidance only when the statutes governing habeas
proceedings have not addressed the issue presented. Mazzan v. State, 109 Nev. 1067, 1070,
863 P.2d 1035, 1036 (1993). NRS 34.820 provides for the procedure in cases where the
petitioner has been sentenced to death. NRS 34.770, NRS 34.800 and NRS 34.810 provide
for the manner in which the district court decides a post-conviction petition for a writ of
habeas corpus. These statutes do not provide for summary judgment as a method of
determining the merits of a post-conviction petition for a writ of habeas corpus. [T]he
provisions of NRS 34.780 expressly limit the extent to which civil rules govern
post-conviction habeas proceedings. We cannot turn to the rules of civil procedure for
guidance when NRS Chapter 34 has already addressed the matter at issue. Mazzan, 109 Nev.
at 1073, 863 P.2d at 1038. Because NRS Chapter 34 addresses the issue of how the district
court shall make its determination upon a post-conviction petition for a writ of habeas corpus,
there is no need to turn to the rules of civil procedure. Accordingly, the district court erred in
considering appellant's motion for partial summary judgment. Consequently, this court lacks
jurisdiction to entertain an appeal from an order resolving the motion.
110 Nev. 339, 342 (1994) Beets v. State
[Headnote 2]
Further, even if summary judgment could be utilized in a post-conviction context, the
order of the district court denying the motion for partial summary judgment is not an
independently appealable order and is not amenable to NRCP 54(b) certification. The denial
of a motion for summary judgment is not a final judgment under [NRAP 3A(b)]. Taylor
Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984). The district
court's order did not resolve any claim for relief, nor did it remove any party from the action
below. Thus, the order is not amenable to certification of finality pursuant to NRCP 54(b).
See, e.g., Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 797 P.2d 978 (1990);
Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986); Knox v. Dick, 99 Nev. 514,
665 P.2d 267 (1983). The district court does not have the power, even when a motion for
certification is unopposed, to transform an interlocutory order which does not come within
the rule, into a final judgment. Taylor, 100 Nev. at 209, 678 P.2d at 1153.
Accordingly, we conclude that we lack jurisdiction to entertain this appeal. We grant the
state's motion, and we dismiss this appeal.
____________
110 Nev. 342, 342 (1994) Langston v. State, Dep't of Mtr. Vehicles
MELANIE MARIE LANGSTON, Appellant, v. THE STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES, Respondent.
No. 24261
March 30, 1994 871 P.2d 362
Appeal from an order of the district court denying appellant's petition for judicial review
and affirming the appeals officer's decision to revoke appellant's driver's license. Eighth
Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
On state's motion to dismiss, the supreme court held that driver's appeal was moot because
period of revocation of her driver's license had expired.
Dismissed.
John G. Watkins, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Laurie B. Foremaster, Deputy Attorney
General, Carson City, for Respondent.
1. Automobiles.
Driver's appeal of revocation of her driver's license was moot, notwithstanding claimed collateral consequences stemming from
revocation of her driver's license. Consequences such as enhancement of revocation period for subsequent revocation actions, taking
written and driving examinations and license reinstatement fees were not of sufficient significance to create substantial controversy.
2. Automobiles.
Driver's appeal from revocation of her driver's license was moot, although she argued her case was capable of repetition yet
evading review. Issues raised by driver were factually specific to her case and were therefore not of character considered capable of
repetition.
OPINION
1

Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for judicial
review and affirming the appeals officer's decision to revoke appellant's driver's license. The
state has filed a motion to dismiss this appeal as moot.
The state contends that this appeal is moot because the period of revocation of appellant's
driver's license has expired. Thus, argues the state, this court is unable to grant appellant any
effective relief. See NCAA v. University of Nevada, 97 Nev. 56, 624 P.2d 10 (1981).
[Headnote l]
Appellant presents four arguments as to why this court should not dismiss her appeal as
moot. Appellant first argues that this court should not dismiss her appeal because collateral
consequences exist from the revocation of her driver's license. As collateral consequences,
appellant lists the following: (1) the requirement of filing an SR-22 form at a cost of
thousands of dollars; (2) enhancement of the revocation period for subsequent revocation
actions; (3) loss of entitlement to a restricted license for subsequent revocation actions; (4)
taking the written and driving examinations; (5) license reinstatement fees; (6) a minimum of
thirty days jail time if appellant drives before reinstatement. Appellant provides no authority
for the existence of any of these alleged collateral consequences. We conclude that none of
these collateral consequences are of sufficient significance to create a substantial
controversy.
__________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to the request of counsel
for respondent The State of Nevada, Department of Motor Vehicles, we have determined that our decision
should be issued in a published opinion. Accordingly, we issue this opinion in place of our order dismissing this
appeal filed on November 4, 1993.
cance to create a substantial controversy. We note specifically that the requirement under
NRS 483.525 that appellant provide proof of financial responsibility before the department of
motor vehicles can restore her driver's license does not differ significantly from the
requirement placed on all Nevadans.
[Headnote 2]
Appellant next argues that her case is capable of repetition, yet evading review, and
therefore falls within an exception to the mootness doctrine. If an issue is capable of
repetition, yet will evade review, the issue will not be treated as moot. See Southern Pacific
Terminal Co. v. ICC, 219 U.S. 498 (1911). In the instant case, the issues raised by appellant
are factually specific to her case and are therefore not of the character considered capable of
repetition. See DeFunis v. Odegaard, 416 U.S. 312 (1974); Roe v. Wade, 410 U.S. 113
(1973).
Appellant's two final arguments are that the statutory scheme for judicial review of a
driver's license revocation violates due process and that the term risk to the public in NRS
233B.140(3)(b) is unconstitutionally void for vagueness. Appellant makes no attempt to
explain how these contentions relate to the mootness issue, and did not raise these issues in
her opening brief. Appellant cannot now raise new issues in an attempt to avoid dismissal for
mootness.
Based on the foregoing, we conclude that this court is unable to grant appellant any
effective relief, and that appellant's case is moot. Accordingly, we grant the state's motion,
and we dismiss this appeal.
2

____________
110 Nev. 344, 344 (1994) Glegola v. State
BELINDA GLEGOLA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23050
March 30, 1994 871 P.2d 950
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
solicitation for prostitution after notice of testing positive for the human immunodeficiency
virus. Second Judicial District Court, Washoe County; Mills Lane, Judge.
The supreme court held that: (1) solicitation for prostitution is general intent crime; (2)
jury could reasonably infer from evidence that defendant committed crime of solicitation for
prostitution after notice for testing positive for HIV; and {3) fifteen-year sentence was not
cruel and unusual punishment, even though defendant was likely to die of illness related
to Acquired Immune Deficiency Syndrome {AIDS) during those fifteen years.
__________

2
We deny as moot respondent's alternative motion for an extension of time within which to file the answering
brief.
tion after notice for testing positive for HIV; and (3) fifteen-year sentence was not cruel and
unusual punishment, even though defendant was likely to die of illness related to Acquired
Immune Deficiency Syndrome (AIDS) during those fifteen years.
Affirmed.
Michael R. Specchio, Public Defender, and Janet Cobb Schmuck, Deputy Public Defender,
Washoe County, for Appellant.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Prostitution.
Solicitation for prostitution is general intent crime, and, thus, person commits crime of solicitation for prostitution if person offers,
agrees, or arranges to provide sexual conduct for fee. State is not obligated to prove that defendant intended to actually engage in
sexual conduct for fee. NRS 201.354.
2. Prostitution.
Jury could reasonably infer from evidence presented that defendant committed crime of solicitation for prostitution after notice of
testing positive for human immunodeficiency virus (HIV), where undercover police officer testified that defendant offered to perform
sexual acts in exchange for money, and several witnesses testified that defendant had knowledge of HIV-positive status, even though
defendant and several witnesses testified that defendant planned to trick-roll officer, in other words, planned to take money from
officer and leave. NRS 201.354, 201.358.
3. Prostitution.
Substantial evidence supported verdict finding that defendant committed crime of solicitation for prostitution after notice of
testing positive for human immunodeficiency virus (HIV), even though defendant contended that she was intoxicated and under
influence of narcotics at time of offer, thus implying that she did not have requisite mens rea to commit offense, where witnesses for
state testified that defendant was not intoxicated. NRS 201.354, 201.358.
4. Criminal Law.
It is for jury to determine weight and credibility to give conflicting testimony, and jury's verdict will not be disturbed on appeal
where substantial evidence supports verdict.
5. Prostitution.
Trial court did not abuse its discretion in imposing fifteen-year sentence, which was within statutory range of not less than one
year nor more than twenty years, upon defendant convicted of solicitation for prostitution after notice of testing positive for human
immunodeficiency virus (HIV). NRS 201.358.
6. Criminal Law.
Imposition of fifteen-year sentence on defendant convicted of solicitation for prostitution after notice of testing positive for human
immunodeficiency virus (HIV) was not cruel and unusual punishment, even though defendant was likely to die of illness
related to Acquired Immune Deficiency Syndrome {AIDS) during those fifteen years.
though defendant was likely to die of illness related to Acquired Immune Deficiency Syndrome (AIDS) during those fifteen years. U.S.
Const. amend. 8; NRS 201.358.
7. Criminal Law.
District court has wide discretion in imposing prison term, and supreme court will not disturb sentence in absence of showing of
abuse of such discretion.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of solicitation for prostitution after notice of
testing positive for the human immunodeficiency virus (HIV), in violation of NRS 201.358 and NRS 201.354. The district court sentenced
appellant to serve a term of fifteen years in the Nevada State Prison.
The significant facts in this case are basically undisputed. On August 6, 1991, appellant met at a bar with undercover officer Blair of
the Reno Police Department. Appellant told Blair that she would provide him with the sexual acts of half-and-half and sixty-nine for
$80. Prior to this event, appellant had been informed several times that she has HIV. Reno police officers arrested appellant as appellant
and Blair were leaving the bar.
At trial, appellant claimed, and several witnesses testified in support of the claim, that appellant did not intend to engage in sexual
activities with Blair. Rather, appellant planned to take the money from Blair and leave. In other words, appellant planned to trick-roll
Blair. The jury found appellant guilty of one count of solicitation for prostitution after notice of testing positive for HIV. This appeal
followed.
Appellant contends that the evidence presented at trial was insufficient to support the jury's finding of guilt. Specifically, appellant
contends that there was no evidence indicating that appellant actually intended to engage in sexual activities for a fee. In essence, appellant
contends that the offenses provided for in NRS 201.354 and NRS 201.358 are specific intent crimes and that the state is obligated to prove
that she intended to actually engage in sexual conduct for a fee. The state argues that the offenses provided for in NRS 201.354 and NRS
201.358 are general intent crimes and that the state is obligated to prove that appellant knowingly solicited another to engage in sexual
conduct, and that the state is not obligated to prove that she intended to follow through on her offer.
1. It is unlawful for any person to engage in prostitution or solicitation therefor,
except in a licensed house of prostitution.
2. Any person who violates subsection 1 is guilty of a misdemeanor.
1. Any person who:
(a) Violates NRS 201.354; or
(b) Works as a prostitute in a licensed house of prostitution,
after testing positive in a test approved by the state board of health for exposure to the
human immunodeficiency virus and receiving notice of that fact is guilty of a felony
and shall be punished by imprisonment in the state prison for not less than 1 year nor
more than 20 years, or by fine of not more than $10,000, or by both fine and
imprisonment.
2. As used in this section, notice means:
(a) Actual notice; or
(b) Notice received pursuant to NRS 201.356.
[Headnote 1]
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. Lugman, 101 Nev. 149, 155, 697 P.2d 107, 111 (1985). The
legislature intended to create a general intent offense. The statute does not contain language
which indicates that a specific intent is an element of the offense. Cf. NRS 201.255(2)
(Every person who makes a telephone call with intent to annoy another . . . ) (emphasis
added); NRS 202.040 (Every minor who shall falsely represent himself to be 21 years of age
in order to obtain any intoxicating liquor . . .) (emphasis added). Further, nearly all states
have adopted prostitution or solicitation for prostitution statutes which define the offense as a
general intent crime rather than a specific intent crime. Similarly, ordinances from counties
within this state also define solicitation for prostitution as a general intent offense. There is
nothing in the legislative histories of NRS 201.354 and NRS 201.358 which would suggest
that the legislature intended to deviate from the almost universal definition of solicitation for
prostitution. After reviewing other state statutes, reviewing ordinances from counties within
the state, and inferring the legislature's intent, we conclude that solicitation for prostitution is
a general intent crime. A person commits the crime of solicitation for prostitution if the
person offers, agrees, or arranges to provide sexual conduct for a fee.
if the person offers, agrees, or arranges to provide sexual conduct for a fee.
[Headnote 2]
Our review of the record on appeal reveals sufficient evidence to establish 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). In particular, Officer Blair testified that appellant offered to perform
sexual acts in exchange for money. Several witnesses testified that appellant had knowledge
of her HIV positive status. The jury could reasonably infer from the evidence presented that
appellant committed the crime of solicitation for prostitution after notice of testing positive
for HIV.
[Headnotes 3, 4]
Appellant further contends, in her proper person opening brief, that she was intoxicated
and under the influence of narcotics at the time she made the offer to Officer Blair, thus
implying that she did not have the requisite mens rea to commit the offense. Witnesses for the
state testified that appellant was not intoxicated. It is for the jury to determine the weight and
credibility to give conflicting testimony, and the jury's verdict will not be disturbed on appeal
where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71,
624 P.2d 20 (1981).
[Headnotes 5-7]
Appellant next contends that her fifteen-year sentence is disproportionate to the crime for
which she was convicted. The state responds that the punishment is appropriate because the
harm threatened by the act of solicitation of prostitution while HIV positive is great; because
the legislature did not intend for the unsuspecting client to be fatally infected before
criminals like appellant are treated as felons; [and] because her crime should be treated
differently [as] it is much more serious and obviously much more deadly than an ordinary
crime of mere solicitation defined as a misdemeanor.
[T]he legislature, within constitutional limits, is empowered to define crimes and
determine punishments, and the courts are not to encroach upon that domain lightly. . . .
Thus, it is frequently stated that a sentence of imprisonment which is within the limits
of a valid statute, regardless of its severity, is normally not considered cruel and
unusual punishment in the constitutional sense.
Schmidt v. State, 94 Nev. 665, 668, 584 P.2d 695, 697 (1978) (citations omitted); see also
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991).
NRS 201.358 provides for a punishment of not less than one year nor more than twenty
years. The district court sentenced appellant to a term of fifteen years. Contrary to appellant's
argument, the fact that appellant is likely to die of an AIDS related illness during those fifteen
years does not make the sentence cruel and unusual punishment. The district court has wide
discretion in imposing a prison term and, in the absence of a showing of abuse of such
discretion, this court will not disturb the sentence. See Deveroux v. State, 96 Nev. 388, 610
P.2d 722 (1980).
Accordingly, we affirm judgment of the district court.
____________
110 Nev. 349, 349 (1994) Lozada v. State
JOSE MANUAL LOZADA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24996
March 30, 1994 871 P.2d 944
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count each
of conspiracy to sell a controlled substance, sale of a controlled substance, trafficking in a
controlled substance and possession of a controlled substance with intent to sell. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
The supreme court held that: (1) although supreme court lacked jurisdiction to entertain
defendant's untimely appeal, defendant was not without remedy since he could file petition
with district court for writ of habeas corpus; (2) good cause existed for excusing defendant's
procedural default in presenting successive petition for post-conviction relief; and (3)
defendant suffered actual prejudice sufficient to excuse filing of successive petition.
Dismissed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
1. Habeas Corpus.
Although supreme court lacked jurisdiction to entertain untimely appeal of defendant who alleged ineffective assistance of
counsel, defendant was not without remedy since he could file petition with district court for writ of habeas
corpus.
defendant was not without remedy since he could file petition with district court for writ of habeas corpus. U.S. Const. amend. 6;
NRAP 4(b).
2. Habeas Corpus.
To establish good cause to excuse procedural default, defendant must demonstrate that some impediment external to defense
prevented him from complying with procedural rule that has been violated.
3. Habeas Corpus.
Petition for post-conviction relief based on claim of ineffective assistance of counsel had merit, and thus its denial constituted
impediment external to defense that excused defendant's default in presenting same claim in petition for habeas corpus which he
previously presented in petition for post-conviction relief. Assuming truth of defendant's allegations, his counsel acted unreasonably if
he failed to inform defendant of his right to appeal, and defendant presumably suffered prejudice because he was denied his right to
appeal. U.S. Const. amend. 6; NRS 34.810(2), (3).
4. Criminal Law.
To state claim of ineffective assistance of counsel, defendant must demonstrate that counsel's performance fell below objective
standard of reasonableness, and that counsel's errors were so severe that they rendered jury's verdict unreliable.
5. Criminal Law.
Petitioners for post-conviction relief have burden of establishing factual allegations in support of their petitions.
6. Criminal Law.
Trial counsel must inform convicted client of right to appeal; this duty includes informing client of procedures for filing appeal as
well as advantages and disadvantages of filing appeal. U.S. Const. amends. 5, 14.
7. Criminal Law.
Prejudice may be presumed for purposes of establishing ineffective assistance of counsel when counsel's conduct completely
denies convicted defendant an appeal. U.S. Const. amend. 6.
8. Habeas Corpus.
Assuming that defendant's allegations were true, defendant suffered actual prejudice sufficient to allow filing of petition for writ of
habeas corpus after having previously filed petition for post-conviction relief. Defendant alleged that counsel's conduct deprived him of
fundamental right to counsel on appeal. U.S. Const. amend. 6; NRS 34.810(2), (3).
OPINION
Per Curiam:
On January 7, 1987, the district court entered a judgment of conviction pursuant to a jury verdict against Jose Manual Lozada. A jury
found Lozada guilty of four controlled substance violations. Lozada did not immediately appeal from the judgment of conviction.
Lozada subsequently filed a proper person petition for post-conviction relief in the district court. Lozada claimed his trial counsel
was ineffective for failing to inform Lozada of the right to appointed counsel on appeal and because counsel
falsely informed Lozada that the public defender would perfect an appeal.
counsel was ineffective for failing to inform Lozada of the right to appointed counsel on
appeal and because counsel falsely informed Lozada that the public defender would perfect
an appeal. The district court denied appellant relief without requiring the state to answer the
petition.
This court dismissed Lozada's appeal from the district court's denial of post-conviction
relief. Lozada v. State, Docket No. 19333 (Order Dismissing Appeal, October 21, 1989). We
ruled that Lozada failed to establish that his attorney's conduct prejudiced him. Specifically,
Lozada failed to set forth any meritorious issues which he could have raised in an appeal from
his conviction.
After exhausting his state remedies, Lozada petitioned the federal district court for a writ
of habeas corpus. The federal district court dismissed Lozada's petition for failing to establish
prejudice as required under Strickland v. Washington, 466 U.S. 668 (1984). The district court
subsequently denied Lozada a certificate of probable cause to appeal the denial of his petition.
See 28 U.S.C 2253.
Lozada then petitioned the United States Court of Appeals for the Ninth Circuit for a
certificate of probable cause. The Ninth Circuit denied the petition without comment. Lozada
sought relief by petitioning the United States Supreme Court for a writ of certiorari. The
Supreme Court granted Lozada's petition and remanded the matter to the Ninth Circuit.
Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). The court ruled:
We conclude that the Court of Appeals erred in denying Lozada a certificate of
probable cause because . . . Lozada made a substantial showing that he was denied the
right to effective assistance of counsel. The District Court rested its analysis on the
prejudice prong of the Strickland inquiry, and that was presumably the basis for the
Court of Appeals' decision to deny a certificate of probable cause. We believe the issue
of prejudice caused by the alleged denial of the right to appeal could be resolved in a
different manner than the one followed by the District Court. Since Strickland, at least
two courts of appeals have presumed prejudice in this situation. See Abels v. Kaiser,
913 F.2d 821, 823 (CA10 1990); Estes v. United States, 883 F.2d 645, 649 (CA8 1989);
see also Rodriquez v. United States, 395 U.S. 327, 330 (1969). The order of the Court
of Appeals did not cite or analyze this line of authority . . . .
Id. The Supreme Court remanded the matter to the Ninth Circuit for reconsideration in light
of the cases the Court cited above.
On remand, the Ninth Circuit agreed with the cases cited by the Supreme Court and ruled
that prejudice is presumed when a petitioner establishes "that counsel's failure to file a
notice of appeal was without the petitioner's consent."
petitioner establishes that counsel's failure to file a notice of appeal was without the
petitioner's consent. Lozada v. Deeds, 964 F.2d 956, 958 (9th Cir. 1992). The Ninth Circuit,
therefore, remanded the case to the federal district court for a determination of whether
Lozada's trial counsel failed to pursue an appeal without Lozada's consent. The Ninth Circuit
ruled further that if the federal district court found that Lozada did not consent, the district
court must grant Lozada relief unless Nevada allows Lozada to take a delayed appeal within
a reasonable time. Id. at 959.
Lozada does not provide a copy of the federal district court's determination upon remand.
Lozada indicates, however, that he has filed a notice of appeal in this court from his 1987
convictions pursuant to the instructions of the federal district court. Lozada's notice of appeal
provides: Such notice of appeal is further filed by reason of that Order issued by the
Honorable Lloyd George of the United States District Court whereby Attorney James
Buchanan was ordered to file a Notice of Appeal pursuant to a Petition for Writ of Habeas
Corpus . . . .
DISCUSSION
[Headnote 1]
This court lacks jurisdiction to entertain Lozada's appeal. Lozada filed a notice of appeal
from his 1987 judgment of conviction well after the thirty-day appeal period prescribed by
NRAP 4(b). We have consistently held that an untimely notice of appeal fails to vest
jurisdiction in this court. See, e.g., Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696
P.2d 998 (1985). We must, therefore, dismiss Lozada's appeal for lack of jurisdiction.
In light of the Ninth Circuit's failure to recognize the jurisdictional limitations on our
authority to grant Lozada an appeal, we deem it necessary to detail Lozada's possible
remedies. Our decision does not leave Lozada without a complete and adequate remedy.
Lozada may obtain relief in the district court by filing a petition for a writ of habeas corpus.
Because Lozada previously petitioned the district court for post-conviction relief, Lozada
must overcome the procedural hurdle of filing a successive petition. See NRS 34.810.
1
NRS
34.S10{3) requires petitioners who file a successive petition to establish good cause and
prejudice for rearguing issues which have been rejected on their merits in a previous
petition or for raising new grounds in a successive petition.2
__________

1
A second or successive petition must be dismissed if the judge or justice determines that it fails to allege
new or different grounds for relief and that the prior determination was on the merits or, if new and
different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ.
34.810(3) requires petitioners who file a successive petition to establish good cause and
prejudice for rearguing issues which have been rejected on their merits in a previous petition
or for raising new grounds in a successive petition.
2

A. Good cause for filing a successive petition
[Headnotes 2, 3]
To establish good cause to excuse a procedural default, a defendant must demonstrate that
some impediment external to the defense prevented him from complying with the procedural
rule that has been violated. See Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769
P.2d 72, 74 (1989). Because Lozada filed a timely petition for post-conviction relief, his
claim of ineffective assistance of counsel was properly presented to the district court. If that
claim had merit, the denial of relief by the district court, and the subsequent denial of relief by
this court, would constitute an impediment external to the defense that would excuse
appellant's default in presenting the same claim in a successive petition. Therefore, we must
determine whether appellant presented a viable claim for relief in his petition for
post-conviction relief.
Lozada contended in his petition that his trial counsel was ineffective for failing to inform
him of the right to appeal his conviction. Lozada contended further that his trial counsel
falsely represented that the public defender would perfect an appeal.
[Headnotes 4, 5]
To state a claim of ineffective assistance of counsel that is sufficient to invalidate a
judgment of conviction, a defendant must demonstrate that counsel's performance fell below
an objective standard of reasonableness, and that counsel's errors were so severe that they
rendered the jury's verdict unreliable. See Strickland v. Washington, 466 U.S. 668 (1984);
Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985).
Lozada contended that his trial counsel acted unreasonably in failing to perfect an appeal
without Lozada's consent. We presume for purposes of this opinion that counsel failed to
perfect an appeal without Lozada's consent.
3

__________

2
NRS 34.726 requires a similar showing of good cause and prejudice for failing to petition for a writ of habeas
corpus within one year of the final resolution of a direct appeal or from conviction if no appeal was taken. The
former procedures for petitioning for a writ of habeas corpus also required a showing of good cause and
prejudice for failing to file a timely petition for post-conviction relief. NRS 34.725 (effective for petitions filed
prior to January 1, 1993).

3
Petitioners for post-conviction relief have the burden of establishing factual allegations in support of their
petitions. On the record presently
1. The reasonableness of Lozada's counsel's conduct
The failure to obtain Lozada's consent not to pursue an appeal would amount to
unreasonable conduct. We have ruled that an attorney has a duty to perfect an appeal when a
convicted defendant expresses a desire to appeal or indicates dissatisfaction with a
conviction. See Fawaz v. State, 105 Nev. 682, 783 P.2d 425 (1989); Downs v. Warden, 93
Nev. 475, 568 P.2d 575 (1977). In Fawaz, for example, the appellant expressed a desire to
challenge his conviction by filing a motion for new trial. Fawaz, 105 Nev. at 683, 783 P.2d at
425. We ruled that counsel was ineffective for failing to file a notice of appeal from the
district court's denial of the motion for new trial. Id. Because Fawaz demonstrated a desire to
challenge his conviction by filing a motion for new trial, counsel had a duty to perfect an
appeal.
Similarly, in Downs, we noted that Downs never expressed a desire to appeal from his
judgment of conviction and he seemed satisfied with the outcome of his case. We also noted
that Downs had waited well over a year before asserting his alleged right to an appeal.
Downs, 93 Nev. at 478, 568 P.2d at 576-77. We concluded: In this factual setting, a trial
attorney has no obligation to represent his client on appeal. Id. at 478, 568 P.2d at 577.
Downs implies that we would have reached the opposite conclusion had Downs expressed
dissatisfaction with his conviction or expressed a desire to appeal within a reasonable time.
We did not directly address in Downs the question of whether Downs knew of his right to
appeal or whether counsel must inform his client of that right. Instead, we noted that the
record was silent on the issue of whether Downs was informed of his right to appeal, and we
concluded that under the peculiar circumstances of that case, Downs had failed to
demonstrate that his attorney had been ineffective. Id.
4

The federal courts have indicated that trial counsel has an affirmative duty to instruct a
convicted client of the right to appeal regardless of whether the client expresses a desire to
appeal. The United States Supreme Court has never directly addressed this issue.
__________
before this court, we cannot determine whether counsel failed to pursue an appeal without appellant's consent.
For the purposes of this appeal, we will assume that Lozada's counsel failed to inform Lozada of the right to
appeal, and neglected to obtain Lozada's consent not to pursue an appeal. Nevertheless, in any subsequent
post-conviction proceeding in this case, appellant will bear the burden of proof on this issue.

4
We note, nevertheless, that some of the language of Downs could be read as supporting the proposition that
counsel has no duty to inform his client of his appeal rights. To the extent that any language in Downs is
inconsistent with this opinion, we expressly disapprove it.
addressed this issue. The Court's opinion remanding Lozada's petition to the Ninth Circuit,
however, appears to assume that an attorney must inform a client of the client's appeal rights.
Lozada claimed that trial counsel either had a duty to inform him of his appeal rights or to
ensure that he received appointed counsel who would perfect an appeal. Lozada v. Deeds, 498
U.S. 430, 430-31 (1991) (per curiam). The Supreme Court appears to have accepted these
contentions as true as evidenced by the Court only addressing the Ninth Circuit's failure to
consider whether prejudice may be presumed under the circumstances Lozada alleged.
Requiring trial counsel to inform a convicted client of the right to appeal is consistent with
the Supreme Court's prior precedent. In Douglas v. California, 372 U.S. 353 (1963), the Court
held that criminal defendants have a right to counsel on appeal when a state affords a right to
appeal. The Court has ruled further that the right to counsel on appeallike the promise of
Gideon [v. Wainwright, 372 U.S. 335 (1963)] that a criminal defendant has a right to counsel
at trialwould be a futile gesture unless it comprehended the right to the effective assistance
of counsel. Evitts v. Lucey, 469 U.S. 387, 397 (1985). The right to effective counsel on
appeal would also be a futile gesture if a criminal defendant does not make an informed
decision whether to appeal.
Several federal circuit courts have ruled that the Due Process Clause of the Federal
Constitution imposes a duty on attorneys to inform clients of the right to appeal. In Baker v.
Kaiser, 929 F.2d 1495, 1499 (10th Cir. 1991), for example, the Court of Appeals for the
Tenth Circuit ruled that, in Evitts, the Supreme Court implicitly determined that the right to
counsel applies to the time period for perfecting an appeal. According to the Tenth Circuit,
counsel must explain the advantages and disadvantages of an appeal, explain the merits of an
appeal and then ask the client whether to pursue an appeal. Id.; see also Childs v. Collins,
995 F.2d 67, 69 (5th Cir. 1993); Nelson v. Peyton, 415 F.2d 1154 (5th Cir. 1969), cert.
denied, Cox v. Nelson, 397 U.S. 1007 (1970).
The Ninth Circuit's opinion in Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992), also
indicates that counsel has a duty to inform a client of the right to appeal a conviction. The
Ninth Circuit ruled that counsel may not fail to perfect an appeal of a conviction without the
petitioner's consent. Id. at 958. Logically, a criminal defendant cannot consent to forgo an
appeal unless the defendant knows of the right to appeal. The Ninth Circuit thus implicitly
held that counsel has a duty to discuss a client's appeal rights with the client.
[Headnote 6]
We find these cases persuasive. Convicted defendants likely lack the expertise necessary
to perfect an appeal. The absence of the assistance of counsel during the time period for filing
an appeal may also render the right to counsel on appeal meaningless. Accordingly, trial
counsel must inform a convicted client of the right to appeal. This duty includes informing
the client of the procedures for filing an appeal as well as the advantages and disadvantages
of filing an appeal. Assuming that Lozada's counsel failed to inform Lozada of his right to
appeal, Lozada has demonstrated that his counsel acted unreasonably under Strickland.
2. Whether counsel's conduct prejudiced Lozada
Assuming the truth of Lozada's allegations, Lozada can also demonstrate prejudice under
Strickland. In Fawaz, we implicitly ruled that prejudice may be presumed on claims based on
the ineffective assistance of counsel when a petitioner has been deprived of the right to
appeal. After concluding that counsel failed to provide effective assistance, we ruled that
Fawaz was prejudiced by the ineffective conduct of his attorney because he lost his right to
review by this court. Fawaz v. State, 105 Nev. 682, 683, 783 P.2d 425, 426 (1989).
The United States Supreme Court has similarly presumed prejudice when an attorney fails
to inform a criminal defendant about the right to appeal. In Rodriquez v. United States, 395
U.S. 327 (1969), an attorney failed to file a notice of appeal against his client's wishes. Id. at
328. The federal district court and the circuit court of appeals rejected the petitioner's request
for post-conviction relief because he failed to establish prejudice by setting forth any
meritorious issues for appeal. Id. at 329.
The Supreme Court reversed and ruled that prejudice must be presumed in this instance
because an unrepresented defendant likely lacks the expertise necessary to formulate
arguments for appeal. Id. at 330. Rodriquez also did not speak English and thus he lacked the
skills necessary to articulate issues for appeal. Accordingly, the Supreme Court presumed that
Rodriquez had suffered prejudice.
In Strickland v. Washington, 466 U.S. 668, 692 (1984), the United States Supreme Court
reaffirmed, without citing, its holding in Rodriquez. Specifically, the Court ruled: Actual or
constructive denial of the assistance of counsel altogether is legally presumed to result in
prejudice. The Supreme Court further reaffirmed this rule in Penson v. Ohio, 488 U.S. 75
(1988). In that case, the Supreme Court considered the procedures to be followed when
appointed counsel files a notice of no merit appeal.
followed when appointed counsel files a notice of no merit appeal. The Court rejected a
harmless error analysis and a prejudice requirement because, in the Court's view, the right to
counsel on appeal is essential to ensure justice and fairness. Id. at 84-85. The Court explained
that prejudice need not be shown where the denial of counsel leaves a defendant completely
without representation . . . . Id. at 88. Instead, the Court ruled that Strickland requires a
showing of prejudice only where counsel fails to press a particular argument on appeal or
fails to argue an issue as effectively as he or she might. Id. (Citation omitted.)
The Ninth Circuit adopted similar reasoning in reviewing Lozada's petition for
post-conviction relief. Relying on Rodriquez and Strickland, the Ninth Circuit ruled that
prejudice must be presumed when a defendant is denied the right to counsel on appeal.
Lozada v. Deeds, 964 F.2d 956, 957-58 (9th Cir. 1992). The Ninth Circuit held: Because
applicants . . . must, if indigent, prepare their petitions without the assistance of counsel, as a
practical consequence there is a total denial of counsel when compared to the right to counsel
that a state or federal prisoner would have on direct appeal. Id. at 958. The Ninth Circuit
thus concluded that prejudice is presumed under Strickland if it is established that counsel's
failure to file a notice of appeal was without the petitioner's consent. Id.; see also United
States v. Tajeddini, 945 F.2d 458 (1st Cir. 1991), cert. denied,
------
U.S.
------
, 112 S.Ct.
3009 (1992); Abels v. Kaiser 913 F.2d 821 (10th Cir. 1990); Estes v. United States, 883 F.2d
645 (8th Cir. 1989).
[Headnote 7]
Based on these federal cases and our opinion in Fawaz, we conclude that prejudice may be
presumed for purposes of establishing the ineffective assistance of counsel when counsel's
conduct completely denies a convicted defendant an appeal. Consequently, we incorrectly
required Lozada to establish prejudice in his appeal from the denial of his petition for
post-conviction relief. Assuming Lozada's trial counsel failed to perfect an appeal without
Lozada's consent, Lozada presumably suffered prejudice because he was deprived of his right
to appeal.
Having concluded that Lozada can establish a claim for the ineffective assistance of
counsel if he can demonstrate that his trial counsel failed to perfect an appeal without his
consent, good cause exists to excuse the filing of a successive petition for a writ of habeas
corpus. NRS 34.810. This court's and the district court's failure to recognize that Lozada had
presented a timely, meritorious claim based on the ineffective assistance of counsel
constitutes an external force which excuses the filing of a successive petition.
sive petition. Passanisi v. State, 105 Nev. 63, 66, 769 P.2d 72, 74 (l989).
5

B. Prejudice to excuse the filing of a successive petition for a writ of habeas corpus
[Headnote 8]
Although Lozada can establish good cause for filing a successive petition, NRS 34.810(3)
also requires him to establish that he has suffered actual prejudice. Lozada could establish
prejudice if his trial counsel's conduct deprived Lozada of his right to appeal. As we indicated
in Fawaz, the denial of the right to appeal deprives a person of a basic right that presumably
prejudices the person. Fawaz v. State, 105 Nev. 682, 783 P.2d 425 (1989). Lozada can thus
demonstrate that he has suffered sufficient prejudice to excuse the filing of a successive
petition for a writ of habeas corpus.
The required showing of prejudice to establish a claim of ineffective assistance of counsel
is separate and distinct from the showing of prejudice required to overcome a procedural
default. The legislature requires a showing of prejudice to excuse procedural defaults to
prevent the filing of successive petitions and to avoid abuse of post-conviction remedies. In
addition, requiring prejudice to excuse the filing of untimely petitions helps to ensure that
claims are raised before evidence is lost or memories fade.
Without such limitations on the availability of post-conviction remedies, prisoners could
petition for relief in perpetuity and thus abuse post-conviction remedies. In addition,
meritless, successive and untimely petitions clog the court system and undermine the finality
of convictions. A showing of prejudice is thus essential to prevent the filing of successive and
meritless petitions for post-conviction relief.
These concerns do not arise, however, in the context of claims based on the ineffective
assistance of counsel. Prejudice in that context addresses the effects of the unreasonable
conduct of counsel on a defendant's trial. In this case, however, both prejudice requirements
happen to address the same concern: namely, the complete denial of counsel. Lozada's
counsel's conduct may have deprived Lozada of the fundamental right of counsel on appeal.
The denial of this right results in prejudice for purposes of both establishing the ineffective
assistance of counsel and for excusing the filing of a successive petition for
post-conviction relief.
__________

5
We note, however, that this conclusion is based on the fact that appellant timely and properly presented his
claim in a petition for post-conviction relief. This opinion should not be read to excuse the untimely filing of a
petition for post-conviction relief or post-conviction habeas relief simply on the allegation that a claimant was
deprived of a direct appeal from a judgment of conviction without his consent.
of both establishing the ineffective assistance of counsel and for excusing the filing of a
successive petition for post-conviction relief.
C. Lozada has an adequate remedy in the district court
Because Lozada can establish good cause and prejudice if he substantiates his allegations,
he has an adequate remedy in the district court through a petition for a writ of habeas corpus.
If Lozada can establish his claim that he was denied his right to effective assistance of
counsel on appeal, which had the effect of denying Lozada his right to appeal, the appropriate
remedy would be to allow Lozada an opportunity to raise in a petition for a writ of habeas
corpus any issues which he could have raised on direct appeal. If the district court denies
Lozada relief, he may appeal the denial to this court.
A complete remedy will exist, however, only if the district court grants Lozada counsel to
assist him in the preparation of a petition for a writ of habeas corpus. Because convicted
persons have the right to counsel on direct appeal, the appointment of counsel is essential to
remedy the loss of the right to an appeal. Thus if Lozada files a post-conviction petition for a
writ of habeas corpus, the district court should appoint counsel to assist Lozada.
CONCLUSION
The procedure discussed above provides Lozada a complete remedy for the alleged denial
of his right to appeal. Accordingly, we dismiss this appeal for lack of jurisdiction without
prejudice to Lozada's right to petition the district court for a writ of habeas corpus.
____________
110 Nev. 359, 359 (1994) Pittman v. Lower Court Counseling
LONNIE L. PITTMAN, Appellant, v. LOWER COURT COUNSELING, a Division of the
City of Las Vegas Municipal Court, Respondent.
No. 23989
March 31, 1994 871 P.2d 953
Appeal from an order of the district court dismissing appellant's complaint. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Arrestee brought civil rights action against Lower Court Counseling (LCC) and city. The
district court dismissed action, and arrestee appealed. The supreme court held that: (1)
Eleventh Amendment was not applicable so as to provide immunity for LCC; {2) LCC was
not a person for purposes of 19S3; {3) questions of fact precluded dismissal of action;
and {4) attorney who failed to include even one citation to the record in either his opening
appellate brief or reply brief, in violation of appellate rule requiring adequate citation to
the record, would be sanctioned in the amount of $500.
Amendment was not applicable so as to provide immunity for LCC; (2) LCC was not a
person for purposes of 1983; (3) questions of fact precluded dismissal of action; and (4)
attorney who failed to include even one citation to the record in either his opening appellate
brief or reply brief, in violation of appellate rule requiring adequate citation to the record,
would be sanctioned in the amount of $500.
[Rehearing granted in part and denied in part, May 27, 1994]
Cal J. Potter, III and Steven J. Karen, Las Vegas, for Appellant.
Bradford Jerbic, Las Vegas City Attorney, and Larry G. Bettis, Deputy City Attorney, Las
Vegas, for Respondent.
1. Federal Courts.
Purpose of Eleventh Amendment is to protect state from actions in federal court, not state court. U.S. Const. amend. 11.
2. Federal Courts.
Eleventh Amendment was not applicable to arrestee's 1983 action filed in state court so as to provide Lower Court Counseling
(LCC), which is a division of municipal court, with immunity. U.S. Const. amend. 11; 42 U.S.C. 1983.
3. Civil Rights.
Purpose of 1983 is to deter state actors from using badge of their authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence fails. 42 U.S.C. 1983.
4. Civil Rights.
Municipality is a person for purposes of 1983. 42 U.S.C. 1983.
5. Civil Rights.
Lower Court Counseling (LCC) which is a division of city municipal court which itself is part of the state judicial system and,
therefore, a part of the state is not a person for purposes of 1983. 42 U.S.C. 1983.
6. Civil Rights.
Without valid 1983 cause of action, plaintiffs 1988 cause of action cannot stand. 42 U.S.C. 1983, 1988.
7. States.
Ministerial act by state official for which there is no statutory immunity is act performed by official in prescribed legal manner in
accordance with the law without regard to, or the exercise of, judgment of the official. NRS 41.032.
8. Clerks of Courts.
Proof provided by defendant of having completed sentence is official document and municipal court clerk's duty to properly attend
to such document is ministerial in nature in that no exercise of discretion is involved and as such, no statutory immunity is triggered.
NRS 40.032.
9. Civil Rights.
Issues of fact as to status of clerk who allegedly received proof of defendant's compliance with sentence of community service and
as to negligence of clerk precluded dismissal of defendant's civil rights action.
10. Pleading.
Nevada is notice pleading jurisdiction and pleadings will be liberally construed to place matters into issue which are fairly noticed
to the adverse party.
11. Civil Rights.
While plaintiff's civil rights complaint did not go into great detail, it adequately advised defendant of nature of complaint and
relief that plaintiff was seeking.
12. Attorney and Client.
Attorney who failed to include even one citation to the record in either his opening appellate brief or his reply brief, in violation of
appellate rule requiring adequate citation to the record, would be sanctioned in the amount of $500. NRAP 28(a)(3).
OPINION
Per Curiam:
In 1987, appellant Lonnie L. Pittman (Pittman) elected to enter the misdemeanant work program rather than pay a fine for driving
with a suspended and revoked driver's license. The Municipal Court of the City of Las Vegas gave him until September 10, 1987, to return
to court with proof that he had worked at the Animal Rescue Thrift Store. On the specified day, Pittman returned to court with a signed
card from the store indicating that he had completed the required number of hours of community service.
The municipal court judge before whom Pittman appeared considered the matter closed, but continued the case until September 24,
1987. Pittman apparently did not give the signed card from the store to the judge. After this appearance, Pittman went to the office of
respondent Lower Court Counseling (LCC) and gave the card to a woman at the counter. Pittman claims that the woman informed him
that the proof would be relayed to the judge. Relying on this information, Pittman did not appear at the September 24, 1987 hearing.
Two years later, Pittman was arrested on a bench warrant for apparently failing to complete his required community service. He
appeared before the same municipal court judge. Having previously given the clerk the signed card, Pittman could not prove that he had
completed his required community service or that he had previously appeared in court on September 10, 1987. The court could not verify
Pittman's work since the Animal Rescue Thrift Store had ceased operations.
Rescue Thrift Store had ceased operations. As a result, the judge sentenced Pittman to eleven
days in jail.
After two days in jail, Pittman was bailed out. He located his previous employer who
provided proof for the court that Pittman had completed his required community service. The
judge indicated to Pittman that a mistake had been made and ordered Pittman's bail returned.
Pittman filed a complaint against LCC and the City of Las Vegas. He claimed his arrest
and detention were unlawful under the Fourth and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. 1983 and 1988 (1988). Specifically, he asserted that the
actions of LCC and the City of Las Vegas resulted from, and were taken pursuant to, a de
facto policy of LCC not to verify the completion of community service programs of
individuals. He also claimed that LCC and the City of Las Vegas were negligent in the hiring,
training and supervision of their employees. In addition, Pittman included a claim for false
imprisonment.
The district court dismissed Pittman's complaint as to both LCC and the City of Las
Vegas. In its dismissal of LCC, the court held that the municipal court is a part of the judicial
system of the state government. As a division of the municipal court, LCC was therefore
immune from a 42 U.S.C. 1983 suit under the Eleventh Amendment to the United States
Constitution. The court also held that Pittman's references to 42 U.S.C. 1988 and the Fourth
and Fourteenth Amendments were directly and inseparably related to his 42 U.S.C. 1983
cause of action. Thus, the Eleventh Amendment provision barring an action against LCC
applied equally to the federal code and constitutional provisions.
Pittman appeals the district court's dismissal of LCC. We hold that the district court erred
in dismissing Pittman's complaint against LCC.
[Headnotes 1, 2]
Initially, we address the district court's reference to the Eleventh Amendment of the United
States Constitution. The Eleventh Amendment reads as follows:
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
The district court was incorrect in holding that the Eleventh Amendment provided immunity
for LCC. The United States Supreme Court has held that the Eleventh Amendment does not
apply in 42 U.S.C. 19S3 actions filed in slate courts.
apply in 42 U.S.C. 1983 actions filed in state courts. Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989). The instant case involves a 42 U.S.C. 1983 action filed in state court
and thus the Eleventh Amendment does not apply. The purpose of the Eleventh Amendment
is to protect a state from actions in federal court, not state court. Accordingly, we hold that
the district court erred in dismissing Pittman's complaint on the basis of LCC's immunity
under the Eleventh Amendment.
[Headnote 3]
We next address LCC's immunity from a 42 U.S.C. 1983 cause of action. 42 U.S.C.
1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress.
The purpose of this statute is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails. Wyatt v. Cole, 504 U.S. 158, 161, 112 S. Ct. 1827, 1830 (1992).
We have held that neither the State of Nevada nor its officials acting in their official
capacities are persons under 42 U.S.C. 1983 and therefore neither may be sued in state court
under this statute. Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108, 807 P.2d 728
(1991). Our holding in Northern Nev. Ass'n Injured Workers was derived from the United
States Supreme Court's holding in Will that a state is not a person for purposes of 42 U.S.C.
1983. There, the Court based its interpretation on the often-expressed understanding that
the term person does not include the sovereign, and statutes using the word are interpreted
to exclude it. Will, 491 U.S. at 64.
[Headnote 4]
Pittman attempts to counter this reasoning by arguing that LCC is a part of, and controlled
by, the City of Las Vegas and not the State. Thus, its employees are municipal employees and
not immune from 42 U.S.C. 1983 actions. Pittman is correct that a municipality is a person
for purposes of a 42 U.S.C. 1983 action. Monell v. New York City Dept. of Social Services,
436 U.S. 658, 690 (1978). However, Pittman fails to recognize that we have held that the
municipal court system in this state is part of the state judicial system, not the city.
of the state judicial system, not the city. City of No. Las Vegas v. Daines, 92 Nev. 292, 550
P.2d 399 (1976).
[Headnotes 5, 6]
Because LCC is a division of the City of Las Vegas Municipal Court which itself is part of
the state judicial system and therefore a part of the state, LCC is not a person for purposes of
42 U.S.C. 1983. Accordingly, the district court did not err in holding that a 42 U.S.C.
1983 action could not be maintained against LCC as a division of the City of Las Vegas
Municipal Court. Further, the district court did not err in holding that Pittman's 42 U.S.C.
1988 cause of action for attorney's fees was inseparable from his 42 U.S.C. 1983 cause of
action. Without a valid 42 U.S.C. 1983 cause of action, Pittman's 42 U.S.C. 1988 cause of
action cannot stand.
[Headnote 7]
We next address Pittman's negligence claim against LCC. Our first inquiry is whether any
immunity exists for the State. Under NRS 41.031, the State of Nevada waives its immunity.
However, under NRS 41.032, the State reserves its immunity for officials acting in a
discretionary manner. We have defined a discretionary act as that which require[s] the
exercise of personal deliberation, decision and judgment. Travelers Hotel v. City of Reno,
103 Nev. 343, 345-46, 741 P.2d 1353, 1354 (1987). A ministerial act is an act performed by
an individual in a prescribed legal manner in accordance with the law, without regard to, or
the exercise of, the judgment of the individual. Trout v. Bennett, 830 P.2d 81, 87 (Mont.
1992). In order to prevail in this case, Pittman must show that the acts causing him injury
were not discretionary acts which trigger immunity, but rather ministerial acts for which there
is no immunity.
[Headnote 8]
We have held that it is the duty of the clerk of the district court to keep an accurate record
of the date of receipt of all official documents submitted to the clerk. Huebner v. State, 107
Nev. 328, 810 P.2d 1209 (1991). Since we have held that municipal courts are also courts of
the state judicial system, it follows that municipal court clerks also have this duty. It also
follows that the proof provided by a defendant of having completed a sentence is an official
document. Therefore, a clerk of the court has the duty to properly attend to such documents.
Such an act is clearly ministerial in that no exercise of discretion is involved. As such, no
immunity is triggered under NRS 41.032.
[Headnote 9]
In the instant case, there is a question of fact as to the status of the clerk who allegedly
received the proof of compliance from Pittman.
the clerk who allegedly received the proof of compliance from Pittman. In addition, there is
also a question of fact as to whether that clerk was negligent. Accordingly, the district court
erred in dismissing Pittman's complaint when questions of fact remained.
[Headnotes 10, 11]
Finally, LCC argues that Pittman's complaint inadequately states a cause of action for
negligence. We have held that a complaint need only set forth sufficient facts to demonstrate
the necessary elements of a claim for relief so that the defending party has adequate notice of
the nature of the claim and the relief sought. Western States Constr. v. Michoff, 108 Nev.
931, 840 P.2d 1220 (1992). While Pittman's complaint does not go into great detail, we
conclude that it adequately advises LCC of the nature of the complaint and the relief Pittman
is seeking. Nevada is a notice pleading jurisdiction and we liberally construe pleadings to
place matters into issue which are fairly noticed to the adverse party. Taylor v. State and
Univ., 73 Nev. 151, 311 P.2d 733 (1957). Therefore, LCC's claim regarding the adequacy of
Pittman's complaint is meritless.
In conclusion, we hold that the district court erred in dismissing Pittman's complaint when
questions of fact remained. Accordingly, we reverse the district court's dismissal and remand
for proceedings consistent with this opinion.
SANCTIONS
We note that Pittman's attorney, Cal J. Potter, III, failed to include even one citation to the
record in either the opening brief or the reply brief.
1
This is a clear violation of NRAP
28(a)(3) which requires adequate citation to the record. In accordance with our holding in
Smith v. Emery, 109 Nev. 737, 856 P.2d 1386 (1993), we hereby sanction Mr. Potter in the
amount of five hundred dollars ($500.00). Mr. Potter shall remit this sum within forty-five
(45) days of the filing of this opinion to the Nevada Supreme Court Law Library and shall
provide proof of payment to the clerk of this court.
__________

1
We note that the opening and reply briefs were prepared by Steven J. Karen, an attorney employed by the
Potter Law Offices. Karen signed the briefs on behalf of Potter.
____________
110 Nev. 366, 366 (1994) Mello v. Woodhouse
DONALD R. MELLO and BARBARA JANE MELLO, Appellants, v. JOYCE L.
WOODHOUSE, STEVE COZINE, JOHN A. CASERTA, JULIUS CONIGLIARO, and O. C.
LEE as Members of the Public Employees Retirement Board of the State of Nevada; WILL
KEATING, as the Executive Officer of the Public Employees Retirement Board of the State
of Nevada, and LEGISLATOR'S RETIREMENT SYSTEM, Respondents.
No. 24028
April 6, 1994 872 P.2d 337
Appeal from a judgment of the district court dismissing appellants' breach of contract
claim and denying appellants' request for declaratory and injunctive relief. Second Judicial
District Court, Washoe County; William N. Forman, Judge.
Retired legislator sued state retirement board for breach of contract and constitutional
violations when pension benefits were reduced after law he helped pass increasing benefits
was repealed. The district court dismissed the action with prejudice, and legislator appealed.
The supreme court held that: (1) repeal of law did not impair vested contract rights, and (2)
legislator could not assert detrimental reliance where he was aware of risk that law would be
repealed.
Affirmed.
Beasley, Holden & Brooks, Reno, for Appellants.
Frankie Sue Del Papa, Attorney General, and Dana K. Sammons and Mark P. Ghan,
Deputy Attorneys General, Carson City, for Respondents.
Only in those contracts in which parties have vested interest are parties afforded protection from impairment under the contract
clause. U.S. Const. art. 1, 10, cl. 1.
2. States.
Pension benefits for legislators are subject to limited vesting rule allowing for reasonable modification before absolute vesting.
3. Constitutional Law; States.
State Constitution prohibits the vesting of increased compensation or pension benefits for legislators during their natural term in
office and thus where legislation increasing legislators' pensions was repealed after particular legislator resigned but before expiration
of his natural term in office, increased pension rights did not vest and there was no unconstitutional impairment of vested contract
rights. Const. art 1, 15, art. 4, 33; U.S. Const. art. 1, 10, cl. 1; NRS 218.210, 218.23831, 218.23835, 218.2387, 218.2388,
218.239.
4. Estoppel.
Legislator, who retired after enactment of law increasing pension benefits to legislators but before its repeal, was not entitled to
relief under promissory estoppel theory, even where he incurred debt in reliance on increase, where Public Employee's Retirement
Board did not make a mistake in estimating legislator's pension, but merely estimated the pension under statute later repealed, where
legislator was aware that petition to repeal law had substantial support, and where legislator decided before retiring to take calculated
risk in retiring.
5. Equity.
Courts of equity cannot modify or ignore statutory and legal principles in order to shape relief.
OPINION
Per Curiam:
Appellant Donald R. Mello (Mello) served as a member of the Nevada Legislature for nearly twenty-seven years. During the 1989
legislative session, Mello was instrumental in the passage of a law which quadrupled the pension benefit for legislators. Mello resigned as a
state legislator about three months later with his retirement benefits based upon the newly enacted legislation. Public outrage against the
increased pension benefit led Governor Miller to convene a special session of the Nevada Legislature that repealed the increased pension
benefits. Consequently, Mello's pension benefits were drastically reduced. In response, Mello brought claims against respondents for breach
of contract, injunctive and declaratory relief, constitutional violations, and incidental damages. That action challenged the repeal of the law
increasing legislators' pension benefits as an unconstitutional impairment of contract. After a bench trial, the district court concluded that
the Nevada Constitution prohibited the vesting of Mello's rights to the increased pension during his natural term of office and dismissed the
action with prejudice.
FACTS
Donald R. Mello was appointed by the Washoe County Commissioners in December of 1963 to fill a vacancy in the Nevada Assembly.
From that date until December 31, 1982, he served continuously as a member of the Nevada Assembly. Mello was elected to the Nevada
Senate on November 2, 1982, and he commenced service there on January 1, 1983. He was re-elected on November 4, 1986, and served
until his retirement on September 30, 1989.
During the regular 1989 session of the Nevada Legislature, Assembly Bill 820 (AB 820) was introduced to modify provisions of the
Legislators' Retirement Law (LRL), found in NRS 218. AB S20 provided a change in the LRL from a flat retirement
calculation of $25.00 per month per year of service, to a scheme based upon a formula using the salary of a
legislator as the basis for the calculation of the pension benefit.1 19S9 Nev. Stat., ch.
AB 820 provided a change in the LRL from a flat retirement calculation of $25.00 per month
per year of service, to a scheme based upon a formula using the salary of a legislator as the
basis for the calculation of the pension benefit.
1
1989 Nev. Stat., ch. 481, 11-15 at 1023;
compare NRS 218.23831; 218.23835; 218.2387; 218.2388; 218.239. In addition, AB 820
provided that a legislator could retire at any age if he had accumulated thirty years of service
credit.
2
The substantial increase in the formula was in large measure the result of Mello's
personal interest, support and participation in the marshalling of votes for the passage of AB
820.
On June 23, 1989, the Nevada Senate passed AB 820 and sent the bill to Governor Miller
for his approval. Governor Miller vetoed the bill, but his veto was overridden that same day
by the Nevada Legislature. Consequently, AB 820 was enacted into law. 1989 Nev. Stat., ch.
481, 1 at 1023. On September 30, 1989, Mello retired.
3
By virtue of this legislation,
Mello's pension benefit was increased from $750.00 per month to nearly $3,000.00 per
month.
Public outrage against the increased pension benefit for legislators resulted in Leola
Armstrong, Executive Director of Common Cause, initiating a petition drive for a referendum
on the repeal of AB S20.
__________

1
Pursuant to NRS 218.210 each legislator elected on or after November 4, 1986, was entitled to receive
$130.00 as compensation for each day of service. The Nevada Constitution limits legislators to 60 days
compensation during a regular session and 20 days compensation during a special session of the legislature
convened by the governor. Nev. Const., art. 4 33. Consequently, the maximum compensation allowable for a
legislator is $10,400.00 for each biennial period ($130.00 x 80). Nevertheless, AB 820 set forth a formula
whereby the daily compensation of a legislator was annualized ($130.00 x 260 days = $33,800.00), resulting in
an inflated imaginary compensation base that was 6.5 times ($67,600.00 v. $10,400.00) greater than the actual
compensation allowed by the Nevada Constitution and received by an actively serving legislator during a
biennial legislative period. The annualized salary was divided by 12 to get a monthly base salary ($2,816.67).
The monthly base salary was then multiplied by a factor (3.55% for each year of service in the legislature up to
30 years) to arrive at the monthly pension benefit. Consequently, a legislator with 30 years of service would
receive a pension benefit of 106.5% of his inflated imaginary annualized salary ($2,816.67 x 106.5% =
$2,999.75 per month). In the absence of this legislation, a legislator retiring with 30 years service would receive
$750.00 per month (30 x $25.00).

2
AB 820 also contained a provision where a legislator could buy up to five years of service credit.

3
On the date of his retirement Mello had amassed nearly 27 years of service credit. In addition, Mello
purchased several additional years of service credit for $38,447.37, thereby giving him a total of 30 years of
service credit.
AB 820. On October 30, 1989, Nevada's Attorney General issued an opinion which stated
that AB 820 violated the Internal Revenue Code.
4
Shortly thereafter, Governor Miller
convened a special session of the legislature. On November 21, 1989, the Nevada Legislature
repealed AB 820 and returned the legislators' pension benefit to the levels in effect prior to
the passage of AB 820. 1989 Nev. Stat., ch. 1, 1 at 1 (16th Special Session). On the next
day, Will Keating, Executive Officer of PERS, corresponded with Mello indicating the
effects of the repeal of AB 820 on Mello's pension benefit and returning the funds Mello used
to purchase the additional years of service credit.
5

On January 31, 1991, Mello filed an action against respondents for breach of contract,
injunctive and declaratory relief, constitutional violations, and incidental damages. That
action challenged the repeal of AB 820 as an unconstitutional impairment of contract. On
June 15, 1992, a six day non-jury trial began before the district court. The district court
concluded that Article 4, 33 of the Nevada Constitution prohibits a legislator's pension from
increasing during his natural term of office; and that the increase to Mello's pension benefits
enacted by the Nevada Legislature (AB 820) was repealed before Mello's natural term of
office expired on January 1, 1991. Consequently, Mello's contract rights were not impaired.
__________

4
The Attorney General's opinion declared that the formula enacted into law in AB 820 violates the maximum
benefit limitation contained in 26 U.S.C. 415 (Internal Revenue Code):
The benefits payable under the new benefit formula, enacted in 1989, do not comply with provisions of
the Internal Revenue Code because these retirement allowances exceed the limitations contained in 26
U.S.C. 415 (1983). We reach this conclusion for two reasons. First, the statutory service credit
percentage factor is too generous. Second, the statutory definition of average compensation used for
computing a retirement benefit bears insufficient relationship to the compensation actually received by
legislators, let alone the federal definitions attached to compensation and average compensation
contained in applicable portions of the United States Code and Code of Federal Regulations. This
situation could have been avoided had the Legislature employed a balanced approach of making more
modest adjustments in their retirement plan benefits and enacting reasonable increases in their actual
compensation. As it is, the rather radical adjustments made solely in the retirement plan benefit formula
potentially expose the plan's trust fund and the plan's members to certain adverse income tax
consequences.
Op. Nev. Att'y Gen. No. 89-15, at 106 (October 30, 1989).

5
Because of the repeal of AB 820, Mello was not eligible to retire before age 60. At retirement Mello was 57
months shy of 60 years of age. Consequently, Mello's pension benefit was reduced .5% for every month that he
retired prematurely (28.5%).
DISCUSSION
Whether the repeal of AB 820 impaired vested contract rights in violation of the United
States and Nevada Constitutions.
Mello contends that two vested contract rights were impaired by the repeal of AB 820:
6
the right to purchase additional years of service credit and the right to receive a pension
benefit of $2,648.78.
7
Mello contends that these contract rights were valid and legally
enforceable and could not be unilaterally abrogated by state legislation without violating
Article 1, 10 of the United States Constitution and Article 1, 15 of the Nevada
Constitution.
8

[Headnotes 1-3]
Many cases have been reported that discuss the application of the Contracts Clause of the
United States Constitution. See Trustees of Dartmouth College v. Woodward, 17 U.S. 518
(1819) (only in those contracts which the parties have a vested interest are the parties afforded
protection from impairment); Koch v. Yunich, 533 F.2d 80 (2d Cir. 1976) (the Contracts
Clause does not prohibit states from modifying contracts within reason); Morton v.
Dardanelle Special School District, 121 F.2d 423 (8th Cir. 1941), cert. denied, 314 U.S. 655,
reh'g denied, 314 U.S. 713 (1941) (that which is not an enforceable contract right is not an
obligation which can be impaired within the meaning of the Contracts Clause); Dunseath v.
Nevada, 52 Nev. 104, 282 P. 879 (1929) (the obligation of a contract cannot properly be said
to be impaired by a statute in force when the contract was made).
Article 4, 33 of the Nevada Constitution provides:
The members of the Legislature shall receive for their services, a compensation to be
fixed by law and paid out of the public treasury, for not to exceed 60 days during any
regular session of the legislature and not to exceed 20 days during any special session
convened by the governor; but no increase of such compensation shall take effect
during the term for which the members of either house shall have been elected. . . .
__________

6
Both of the asserted rights were also created by AB 820.

7
Although Mello was entitled to a monthly pension benefit of $2,999.75 under AB 820, he opted for a reduced
alternative benefit whereby his wife would receive his pension for the rest of her lifetime should Mello
predecease her.

8
Article 1, 10 of the United States Constitution provides, in relevant part:
No State shall . . . make any . . . Law impairing the Obligation of Contracts . . . .
Article 1, 15 of the Nevada Constitution provides, in relevant part:
No . . . law impairing the obligation of contracts shall ever be passed.
increase of such compensation shall take effect during the term for which the members of
either house shall have been elected. . . .
(Emphasis added.) In ruling against Mello, the district court held that Mello had not acquired
a vested right
9
to pension benefits during the period between June 23, 1989, when AB 820
was enacted, and November 21, 1989, when it was repealed, because Mello's term of office
had not yet expired.
10
The district court recognized that pension benefits for legislators are
subject to the limited vesting rule set forth in Public Emp. Ret. v. Washoe Co., 96 Nev. 718,
615 P.2d 972 (1980).
11
The district court also recognized that this rule of vesting must take
into consideration the proscription against increases to legislators' compensation during their
natural term of office as set forth in Article 4, 33 of the Nevada Constitution. We agree.
Legislators are a special class of individuals. They have special rights, responsibilities, and in
this case, a special limitation against the vesting of increased pension benefits during their
natural term of office. Since the Nevada Legislature repealed AB 820 before the natural
expiration of Mello's term of office, his increased pension benefits did not vest.
Consequently, there has been no impairment of vested contract rights.
12
Whether Mello is
entitled to equitable relief based on promissory estoppel.
__________

9
Mello cites to three California cases which hold that the right to pension benefits vests upon the acceptance of
employment. Miller v. State, 557 P.2d 970 (Cal. 1977); Dickey v. Retirement Board, 548 P.2d 689 (Cal. 1976);
In re Marriage of Brown, 544 P.2d 561 (Cal. 1976). However, these cases are easily distinguishable from the
instant case. Here, Mello was elected to the Nevada Senate and not hired as an employee. Moreover, California
employees do not have a constitutional restriction against increases in compensation during their employment as
do Nevada's legislators.

10
Mello was elected to his second term in the Senate on November 4, 1986. That term did not expire until
January 1, 1991. Respondents concede that if the repeal of AB 820 had come after the expiration of Mello's
term, that Mello's increased pension would have vested and would not have been subject to repeal.

11
In Public Emp. Ret. v. Washoe Co., 96 Nev. 718, 615 P.2d 972 (1980), the Nevada Legislature enacted a law
that removed special investigators and university policemen from the definition of police officers thus making
them ineligible for early retirement. This court held that prior to absolute vesting, pension rights are subject to
reasonable modification, but that the retroactive application of the new law was unreasonable. Id. at 722, 615
P.2d at 974. However, unlike the instant case, the employees in Washoe were not subject to a constitutional
proscription against the vesting of their pension benefits as are Nevada's legislators.

12
Nonetheless, Mello contends that Article 4, 33 of the Nevada Constitution is inapplicable to his situation
because: (1) pension benefit payments are not drawn from the state treasury; and (2) increased pension benefits
do not constitute increased compensation. We conclude that these contentions lack merit.
Whether Mello is entitled to equitable relief based on promissory estoppel.
[Headnote 4]
Mello asks this court to ignore the constitutional restriction of Article 4, 33 and rely on
the doctrine of promissory estoppel to provide him relief. Mello contends that he relied on the
State's promise of an increased pension benefit to his detriment, and because of that reliance
he assumed additional debt to buy extra service credit and purchase real property. In support
of this proposition, Mello cites to Nev. Pub. Emp. Ret. Bd. v. Byrne, 96 Nev. 276, 607 P.2d
1351 (1980). In Byrne, PERS mistakenly overestimated Byrne's retirement benefit. This court
precluded PERS from reducing Byrne's pension benefit from the amount estimated because
Byrne had detrimentally relied on the PERS estimate and incurred substantial debt. In the
instant case, PERS made no such mistake. PERS estimated Mello's expected pension benefit
based on the passage of the newly enacted AB 820. When AB 820 was repealed on
November 21, 1989, PERS had no alternative but to change Mello's pension benefit.
After the passage of AB 820, public outrage against the increased pension benefit for
legislators resulted in Leola Armstrong, Executive Director of Common Cause, initiating a
petition drive for a referendum to repeal AB 820. Mello was aware that Common Cause was
having considerable success in obtaining signatures.
13
In addition, on August 25, 1989,
Mello contacted Will Keating, Executive Officer of PERS, to discuss what Mello could do in
the event that AB 820 was repealed. Keating suggested that Mello could rely on the doctrine
of detrimental reliance, and he and Mello went on to discuss the doctrine's application to the
repeal of AB 820. It is clear from these events that Mello made a calculated decision to retire,
with full knowledge that the repeal of AB 820 was possible. In reference to Mello's claim for
promissory estoppel due to detrimental reliance, the district court concluded:
Senator Mello was a sophisticated lawmaker who took the steps he felt necessary to
take advantage of the newly passed amendments to the Legislative Retirement System.
These steps constituted a calculated risk which included the act of Senator Mello's
retirement. A court should not intervene in a situation where such acts were designed to
take advantage of an equitable principal.
__________

13
In response to the petition drive for the repeal of AB 820, Mello directed the Legislative Counsel Bureau to
investigate Armstrong's tenure as secretary to the Senate to see if there were any improprieties which could be
brought to light that could discredit Common Cause's petition drive.
of an equitable principal. Calculated reliance is not detrimental reliance.
The district court was faced with two opposing theories concerning Mello's reliance on AB
820. The district court concluded that Mello concocted his reliance on AB 820 in an effort to
save the increased pension benefits, and that conclusion is well supported by the record.
[Headnote 5]
Moreover, it is well established that courts of equity can no more disregard statutory and
constitutional requirements than can courts of law. INS v. Pangilinan, 486 U.S. 875 (1988);
Hedges v. Dixon County, 15 U.S. 182, 192 (1893); see also Walker v. U.S. Dept. of Housing
and Urban Dev., 912 F.2d 819 (5th Cir. 1990). Equity cannot change, modify or ignore the
restriction of the Nevada Constitution in order to shape a remedy for Mello.
CONCLUSION
For the reasons stated above, there has been no impairment of vested contract rights by the
State of Nevada. Further, Mello is not entitled to equitable relief based on a promissory
estoppel theory. Accordingly, the judgment of the district court is affirmed.
Rose, C. J., Steffen and Shearing, JJ., and Bonaventure, D. J.,
14
concur.
__________

14
The Honorable Joseph T. Bonaventure, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Cliff Young, Justice Nev. Const. art. 6, 4.
The Honorable Charles E. Springer, Justice, voluntarily recused himself from participation in the decision of this
appeal.
____________
110 Nev. 374, 374 (1994) Redmer v. Barbary Coast Hotel & Casino
ROBERT E. REDMER, Appellant, v. BARBARY COAST HOTEL & CASINO,
Respondent.
No. 24434
April 7, 1994 872 P.2d 341
Appeal from a district court order affirming an administrative decision in a gaming
dispute. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
The supreme court held that casino properly calculated winnings of player who held
several winning six-race and five-race tickets under its rules for off-track Pick 6 wagering.
Affirmed.
Goodman & Chesnoff and Eckley M. Keach, Las Vegas, for Appellant.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Respondent.
1. Gaming.
The supreme court shows great deference to Nevada Gaming Control Board decision on appeal.
2. Gaming.
Order of Nevada Gaming Control Board will not be disturbed unless it is arbitrary, capricious or contrary to law.
The supreme court is free to examine purely legal questions decided at administrative level.
4. Gaming.
Winner of casino's off-track wagering on Pick 6 was entitled to 17 1/2 percent in the aggregate of the total Pick 6 handle for
persons holding six-race winners, which meant that winning payoff could not exceed 17 1/2 percent of total Pick 6 handle, regardless
of fact that player held more than one winning ticket.
5. Gaming.
Player holding numerous five-race winning tickets on casino's Pick 6 off-track wagering was entitled under casino's rules, which
provided for five-race winners receiving designated payoff figure with the aggregate amount not exceeding 17 1/2% of five-winner
payoff, to no more than 17 1/2 percent of five-winner payoff, notwithstanding fact that collective amount on player's numerous
winning tickets would have otherwise exceeded that amount.
OPINION
Per Curiam:
FACTS
Respondent Barbary Coast Hotel & Casino (Barbary Coast) accepts off-track wagering on horse races run throughout the country.
country. The races are televised via satellite in the Barbary Coast Casino in Las Vegas. In
conjunction with this betting, Barbary Coast conducts a type of wagering called the Pick 6.
Under the rules of this game, a player selects six possible winners in six different horse races
run at a single track located somewhere outside Nevada.
Each Pick 6 wager costs $2.00. However, a player can increase the odds of winning by
wagering more than $2.00 and selecting a variety of different winning combinations in the
Pick 6 races. The Pick 6 written rules describe winners with the following pertinent language:
In order to win, the player must pick the same or greater number of winning races as
those officially posted as having won the greatest number of winning races at the
designated track.
The workings of this language are illustrated by a simple example. Assume that Barbary
Coast was accepting Pick 6 wagering on races conducted at the Santa Anita racetrack in
California. If two persons at Santa Anita selected all six winners in the subject races, those
persons at Barbary Coast equalling that feat would be entitled to a payoff amount.
In the event that there are no six-race winners at the track and a player at the Barbary Coast
has selected winners in all six races, payoff amounts are calculated by a formula appearing in
paragraph two of the Barbary Coast Pick 6 payoff rules. Paragraph two is the focus of this
appeal and appears as follows:
Payoffs will be the same as those at the track with the following exceptions:
1. Total payoffs on any one day will not exceed $500,000 in the aggregate.
2. In the event no one has selected six winners at the designated track, those players at
the Barbary Coast who select six winners will receive 17 1/2% in the aggregate of
the total Pick 6 handle at the designated track after deducting the track
percentage from the Pick 6 pool; those selecting five winners at the Barbary
Coast will be paid one half of the amount paid to those selecting five winners at the
track, with the aggregate amount not exceeding 17 1/2% of the five winner payoff
after the track has deducted their percentage from the Pick 6 pool. There will be
no consolation payoff for picking four winners.
(Emphasis added.)
On March 19, 1989, Barbary Coast was accepting Pick 6 wagering on races taking place at
the Santa Anita racetrack in California.
California. As an experienced and long-time professional gambler, appellant Robert E.
Redmer (Redmer) often played the Pick 6 at Barbary Coast. On this particular date, Redmer
purchased several different Pick 6 tickets at a total cost of $2,560.00.
At the conclusion of the sixth race at Santa Anita, racing officials determined that there
were no six-race winners at the track in California. As a result, no six-race payoff figure was
ascertained or paid at the racetrack. In Las Vegas, however, Redmer had correctly selected
winners in each Pick 6 race. In fact, Redmer had selected all six winners on five different
tickets in his possession. He was the only individual at the Barbary Coast holding six-race
winning tickets.
In addition, there were thirty-eight patrons at Santa Anita who had selected five of six
winners in the Pick 6 races. Each of these consolation winning tickets paid $4,956.60 at the
track. At the Barbary Coast, Redmer was the only player holding five-race winning tickets.
He had seventy different five-race winning combinations.
Redmer presented his winning tickets for collection, and the dispute which is the subject
of this appeal erupted. Redmer claimed that under paragraph two of the Pick 6 payoff rules,
he was entitled to $448,165.00. Barbary Coast disagreed and calculated his winnings at
$87,898.12.
1

Before describing these competing calculations, it should be noted that the total amount of
money wagered on Pick 6 racing at Santa Anita equalled $392,798.00 on March 19, 1989
(i.e., the handle under paragraph two). The Santa Anita track retention percentage for Pick
6 wagering was 20.08 percent. These figures are needed to make the proper calculations
under paragraph two of the Pick 6 payoff rules.
Applying paragraph two, Redmer claimed that each of his six-race winning tickets paid 17
1/2 percent of the Santa Anita total handle minus the 20.08 percent track retention percentage.
In other words, each winning ticket paid 17 1/2 percent of $313,924.16 or $54,936.73. By
holding five such tickets, Redmer maintained that the casino owed him five times this
$54,936.73 amount or $274,683.65.
With respect to his five-race winners, Redmer pointed out that each five-race winning
ticket paid $4,956.60 at Santa Anita. Therefore, in accordance with the language appearing at
the end of paragraph two, Barbary Coast had to pay each five-race winner in the casino
one-half of the amount paid at Santa Anita or $2,478.30. Holding seventy winning
combinations, Redmer claimed he was entitled to seventy times this $2,47S.30 amount or
$173,4S1.00.
__________

1
Throughout this opinion, we utilize the figures that appear in the district court's decision.
claimed he was entitled to seventy times this $2,478.30 amount or $173,481.00.
On March 28, 1989, Redmer filed a player's dispute with the Nevada Gaming Control
Board. An agent of the board investigated the matter by interviewing patrons of Barbary
Coast, reading the Pick 6 rules, and consulting other enforcement agents. The investigating
agent concluded that Redmer's calculations under paragraph two of the payoff rules were
wrong. In short, Redmer had neglected the word aggregate appearing in this paragraph and
limiting Barbary Coast's overall payoff exposure.
A two-day hearing was then held before an administrative hearing examiner. After
listening to testimony and the parties' respective arguments, the examiner ruled in favor of
Barbary Coast. In essence, he agreed with the agent's investigation. The aggregate
phraseology in the rules limited Barbary Coast's overall payoff exposure. On October 11,
1990, the Nevada Gaming Control Board adopted the hearing examiner's recommendations in
an official order.
Redmer petitioned for review in the district court. After a corresponding hearing, the court
concurred in the hearing examiner and the Nevada Gaming Control Board's interpretation of
the Pick 6 rules.
In sum, the investigating agent, the hearing examiner, the Nevada Gaming Control Board,
and the district court all interpreted paragraph two of the payoff rules as follows: In
accordance with the first half of paragraph two, six-race winners were entitled to 17 1/2% in
the aggregate of the total Pick' 6 handle at the designated track after deducting the track
percentage. In other words, all six-race winners (in the aggregate) would collectively
receive 17 1/2 percent of $313,924.16 (the Pick 6 handle of $392,798.00 minus the Santa
Anita track deduction of 20.08 percent). This left a total six-race winner payout of
$54,936.73. Redmer was the only player holding six-race winning tickets and was therefore
entitled to the entire $54,936.73.
Similarly, Redmer's five-race consolation payout was limited by the words aggregate
amount not exceeding appearing in the second half of paragraph two. Barbary Coast's entire
five-race payout could not exceed 17 1/2% of the five winner payoff at the track. The total
five-race winner payoff at Santa Anita was $188,350.80. Redmer was entitled to only 17 1/2
percent of this amount or $32,961.39. This resulted in a total payout of $87,898.12.
Redmer appeals the district court's decision upholding the Nevada Gaming Control Board
ruling. Specifically, Redmer claims that paragraph two of the Pick 6 rules is ambiguous and
should therefore be interpreted in his favor.
should therefore be interpreted in his favor. We disagree and accordingly affirm the district
court's decision.
DISCUSSION
[Headnotes 1-3]
This court shows great deference to a Nevada Gaming Control Board decision on appeal.
An order of the Nevada Gaming Control Board will not be disturbed unless it is arbitrary,
capricious or contrary to the law. Nevada Gaming v. Consolidated Casinos, 94 Nev. 139, 575
P.2d 1337 (1978); see also NRS 463.3666. Yet in spite of this standard, this court is free to
examine purely legal questions decided at the administrative level. Town of Eureka v. State
Engineer, 108 Nev. 163, 826 P.2d 948 (1992).
[Headnote 4]
The only viable issue presented by this appeal is whether the Nevada Gaming Control
Board and the district court arbitrarily and capriciously interpreted paragraph two of the Pick
6 payoff rules. Redmer claims that the word those as used in paragraph two means each.
Thus, he asserts that each of his winning combinations was entitled to a payoff equaling the
percentages and rubric contained within paragraph two.
We cannot agree. Whether the word those means each player or all players is irrelevant
to calculating Pick 6 winning payoff amounts. The key to calculating winning amounts rests
upon the aggregate phraseology of the paragraph: [Six-race w]inners will receive 17 1/2%
in the aggregate of the total Pick' 6 handle . . . and five-race winners will receive a
designated payoff figure, with the aggregate amount not exceeding 17 1/2% of the five
winner payoff . . . . (Emphasis added.)
Redmer glosses over this emphasized language in supporting his argument on appeal.
Aggregate is defined by Webster's New Collegiate Dictionary as meaning the whole sum
or amount. Within this same definition, Webster's defines in the aggregate as considered
as a whole or [c]ollectively. Webster's New Collegiate Dictionary 64 (9th ed. 1985).
A careful reading of paragraph two, with this definition in mind, concludes that
aggregate is used to limit Barbary Coast's total Pick 6 payoff exposure. For example,
six-race winners are to receive 17 1/2% [collectively or considered as a whole] of the total
Pick' 6 handle . . . . The collective six-race winning payoff could not exceed 17 1/2 percent
of the total Pick 6 handle. Accordingly, the collective amount could not exceed 17 1/2 percent
of $313,924.16 or $54,936.73. Redmer was the only player holding six-race winners and was
therefore entitled to the entire $54,936.73 sum.
[Headnote 5]
We reach a similar conclusion with respect to the aggregate phraseology appearing in the
second half of paragraph two of the payoff rules. The rules inform the player that five-race
consolation winners will receive one-half of the five-race winning amount paid at the
participating track, with the aggregate amount not exceeding 17 1/2% of the five winner
payoff . . . . This latter language is used to limit Barbary Coast's five-race winning payoff
exposure.
Redmer claims that each five-race winning ticket is entitled to one-half of the track payoff
amount as long as each individual amount does not exceed 17 1/2 percent of the total
five-race winning payoff at the track. Again, Redmer asks this court to neglect the limiting
effect of the aggregate phraseology contained in the rules. It strains logic to imagine a
scenario where half of an individual five-race winning ticket could exceed 17 1/2 percent of
the total five-winner payoff, thus necessitating an aggregate limitation. The aggregate
limitation is tailored for situations such as this, where there are several five-race winning
combinations at the Barbary Coast (Redmer had seventy) and the casino opts to limit its
aggregate payoff exposure.
Accepting Redmer's interpretation of the rules would require this court to neglect the
aggregate phraseology of paragraph two. We refuse to omit such imperative language of the
contract. Watson v. Watson, 95 Nev. 495, 497, 596 P.2d 507, 508 (1979) (clear contract
meaning will not be distorted by anything other than what is implied by the language used).
Although the language of the Pick 6 rules is not a model of draftsmanship clarity, it does
effectively limit Barbary Coast's exposure to an aggregate percentage of the Pick 6 pool. This
was the conclusion reached by the investigating gaming control agent, the hearing examiner,
the Nevada Gaming Control Board, and the district court. Finding no flaw in this simple
analysis, we conclude that the Nevada Gaming Control Board did not arbitrarily and
capriciously interpret the contract language.
In light of the foregoing, and having duly considered all of Redmer's arguments on appeal,
we affirm the district court's judgment upholding the Nevada Gaming Control Board's
decision.
Steffen, Young, Springer and Shearing, JJ., and Zenoff, Sr. J.,
2
concur.
__________

2
The Governor designated The Honorable David Zenoff, Senior Justice, to sit in place of Chief Justice Robert
Rose. Nev. Const. art. 6, 4.
____________
In re Petition for a WRIT OF PROHIBITION or in the Alternative for a WRIT OF
MANDAMUS.
THE HONORABLE JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION
ON JUDICIAL DISCIPLINE, Respondent.
No. 24598
April 22, 1994 873 P.2d 946
Original proceeding; alternative application for rehearing or amendment of opinion.
District court judge petitioned for writ of mandamus or prohibition directed to
Commission on Judicial Discipline. The supreme court ordered in-camera inspection of
Commission's records, and denied motion for reconsideration, Whitehead v. Comm'n on Jud.
Discipline, 110 Nev. 128, 869 P.2d 795 (1994). On further application for rehearing or
amendment of opinion, the supreme court, David Zenoff, Senior Justice, held that: (1)
successive petition for rehearing is not allowed; (2) application was not proper because it did
not seek modification of any substantive ruling; (3) special counsel or prosecutor does not
have right or discretion to promise prospective witness confidentiality in a way that will
effectively preclude accused judge from gaining access to information needed to
cross-examine potential accusers or otherwise assemble evidence; (4) neither mandamus nor
prohibition requires that challenged proceedings culminate in order; (5) documents in
question were not protected by work-product doctrine or attorney-client privilege; (6) motions
to disqualify two justices were untimely; and (7) disqualification could not be based on prior
rulings.
Application denied; decision on petitioner's request for sanctions deferred.
Shearing, J., dissented in part.
Frankie Sue Del Papa, Attorney General, Brooke Nielsen, Deputy Attorney General,
Carson City; Donald J. Campbell, Las Vegas, for Respondent.
Ordinarily, petitions for rehearing that do not seek to change the result of the supreme court's rulings, and that are otherwise
defective, result in order of summary denial.
2. Pleading.
Filed document signed by counsel should not also be signed by party. NRAP 46(b).
Legal counsel have obligation to research the law diligently and to advise client and the supreme court accurately, and thus it
cannot be accepted that client is solely responsible for violations of constitutional principles and court rules engaged in by counsel in
client's name.
Party will not be allowed to file successive petitions for rehearing.
Application for rehearing was not proper where it did not seek modification of any substantive ruling obtained in prior opinion but
merely asked court to withdraw opinion and change alleged faulty assumptions, mistatements of fact, and mischaracterizations of legal
arguments. NRAP 40.
Rehearings are not granted to review matters that are of no material consequence, and thus would not be appropriate with respect
to order respecting production of documents for supreme court's in-camera inspection, where order was moot in that documents had
been delivered.
Petition for rehearing will be entertained only when court has overlooked or misapprehended some material matter or when
otherwise necessary to promote substantial justice, and may not be utilized as vehicle to reargue matters considered and decided in
court's initial opinion or to raise new legal points for first time. NRAP 40(c)(1), (2).
8. Judges.
Use of proxies to establish quorum for meeting of the Commission on Judicial Discipline is prohibited by rule. Administrative and
Procedural Rules for the Nevada Commission on Judicial Discipline, Rule 3(9).
9. Judges.
Members of the Commission on Judicial Discipline are obligated to follow faithfully orders of the supreme court as well as all
rules promulgated pursuant to the court's constitutional authority.
10. Witnesses.
Special counsel or prosecutor is not vested with any right or discretion to promise prospective witness before the Commission on
Judicial Discipline confidentiality in a way that will effectively preclude accused judge from gaining access to information that will
equip judge either to confront and cross-examine potential accusers or otherwise assemble evidence relating to any material issue, such
as arguable excesses in exercise of Commission's jurisdiction. Administrative and Procedural Rules for the Nevada Commission on
Judicial Discipline, Rule 16.
11. Judges.
In light of rule providing judge with right to absolute confidentiality at disciplinary proceeding prior to determination of probable
cause, judge is not required to waive right to confidentiality in order to seek extraordinary relief in the supreme court challenging the
jurisdiction of the Commission on Judicial Discipline. Const. art. 6, 21(5)(a); Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline, Rules 5(1), 40(7); NRS 1.090.
12. Judges.
When balanced against judge's rights in connection with disciplinary investigation and significant public disclosures that had
already occurred, supreme court's in-camera review of materials from the Commission on Judicial Discipline would not unduly affect
policy against disclosure of witness confidences. Administrative and Procedural Rules for the Nevada Commission on Judicial
Discipline, Rule 14(5).
13. Mandamus; Prohibition.
Written notice of probable cause hearing signed by special counsel for the Commission on Judicial Discipline and file stamped by
the Commission's secretary constituted adequate written indicia of Commission's interlocutory determination of probable cause in
judicial disciplinary proceeding, which was also memorialized by notice of compliance signed by all of the Commissioners, so as to
provide supreme court with jurisdiction to entertain petitions for extraordinary relief in nature of prohibition or mandamus.
Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline, Rule 40(7).
14. Judges.
Even in absence of any written indicia of interlocutory rulings of the Commission on Judicial Discipline, supreme court has power
under the State Constitution to intervene in Commission proceedings by way of extraordinary writ in appropriate circumstances. Const.
art. 6, 4.
15. Mandamus.
Availability of mandamus to compel a duty resulting from office, trust or station is not limited to those duties which office holder
has entered a formal order refusing to perform. NRS 34.160.
16. Prohibition.
To be reviewable by prohibition, proceedings in excess of jurisdiction need not culminate in an order. NRS 34.320.
17. Judges.
To whatever extent that Commission on Judicial Discipline contended that work-product or attorney-client doctrines protected its
materials from supreme court's in-camera review, such contention in second application for rehearing was improperly successive, and
had been rendered moot where materials had been produced. NRAP 40(c)(1).
18. Witnesses.
Where members of the Commission on Judicial Discipline and special counsel denied any communication between them as to
content of documents sought for in-camera inspection by supreme court, no bases appeared for valid claim of attorney-client privilege
with respect to the documents, even assuming that there was actually attorney-client relationship between special counsel and the
Commission. NRS 49.095.
19. Judges.
Special prosecutor's investigative notes and materials in judicial disciplinary proceeding are discoverable, at least after
determination of probable cause and public filing of formal statement of charges. Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline, Rules 15, 16, 21.
Purpose of work-product doctrine is to protect against disclosure of mental impressions, conclusions, opinions and legal theories
of counsel. NRCP 26(b)(3).
21. Pretrial Procedure; Witnesses.
Work-product and attorney-client privileges must be confined within the narrowest possible limits consistent with the logic of their
principles. NRS 49.095; NRCP 26(b)(3).
Legal principles relating to attorney-client privilege and work-product doctrine did not preclude production for in-camera
inspection by the supreme court of materials generated in investigation by Commission on Judicial Discipline, particularly in light of
claim that commission had conducted investigation in violation of and far beyond the scope and breadth of its rules and the State
Constitution. NRS 48.095; NRCP 26(b)(3).
23. Judges.
Procedures of the Commission on Judicial Discipline such as secret arbitration, mediation or probation and interminably extended
proceedings are unauthorized.
24. Pretrial Procedure; Witness.
Minutes of meetings of the Commission on Judicial Discipline did not fall within attorney-client privilege or work-product
doctrine.
25. Judges.
Supreme court was not required to ignore minutes of Commission on Judicial Discipline, submitted to court for in-camera
inspection, where minutes merely corroborated and redirected court's attention to incontrovertible facts verifiable from records
available in supreme court building.
26. Evidence.
Supreme court may appropriately take judicial notice of facts capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
27. Judges.
Opinion in Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992) under Interim Rules of
Commission on Judicial Discipline does not purport to interpret current, operative rules of the Commission.
28. Judges.
Motion for disqualification of supreme court justices was untimely where challenged justices had ruled on contested matters, there
was no suggestion that grounds for disqualification were based on fraud or illegal conduct, and grounds could have been asserted
earlier. NRAP 35(a).
29. Judges.
Materials in support of motion for disqualification of supreme court justices did not satisfy procedural requirements of rule where
counsel's affidavits failed to set forth such facts as would be admissible in evidence and did not contain averments in support of every
fact alleged, made upon personal knowledge, by persons affirmatively shown to be competent to testify. NRAP 35.
Commission on Judicial Discipline stated no viable due process challenge to continued participation by any supreme court justice
in matter seeking writ of prohibition or mandamus directed to the Commission where allegations were insufficient to establish any
direct, disqualifying, personal or pecuniary interest in outcome of the litigation. Const. art. 1, 8; U.S. Const. amend. 14; NRS 1.225.
Fourteenth Amendment is limit on the states in the interest of individuals, and state due process provision provides similar
protection. Const. art. 1, 8; U.S. Const. amend. 14.
Though all parties to litigation in supreme court have right to fair and unbiased tribunal, not all questions of judicial qualification
rise to a constitutional level under the due process clause. Const. art. 1, 8; U.S. Const. amend. 14.
33. Judges.
Ground for disqualification of supreme court justices was not established by claim that they had significant personal interest in
vindicating prior actions and rulings in the case, in connection with application for rehearing.
34. Judges.
For members of the supreme court to justify or support their rulings, even with vehemence, does not constitute disqualifying bias
or appearance of impropriety.
35. Judges.
Not every motion for disqualification of supreme court justices rises to level of statutory charge which automatically calls for
formal hearing before the unchallenged justices. NRS 1.225(4).
36. Judges.
Hearing on motion for disqualification of supreme court justices was not required where factual allegations raised in support of
motion presented no legally competent grounds supporting reasonable inference of bias. NRS 1.225(4).
OPINION
By the Court, Zenoff, Sr. J.:
I.
PREFACE
This is the second formal interlocutory opinion issued by this court in this proceeding. By way of candor, we note that despite this
opinion's being formally authored by Senior Justice Zenoff, the opinion represents the combined efforts of Senior Justice Zenoff, Justices
Steffen and Springer and several members of the court's staff. Our purpose is three-fold: (1) to resolve three of the more than thirty motions
and other formal requests for relief that have been filed in this proceeding since its inception; (2) to clarify for the benefit of Judge Jerry
Carr Whitehead, the Commission, and the public, the basic issues that have been presented in this matter and the course that this court will
pursue in resolving those issues; and (3) to disabuse the Commission of certain misconceptions regarding the proceedings before this court
and this court's decision to intervene in the Commission proceedings regarding Judge Whitehead.
II.
PRELIMINARY PROCEDURAL MATTERS
A. The Commission's motion to file document in excess of ten pages
On March 8, 1994, the Nevada Commission on Judicial Discipline moved this court in
accordance with this court's rules of appellate procedure
1
for permission to file a document
in excess of ten pages which is entitled: Respondent Judicial Discipline Commission's
Petition for Rehearing or in the Alternative Motion for Amendment of Opinion (hereinafter
Petition/Motion). The Commission asserted that, although it had endeavored to restrict the
Petition/Motion to the ten page limit, it had been unable to do so in light of the complex
factual and legal matters which [it] believes must be addressed in the Petition/Motion. For
reasons more fully discussed below, we conclude that the Commission's Petition/Motion
constitutes a procedurally improper, successive application for rehearing or reconsideration
which fails to direct this court's attention to any germane, legal or factual matter previously
overlooked or misapprehended by this court. Nonetheless, we have concluded that the
Petition/Motion should be made a part of the historical record of this proceeding.
Accordingly, we direct the Clerk of this Court to file that document.
B. The Commission's motion to strike Judge Whitehead's answer
On March 16, 1994, this court entered an order noting that, although it appeared that
several aspects of the Commission's Petition/Motion were not in compliance with the rules of
this court, it nonetheless appeared appropriate to require counsel for Judge Whitehead to
tender an answer to the Petition/Motion. Pursuant to that order, Judge Whitehead lodged an
answer to the Petition/Motion with the court on March 24, 1994.
On April 6, 1994, the Commission filed a motion to strike the answer. The Commission
argues that the answer does not address the matters raised in the Commission's
Petition/Motion and injects irrelevant matters into this proceeding. Judge Whitehead has
opposed the motion. Contrary to the Commission's contention, we have concluded that Judge
Whitehead's answer presents well-supported, relevant and persuasive legal argument
respecting the insufficiency and immateriality of the Commission's Petition/Motion.
Moreover, to whatever extent the answer may contain facts and argument that this court
considers irrelevant to the matters properly at issue herein, this court will disregard them.
__________

1
NRAP 40(b) provides in part: Except by permission of the court, a petition for rehearing shall not exceed 10
pages . . . .
the matters properly at issue herein, this court will disregard them. Accordingly, we deny the
Commission's motion to strike, and we direct the Clerk of this Court to file the answer
tendered by Judge Whitehead on March 24, 1994.
III.
THE COMMISSION'S PETITION FOR REHEARING OR IN
THE ALTERNATIVE MOTION FOR
AMENDMENT OF OPINION
[Headnote 1]
As noted, on March 8, 1994, Attorney General Frankie Sue Del Papa, together with her
Chief Deputy Brooke Nielsen and her Special Deputy Attorney General/Special Counsel
Donald J. Campbell, lodged with the Clerk of this Court a document entitled: Respondent
Judicial Discipline Commission's Petition for Rehearing or in the Alternative Motion for the
Amendment of Opinion.
2
The Petition/Motion asserts that our initial interlocutory opinion
in these proceedings was inaccurate in various particulars; however, no suggestion is offered
that the dispositive result reached by this court should be altered. See Whitehead v. Comm'n
on Jud. Discipline, 110 Nev. 128, 869 P.2d 795 (1994), to which we refer herein as
Whitehead I.
3
Ordinarily, in matters in which less public controversy has been generated,
petitions for rehearing that do not seek to change the result of our rulings, and that are
otherwise defective in multiple respects, as in the instant case, typically result in an order of
summary denial. Nevertheless, once again, out of respect for the Nevada Commission on
Judicial Discipline, we will more fully explicate the basis for denying the improperly
presented Petition/Motion now before us.
__________

2
In our initial Opinion, Whitehead I, we referred collectively to the three aforementioned persons as Attorney
General Del Papa and associates. Although we intended no offense, it now appears that the subjects found this
description objectionable. Consequently, in this Opinion, we will, instead, refer to them collectively as the
Commission's counsel. In so doing, however, we in no way wish to diminish, disregard, or decide the extent to
which the Attorney General and others under her direct control and supervision have also functioned in an
investigatory and prosecutorial capacity.

3
In Whitehead I, for the edification of the Commission, we laboriously explained the reasoning that supports
three quite self-evident conclusions: (1) that this court may entertain petitions for extraordinary writs which
question actions or proceedings of the Commission alleged to be without or in excess of jurisdiction; (2) that we
may order evidence produced which may have a bearing on such issues; and (3) that the Commission, like all
other tribunals, state officials, and entities must obey rules promulgated and orders issued pursuant to this court's
constitutionally derived authority.
A. The Petition/Motion seeks to assign full responsibility to the Commission for improper
conduct to which Whitehead I makes reference
[Headnote 2]
Among the unusual aspects of the Petition/Motion is the fact that the document is signed
not only by the Commission's counsel but also by each of the Commission members (Judge
Whitehead's judges). In light of this court's statements in Whitehead I suggesting that the
Commission's counsel may have incorrectly counselled the Commissioners, we can
understand why the Commission's counsel and the Commissioners might now wish to attempt
to underscore that the matters in the Petition/Motion are not merely the arguments of counsel,
but have been tendered with the approval of the Commissioners. Nonetheless, we disapprove
of the practice, and we hereby instruct the Commission's counsel and all Nevada attorneys
that it should not be utilized again.
4

[Headnote 3]
The Petition/Motion attributes a wide range of beliefs, thought processes, knowledge and
convictions collectively to all of the Commission's members. As an example, by personally
signing the Petition/Motion, the Commission members endorse statements taking full
responsibility upon themselves for the improper conduct to which Whitehead I makes
reference. We cannot, however, accept that the Commission's counsel have no responsibility
because they were just following orders. The record establishes that most, if not all,
documents contumaciously withheld from this court, to the derogation of Judge Whitehead's
rights, were in fact in the custody of the Commission's counsel rather than Commission
members. It is also incontestable that inasmuch as the Commission's counsel have provided
legal counsel to the Commission, they had an obligation to research the law diligently and to
advise the Commission and this court accurately. The assertion, therefore, cannot be accepted
that the Commission members are solely responsible for violations of the Constitutional
principles and court rules engaged in by the Commission's counsel in the Commissioners'
names; and, so, no correction of our opinion in Whitehead I is warranted.
5

__________

4
NRAP 46(b) provides that [w]ith leave of the Supreme Court, a party may file, in proper person, written
briefs and papers submitted in accordance with these rules. The Commission has not sought leave of this court
to proceed in proper person.

5
We must mention that our Whitehead I Opinion was not intended to insult the intellects of the Commission
members, as the Petition/Motion suggests. We were simply endeavoring to withhold the expression of any
unnecessary
B. The Commission's Petition/Motion is improperly successive in nature
Following this court's order of October 4, 1993, which required the Commission to
produce documents for our in camera inspection, the Commission filed a motion on
October 12, 1993, for reconsideration; but, as Whitehead I points out, the Commission's
counsel made absolutely no effort to achieve an accelerated consideration of this motion for
reconsideration.
6

[Headnote 4]
It was the Commission's motion for reconsideration of October 12, 1993, that was denied
by this court's Whitehead I Opinion. The current Petition/Motion seeks a rehearing of
Whitehead I, which in turn denied the prior Motion for Reconsideration; therefore, the current
Petition/Motion is successive in nature. As Judge Whitehead's counsel note, it has been the
law of Nevada for 125 years that a party will not be allowed to file successive petitions for
rehearing. See Trench v. Strong, 4 Nev. 587, 589 (1868) (it would be mischievous in the
extreme to sanction the practice of filing a second petition for rehearing in any cause
whatever, . . . except to correct a palpable error and grievous wrong). A second application
for rehearing of a cause by the same party, after his petition for rehearing has been denied,
will not be entertained. Brandon v. West, 29 Nev. 135, 142, 88 P. 140, 141 (1906). The
obvious reason for this rule is that successive motions for rehearing tend to unduly prolong
litigation. Id. at 141, 88 P. at 140; see also State v. Butner, 67 Nev. 436, 438 n.2, 220 P.2d
631, 632 (1950), cert. denied, 340 U.S. 913 (1951); Ward v. Pittsburgh Silver Peak, 39 Nev.
80, 103, 154 P. 74 (1915).
C. The Petition/Motion is not authorized by NRAP 40
[Headnote 5]
As Judge Whitehead's counsel point out, the office of a valid petition for rehearing is
described in NRAP 40(c), which provides as follows:
__________
conclusion that, through application of the doctrine of collateral estoppel, might hereafter be invoked in some
other tribunal to the detriment of the Commission's individual members.

6
That is why, in Whitehead I, this court referred to such motion as a pretext. In the Petition/Motion now
before us, the Commission's counsel expresses dissatisfaction with our use of the word pretext to describe their
motion. Given the evident lack of any discernable desire on their part to obtain an expeditious ruling, however,
we do not feel that we unfairly characterized the facts. In any case, the significant fact was that no proper effort
was made to have this court amend its ruling before defying it.
(c) Scope of application; When Rehearing Considered.
(1) Matters presented in the briefs and oral arguments may not be reargued in the
petition for rehearing, and no point may be raised for the first time on rehearing.
(2) The court may consider rehearing 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.
(Emphasis added.)
The present Petition/Motion cannot be considered as proper under NRAP 40 as it does not
address any material matter or ruling of this court. The Petition/Motion does not seek
modification of any substantive ruling contained in Whitehead I. In Whitehead I, we carefully
set out the basis for the court's jurisdiction over the Commission and referred to the powers of
contempt vested in the court in proper cases. The Petition/Motion does not challenge these
rulings, but, rather, merely asks the court to withdraw its opinion and to change what the
Commission's counsel call faulty assumptions, misstatements of fact and
mischaracterizations of the legal arguments of Respondent. In fact, within three days after
the Petition/Motion was lodged with the court, all Commission members and Commission
counsel individually certified their intent to comply with the specific orders contained in
Whitehead I. They did exactly that and, on March 18, 1994, the documents which we ordered
to be produced for our in camera inspection were delivered to this court. Thus, all issues
relating to the propriety of this court's orders respecting the production of documents for our
in camera inspection are now moot.
[Headnote 6]
Rehearings are not granted to review matters that are of no material consequence. See In re
Herrmann, 100 Nev. 149, 679 P.2d 246 (1984). In the Herrmann case, the respondent filed a
petition for rehearing contending that the court's decision contained unnecessary statements
and mischaracterizations. This court held that the rehearing petition failed to raise any
germane legal or factual matter that had been previously raised and overlooked. Id. at 151,
679 P.2d at 247 (emphasis added). Therefore, this court observed that it appeared that the
petition for rehearing had been filed for purposes of delay, and with the improper result, if
not the intent, of subjecting appellants to further public odium. Id. at 151, 679 P.2d at 247.
Similarly, in the present case, all of the points sought to be raised in the
Petition/Motion are either immaterial, constitute attempts to reargue matters already
considered and decided, or constitute efforts to raise new arguments for the first time. The
Commission's counsel have recently decried our opinion in Whitehead I as hostile and
derisive, and further assert that if undeniably erroneous assumptions of fact are not
corrected an unnecessary scar will be forever imprinted upon the judicial history of Nevada
and the citizens of Nevada will have been sadly disserved. Commission's Motion to Strike
Answer at 3. No coherent attempt, however, has been made to show that any material issue
was overlooked in our opinion in Whitehead I. Thus, as in Herrmann, it appears that the
instant Petition/Motion has not been filed for any legitimate purposes countenanced by this
court's rules. Rather, we tend to view such exaggerated and hysterical rhetoric as merely a
transparent attempt to attract media attention and inflame public passion.
[Headnote 7]
As noted by Judge Whitehead's counsel, the law relating to petitions for rehearing was
summarized in the Herrmann case in the following terms:
Under our long established practice, rehearings are not granted to review matters that
are of no practical consequence. Rather, a petition for rehearing will be entertained only
when the court has overlooked or misapprehended some material matter, or when
otherwise necessary to promote substantial justice. NRAP 40(c)(2). A petition for
rehearing may not be utilized as a vehicle to reargue matters considered and decided in
the court's initial opinion. NRAP 40(c)(1); Gershenhorn v. Stutz, 72 Nev. 312, 306 P.2d
121 (1957). Nor may a litigant raise new legal points for the first time on rehearing.
NRAP 40(c)(1); Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972); In re Lorring, 75
Nev. 334, 349 P.2d 156 (1960).
Id. at 151, 679 P.2d at 247. The court in Herrmann imposed sanctions against the movant for
violating NRAP 40.
Herrmann controls the present case, as the Petition/Motion fails to raise any material point
of practical consequence. The Petition/Motion fails to seek reversal or modification of any
ruling relating to the court's jurisdiction or to its contempt powers and fails to direct attention
to any factual or legal issue that was previously relied upon by the Commission, but
overlooked by the court.
D. In addition to being immaterial, and for other reasons not cognizable under NRAP 40,
various contentions raised in the Petition/Motion will not withstand scrutiny in the light
of established facts
1. The record appears to repel immaterial contentions that the Commission members on
their sole initiative, and unassisted by the Attorney General and Chief Deputy
Brooke Nielsen, hired Special Deputy Attorney General/Special Counsel Campbell
In the Petition/Motion, the Commission contends that the uncontroverted evidence
discloses the decision to employ and the selection of special counsel Donald J. Campbell was
made solely by the Commission, not by the Attorney General. Petition/Motion at 6
(emphasis in original). Thus, according to the Commission, this court mischaracterized facts
established by the record. Quite aside from the immateriality of this contention, it is not
accurate.
On November 30, 1992, some nine months before the Commission gave any notice to
Judge Whitehead that it was secretly proceeding against him, the Commission minutes show
that Chief Deputy Attorney General Brooke Nielsen undertook to work with Commission
member Alan Lefebvre to locate outside counsel to pursue the secret probe. Special Deputy
Attorney General/Special Counsel Campbell's billings show that Chief Deputy Attorney
General Nielsen conferred with him on various occasions before he was hired.
[Headnote 8]
After pursuing this endeavor with Commission member Lefebvre, Chief Deputy Attorney
General Nielsen, on March 3, 1993, participated in another meeting on this subject that
appears to be in violation of the Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline (ARJD). Commission minutes show that only the
chairman and Commission member Lefebvre were present at the March 3, 1993, meeting. As
Judge Whitehead points out, ARJD 3(4) requires that a quorum for the conduct of business
other than the hearing and decision of formal disciplinary proceedings is four members.
Although there was clearly no quorum for the March 3, 1993, meeting, one of the
Commission members in attendance apparently tried to legitimate the meeting by claiming to
have the proxy of Commission member General Clark. This is a practice expressly
prohibited by ARJD 3(9), but even if the proxy had been permissible, the meeting would
still have been one member short of a quorum. ARJD 3(4). According to the minutes,
Commission member Lefebvre "suggested inviting Mr.
minutes, Commission member Lefebvre suggested inviting Mr. Campbell to the 3/15/93
meeting for purposes of an introduction, and all agreed. It is not clear from the minutes
whether Chief Deputy Attorney General Nielsen was one of the all who voted at the
meeting; however, she clearly was present at (and apparently approved of) this private
conclave that was illegally conducted without a quorum.
On March 15, 1993, Chief Deputy Attorney General Brooke Nielsen and six Commission
members, including the chairman, met and held a general discussion re approval of Donald
J. Campbell of Las Vegas to serve as a Special Deputy in this matter, to serve as counsel in
this matter in the place and stead of Brooke Nielsen and the Attorney General's office.
(Emphasis added.) It is not clear whether Mr. Campbell attended this meeting as was
suggested in the March 3, 1993, minutes.
7

Presumably in pursuance of the mentioned discussions, Attorney General Del Papa applied
to the State Board of Examiners for the money to employ Campbell to serve as counsel in
the place and stead of Chief Deputy Attorney General Brooke Nielsen and the Attorney
General's office. The stated basis for the Attorney General's application to the Board of
Examiners was the potential conflict of interest inherent in the Attorney General's continued
representation of the Commission. On the Contract Summary, a form required for all
contracts submitted for review by the Board of Examiners, the Attorney General stated
specifically that NRS 41.03435 provides for employment of special counsel if the Attorney
General determines that it is impracticable, uneconomical or could constitute a conflict of
interest. (Emphasis added.)
As Judge Whitehead's counsel note, however, the contract which the State executed with
Campbell directly constitutes Campbell as a functionary or attach of the Attorney General's
office.
8
The contract between the State of Nevada, acting by and through the Attorney
General, and Donald J. Campbell & Associates, entered into on March 25, 1993, recites in
pertinent part that "[t]he Attorney General agrees to retain . . . Campbell . . . to serve as
counsel to the Commission on Judicial [D]iscipline in [the Whitehead matter]."
__________

7
As Judge Whitehead mentions, one Anne Peirce, a former Commission employee who is not a Commission
member and who had no apparent concern with the business at hand, was present during the discussions relating
to Judge Whitehead. It appears that Chief Deputy Attorney General Nielsen, whose only justification for being
present herself was to provide legal counsel, apparently did not direct attention to the fact that the unnecessary
presence of any person at discussions relating to Judge Whitehead would violate the confidentiality to which he
was entitled pursuant to article 6, section 21(5) of the Nevada Constitution and ARJD 5.

8
See Motion for Appointment of a Master to Conduct Factual Investigation, Exhibit 2.
[t]he Attorney General agrees to retain . . . Campbell . . . to serve as counsel to the
Commission on Judicial [D]iscipline in [the Whitehead matter]. The contract further
specifies that Campbell shall serve in this capacity at the pleasure of the Attorney General
and shall report regularly to the Attorney General concerning the status of the above-named
case. (Emphasis added.) The contract also provides that Campbell shall provide litigation
status reports to the Attorney General, as well as copies of memoranda, briefs, reports,
studies, photographs, negatives or other documents or drawings prepared by [Campbell] in
the performance of his obligations under this agreement. (Emphasis added.) Thus, while the
Commission evidently considers Campbell as an independent special counsel to the
Commission, it is nonetheless contractually clear that Campbell serves at the pleasure of the
Attorney General and is contractually bound to supply all records and litigation reports to the
Attorney General rather than the Commission.
Moreover, the record reflects that Mr. Campbell was sworn in as a special deputy
Attorney General. Campbell averred in an affidavit dated July 28, 1993, After I acquiesced
to act as special counsel for the Commission, I was officially appointed to the position of
special deputy attorney general by Frankie Sue Del Papa, Attorney General of the State of
Nevada. In another affidavit dated October 11, 1993, Campbell declared: Although I was
later officially appointed to the position of Special Deputy Attorney General, I did not discuss
with or share any of my factual findings with any member of Attorney General Del Papa's
staff to ensure that the investigation was not tainted by any personal feelings of bias in favor
of or prejudice against Judge Whitehead.
In Attorney General Del Papa's press release of November 12, 1993, the Attorney General
said:
In the Whitehead case, both the Commission and the attorney general felt it would be
appropriate to have outside, independent counsel to investigate the many complaints
which the Commission had received against Judge Whitehead. [
9
]
Later in the release, the Attorney General stated: Under NRS 41.03435, the Attorney
General may employ outside counsel, with the approval of the Board of Examiners . . . .
Thus, contrary to the Commission's present contention, the record before this court does not
contain "uncontroverted evidence" disclosing "that the decision to employ and the
selection of special counsel Donald J.
__________

9
See Motion for Protection of Petitioner's Due Process Rights, Exhibit D.
before this court does not contain uncontroverted evidence disclosing that the decision to
employ and the selection of special counsel Donald J. Campbell was made solely by the
Commission, not by the Attorney General. Petition/Motion at 6 (emphasis in original).
We may have occasion to address this subject further at a later date in the course of
disposing of other pending motions. We note, however, that for purposes of this interlocutory
opinion, the Attorney General, the Chief Deputy Attorney General, and Special Deputy
Attorney General/Special Counsel Campbell have signed virtually all filings presented to this
court in these proceedings. It is apparent that all three individuals share the views expressed
in those filings, thus completely blurring allegations that there have been no
cross-communications concerning the investigative activities of Campbell, who is
contractually obligated to submit litigation status reports to the Attorney General while
serving at the pleasure of the Attorney General.
We therefore must emphatically reject the Petition/Motion's contention that the
uncontroverted evidence discloses that the decision to employ special counsel Donald J.
Campbell was made solely by the Commission. Even if the point were material to our
Whitehead I Opinion, we would have to deny any rehearing or clarification to reconsider
this unfounded contention, and we decline to amend or correct our prior opinion.
10

2. The record also appears contrary to the Petition/Motion's immaterial contention that
Donald J. Campbell should be viewed as a special counsel to the Commission
rather than as a special prosecutor, which is how our Whitehead I Opinion
characterized him
For reasons not immediately apparent to us, the Petition/Motion complains that our
opinion in Whitehead I referred to Mr. Campbell in an incorrect manner. The Petition/Motion
informs us that the Commission is at a loss to understand how its special counsel has been
transformed in the Whitehead I Opinion into a so-called special prosecutor.
Our reason, of course, was that Mr. Campbell apparently has been performing functions
analogous to those which ARJD 16 contemplates are to be performed by a "prosecuting
attorney" or "prosecutor," although, arguably, prematurely.
__________

10
As Judge Whitehead's counsel note, the record indicates that the Commission members may have engaged in
private, off-the-record discussions with Campbell, in some instances even before he was formally retained.
Consequently, there may well be grounds for their belief that they selected Campbell as the person that they
wanted to investigate and prosecute Judge Whitehead. Such fact, however, would not affect the conclusion
reached in Whitehead I, that Campbell was hired by the Attorney General's office to serve as a special prosecutor
in this matter.
been performing functions analogous to those which ARJD 16 contemplates are to be
performed by a prosecuting attorney or prosecutor, although, arguably, prematurely.
11
This is consistent with the nomenclature employed in Goldman v. Nevada Comm'n on
Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992), except that, under ARJD 16, it
appears that the Commission is only authorized to designate a special prosecutor after
probable cause for disciplinary action has been found to exist after a probable cause hearing.
Special Deputy Attorney General/Special Counsel Campbell, despite ARJD 16, was hired and
undertook to act prior to such a hearing. We therefore deem the reference made to Mr.
Campbell in Whitehead I as appropriately descriptive. Nonetheless, because the Commission
and the Commission's counsel have apparently taken offense at our prior reference to
Campbell as a special prosecutor, we have referred to Campbell in this opinion as Special
Deputy Attorney General/Special Counsel Campbell, the designation which Campbell
himself has employed in numerous motions and papers filed and submitted in this court. We
remain at a loss, however, to discern how any of this relates to any material matter in
Whitehead I warranting our rehearing, amendment, or correction.
In Whitehead I we also noted as follows:
In sharp contrast to the role that Attorney General Del Papa has assigned herself to play
in the present case, Attorney General McKay permitted the independent special
prosecutor hired by the Commission in Goldman to perform his function as
independent counsel to the Commission without interference or guidance from
Attorney General McKay. This, of course, enabled Attorney General McKay to avoid
generating the kinds of conflicts that would have been present if he had simply used a
special prosecutor as an attach and special deputy attorney general to help him
pursue ends that he may have desired to see realized.
110 Nev. at 148, 869 P.2d at 807.
Again, for reasons not readily discernable, the Petition/Motion appears to identify the
above-quoted passage both as inaccurate and insulting. It complains as follows: The
derogatory characterization of special counsel as an attach' utilized for improper purposes
for furthering the Attorney General's personal goals is unfounded and unwarranted."
__________

11
ARJD 16 provides in material part:
In all cases in which probable cause for disciplinary action is found by the commission, the commission
must designate a prosecuting attorney who must sign and file with the commission a formal statement of
charges signed under oath by the prosecuting officer. Thereupon, confidentiality ceases. . . .
purposes for furthering the Attorney General's personal goals is unfounded and
unwarranted. Petition/Motion at 6 (emphasis added).
We believe that the foregoing complaint demonstrates inordinate and unexpected
sensitivity on the part of the Commission's counsel. In the first place, the above-quoted
passage makes no direct reference to Mr. Campbell; the allusion was to Mr. McKay's
practice. Also, use of the word attach is not derogatory in any sense, even if construed as a
reference to Mr. Campbell. As Judge Whitehead's counsel point out, the word attach
commonly carries the connotation of technical expert, Webster's Ninth New Collegiate
Dictionary 113 (9th ed. 1983); and on the form she submitted to obtain funds to hire Mr.
Campbell, Attorney General Del Papa stated that she had chosen him because of his special
expertise. We therefore fail to see either insult to or mischaracterization of Mr. Campbell.
Next, it should be noted that the portion of our Whitehead I Opinion quoted above does
not, as the Petition/Motion intuits, include any references either to improper purposes or to
personal goals of the Attorney General. It therefore appears to us that the perceived
inaccurate slights over which the Petition/Motion expresses outrage have not occurred, and
there is nothing we could or should rehear, amend, or correct in this regard.
3. The Petition/Motion's immaterial suggestion that disobedience of this court's October
4, 1993, order was justified by a difficult situation in which the Commission
members found themselves is not supported either by applicable law or by the record
In the Petition/Motion, there is an expression of a desire to clarify (and presumably to have
this court clarify) that the letter of October 14, 1993, stating the Commission's decision to
defy this court's order, was prompted by the Commission's concern for maintaining the
confidences of cooperating witnesses. Confidentiality had been guaranteed to cooperating
witnesses on behalf of the Commission by Special Deputy Attorney General/Special Counsel
Campbell. The Commission further represents that the letter of October 14, 1993, was
prompted by the Commission's concern for maintaining the integrity of the judicial
discipline process. The Commission states that it was truly frustrated in its ability to
comply with the Court's October 4, 1993, Order and yet still maintain faith with the
witnesses. According to the Commission, its desire to protect the confidentiality of
privileged material [under the attorney-client and work-product privileges], the confidences
of witnesses, and the integrity of its discipline proceedings, formed the bases for filing the
Commission's Motion for Reconsideration and issuing the Commission's letter of October
14, 1993."
discipline proceedings, formed the bases for filing the Commission's Motion for
Reconsideration and issuing the Commission's letter of October 14, 1993. See Petition for
Rehearing at 3-4.
[Headnotes 9, 10]
This statement suggests that the Commission members and the Commission's counsel still
do not appreciate the legal principles carefully delineated in Whitehead I, namely: the
Commission members are obligated to follow faithfully the orders of this court, as well as all
rules promulgated pursuant to the court's constitutional authority. Nothing in the ARJD vests
a special counsel or prosecutor with any right or discretion to promise a prospective witness
confidentiality in a way that will effectively preclude an accused judge from gaining access
to information that will equip the judge either to confront and cross-examine potential
accusers or otherwise to assemble evidence relating to any material issue, such as arguable
excesses in the exercise of the Commission's jurisdiction.
With all due respect to the Commission members, we are therefore obliged to say that,
while their concerns for witnesses promised confidentiality may have been real and sincerely
motivated, they were not legitimate, as the Petition/Motion characterizes them, but, rather,
the unfortunate result of commitments which may have been improperly undertaken by
Special Deputy Attorney General/Special Counsel Campbell in violation of the ARJD.
12

__________

12
In Whitehead I, we pointed out that Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830
P.2d 107 (1992), was, by its express terms, decided under the now-withdrawn revised interim rules, rather than
under the current ARJD. It should perhaps be added that the Editor's Note to ARJD 1, comments:
The Supreme Court Order adopted April 29, 1988, effective April 29, 1988, provided that the Revised
Interim Procedural Rules of the Nevada Commission of Judicial Discipline filed January 10, 1978, are
hereby superseded, except as to cases in which formal hearings have already been ordered or conducted
under the provisions of the Revised Interim Procedural Rules.
Nev. Rev. Stat. Ann., Court Rules Ann. (Michie 1994) (emphasis added).
We note also that in Whitehead I we pointed out that the Goldman case (a) involved an appeal and not a writ
proceeding challenging jurisdiction; (b) was decided under an entirely different set of less-definitive rules; and
(c) raised and decided issues that were not remotely coincident with those here involved. It therefore is not
relevant judicial precedent. Whitehead I, 110 Nev. at 148, 869 P.2d at 808. The point under discussion
provides a good example of what we were then expressing in Whitehead I. Although the Commission's counsel
suggest in the instant Petition/Motion that they feel the Goldman decision showed an intent to provide
substantive and procedural guidance that legitimated their actions concerning Judge Whitehead, the prosecutor
in Goldman did not promise any witness or informant confi-
The Commission should also understand that its inconsistency and inflexibility regarding
considerations of confidentiality have posed substantial concerns to this court. For example,
the Commission never once tendered an objection to the initial orders of this court requiring
confidentiality in these writ proceedings until after the confidentiality of the proceedings was
breached and the Las Vegas Review-Journal began publishing a series of articles disclosing
information provided by unnamed sources regarding the confidential proceedings. These
prejudicial disclosures to the media by unnamed sources were made not only in direct
violation of a lawful order of this court, but also in direct violation of ARJD 5(1) which
implements a constitutional mandate.
13

[Headnote 11]
Although it had previously tendered no protest whatsoever to the court's order of
confidentiality, upon the publication of these unlawful disclosures, the Commission and its
counsel almost immediately began presenting arguments vehemently decrying the secret
supreme court proceedings. Of course, by then, it had become quite apparent that such
arguments would receive substantial media attention if the apparently well-informed,
unnamed sources chose to leak the substance of such arguments to the media.
In a document filed on October 27, 1993, the Commission's counsel disingenuously
asserted that this court's initial confidentiality order [was] not valid since it binds only [the
Commission] and is contrary to NRS 1.090 which requires proceedings before this Court to
be open and public.
14
See Commission's Response to Emergency Request for Permission
to Make Public Statement, filed October 27, 1993, at 1. The Commission also argued:
__________
dentiality, and no point regarding any such promise was decided in Goldman. We therefore find it impossible to
comprehend the Commission's counsel's recurrent references to Goldman in attempting to legitimate any and all
of their alleged procedural derelictions under the ARJD. Promises of confidentiality to witnesses and
informants, and various other possible violations of the current rules, are simply innovations of the Commission's
counsel that never occurred and were never approved in Goldman.

13
ARJD 5(1) provides: All proceedings must be confidential until there has been a determination of probable
cause and a filing of formal statement of charges.

14
The Commission's counsel neglected to mention that NRS 1.090 provides in pertinent part: The sitting of
every court of justice shall be public except as otherwise provided by law . . . . (Emphasis added.) Of course,
this court had previously concluded that confidentiality in this matter was indeed otherwise provided by law.
See Nev. Const. art. 6, 21(5)(a) (the supreme court shall make appropriate rules for [t]he confidentiality of all
[The Commission] does not oppose Petitioner's request [for permission to make a
public statement]. However, in accordance with the law requiring public proceedings in
this Court, and in fairness to all parties as well [as] the citizens of Nevada, the secrecy
shrouding these proceedings should be lifted.
Id. at 2 (emphasis added).
Thus, in one breath, the Commission decried the secrecy shrouding these proceedings.
Yet, in another breath, it opposed with equal ardor and vehemence this court's undertaking a
review, even in camera of materials secretly assembled by the Commission's counsel, in order
to ascertain if such materials are properly subject to discovery under ARJD 14(5). While this
court fully appreciates that maintenance of the faith and confidences of witnesses may have
been of concern to the Commission, this court is nonplussed by the Commission's active
opposition to considerations or actions designed to address or correct blatant violations of
Judge Whitehead's preeminent right to confidentiality. Thus, to us, it seems that the
Commission has abdicated its obligation to assure Judge Whitehead's right of confidentiality
prior to a finding of probable cause, and has demonstrated a singular lack of concern for the
unlawful, premature disclosures of confidential information obviously designed to disparage
and tarnish Judge Whitehead, as well as this court.
Although confidentiality in judicial discipline proceedings is thought to encourage the
filing of complaints and the willing participation of witnesses, ARJD 14(5) provides:
__________
proceedings before the commission, except a decision to censure, retire or remove a justice or judge); ARJD
5(1) (all proceedings must be confidential until there has been a determination of probable cause and a filing of a
formal statement of charges).
It should have been apparent that disclosures relating to the proceedings in this court also necessarily involved
disclosures relating to the proceedings before the Commission. This court had concluded that Judge Whitehead
was not required to waive his right to confidentiality under the Nevada Constitution and the Commission rules in
order to seek extraordinary relief in this court challenging the Commission's jurisdiction as provided in ARJD
40(7).
Judge Whitehead's right to absolute pre-probable cause confidentiality is grounded in the Constitution of this
state. The United States Supreme Court has held that prosecutorial comments and jury instructions regarding a
defendant's silence are Fifth Amendment violations because such comments and instructions constitute a penalty
for exercising a constitutional privilege that cuts down on the privilege by making its assertion costly. Griffin
v. California, 380 U.S. 609, 614 (1965). By a parity of reasoning, permitting Judge Whitehead to invoke the
right accorded him under ARJD 40(7) (a rule adopted by this court pursuant to constitutional mandate) only if he
forfeits his right to confidentiality mandated by the Nevada Constitution would be an intolerable penalty.
In preparing to oppose a determination of probable cause, the respondent [judge] has
the right to inspect all records of the commission relating to the disciplinary action
against the respondent [judge] and to be fully advised as to the contents of the
administrative record considered by the commission determining that there was
sufficient reason for a probable cause hearing.
Emphasizing again the primary importance of confidentiality to a respondent judge, it has
been noted that confidentiality also protects judges from the injury which might result from
publication of unexamined and unwarranted complaints.
15
See Landmark Communication,
Inc. v. Virginia, 435 U.S. 829 (1978) (emphasis added).
[Headnote 12]
For reasons noted above, this court has remained gravely alarmed that, based upon all
filings and other indicia of attitude and objectives we have received, the Commission has not
only taken no action to discover the source of the unlawful leaks to the media,
16
but has
actually opposed Judge Whitehead's pleas to this court to determine the unethical sources of
the leaks. Thus, while certain members of the Commission and counsel have indicated that
they have not directly discussed confidential matters with members of the media, we
emphasize our alarm over the Commission's apparent lack of interest in the improper and
unethical disclosures that have so distorted and delayed the progress of these proceedings. In
any event, we conclude that, when balanced against Judge Whitehead's rights and the
significant public disclosures that have already occurred, this court's private, in camera
review of the materials in question will not unduly offend the policy against disclosure of
witness confidences.
17

4. The Petition/Motion's immaterial explanations concerning the improper
misquotations of Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251,
830 P.2d 107 {1992), made by Commission's counsel do not persuade us that our
Whitehead I Opinion mischaracterized such behavior
__________

15
See also Shaman, Lubet and Alfini, Judicial Conduct and Ethics, 13.15 at 419 (1990) (exoneration rarely
commands the same attention as a charge of wrongdoing; a judge's reputation may suffer needlessly from early
public disclosure). A review of this treatise also reveals that twenty-eight states plus the District of Columbia
evidently have a more stringent confidentiality requirement than is presently required in Nevada under ARJD 5.
The above-referenced treatise states that ten jurisdictions permit public disclosure only where a supreme court
orders a sanction. Id. 13.15 at 417.

16
At least this court has not been advised of any such action.

17
It should not escape anyone's attention that any witnesses produced by a special prosecutor must be identified
to the respondent judge in any event. See ARJD 14(5) and 21(1)(a).
107 (1992), made by Commission's counsel do not persuade us that our Whitehead I
Opinion mischaracterized such behavior
In Whitehead I, the court discussed a misquotation that the Commission's counsel had
fabricated out of seven sentences that span nine pages and two independent sections of our
Goldman Opinion. This court essentially rejected arguments based on the misquotation. Now,
in the Petition/Motion before us, the Commission's counsel attempt to justify the
misquotation in the following manner: Counsel for the Commission respectfully state that
the ellipses and the notation Emphasis added' were inadvertently omitted and that there was
no intent to mislead. (The prosecutors also attempt to justify an obscure citation to a year-old
slip opinion, even though the bound Pacific Reporter volume was accessible, by saying the
official Nevada Reporter was not yet available.)
In Whitehead I we simply stated the facts relating to the Commission's counsel's conduct.
We did not try to define its ethical quality. Whitehead I, 110 Nev. at 148, 869 P.2d at
807-808. We do not do so now. To whatever extent our Opinion in Whitehead I may warrant
clarification in light of the Commission's counsel's explanations, that now has been provided
by reciting those explanations, and we leave it to members of the bar and other readers to
judge the veracity of the explanations after reviewing the misquotations in question.
18

We note, however, that the Commission's counsel make no effort to explain the apparent
attempt to mislead this court into believing that our intervention in this proceeding was
premature by repeatedly quoting the statement from Goldman that [t]he proceedings before
the commission must be permitted to run their full constitutional course from their inception
to their conclusion. 108 Nev. at 275, 830 P.2d at 123.
The referenced quotation was taken completely out of context, and counsel deleted the
immediately preceding sentence which states:
Thus, where, as here, allegations of judicial misconduct provide an incipient basis for
commission action under the state constitution, overriding concerns of public and social
policy, as well as the commission's preeminent constitutional authority to resolve all
potential questions of misconduct and entitlement to early, enhanced disability
retirement, must foreclose any attempt by a judge to compel the governor to act in
accordance with NRS 3.092{3).
__________

18
We do not pass judgment as to whether the described miscitation and misquotation were deliberately
designed to mislead the court or merely represents an incapacity to cite cases in a proper and acceptable manner.
must foreclose any attempt by a judge to compel the governor to act in accordance with
NRS 3.092(3).
Id. (Emphasis added.)
Clearly, the sentence quoted by the Commission's counsel had no reference whatever to
the jurisdiction of this court to entertain an interlocutory challenge to the Commission's
jurisdiction. Rather, the sentence emphasized that a respondent judge could not short circuit
the Commission's jurisdiction to hear a matter involving mixed issues of misconduct and
enhanced disability retirement entitlement by invoking the governor's statutory authority
respecting enhanced early retirement. Indeed, the Commission's counsel's apparent attempt to
mislead this court by selective quotes from Goldman is underscored by the belated claim that
the Commission has consistently recognized the Court's authority under ARJD 40(7) to
review interlocutory orders' of the Commission. (Emphasis in original.) Even the latter
contention is highly suspect on its face because of Commission statements cited within the
body of this opinion coupled with the fact that this proceeding is the first invoking this court's
jurisdiction under ARJD 40(7).
19

5. The Commission's revised position regarding this court's jurisdiction to intervene
under ARJD 40(7) does not warrant amendment of this court's Whitehead I Opinion
The Commission concurrently argues in this Petition/Motion:
It is not the position of Respondent, nor has it ever been the position of the
Commission or its counsel, nor has it been argued, that the Court's appellate authority
in a judicial discipline matter is limited solely to review of a final order. Respondent
notes that the Commission has consistently recognized the Court's authority under
ARJD 40(7) to review interlocutory orders of the commission. It has, however,
consistently been the argument of the Commission and counsel that this extraordinary
writ proceeding and the Court's intervention are premature since the Commission has
yet to issue a single interlocutory order in the Whitehead matter.
__________

19
Concerning the duty of counsel to refrain from distorting quotations by selective omissions, those interested
may wish to review Montgomery v. City of Chicago, 763 F. Supp. 301, 307 (N.D. Ill. 1991); Kloster Speedsteel
AB v. Crucible Inc., 793 F.2d 1565 (Fed. Cir. 1986), cert. denied sub nom. Stora Kopparbergs AB v. Crucible
Inc., 479 U.S. 1034 (1987); Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1476 (Fed. Cir. 1985), cert.
denied, 469 U.S. 924 (1984).
has yet to issue a single interlocutory order in the Whitehead matter. [
20
]
Petition for Rehearing at 12 (emphasis in original).
[Headnote 13]
Thus, the Commission now contends that it has never entered any interlocutory orders in
this matter, and therefore, this court's intervention is premature. More specifically, the
Commission apparently argues that this court lacks jurisdiction to entertain petitions for
extraordinary relief filed pursuant to ARJD 40(7) which seek review of decisions or activities
of the Commission that have not been memorialized in formal, written interlocutory orders
of the commission.
21

The minutes of a July 2, 1993, conference of the Commission disclose that:
Commissioner Lefebvre moved to approve the Complaint for Probable Cause and for service
of same . . . . Commissioner Clark seconded the motion. Motion carried. This ruling was
memorialized in the July 12, 1993, Notice of Probable Cause Hearing, which was
file-stamped by the Commission's secretary, signed by Special Deputy Attorney
General/Special Counsel Donald J. Campbell, and served on Judge Whitehead. The Notice
advised Judge Whitehead that, pursuant to ARJD 14, a complaint had been filed against him
and that he was required to respond to the complaint in writing, within thirty (30) days.
The Notice further advised Judge Whitehead that a probable cause hearing would be held on
September 7, 1993, that Judge Whitehead could call witnesses only with the permission of
the Commission, and that a request for such permission had to be filed not later than fifteen
days prior to the hearing. In point of fact, Judge Whitehead was in every sense ordered to
respond to the complaint within thirty days. He was given no choice in the matter.
__________

20
As Judge Whitehead observes, the media would do well to review this current contention closely and then
compare it to the press release issued by Attorney General Del Papa on January 31, 1994, wherein the Attorney
General stated: Constitutionally created as an entity separate from any court, and not under the control of the
judiciary except as to review of its final decisions, the Commission has the authority and duty to investigate and
prosecute disciplinary actions concerning allegations of misconduct by judges. (Emphasis added.)

21
ARJD 40(7) provides:
Review of interlocutory orders of the commission, which are considered either by the prosecuting officer
or the respondent judge to be without or in excess of jurisdiction, may be sought by way of a petition for
an appropriate extraordinary writ.
(Emphasis added.)
matter. This court will recognize a document for what it is, rather than the name assigned to
it.
Hence, there is no dispute that at the conference of July 2, 1993, the Commission voted
and ruled that there was sufficient cause to hold a probable cause hearing pursuant to ARJD
14(1).
22
There is also no dispute that Judge Whitehead was served with notice of the
Commission's decision to proceed to a probable cause hearing when, pursuant to ARJD
14(1), the chairman cause[d] prompt written notice to be given to Judge Whitehead of the
Commission's decision. Yet, the Commission disingenuously insists that its actions to date
with respect to Judge Whitehead are not reviewable by this court because no interlocutory
orders have ever been issued by the Commission in this proceeding.
If, as the Commission apparently now insists, this contention forms the principal basis for
the Commission's challenge to this court's jurisdiction, then indeed this court has gravely
misconstrued the significance, thrust and import of the Commission's arguments. Had the
Commission's prior filings clearly conveyed that the Commission's jurisdictional contentions
were based upon such an insubstantial predicate, this court would have rejected the
contention as wholly untenable long ago. A review of the arguments advanced by the
Commission, however, in the now public papers and documents filed in this proceeding,
amply demonstrates that the Commission's challenge to this court's jurisdiction in this matter
stemmed from assertions far beyond the simplistic claim that no interlocutory order had ever
been entered by the Commission.
Although the Commission now insists that it has consistently recognized this court's
authority to entertain a petition under ARJD 40(7), and that its letter of October 14, 1993,
was not intended as a personal reflection upon the Court, we anticipate that, upon further
reflection, the Commission may appreciate that there was substantial cause for this court to
labor under a far different perception. The following examples may serve to remind the
Commission of the thrust, tone and tenor of many of its prior arguments.
In the Commission's letter of October 14, 1993, the Commission informed this court:
__________

22
ARJD 14(1) provides:
The commission will consider all complaints brought before it with a view to determining whether or not
there exists sufficient cause to proceed to a probable cause hearing. In cases in which the commission
determines that there is merit to the charges and that there is sufficient reason for a probable cause
hearing, the chairman must cause prompt written notice to be given to the respondent that the respondent
is required to respond to the sworn complaint in writing within 30 days after service.
The Commission cannot in law, nor in good conscience, abandon its constitutional post
in the face of an assault by a series of secret, illegal and void orders. To acquiesce in
this most recent attempt to emasculate and usurp the separate constitutional powers of
the Commission would violate the oath which each of the undersigned has sworn to
fulfill.
(Emphasis added.)
Having referred to the court's orders as a series of secret, illegal and void orders,'
designed to emasculate and usurp the separate constitutional powers of the Commission,
and having flatly refused to comply with an order of this court, surely the Commissioners can
now appreciate how the court came to understand the Commission's position as a serious
confrontation to the court's fundamental, constitutional power and authority to act in this
matter.
In another document filed on October 27, 1993, the Commission told this court:
Petitioner has requested striking Respondent's answer to the petition and other
sanctions. Respondent respectfully submits that sanctions may not be imposed since the
Court does not have jurisdiction over the petition.
See Respondent's Opposition to Motion to Strike Response to Petition and Issue Permanent
Writ of Prohibition and/or Mandamus and for Sanctions at 1 (emphasis added). Thus, the
Commission contended that this court did not even have the power to sanction the
Commission for conduct in direct defiance of a court order!
In the same document, the Commission stated:
As Respondent has previously argued, this Court has no jurisdiction in this matter.
If Nevada's system of judicial accountability is to operate as intended under the
Constitution, then it must do so without fear of interference or intimidation by the
courts. The Commission is a constitutionally created entity whose independent
jurisdiction cannot be invaded in the fashion requested by Judge Whitehead.
In a Motion for Reconsideration of Confidential Order, filed by the Commission on
October 12, 1993, the Commission argued:
[A]n in camera inspection by the Court of the entire investigative file in this matter is
in excess of the Court's jurisdiction . . . .
Id. at 1.
The Court's order and its proposed action in reviewing the items listed in the order is an
invasion of the Commission's constitutionally-prescribed function and therefore a
violation of Nev. Const. Art. 6, Sec. 21.
This Court has acknowledged that its constitutional role in proceedings concerning
alleged judicial misconduct is limited to an appellate review of the factual record
created by the Commission.
Many authorities have noted that their respective commissions are independent
constitutional bodies and as such the courts have no authority to interfere with their
constitutional functions.
[T]o the extent that the Court seeks to insert itself into the preliminary investigation
function which Nevada's Constitution assigns solely to the Commission, the Court
violates Nev. Const. art. 6, 21.
Id. at 6.
Moreover, in a document filed October 18, 1993, opposing Judge Whitehead's motion for
an investigation to determine the source of leaks of confidential information to the press and
opposing Judge Whitehead's request that this court institute contempt proceedings against the
person or persons who violated the Commission Rules of Confidentiality, as well as this
court's orders respecting confidentiality, the Commission argued: The Commission is not
subject to the plenary authority of this Court. See Respondent's Opposition to Motion for
an Order to Show Cause and Objection to this Court Presiding Over this Matter, NRS
22.030(3) at 2 (emphasis added). Further, the Commission insisted: Simply stated, judicial
commission rules do not give this Court the authority to conduct its proceedings in secret.
Id. at 3.
Thus, this court understood the thrust of the Commission's jurisdictional contentions to be
far more confrontational in a fundamental constitutional sense than is currently indicated by
the Commission. This court certainly did not imagine that the Commission's strident public
assault on this court's power to act had been launched and sustained only by an anemic
argument that the alleged absence of an interlocutory order foreclosed this court's intervention
under ARJD 40(7).
23

__________

23
Among other indicia of the public position that has been maintained, at least by the Commission's counsel, is
a press release issued on January 31,
With respect to that contention, it should be noted initially that ARJD 40(7) does not by its
terms expressly provide that a written order is a formal prerequisite to the filing of a
petition challenging Commission action. Even assuming, however, that ARJD 40(7) could be
interpreted to require a written order as a jurisdictional prerequisite to a petition challenging a
Commission ruling that a probable cause hearing should be helda critical stage in any
disciplinary proceedingthe written Notice of Probable Cause Hearing of July 12, 1993,
which was signed by Special Deputy Attorney General/Special Counsel Campbell and
file-stamped by the Commission's secretary, constitutes adequate written indicia of the
Commission's interlocutory determination. The Notice memorializes the Commission's vote
and decision, and as such it establishes, in the manner provided by ARJD 14(1), that the
Commission formally ruled that there was sufficient merit to the charges and that there [was]
sufficient reason for a probable cause hearing . . . . See ARJD 14(1).
To conclude that such a ruling is not challengeable under ARJD 40(7) as an interlocutory
order of the commission would lead to absurd results. By simply declining to issue written
rulings, the Commission could avoid this court's power to arrest illegal proceedings called to
the court's attention by either a prosecuting officer or an accused judge. Such an interpretation
would render ARJD 40(7) meaningless and would be wholly inconsistent with any reasoned
concept of due process of law.
Moreover, in a document signed by all of the Commissioners and filed by the Commission
in this court on September 10, 1993, this court was advised by the Commission:
[P]etitioner has been provided with a copy of the portions [of] minutes of all meetings
of the Commission which reflect discussions of the complaints against Judge
Whitehead, up to and including the Commission meeting held on July 2, 1993.
__________
1994, by the Attorney General wherein this court was publicly degraded in the following vitriolic terms:
The extraordinary actions taken by Judge Jerry Carr Whitehead and Nevada Supreme Court Justices
Thomas Steffen and Charles Springer to block proper legal review of certain complaints of judicial
misconduct have precipitated an unprecedented constitutional crisis . . . .
The press release goes on to state:
Constitutionally created as an entity separate from any court, and not under the control of the judiciary
except as to review of its final decisions, the Commission has the authority and duty to investigate and
prosecute disciplinary actions concerning allegations of misconduct by judges.
See Exhibit 2 to the Affidavit of Vivian Lynch at 2 (filed March 11, 1994) (emphasis added). It is therefore
readily apparent that the current representations about the Commission's prior position on this subject are not
only immaterial but untrue, and appear to have been manufactured for the purpose of persuading someone other
than justices of this court. The current representations do not warrant any correction of our Whitehead I Opinion.
discussions of the complaints against Judge Whitehead, up to and including the
Commission meeting held on July 2, 1993. As indicated in the minutes, the
Commission reviewed the proposed complaint seeking determination of probable cause
at their conference on July 2, 1993. After review of the said complaint and in
consideration of the many complaints, documents, exhibits and other matters
enumerated in the affidavit of Eve King, the Commission voted to hold a probable
cause hearing.
All of the foregoing constitutes the records of the Commission regarding Petitioner
Whitehead, and details all matters which were considered by the Commission in
deciding to hold a probable cause hearing in accordance with ARJD 14. . . . Thus,
petitioner has been fully advised as to the contents of the administrative record
considered by the commission determining that there was sufficient reason for a
probable cause hearing.[
24
]
(Emphasis added.) See Commission's Notice of Compliance with Confidential Order, filed
September 10, 1993.
This Notice of Compliance, which we emphasize is signed by all of the Commissioners,
also quite clearly memorializes in written form the Commission's decision of July 2, 1993, to
hold a probable cause hearing. The Notice of Compliance constitutes written confirmation of
a ruling of the Commission that is subject to review under ARJD 40(7). We again stress in no
uncertain terms, that Judge Whitehead was ordered by the Commission, through Campbell,
to respond to the complaint within thirty days.
[Headnote 14]
Finally, it should be emphasized that even in the absence of any written indicia of the
Commission's interlocutory rulings, this court has the power under the Nevada Constitution
to intervene in Commission proceedings by way of an extraordinary writ in appropriate
circumstances. See Nev. Const. art. 6, 4 (supreme court shall have power to issue writs of
mandamus, certiorari, prohibition, quo warranto, and habeas corpus). The court's opinion of
February 18, 1994, made this point quite emphatically.
[Headnote 15]
Mandamus may lie to compel any act which the law especially enjoins as a duty resulting
from an office, trust or station.
__________

24
We note that, in addition to requiring the Commission to fully advise an accused judge of the contents of the
administrative record, ARJD 14(5) provides that the accused judge has the right to inspect all records of the
commission relating to the disciplinary action . . . .
NRS 34.160. It is frivolous to contend that the writ is available only to compel a duty
resulting from an office, trust or station, concerning which the office holder has entered a
formal order refusing to perform. Mandamus also may lie to compel the admission of a party
to the use and enjoyment of any right of office to which he is entitled and from which he is
unlawfully precluded. Id. Again, it is untenable to suggest that the writ lies solely when the
right precluded has been foreclosed by a formal order, as contrasted with informal action or
inaction.
[Headnote 16]
Prohibition is the counterpart of mandamus and arrests proceedings of any tribunal,
corporation, board or person exercising judicial functions, when such proceedings are without
or in excess of jurisdiction. NRS 34.320 (emphasis added). See also Nicholson v. State
Com'n on Judicial Conduct, 409 N.E.2d 818, 822 (N.Y. 1980) (concluding that prohibition
was available to challenge commission proceedings as in excess of commission's power). The
statute does not support the Commission's current argument that to be reviewable by
prohibition, the proceedings in excess of jurisdiction must somehow culminate in an order. If
this were the law, the Commission could forever forestall attempts by an accused judge or a
prosecuting officer to invoke this court's review of the worst possible kinds of abuses simply
by omitting to formalize any of their activities in an official order, final or otherwise.
Despite the foregoing concerns regarding the nature of the Commission's challenge to the
legitimate jurisdiction of this court, the Commission has sought to disabuse this court of any
position calculated to be an affront to this court. We are informed that any language
appearing to be contemptuous or an affront was the product of the Commission's fervor. We
respect the Commission's fervor, but are disappointed that the Commission and its counsel
have seemed to perceive bias or gamesmanship, rather than a genuine approach to legitimate
issues, by or among the members of this court. Hopefully, the Commission and the public
will appreciate why it has appeared to this court that the Commission's counsel has been
publicly attempting to arrogate to the Commission a preeminent right of judicial review
which this court could not in any sense countenance. In any event, we conclude that no
clarification of our Whitehead I Opinion is necessary, and that entry of a formal order is
wholly immaterial to whether or not this court can consider issuance of an interlocutory writ
when abuse of the Commission's powers has allegedly occurred.
6. No correction or amendment of this court's order for in camera inspection of
documents is warranted
As previously mentioned, reargument of contentions already decided is violative of NRAP
40(c)(1), and, additionally, any objection to delivery of the material in question, which
already has occurred, is immaterial and moot. Aside from this, the Petition/Motion's
contentions are lacking in validity.
[Headnote 17]
In Whitehead I, we directed the Commission members and counsel for the Commission to
advise the Clerk of this Court individually on or before March 11, 1994, as to whether they
would or would not comply with the order of this court directing submission of materials for
this court's in camera review. On March 8, 1994, the Commission submitted the instant
Petition/Motion, along with a motion for leave to file the petition in excess of ten pages. On
March 11, 1994, the Commission members and counsel complied with our directive and
notified the Clerk of this Court that they would produce the documents in issue. Following
the submission of the instant Petition/Motion, the Commission, on March 18,1994, did in fact
submit materials for this court's in camera review. At no time, following the issuance of the
Whitehead I Opinion, did the Commission tender to this court any request for a stay of the
court's directive requiring the submission of materials for the court's in camera review. Thus,
to whatever extent that Commission now contends that the work-product or attorney-client
doctrines protect the matters in issue from this court's in camera review, such a contention is
not only improperly successive in nature, but it has been rendered moot.
[Headnote 18]
Such claims also lack any apparent legal validity. The purpose of the attorney-client
privilege is to protect confidential communications between attorney and client. NRS 49.095.
Campbell and the Commission members deny any communication between them as to the
content of the documents in question; consequently, no bases appear for a valid claim of
attorney-client privilege with respect to these documents. (This, would be so of course, even
assuming that there is actually an attorney-client relationship between Mr. Campbell and the
Commission given his apparent assumption of an investigative and prosecutorial role before
the Commission.)
This court ordered production of documents for its in camera review to determine the
range and scope of the preliminary investigation conducted by Special Deputy Attorney
General/ Special Counsel Campbell, an issue still pending in this proceeding which was not
decided in Whitehead I and which is not decided now.
ing which was not decided in Whitehead I and which is not decided now. Therefore, our
Whitehead I Opinion overlooked nothing material when it rejected the Commission's
contention that the materials ordered to be delivered for this court's in camera inspection are
protected from such production, inspection, or discovery by the attorney-client privilege. The
only arguable point concerning the appropriateness of the court's order might have to do with
its timing.
[Headnote 19]
Under ARJD 21
25
it appears clear that a special prosecutor's investigative notes and
materials would at least be discoverable after a determination of probable cause and the
public filing of the formal statement of charges. See ARJD 15 and 16. However, given the
method of investigation utilized by the Commission in the instant proceeding,
26
there is at
least an arguable tension between ARJD 14{5)27 and ARJD 21.
__________

21
ARJD 21, entitled Discovery, provides:
1. Within 10 days after service of the notice of formal hearing the commission must disclose to the
respondent the following material and information within the possession or control of the commission, its
counsel or staff:
(a) The names and addresses of persons who have knowledge of facts relating to the complaint against
the respondent;
(b) Any written or recorded statements made by these persons and the substance of any oral statements
claimed to have been made by the respondent;
(c) Any reports or statements of experts, made in connection with the particular case, including results of
physical or mental examinations; and
(d) Any books, papers, documents, photographs or tangible objects pertaining to the case.
2. The commission's obligation under this rule extends to material and information in the possession or
control of any persons who, on behalf of the commission, have participated in any investigation of the
charges.
(Emphasis added.)

26
Judge Whitehead has challenged the jurisdiction of the Commission to engage in an extensive investigation to
secure information from non-complaining, but perhaps otherwise knowledgeable, persons prior to a finding of
probable cause. Despite the Commission's repeated characterization of the issue as frivolous, there are
provisions within the Commission rules, as well as the Nevada Constitution that, at a minimum, invite serious
analysis rather than superficial and emotive conclusions. For example, the Nevada Constitution states that: The
commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it,
Nev. Const. art, 6, 21(7) (emphasis added). We have not yet interpreted the meaning of preliminary.
However, the dictionary definition of the term includes: 1. preceding and leading up to the main part, matter, or
business; introductory; preparatory: preliminary examinations. 2. something preliminary, as an introductory or
preparatory step, measure, contest, etc. The Random House Dictionary (2nd ed. 1987).
Moreover, ARJD 15, in pertinent part, provides: Based upon the sworn
between ARJD 14(5)
27
and ARJD 21. ARJD 14 arguably provides that if such materials
have been generated prior to a probable cause hearing, and they have any relevance to the
disciplinary action, they must be provided to the respondent judge. In any event, this issue
will eventually be resolved as part of these proceedings when this court hereafter interprets
the Commission rules to determine whether any of the materials produced for our in camera
inspection are relevant and material to Judge Whitehead's claims in the instant petition
relating to the breadth and scope of the investigation conducted by Special Deputy Attorney
General/Special Counsel Campbell, or to Judge Whitehead's preparation to oppose a
determination of probable cause.
28

Nonetheless, the Commission argues that, under NRS 49.095,
29
material which
memorializes communications between an attorney and client . . . is privileged and
confidential, and therefore not discoverable."
__________
complaint and all relevant evidence referred to in documents and memoranda in the respondent's response and
supporting documents and in the testimony of any witnesses whom the respondent has presented, the
commission must make a finding whether or not probable cause exists. (Emphasis added.) Even the nature and
source of a sworn complaint is an issue in this proceeding.
We do not, by highlighting or citing certain provisions of the Commission rules intend to imply any resolution or
interpretation of these provisions and their meanings other than to note that there is a serious basis for discussing
these issues in a professional, objective, and non-pejorative manner.

27
ARJD 14, entitled Hearing to determine probable cause, provides in subsection (5):
5. In preparing to oppose a determination of probable cause, the respondent has the right to inspect all
records of the commission relating to the disciplinary action against the respondent and to be fully
advised as to the contents of the administrative record considered by the commission determining that
there was sufficient reason for a probable cause hearing.
(Emphasis added.)

28
Of course, in determining Judge Whitehead's entitlement to discovery of any of the in camera matter at issue,
this court will also consider other factors and policies, including the extent to which the substance of any of the
material may have been previously disclosed by or to the media. See, e.g., United States v. Bernard, 877 F.2d
1463, 1465 (l0th Cir. 1989) (voluntary disclosure of a confidential communication to a third party waives any
privilege); Eigenheim Bank v. Halpern, 598 F. Supp. 988 (S.D.N.Y. 1984) (procedures for maintaining
confidentiality were so lax, careless, inadequate or indifferent to consequences as to constitute waiver);
Parkway Gallery v. Kittinger/Pennsylvania House Group, 116 F.R.D. 46, 50 (M.D.N.C. 1987) (in determining
whether a document has lost its privilege, court may consider the reasonableness of precautions taken to prevent
disclosure, the number and extent of the disclosures, any delay and measures taken to rectify disclosures, and
any overriding interests of justice).

29
NRS 49.095, entitled General Rule of Privilege, provides:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing,
confidential communications:
an attorney and client . . . is privileged and confidential, and therefore not discoverable. See
Respondent's Petition for Rehearing at 5 (emphasis added). We have also been advised by the
Commission, however, that with one exception, insignificant to the proceedings before us,
30
[t]he Commission has not reviewed special counsel's investigation, notes and files, and has
not been informed as to their contents. See Respondent's Petition for Rehearing at 8. Thus,
even from the Commission's own admission, it strongly appears that there is no basis for any
claim that such material memorializes communications between Campbell and the
Commission.
[Headnote 20]
With respect to the Commission's contention that this court has failed to address its claim
of privilege concerning the work-product doctrine, we emphasize that the purpose of the
work-product doctrine is to protect against disclosure of mental impressions, conclusions,
opinions and legal theories of counsel. NRCP 26(b)(3). The court has certainly not ordered an
in camera inspection of documents to obtain Special Deputy Attorney General/Special
Counsel Campbell's mental impressions and evaluations. We are, rather, seeking to determine
the scope of his activities so that those activities might be evaluated in light of Judge
Whitehead's claim that they exceed the limits placed upon preliminary investigations by the
Nevada Constitution and the Commission Rules.
We further observe that in a study authored with the assistance of Jeffrey M. Shaman, who
has been variously quoted by the Commission and the Las Vegas Review-Journal as an expert
on judicial discipline, it is stated that in judicial discipline proceedings:
States seem to divide into roughly three categories concerning the extent to which they
protect work product. First, a few states indicate that there is no protection and the
judge can receive nearly everything. For example, Kentucky's director says work
product protects little, if anything. All information gathered must be given to the judge
under Rule 4.170(4) of our rules before formal charges are filed.
__________
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.

30
The Commission represents that Special counsel did however advise the Commission that the notes contain
references to sitting and retired Supreme Court justices, and that a promise of confidentiality was given to each
witness.
See Judith Rosenbaum (with the assistance of Jeffrey M. Shaman and Katherine Levin),
American Judicature Society, Practices and Procedures of State Judicial Conduct
Organizations, ch. 8 at 28 (l990).
31
The study also notes, in material part:
Second, in several states the issue of work product protection has not come up at all. In
Michigan, the reason derives from the specific requirements of Michigan's discovery
rule. . . . [T]he rule specifies exactly what must be disclosed, namely documentary
evidence in the commission's possession, which is to be introduced at the hearing and
the names and addresses of people to be called by the examiner.
Finally, the study notes that in most states certain types of work product are protected.
Id. In Alaska, for example, commission documents protected by work product include staff
memoranda and notes and attorney evaluations and in Missouri the commission indicated that
protected items include correspondence between commission members and counsel
concerning analysis, research or procedure. Id. Such material is of an entirely different
character than the reports of investigative interviews here at issue; however, disregarding that
distinction, and assuming that, unlike the states with procedures similar to those of Kentucky
and Michigan, Nevada's Commission rules can be read to permit assertion of a work-product
privilege, this court must first review the materials in camera to decide what, if anything, can
be subject to such a privilege under the applicable rules. Then, if we determine that a
legitimate issue is presented, we can call for argument before making our final ruling.
[Headnotes 21, 22]
Finally, to whatever extent, if any, the Commission rules might otherwise permit the
Commission's invocation of either the attorney-client or work-product doctrines, it would not
necessarily follow under the circumstances of this proceeding that any protection normally
afforded under NRS 49.095 or NRCP 26(b)(3) would be held to be applicable here.
32
Because both the work-product and the attorney-client privileges: obstruct[] the search for
truth and because [their] benefits are, at best, "indirect and speculative," [they] must be
"strictly confined within the narrowest possible limits consistent with the logic of [their]
principles."
__________

31
The study cites to Kentucky Supreme Court Rules 4.170(4) as providing, in material part:
After the preliminary investigation is completed and before formal proceedings are initiated . . . the
commission shall afford the judge under investigation an opportunity to examine all factual information,
including the name of the complainant, and shall afford the judge an opportunity to furnish to the
commission any information he may desire bearing on the investigation.
Id. at 28 n.102.

32
NRCP 26(b)(3) provides in relevant part that [i]n ordering discovery
obstruct[] the search for truth and because [their] benefits are, at best, indirect and
speculative, [they] must be strictly confined within the narrowest possible limits
consistent with the logic of [their] principles.
See In re Grand Jury Proceedings, 604 F.2d 798, 802-03 (3rd Cir. 1979) (quoting In re Grand
Jury Investigation, 599 F.2d 1224, 1235 (3rd Cir. 1979)). As noted, Judge Whitehead's claim
is, in part, that the Commission has conducted an investigation in violation and far beyond the
scope and breadth of the Commission rules and the Nevada Constitution. The normal
protection may not be applicable to materials that shed direct light on a critical area of inquiry
in the case. See In re Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) (prima facie showing of
illegal activity upon the part of the attorney was sufficient to overcome the work-product
protection), cert. denied, 455 U.S. 1000 (1982); Diamond v. Stratton, 95 F.R.D. 503, 506
(S.D.N.Y. 1982) (substantial need for documents shown where they shed direct light on
motive and knowledge of defendant and counsel, and actions of counsel were an issue in the
case); Donovan v. Fitzsimmons, 90 F.R.D. 583, 588 (N.D. Ill. 1981) (to the extent that the
advice of counsel is a critical area of inquiry in the case, the interests in attorney privacy must
yield).
The foregoing considerations all lead us to conclude that neither the legal principles
relating to the attorney-client privilege nor those relating to the work-product doctrine justify
any correction or amendment of our Whitehead I Opinion.
7. The fears of the Commission members that the facts set forth in Whitehead I portray
the Commission as a runaway tribunal do not justify clarification of the Opinion
The Petition/Motion recites:
[T]he Opinion . . . portrayed the Commission as a runaway tribunal unwilling to
recognize any limitations on its power. Perpetuating this inaccuracy will result in public
misunderstanding and unwarranted distrust of the Commission.
Petition/Motion at 9-10. Our Opinion did not in fact seek to portray the Commission in the
manner claimed in the above-quoted statement. We simply recited the events we believed
should be noted in order to understand our rulings. Still, it is quite true that the record now
before us appears to document numerous areas in which both the Commission and the
Commission's counsel, on the Commission's behalf, seemingly have acted concerning
Judge Whitehead and various other judges in numerous ways that do not conform to the
ARJD.
__________
of materials upon an appropriate showing, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the
litigation.
sion's counsel, on the Commission's behalf, seemingly have acted concerning Judge
Whitehead and various other judges in numerous ways that do not conform to the ARJD.
Whether that warrants the appellation runaway tribunal or not, we did not, and do not,
presume to say.
In their answer to the Petition/Motion, Judge Whitehead's counsel have countered the
Commission's contention that it is not a runaway tribunal with an affidavit recently
tendered to them by the Honorable Thomas L. Stringfield, an experienced jurist and former
District Attorney who is the senior presiding judge of Nevada's Fourth Judicial District. In
that document, Judge Stringfield has provided a sworn account of his personal experiences
with the Commission, and with the prosecutors supplied to the Commission by the Attorney
General's office. To document his averments, Judge Stringfield has attached to his affidavit
correspondence sent to him by the Commission as well as newsletters that the Commission
has published in an apparent effort to enhance its public image. These submissions tender an
unsettling picture of possible pervasive violations of the Nevada Constitution and the ARJD,
perpetrated by Commission members and by prosecutors supplied by the Attorney General.
Judge Stringfield's averments and submissions are especially disturbing because through
documents emanating from the Commission itself it appears possible that not only Judge
Stringfield but other members of the Nevada judiciary as well are secretly being subjected to
gross abuses under the righteous banner of judicial discipline, following which the
Commission's accomplishments are being publicized in its newsletters.
[Headnote 23]
As examples of these abuses, we mention the Commission's evident refusal to supply
copies of initial sworn complaints (assuming that they exist), unauthorized procedures such as
secret arbitration, secret mediation and secret probation and proceedings interminably
extended and perpetuated in ways inconsistent with expectations of the ARJD. These all
appear to be ad hoc innovations contemplated neither by the Nevada Constitution nor the
current procedural rules promulgated by this court pursuant to the Constitution. We might
also mention the lack of any discernable concern for the Commission's duty to protect the
right of respondent judges to confidentiality and due process.
33
Therefore, while we retain
regard for Commission members personally, we are not at this point prepared to say that
the Commission is not, to use the Commission's counsel's expression, a "runaway tribunal
unwilling to recognize any limitation on its power."
__________

33
ARJD 8 provides:
Public statements by commission.
In any case in which the subject matter becomes public, through independent sources, or upon a finding
of probable cause and filing of a formal statement of charges, the commission may issue statements as it
members personally, we are not at this point prepared to say that the Commission is not, to
use the Commission's counsel's expression, a runaway tribunal unwilling to recognize any
limitation on its power.
What we are prepared to say, however, is that this court is now and has been since the
inception of this proceeding gravely concerned with the extent to which the public and the
judicial branch of government will have respect and confidence in the Commission if that
body is permitted to function outside the Commission rules. This court is also gravely
concerned about the extent to which the judiciary may remain vital, independent, and
impartial while under threat by a Commission allowed to operate under a form of secrecy and
ad hoc disciplinary dispensations that appear to be disconnected to the rules and powers
of the Commission and the Nevada Constitution.
__________
deems appropriate in order to confirm the pendency of the investigation, to clarity the procedural aspects
of the disciplinary proceedings, to explain the right of the respondent to a fair hearing without
prejudgment, and to state that the respondent denies the allegations. At all times, however, the
commission, its counsel and staff must refrain from any public or private discussion about the merits of
any pending or impending matter, or discussion which might otherwise prejudice a respondent's
reputation or rights to due process.
Despite this rule, instead of trying to protect Judge Whitehead, the Commission's counsel have sought to resist
any inquiry into inaccurate and degrading leaks to the media which are manifestly intended to coerce this court
and deny Judge Whitehead due process of law either in this court or before the Commission. In fact, it is a
matter of record that the Commission counsel have actually tried to capitalize on contrived leaks to the media
(hopefully engineered by others) by basing efforts to disqualify justices upon inaccurate leaked material. They
additionally have attempted to suggest that Judge Whitehead occasioned the obviously contrived leaks, even
though the adverse impact on Judge Whitehead's interests has obviously been substantial. Also, the evidence on
record thus far indicates that collectively the Commission's counsel have not only engaged in conduct that is not
in accord with the ARJD, but, as mentioned, have made false statements of fact and law to this tribunal, SCR
172, and have unlawfully obstructed Judge Whitehead's access to evidence, SCR 173. Some of them have sought
to influence this tribunal by false, abusive statements to the media and other means possibly prohibited by law,
SCR 174, and some have made statements that a reasonable person should know would have a substantial
likelihood of materially prejudicing an adjudicative proceeding in this court as well as possibly later before the
Commission, SCR 177(1). It appears that Special Deputy Attorney General/Special Counsel Campbell may not
personally have participated in all of the activities just mentioned, and for this we commend him; however, it
does not appear of record that either Campbell or the Commission members have recognized any sense of duty
to restrain other Commission counsel from inciting a circus-like atmosphere, and neither the Commission nor its
counsel have undertaken any discernable action under ARJD 8 to protect Judge Whitehead's reputation and
rights to due process. Id.; cf. Garner v. State, 78 Nev. 366, 370, 374 P.2d 525, 528 (1962) (Court has duty to
intervene sua sponte to correct serious and obvious violations of due process rights. We are appalled by the
consummate disregard of the defendant's right to a fair trial.).
tions that appear to be disconnected to the rules and powers of the Commission and the
Nevada Constitution.
[Headnotes 24-26]
In the materials furnished to us by the Commission for in camera inspection are minutes
for Commission meetings. These minutes do not fall within the claim of attorney-client or
work-product privilege. They do, however, do much to reveal the ad hoc procedure which the
Commission has adopted in a manner which appears contrary to the ARJD. One striking
example is the case of Judge D---,
34
a case referred to in the Commission minutes that the
Commission members and their counsel have provided to us for our inspection.
35
In the case
of Judge D---, as with Judge Stringfield, it appears that the Commission decided not to
evaluate for substantive merit and procedural sufficiency any initial complaints against the
jurist, as ARJD 14 contemplates; rather, the Commission, based upon the evidence
discovered through the Attorney General's investigation decided to request the Attorney
General to prepare a complaint. As in the case of Judge Whitehead, it seems that the
Attorney General's deputies conducted an investigation, reported their findings to the
Commission, and thereupon secured approval to prepare their own formalized complaint
without first holding a probable cause hearing. Cf. ARJD 16 (designation of a prosecutor, and
preparation of formal charges, are to take place following hearing and determination of
probable cause). On the basis of this complaint, it appears from the minutes that the
Commission and the Attorney General's prosecutors then entered into plea-bargaining with
Judge "D---" that ultimately resulted in the judge's capitulating and accepting forms of
discipline uncontemplated either by the Nevada Constitution or the ARJD.
__________

34
We delete the coded number by which, for purposes of confidentiality, the Commission designed the subject
judge in the Commission minutes. The numerical code is known only to the Commission.

35
As noted in the text, the minutes provided to the court by the Commission do not fall under any of the claims
of attorney-client or work-product privilege asserted by the Commission. The minutes provided to us by the
Commission redirect our attention to matters already made known to the members of this court through
information published by the Commission in the newsletter which is part of this record, and by way of a letter
previously directed to all of the members of this court, the Attorney General, and the Commission by the
complainant judge in the case described. Inasmuch as the minutes provided to the court by the Commission have
merely corroborated and redirected our attention to incontroventible facts, now verifiable from records in the
building where we sit, we have concluded that our precedents do not require us to ignore them. See Cannon v.
Taylor, 88 Nev. 89, 92, 493 P.2d 1212, 1213 (1972) (opinion on rehearing). In any event, the court may
appropriately take judicial notice of facts capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. See, e.g., Ainsworth v. Combined Ins. Co., 105 Nev. 237, 267 n.20,
774 P.2d 1003, 1024 (1989); Jory v. Bennight, 91 Nev. 763, 542 P.2d 1400 (1975).
with Judge D--- that ultimately resulted in the judge's capitulating and accepting forms of
discipline uncontemplated either by the Nevada Constitution or the ARJD.
Among other things, the terms of discipline that the Commission imposed upon Judge
D---, after the extended, preprobable cause, secret proceedings conducted by the
Commission and the prosecutors, included the requirement that the judge undergo
psychological evaluations and the requirement that the judge submit to on-going
counseling for anger-management with the daughter of one of the Commissioners. (The
minutes quite surprisingly reflect that the Commission found no conflict arising out of its
order compelling Judge D--- to counsel with the Commission member's daughter. The
record does not reveal the sums of money that Judge D--- expended for the professional
services rendered either by the Commissioner's daughter or other professional counsellors
which the judge was required to consult; we know only that the judge was specifically
directed to continue anger-counseling with the daughter for a period of eight months.)
In addition, Judge D--- was placed on probation under the supervision of the Attorney
General's office, which was empowered to conduct on-going follow-up examinations to
include contact with witnesses at 6 and 12 month intervals. The judge's probation would be
violated [i]f a complaint is received by the Commission warranting a probable cause
hearing. Under this ad hoc probationary scheme, the Attorney General's authority over Judge
D--- was declared to be in effect for 18-24 months.
36
During this period, also, the
Attorney General was authorized and directed to arrange for Judge D--- to attend meetings
with a retired Nevada judge, who has no official status with the Commission,
37
in
furtherance of the counseling measures taken above [with the Commission member's
daughter]. Finally, going beyond the private imposition of these ad hoc conditions, the
Commission also required Judge D--- to agree to accept a public censure and issue a letter
of apology. The Commission then recorded its achievements concerning Judge D--- in a
newsletter it began publishing in 1993, without any participation or approval from this court.
__________

36
During this period, presumably the Attorney General's deputies have continued to appear before Judge
D---, without ever advising their legal adversaries that they, or their office associates, are supervising the
judge's probation and might, conceivably declare him a parole violator at any time.

37
The judge selected for this purpose was the same person whom Judge Stringfield had been required to meet
with for the purpose of mediation/arbitration/counseling in regards to disputes with his court clerk over
administrative matters.
[Headnote 27]
As previously noted, the Commission has repeatedly emphasized that it has consistently
been following procedures accepted by this court in Goldman v. Nevada Comm'n on Judicial
Discipline, 108 Nev. 251, 830 P.2d 107 (1992),
38
and did not anticipate that we would
disapprove of the investigation of the charges against Judge Whitehead especially given the
Court's long-standing acquiescence in the investigative procedures that have been historically
followed by the Commission. Respondent's Petition/Motion at 10.
This last representation is another example of the Commission's apparent willingness in
this proceeding to place its imprimatur on statements that are unfounded and false. No
member of this court as here constituted has acquiesced in the procedures as allegedly
employed by the Commission in this case, as revealed in Judge Stringfield's affidavit and
attachments, or as revealed in minutes concerning Judge D---. Indeed, this is the first time
that this court has had an opportunity to evaluate whether the Commission has been
proceeding in accordance with the current rules.
39

The Petition/Motion rather extravagantly advises this court that the Commission has
reviewed and investigated numerous complaints of judicial misconduct in the same manner as
was followed with regard to Judge Whitehead since the April 1988 promulgation of the
ARJD.
40
Judge Whitehead contends on the other hand that the Commission has been
utilizing an ad hoc approach to matters brought before it.
__________

38
In a press release dated November 12, 1993, Attorney General Frankie Sue Del Papa stated, in part, that
[t]he procedure followed by the Commission is the same as that which is routinely followed in judicial
discipline matters and has even been specifically approved by the Nevada Supreme Court in the Goldman case.
In Whitehead I, we made it clear beyond the need for repetition that the Commission's rules of procedure then in
effect were totally different from the permanent rules adopted by this court that became effective on April 29,
1988. We again emphasize, however, that the Goldman opinion itself states: The Interim Rules governed the
commission proceedings involving appellant. They were superseded and replaced, however, on April 29, 1988,
when the current and more comprehensive administrative and procedural rules became effective. (Emphasis
added.) The Goldman opinion established needed precedent relating to a district court judge's indiscriminate use
of his contempt powers, and issues involving mixed questions of disability and misconduct. The opinion
manifestly does not purport to interpret the current, operative Commission rules.

39
We know of no case since Goldman, except this one, in which a special prosecutor has been utilized. As
noted, even in Goldman, which was decided under the prior rules, no issue was tendered concerning
investigative practices of the kind and scope here involved. Therefore, if the assertions of the Commission's
counsel concerning Goldman are not intentionally deceptive, it appears that Commission's counsel may not
understand how to evaluate the precedential significance of a judicial decision.

40
In a press release issued by Attorney General Frankie Sue Del Papa
other hand that the Commission has been utilizing an ad hoc approach to matters brought
before it. From Judge Stringfield's affidavit it appears that there has been a striking lack of
consistency in Commission methodology.
41

In the instant case, a special deputy attorney general/special prosecutor was employed by
the Attorney General to interview and investigate numerous potential witnesses in order to
prepare a complaint that would form the basis for a probable cause hearing. This apparently
was not done in the Stringfield case nor in other disciplinary cases referred to in attachments
to Judge Stringfield's affidavit. Nor, by the way, was it done in the Goldman case, where it
appears that investigative efforts were directed to persons identified by initial complaints as
opposed to those who could be enlisted by the prosecutor through an extensive interviewing
process. Moreover, in stark contrast to the instant case, in Goldman, once a special prosecutor
was appointed, the then Attorney General separated himself and his office from any further
involvement in the proceedings.
We, of course, do not here decide whether the Commission has been operating in a manner
so untethered to the Commission rules and the Nevada Constitution as to deprive it of
jurisdiction. Certainly, the focus of this proceeding is not to decide whether the Commission
should be characterized as a runaway tribunal. Nonetheless, we must assure that the rules
are clearly understood and uniformly applied as contemplated by the Nevada Constitution. In
this respect, we fully concur with the statement of Attorney General Del Papa contained in a
press release issued January 31, 1994: What is at issue is whether there is one set of rules for
some people and another set of rules for others.
It is therefore our intent, with all deliberate speed, to determine whether alleged violations
of applicable rules in the case of Judge Jerry Carr Whitehead has caused the Commission to
act without or in excess of its jurisdiction.
__________
dated November 12, 1993, the Attorney General stated, in part, that the procedure followed by the Commission
in the instant proceeding is the same as that which is routinely followed in judicial discipline matters and has
even been specifically approved by the Nevada Supreme Court in the Goldman case. As appears from the
record in this case, this statement is not true.

41
It is understandable how Commission members, meeting together in an atmosphere of mutual respect, could
permit their procedures to evolve (or degenerate, depending upon one's point of view) into a methodology of
convenience and expediency, condoned by a concurring sense of justice. The end result, however, is no less
frightening merely because we may view the Commission as being comprised of honorable, knowledgeable
people. Discipline administered in varying degrees of darkness and variance from law, provides no basis for
confidence in the system, and provides a means of in terrorem rule that can have only a deleterious effect on
Nevada's judiciary.
or in excess of its jurisdiction. If so, we shall also decide what remedy should be applied. If
not, we shall nonetheless have to decide how to treat the injuries suffered to Judge
Whitehead's prospects for receiving due process of law that have occurred as a result of the
unconstitutional breaches of confidentiality and the widespread hostility which has been
improperly inculcated against him.
8. The claim that two justices of this court should be disqualified that has been
improperly tendered in the Petition/Motion for a serial, fourth time, does not
warrant any clarification of our Whitehead I Opinion
The Commission again presents argument calling for the disqualification from this
proceeding of two justices of this court.
42
The Commission states that the Court has refused
to allow the motion [for disqualification] to be heard on its merits by a panel of unaffected
justices in accordance with constitutional and statutory law, and has instead asserted that an
alleged procedural deficiency precludes consideration of the Commission's motion."
__________

42
NRAP 35(d) provides that [s]erial motions or charges, whether entitled as separate challenges, or as
supplements, or entitled in any other way, must not be filed, and will not be entertained.'' Despite this
prohibition, the Commission has tendered for filing numerous separate documents arguing and rearguing the
disqualification issue. The Commission first raised this point in its Opposition to Motion to Disqualify Justice,
filed November 24, 1993. It was next raised in the Motion for Disqualification, lodged on January 20, 1994,
and ultimately filed and denied by Senior Justice Zenoff, Justice Miriam Shearing and District Judge Addeliar D.
Guy on January 31, 1994. The claim was made a third time in the Respondent's Motion for Reconsideration of
Order Denying Motion for Disqualification and Denying Motion to Strike Appointment of Senior Justice and
Request for Hearing Pursuant to NRS 1.223(4), which the court refused to file on February 18, 1994, on the
ground that the motion was in violation of NRAP 35. Therefore, interjection of this claim as a fugitive
contention in the present Petition/Motion is an improper serial assertion of this insubstantial argument to the
court.
Given the fact that Commission filings on this subject have appeared to be an attempt to manipulate the voting
on this court, it seems noteworthy to comment on the existing panel. District Court Judge Addeliar Guy was
recommended to the Governor for appointment to this matter by Chief Justice Robert Rose, and Chief Justice
Rose was strongly urged to remain in this proceeding by the Attorney General and the Commission. Moreover,
Senior Justice David Zenoff, whom Attorney General Frankie Sue Del Papa, in one of her press releases,
erroneously described as Justice Steffen's long-time judicial colleague (Justice Steffen never served on the
Nevada Supreme Court when Justice Zenoff was a member of the court), was the supreme court justice for
whom Chief Justice Rose once clerked on this court. To suggest that Senior Justice Zenoff is somehow aligned
with Justice Steffen or that he has greater ties to Justice Steffen than Chief Justice Rose is sheer fantasy. Finally,
the Commission and the Attorney General have made no secret of their desire to have Justice Miriam Shearing
on this panel.
deficiency precludes consideration of the Commission's motion. The Commission has
misconstrued the nature of this court's orders denying the motion for disqualification.
This court did not simply refuse to consider the motion on the basis of an alleged
procedural deficiency. Rather, in an order filed on January 31, 1994, this court directed the
Clerk of the Court to file the Commission's motion for disqualification and related
documents. In a separate order entered on that same date, this court concluded the motion was
without merit, that it stated no legally cognizable ground justifying disqualification, and
that it was wholly insufficient, as a matter of law, to warrant a formal hearing under NRS
1.225(4). (Emphasis added.) See, e.g., In re Petition to Recall Dunleavy, 104 Nev. 784, 769
P.2d 1271 (1988).
[Headnote 28]
Moreover, in an order entered February 18, 1994, this court clarified the January 31, 1994,
order and expressly concluded that the Commission's counsel had stated no viable due
process challenge to any justice's continued participation in this matter. A review of the
cases cited in this court's February 18, 1994, order provides ample support for these
conclusions respecting the merits of the Commission's arguments. Nonetheless, because of
the Commission's adamant refusal to accept this court's rulings respecting the issue of
disqualification, we have elected to present patiently a pedantic recital of the procedural and
substantive deficiencies apparent in the Commission's motions respecting disqualification.
NRAP 35(a) provides in part:
In no event will the supreme court deem timely any motion or charge seeking
disqualification . . . of a justice who has heard argument upon, or otherwise considered,
any contested matter in the cause, except as to grounds based upon fraud or like illegal
conduct of which the challenging party had no notice until after the contested matter
was considered.
At the time the motion for disqualification was tendered for filing, the challenged justices had
ruled on contested matters. Further, there was never any suggestion that the grounds for
disqualification asserted by the Commission were based upon fraud or like illegal conduct.
Therefore, the Commission's contentions were clearly untimely under NRAP 35(a).
NRAP 35(a) also provides:
In cases or proceedings before the Supreme Court of Nevada, motions and charges
seeking the disqualification or recusal of a justice must not be based on any ground
that the moving party has theretofore omitted to raise formally as soon as possible
after receiving either actual or constructive notice thereof.
recusal of a justice must not be based on any ground that the moving party has
theretofore omitted to raise formally as soon as possible after receiving either actual or
constructive notice thereof.
On October 18, 1993, in opposition to Judge Whitehead's motion to show cause and in an
attribution that was in fact correct, counsel for the Commission attributed to the full court
legal opinions expressed in hypothetical form in a letter written at the court's direction by the
Clerk of this Court in response to an inquiry from the press. Thus, in October 1993, well
before the motion for disqualification singling out Vice-Chief Justice Thomas Steffen and
Justice Charles Springer was tendered, counsel for the Commission, concerned over this
court's belief in the rightness of its rulings, could have asserted many of the same arguments
against the full court that have now been selectively asserted against only the two challenged
justices.
[Headnote 29]
Next, in support of the motion for disqualification, the Commission attached to the motion
what appears to be a facsimile copy of a letter written by attorney James E. Wilson. The
apparent facsimile copy of the letter and the supporting affidavits of counsel quite clearly do
not satisfy the procedural requirements of NRAP 35. For example, counsel's affidavits failed
to set forth such facts as would be admissible in evidence. The supporting affidavits of
counsel also did not contain averments in support of every fact alleged, made upon personal
knowledge, by persons affirmatively shown competent to testify. As the court stated in United
States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir. 1976), cert. denied sub nom, Mitchell v.
United States, 431 U.S. 933 (1977), in order to guard against groundless claims and the
impositions they inflict upon the judicial process:
courts have consistently held that the affidavit [of prejudice] must meet exacting
standards. It must be strictly construed; it must be definite as to time, place, persons and
circumstances. Assertions merely of a conclusory nature are not enough, nor are
opinions or rumors. And the affidavit must give fair support to the charge of a bent of
mind that may prevent or impede impartiality of judgment.
(Citations omitted.) In sum, counsel's supporting affidavits were wholly insufficient to satisfy
the procedural requirements of NRAP 35.
[Headnote 30]
The Commission has further contended, however, that the challenged justices have a
personal and financial interest in the outcome of this proceeding sufficient to warrant their
disqualification under the due process clauses of the United States and the Nevada
Constitutions.
outcome of this proceeding sufficient to warrant their disqualification under the due process
clauses of the United States and the Nevada Constitutions. See Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813 (1986). Despite the procedural deficiencies noted above, this court also
expressly concluded that the Commission stated no viable due process challenge to any
justice's continued participation in this matter.
The due process clause of the Fourteenth Amendment to the United States Constitution
prohibits a state from depriving any person of life, liberty, or property, without due process
of law. (Emphasis added.) The Nevada Constitution contains a similar provision providing
that [n]o person shall be . . . deprived of life, liberty, or property, without due process of
law. Nev. Const. art. 1, 8 (emphasis added).
[Headnote 31]
The Fourteenth Amendment is a limitation on the states in the interest of individuals. See
Cronson v. Clark, 810 F.2d 662, 665 (7th Cir. 1987), cert. denied, 484 U.S. 871 (1987); Com.
of Pa. v. Porter, 659 F.2d 306 (3d Cir. 1981), cert. denied, 458 U.S. 1121 (1982). Similarly,
the Nevada Constitution protects individuals against deprivations by the state of life, liberty,
or property, without due process of law. The Commission is a public commission of the State
of Nevada established pursuant to article 6, section 21 of the Nevada Constitution. The
matters ultimately at issue in this proceeding concern whether the Commission, in the manner
in which it has proceeded against Judge Whitehead, exceeded its jurisdiction and failed to
adhere to Commission rules established by this court in accordance with the Nevada
Constitution. No member of the Commission or counsel associated with the Commission has
even attempted to assert a clear, protected life, liberty or property interest which will be
implicated in this court's resolution of the issues presented. See, e.g., Cronson v. Clark, 810
F.2d 662, 665 (7th Cir. 1987), cert. denied, 484 U.S. 871 (1987) (where a state auditor
asserted a due process claim alleging that Illinois Supreme Court had improperly limited
auditor's jurisdiction to conduct audit of state court, the federal court ruled that it is certain
that the due process clause does not confer on [the state auditor] a right to conduct a more
extensive audit of the Supreme Court of Illinois, and therefore that he has suffered no injury
on which this suit might proceed).
[Headnote 32]
All parties to litigation in this court have a right to a fair and unbiased tribunal.
43
See
Nev. Code of Judicial Conduct, Canon 3E; NRS 1.225; NRAP 35.
__________

41
Consequently, although we entertain substantial doubts about the legal validity of the contentions under the
circumstances of this proceeding, we
3E; NRS 1.225; NRAP 35. Not all questions of judicial qualification, however, rise to a
constitutional level under the due process clause. See Aetna Lift Ins. Co., 475 U.S. at 820; In
Re Murchison, 349 U.S. 133, 136 (1955); In re International Business Machines Corp., 618
F.2d 923, 932 n.11 (2d Cir. 1980). In the instant case, for example, the Commission has
failed to establish the type of direct, personal, substantial, pecuniary interest which gives rise
to a disqualifying interest under either the Nevada Code of Judicial Conduct, NRS 1.225, or
the due process clause. No libel action on behalf of Vice-Chief Justice Steffen and Justice
Springer has been filed, and the justices have no financial stake in the outcome of this
litigation. Accordingly, the allegations tendered by the Commission respecting the challenged
justices' alleged direct, pecuniary interest are wholly insufficient, under NRS 1.225, the
Nevada Code of Judicial Conduct, or the due process clauses of the United States or Nevada
Constitutions to establish any direct, disqualifying, personal or pecuniary interest in the
outcome of this litigation. See also Ainsworth v. Combined Ins. Co., 105 Nev. 237, 268-70,
774 P.2d 1003, 1025-26, cert. denied, 493 U.S. 958 (1989); In re Drexel Burnham Lambert
Inc., 861 F.2d 1307 (2d Cir. 1988), cert. denied sub nom, Milken v. S.E.C., 490 U.S. 1102
(1989); United States v. Haldeman, 559 F.2d 31, 137 (D.C. Cir. 1976), cert. denied sub nom,
Mitchell v. United States, 431 U.S. 933 (1977).
[Headnote 33]
The Commission now acknowledges that the two justices have no disqualifying financial
interests in the outcome of this proceeding; still, the Petition/Motion suggests that the
justices ought to be disqualified by virtue of previous rulings that they have made in this case.
Specifically, the Commission and the Commission's counsel contend that the significant
personal interest [of Justices Steffen and Springer] in vindicating prior actions and rulings in
this case raises serious questions regarding their ability to be fair and impartial with regard to
numerous issues still pending.
44
Petition/Motion at 12. Once again, no authority is cited in
support of this position, and understandably so.
__________
need not address the Commission's contentions respecting its standing to assert a due process challenge under
the federal doctrine of parens patriae. Moreover, inasmuch as the Commission has failed to establish that the
impartiality of any justice of this court might reasonably be questioned under the Code of Judicial Conduct or
other provisions of Nevada law, it would be anomalous to hold that the Commission's claim nonetheless satisfies
the constitutional standard for recusal under the due process clause. See Ainsworth v. Combined Ins. Co., 105
Nev. 237, 258, 774 P.2d 1003, 1018 (1989), cent. denied, 493 U.S. 958 (1989) (citing In re International
Business Machines Corp., 618 F.2d 923, 931-32 n.11 (2d Cir. 1980)).

44
Those prior rulings have included Chief Justice Robert E. Rose and
authority is cited in support of this position, and understandably so. The United States
Supreme Court has recently ruled that judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. Liteky v. United States,
------
U.S.
------
,
------
, 62
U.S.L.W. 4161, 4165 (1994) (emphasis added).
In his Concurring Opinion in Kelch v. Director, 107 Nev. 827, 834, 822 P.2d 1094, 1098
(1991), Justice Steffen made the following point:
This court routinely processes petitions for rehearing in which the court is invited to
reconsider the propriety of its own rulings. I have yet to hear a justice contend that a
conflict arises by virtue of the fact that we are faced with the prospect on rehearing of
declaring ourselves in error in our initial dispositions.
As counsel for Judge Whitehead have noted, abhorrence of permitting a party to rely upon
a court's prior ruling as grounds for recusal is reflected in the very provisions of the rules
governing such challenges. Supreme Court Rule 48.1 provides: A notice of peremptory
challenge may not be filed against any judge who has made any ruling on a contested matter
or commenced hearing any contested matter in the action. The purpose of such a rule is
obviously to keep parties from testing the waters and then challenging a judge if his or her
rulings are not in accord with the party's hopes.
The Commission has also contended that the challenged justices have manifested bias
against the Commission by commenting on the merits of pending issues in this proceeding.
The Commission contended that the challenged justices' disqualification was therefore
warranted under NRS 1.225 and the Nevada Code of Judicial Conduct. The comments at
issue which the Commission attributes to the challenged justices are contained in a letter
dated January 10, 1994, written and signed by attorney James E. Wilson, and directed to
Sherman Frederick, Publisher of the Las Vegas Review-Journal.
__________
District Judge Addeliar Guy (who was recommended to the Governor for appointment by the Chief Justice), and
Justice Miriam Shearing also approved the statement issued to the Las Vegas Review-Journal (published
October 20, 1993) which explained the basis for this court's jurisdiction and the requirement of confidentiality,
none of whom the Commission has challenged; nonetheless, the Commission persists in its contention that only
Justices Steffen and Springer have an interest in maintaining the validity of their prior actions with respect to this
proceeding. It is unclear why the Commission and its counsel have concluded that Justices Steffen and Springer
alone have disfavored the Commission in the court's rulings or that they, more than their colleagues, would
somehow shrink from admitting mistakes in prior decisions.
As noted above, these particular allegations were untimely pursuant to NRAP 35(a).
Additionally, the comments in question evinced no fixed opinions relating to the matters
ultimately at issue in this petition, i.e., Judge Whitehead's claims that the Commission has
proceeded unlawfully against him and in excess of its lawful jurisdiction. Rather, the
comments of attorney Wilson set forth in his letter of January 10, 1994, related primarily to
collateral procedural and jurisdictional contentions. Such contentions for the most part could
have been considered pending and unresolved at the time only by virtue of the Commission's
ill-prosecuted motion of October 12, 1993, which ostensibly sought reconsideration of prior
rulings in this case. See Haines v. Ligget Group Inc., 975 F.2d 81 (3d Cir. 1992)
(disqualification may be warranted where a judge expressed an opinion on the ultimate issue
to be decided).
[Headnote 34]
Further, the comments merely evinced Wilson's legal opinions, based upon the justices'
prior participation in this case, that the prior rulings were issued in accordance with the state
Constitution and Nevada law. To whatever extent the comments can be attributed to the
challenged justices, we note that [a] judge cannot be disqualified merely because he believes
in upholding the law, even though he says so with vehemence. Baskin v. Brown, 174 F.2d
391, 394 (4th Cir. 1949); see also United States v. Haldeman, 559 F.2d at 136 n.332 (fixed
opinions on the law are not disqualifying; comment is disqualifying only if it connotes a
closed mind on the merits of the case) (citing United States v. Grinnel Corp., 384 U.S. 563,
583 (1966)).
45
The citizens of the State of Nevada have every right to expect that rulings
issued by justices of this court are in full accord with what the justices honestly perceive to be
the law. For members of the court to so justify or support their rulings does not constitute a
disqualifying bias or appearance of impropriety.
[Headnotes 35, 36]
Finally, the Commission contended that this court improperly refused to conduct a hearing
on the motion for disqualification.
__________

45
The Grinnel and Haldeman cases also state the rule that a disqualifying bias must stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the judge learned from participation
in the case. Grinnel, 384 U.S. at 583; Haldeman, 559 F.2d at 131-140. See also Goldman v. Bryan, 104 Nev.
644, 764 P.2d 1296 (1988); In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). Compare
Liteky v. United States,
------
U.S.
------
, 62 U.S.L.W. 4161 (1994) (judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion).
See NRS 1.225(4) (hearing on a motion or charge for disqualification shall be had before the
other justices of the supreme court). Not every motion for disqualification, however, rises to
the level of a statutory charge, which automatically calls for a formal hearing before
unchallenged justices. For example, in the case of In re Petition to Recall Dunleavy, 104 Nev.
784, 789, 769 P.2d 1271, 1274 (1988), this court explained:
[T]he statutory provisions and mechanisms providing for a judge's disqualification are
not activated, and summary dismissal of the challenge is appropriate, where the
challenge fails to allege legally cognizable grounds supporting a reasonable inference of
bias or prejudice.
Similarly, in Ainsworth, 105 Nev. at 270-71, 774 P.2d at 1026, this court explained that
because factual allegations raised in support of a motion to disqualify present[ed] no legally
competent grounds supporting a reasonable inference of bias . . . the hearing before
unchallenged justices that is provided under NRS 1.225(4) [was] inapplicable. Therefore, in
view of the legal insufficiency of the Commission's motion for disqualification, the
Commission was not entitled to a hearing under NRS 1.225(4).
With regard to the Commission's counsel's practice of repetitively presenting the same
assertion, Judge Whitehead's counsel refers to NRAP 35(d), which, as noted, provides:
Serial motions or charges, whether entitled as separate challenges, or as supplements, or
entitled in any other way, must not be filed, and will not be entertained.
Judge Whitehead's counsel contend that the Commission and Commission's counsel,
having raised the same question of disqualification on four separate occasions, are in palpable
violation of NRAP 35. Subsection (e) of the rule states:
(e) Sanctions for abuse or failure to comply with rule. For any violation of this
rule, or for the filing of any motion or charge or supporting documents found to be
tendered for purposes of delay, lacking diligence or lacking good faith in any particular
the court may impose appropriate sanctions, including awards of costs, attorney's fees,
and damages to any person injured, delayed or inconvenienced by the motion or charge.
If the supreme court determines that any abuse or misconduct has occurred warranting
professional sanctions beyond monetary awards, the court may have a hearing for the
purpose of determining the same or, in its discretion, may appoint a master to conduct a
hearing in its stead and to make recommendations as to the sanctions being imposed.
This citation appears to be appropriate and worthy of further consideration.
IV.
CONCLUSION
The Petition/Motion is not cognizable; but to provide an historical record, the Clerk of the
Court is hereby authorized and directed to file the Petition/Motion along with Judge
Whitehead's answer to the Petition/Motion. The Petition/Motion is hereby denied. Pending
further deliberations and consideration of the actions and incidents referred to in this Opinion
and in our Whitehead I Opinion, as well as future actions of the parties and counsel, the court
reserves judgment on all issues relating to Judge Whitehead's request for the imposition of
sanctions.
It is so ORDERED.
46

Steffen and Springer, JJ., concur.
Guy, D. J., concurring:
1

I concur with the results only. I would have simply denied the petition for rehearing as it
became moot when the Commission complied with this Court's order.
Shearing, J., concurring in part and dissenting in part:
I concur in the decision to grant the Commission's motion to file a document in excess of
ten pages and to deny the Commission's motion to strike Judge Whitehead's answer.
I dissent in the decision to deny the Commission's Petition for Rehearing or in the
Alternative for Amendment of Opinion. I believe now, as I believed when what the majority
calls Whitehead I was signed, that this court should not issue opinions on such important
matters in a piecemeal fashion without the benefit of full oral argument and due deliberation
by all members of the court. Virtually every aspect of this case involves fundamental
questions of the relationship between constitutional bodies of government. Yet the majority
chooses to write multi-page opinions on motions or petitions for rehearing, motions which in
__________

46
to sit in the place of The Honorable Robert E. Rose, Chief Justice. Nev. Const., art. 6, 19; SCR 10.

1
Judicial Discipline. Nev. Const., art. 6, 4.
other cases are invariably disposed of by one-sentence or one-paragraph orders, either
granting or denying them. I would grant the petition for rehearing, withdraw the Whitehead I
opinion and schedule oral argument to hear that issue as well as all matters, including
Whitehead's underlying petition, on their merits. It is vital to the integrity of and public
confidence in our courts that this entire matter be resolved expeditiously.
Aside from my objection to the piecemeal discussion of this case, I would grant the
petition because the Commission has presented evidence of grave factual errors in Whitehead
I. Even though the majority in this opinion attempts to justify some of the misstatements or
unfair inferences in Whitehead I, it does not reflect well on this court that an opinion is
published and allowed to remain in our permanent records when we are told of inaccuracies
and refuse to change them.
The majority justifies its denial of the petition by saying that the outcome would not be
changed and the Commission has already complied with the discovery order; therefore, the
matter is of no material consequence and is moot. Clearly, the court has put the Commission
in an untenable position. They were given the choice of either complying with the discovery
order or facing individual contempt charges. Now, according to the majority, by complying
with the court's order, the Commission forfeited the opportunity to correct the errors in the
order. This is unfair. The petition should be granted.
____________
110 Nev. 431, 431 (1994) Sharpstown Gen. Hosp. v. Laborers Health
SHARPSTOWN GENERAL HOSPITAL, Appellant, v. LABORERS HEALTH AND
WELFARE TRUST FUND and GLEN SLAUGHTER AND ASSOCIATES, Respondents.
No. 23822
May 19, 1994 874 P.2d 728
Appeal from an order of the district court quashing a Texas default judgment and award of
attorney's fees. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Hospital brought action against employee benefit fund to enforce Texas default judgment.
The district court quashed default judgment on ground that Texas courts did not have
personal jurisdiction over fund, and hospital appealed. The supreme court held that telephone
calls to fund from Texas were insufficient to confer specific jurisdiction.
Affirmed.
Hunterton & Naylor and Samuel Benham, Las Vegas; Sullins, Johnston, Rohrbach,
Magers and Herbert and John Parker Benz, Houston, Texas, for Appellant.
Morris Brignone & Pickering, Las Vegas, for Respondents.
Judgment.
Employee benefit fund's receipt of telephone calls from Texas regarding Nevada resident and fund beneficiary who required
hospitalization in Texas for depression amounted to nonpurposeful, random, and gratuitous contacts based on unilateral activity of
another that were insufficient to give the Texas courts specific jurisdiction over fund, and therefore default judgment entered against
fund in Texas could not be enforced against fund in Nevada.
OPINION
Per Curiam:
1

Appellant Sharpstown General Hospital (Hospital), in Texas, treated Donna Pirnat, a
beneficiary of respondent Laborers Health and Welfare Trust Fund, administered by
respondent Glen Slaughter and Associates, both of which are Nevada entities (hereinafter,
collectively Fund). Thereafter, the Hospital obtained a Texas default judgment against
respondents for the charges generated in this treatment, plus an award of attorney's fees. The
district court quashed the default judgment on grounds that the Texas court lacked personal
jurisdiction over respondents. The Hospital appeals.
Appellant acknowledges that the Texas courts lack general jurisdiction over the Fund. We
conclude that the facts supported by the record herein also fail to support a claim of specific
jurisdiction. Before a foreign state may exercise specific jurisdiction, there must be minimum
contacts by the defendant in the forum state evincing that the defendant purposefully
avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws.' Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) (emphasis added). The
rationale for this requirement is to ensure that a defendant will not be haled into a
jurisdiction solely as a result of random,' fortuitous,' or attenuated' contacts . . . or of the
unilateral activity of another party or a third person.' Id. (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 {19S4); World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 2S6, 299 {19S0); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 40S, 417
{19S4)).
__________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request from
counsel, we issue this opinion in place of our order dismissing this appeal filed December 22, 1993.
(1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980); Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)).
The Hospital's cause of action herein did not arise from any purposeful conduct on the
part of the Fund whereby the Fund availed itself of the privilege of doing business in Texas,
and there is no evidentiary basis for concluding that the Fund could have reasonably
anticipated being haled into a Texas court. The Fund received telephone calls from Texas
regarding a Las Vegas resident and fund beneficiary who required hospitalization in Texas for
depression. This is precisely the type of non-purposeful, random, and fortuitous, contact
based on the unilateral activity of another party or a third person which the U.S. Supreme
Court has refused to acknowledge as a basis of jurisdiction.
2

The Hospital would have us rely upon the reasoning of Memorial Hosp. v. Fisher Ins.
Agency, 835 S.W.2d 645 (Tex. Ct. App. 1992), for a contrary ruling. The Fisher court
determined that Texas had personal jurisdiction over a nonresident insurance agency that
tortiously misrepresented to a hospital, in the course of a telephone call, that a patient was
covered. The court reasoned that the misrepresentation had taken place in Texas, where
reliance thereon had occurred, and that the agency should reasonably have anticipated being
haled into a Texas court to answer for tortious conduct which primarily injured Texas
residents.
We need not address the Memorial Hospital case as it is clearly distinguishable, even if we
were to accept as true the affidavit of Glen Powers on which the Hospital relies for its
statement of facts. No misrepresentation of coverage can be said to have occurred in the
instant case. To the contrary, the affidavit reflects that the Fund made it clear that coverage
was contingent upon pre-certification, and that pre-certification was never obtained.
__________

2
The Hospital points out the routine nature of interstate coverage verification calls between hospitals and
insurance providers. Although these transactions do increase the likelihood that a local insurance provider such
as the Fund could reasonably foresee affecting residents of a foreign forum, it does not change the fact that the
Fund did no purposeful act directed towards Texas; nor did the Fund specifically avail itself of the opportunity
to do business in Texas. It is this lack of purposeful conduct directed at the State of Texas, rather than
foreseeability, which is dispositive. It is, for example, routine and foreseeable that an automobile will be driven
into another state. However, this fact alone does not give that state specific jurisdiction over the automobile
dealer. See, e.g., World-wide Volkswagen Corp. v, Woodson, 444 U.S. 286, 295 (1980); see also, Burger King,
471 U.S. at 474 (Although it has been argued that foreseeability of causing injury in another State should be
sufficient to establish [minimum] contacts . . . the Court has consistently held that this kind of foreseeability is
not a sufficient benchmark' for exercising personal jurisdiction.).
Thus, the Fund had given the Hospital no information upon which it could rely in treating
Pirnat. Although the Fund did state that a return phone call would be made, they did not
promise it would carry an affirmative message. Issues of liability, if any, resulting from the
interplay of the Fund's failure to make a return call and the Hospital's own failure to continue
to seek pre-certification before treating Pirnat, may still be determined at a trial, as
[a]ppellant remains free to sue respondents in Nevada . . . . Western Heritage Thrift and
Loan v. Cloutier, 107 Nev. 471, 473, 813 P.2d 999, 1000-1001 (1991).
Appellant also argues that the district court erred in granting respondents $630.00 in
attorney's fees in its decision denying appellant's motion for reconsideration. However,
appellant has failed to demonstrate that the award constituted a manifest abuse of discretion
by the district court. See Barr v. Gaines, 103 Nev. 548, 746 P.2d 634 (1987).
Accordingly, we affirm the decision of the district court.
3

____________
110 Nev. 434, 434 (1994) Sanders v. State
KEVIN SANDERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23650
May 19, 1994 874 P.2d 1239
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
possession of a controlled substance for the purpose of sale and conspiracy to sell a controlled
substance. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
The supreme court held that evidence was insufficient to support conviction.
Reversed.
Michael R. Specchio, Public Defender and Janet Cobb Schmuck, Deputy Public Defender,
Attorney and David Wayment, Deputy District Attorney, Washoe County, for Respondent.
__________

3
The Honorable Cliff Young, Justice, did not participate in the decision of this appeal.
Evidence that defendant was arrested in motel room in which small amount of cocaine was found behind wall lamp, that juvenile
with more than $300 in cash was also in room, and that police surveillance of room revealed extremely large amount of visitor traffic to
room and unusually large number of telephone calls placed from the room was insufficient to support conviction for possession of
controlled substance for purpose of sale. Defendant did not enter room until after most of visitor traffic and telephone use had
occurred, and there was no evidence that defendant knew cocaine was present or that he exercised dominion and control over cocaine.
2. Criminal Law.
To sustain conviction, sufficient evidence must be presented to establish essential elements of each offense beyond reasonable
doubt as determined by rational trier of fact.
In order to establish that crime of possession of controlled substance has been committed, state must prove beyond reasonable
doubt that defendant had dominion and control of controlled substance and knowledge of presence of controlled substance and of its
illegal nature.
4. Conspiracy.
Agreement among two or more persons is essential element of crime of conspiracy, and mere association is insufficient to support
charge of conspiracy.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of possession of a controlled substance
for the purpose of sale and conspiracy to sell a controlled substance. The district court sentenced appellant to serve five years in the Nevada
State Prison for possession of a controlled substance for the purpose of sale and two years in the Nevada State Prison for conspiracy to sell
a controlled substance. The district court suspended imposition of these sentences and placed appellant on probation for an indeterminate
time not to exceed three years.
[Headnote 1]
Appellant contends that the evidence presented at trial was insufficient to support the jury's finding of guilt. We agree. Appellant was
arrested in a motel room in which a small amount of cocaine was found behind a wall lamp. A juvenile with more than three hundred
dollars in cash was also in the room. Police surveillance of the room revealed an extremely large amount of visitor traffic to the room. Also,
an unusually large number of telephone calls were placed from the room. The person who had rented the room and who was present when
most of the visitor traffic and telephone use occurred was arrested outside the room.
It appears that appellant did not enter the room until after most of the visitor traffic and
telephone use had occurred. Neither appellant nor the other persons who had been in the room
testified at appellant's trial.
[Headnotes 2, 3]
To sustain a conviction, sufficient evidence must be presented to establish the essential
elements of each offense beyond a reasonable doubt as determined by a rational trier of fact.
See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980). In order to establish that the crime of
possession of a controlled substance has been committed, the state must prove beyond a
reasonable doubt that the accused had dominion and control of a controlled substance and
knowledge of the presence of the controlled substance and of its illegal nature. See Doyle v.
State, 82 Nev. 242, 415 P.2d 323 (1966). Our review of the record reveals no evidence that
appellant knew cocaine was present in the room or that appellant exercised dominion and
control over the cocaine. The cocaine was hidden completely out of sight, and the police
found it only with the assistance of a drug sniffing dog.
[Headnote 4]
Agreement among two or more persons is an essential element of the crime of conspiracy,
and mere association is insufficient to support a charge of conspiracy. See Peterson v. Sheriff,
95 Nev. 522, 525, 598 P.2d 623, 625 (1979). Our review of the record reveals no evidence
showing that appellant had agreed with anyone to sell a controlled substance.
Based on our review of the record, we conclude that the state failed to present sufficient
evidence to establish beyond a reasonable doubt appellant's guilt of possessing cocaine for the
purpose of sale or of conspiracy to sell cocaine. See Gorka v. State, 107 Nev. 851, 822 P.2d
111 (1991); Woodall v. State, 97 Nev. 235, 627 P.2d 402 (1981). Further, no conflicting
evidence was presented upon which the jury could exercise its prerogative regarding weight
and credibility. Cf. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). Accordingly, we reverse
appellant's convictions for possession of a controlled substance for the purpose of sale and
conspiracy to sell a controlled substance.
____________
110 Nev. 437, 437 (1994) Truax v. Truax
JOHN THOMAS TRUAX, Appellant, v. RITA TRUAX, Now Known as RITA BRILEY,
Respondent.
No. 24176
May 19, 1994 874 P.2d 10
Appeal from a district court order modifying a child joint custody arrangement. Eighth
Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Father appealed from order of the district court modifying child joint custody arrangement
to give primary physical custody to mother. The supreme court held that: (1) best interests of
the child standard applied in determining whether to modify joint custody arrangement, and
(2) court-appointed special advocate's (CASA) conclusion that parties' children were being
physically abused by father's daughter from prior marriage supported modification of joint
custody arrangement.
Affirmed.
Carol Menninger, Las Vegas, for Appellant.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Respondent.
Best interests of the child standard applied in determining whether to modify joint custody arrangement. NRS 125.510(2).
2. Infants.
Trial courts are vested with broad discretion concerning child custody matters. Supreme court will not disturb lower court's
findings absent clear abuse of that discretion.
Court-appointed special advocate's (CASA) conclusion that parties' children were being physically abused by father's daughter
from prior marriage supported modification of joint custody arrangement to give primary physical custody to mother, despite expert's
opinions concerning alleged parental coaching of the children and parental alienation syndrome.
OPINION
Per Curiam:
1

The litigants have been fighting over the custody of their three children for the past several
years. This fight has been the stage for a myriad of allegations, formal charges, and official
court battles.
__________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request from Judge
Marren of the Family Court, we issue this opinion in place of our order dismissing appeal filed December 22,
1993.
110 Nev. 437, 438 (1994) Truax v. Truax
for a myriad of allegations, formal charges, and official court battles. As of 1991, the parents
were subject to a shared or joint physical custody order of the district court.
In December 1991, Rita petitioned the domestic relations referee to commission a
court-appointed special advocate (CASA) to investigate evidence of child abuse. Rita
claimed that her son was being physically abused by John Thomas Truax's (Thomas) daughter
from a prior marriage. A CASA was assigned and conducted an examination of all three
children.
To the agreement of both parties, the referee held an evidentiary hearing to consider the
CASA's evaluations and other expert testimony. At that hearing, three experts presented
exhaustive testimony regarding their respective examinations of the familial relationship.
The referee found that the best interests of the children would be served by vesting Rita
with primary physical custody and affording Thomas visitation rights. The referee agreed
with the testimony and recommendations of the CASA; the joint custody order was working
to the detriment of the children, and there was evidence that the litigant's son was being
mistreated while at Thomas' home. After considering Thomas' objections, the district court
adopted the referee's findings.
[Headnote 1]
Thomas appeals, claiming that the child custody referee applied the wrong legal standard
when considering a modification of joint custody. He also argues that the district court abused
its discretion by adopting the referee's findings and recommendations. We disagree with both
contentions and affirm the district court's order.
NRS 125.510(2) specifically describes when a joint custody arrangement may be revisited
and modified by the court:
2. Any order for joint custody may be modified or terminated by the court upon the
petition of one or both parents or on the court's own motion if it is shown that the best
interest of the child requires the modification or termination. The court shall state in its
decision the reasons for the order of modification or termination if either parent
opposes it.
(Emphasis added.) Thomas disregards this language and mistakenly cites Murphy v. Murphy,
84 Nev. 710, 447 P.2d 664 (1968), for the proposition that the court can only modify custody
where circumstances are materially altered and a change would substantially enhance the
children's welfare.
This argument fails for two reasons. First, Thomas did not preserve this argument for
appeal. Failing to object in the district court level, we cannot consider the merits of Thomas'
contentions.
110 Nev. 437, 439 (1994) Truax v. Truax
tions. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983-84 (1981) (aside
from general jurisdiction, issues not objected to at trial court are waived for appeal). Second,
Murphy, is inapplicable to the instant case. The decision was handed down in 1968, well
before NRS 125.510(2) was enacted by the Nevada Legislature in 1981. See 1981 Nev. Stat.,
ch. 148 at 283-84. Moreover, Murphy only describes when a modification to a primary
custody agreement is warranted. In view of these simple facts and the plain language of NRS
125.510(2), we conclude that the referee properly applied the best interests of the child
standard in the instant case.
[Headnote 2]
Thomas' second claim of error does not fare any better than his first. Consistent with
Nevada statutes and pertinent case law, trial courts are vested with broad discretion
concerning child custody matters. NRS 125.510; Rooney v. Rooney, 109 Nev. 540, 853 P.2d
123 (1993). This court will not disturb a lower court's findings absent a clear abuse of that
discretion. Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979); Culbertson v. Culbertson,
91 Nev. 230, 533 P.2d 768 (1975).
[Headnote 3]
Thomas asserts that the district court abused its discretion by improperly discounting the
testimony of Dr. Elizabeth Richitt. He points out that Dr. Richitt had spent far more time
interviewing and dealing with the three children than did the CASA. He then asserts that Dr.
Richitt's opinions about coaching and parental alienation syndrome should not have been
disregarded by the referee. In other words, Thomas is claiming that the CASA was duped by
the three children, and thus, the CASA's testimony was skewed in favor of Rita.
Thomas is simply rehashing trial court argument. It is the referee's prerogative, as the
arbiter of fact, to decide which testimony is most credible. Roggen v. Roggen, 96 Nev. 687,
615 P.2d 250 (1980). There is nothing in the record that indicates that the referee abused its
discretion in exercising this prerogative.
The CASA reported that each child claimed they were being left unsupervised with
Thomas' daughter from a prior marriage, in clear violation of a prior court order. Each child
also claimed that this same individual was physically abusive on several occasions. This
testimony is corroborated by the severe bite mark inflicted on the litigants' son. In addition,
the CASA opined that the joint custody arrangement was detrimental to the children's
well-being and required some type of modification. Finally, all these findings were consistent
with Dr. Lewis Etcoff's evaluations (a third testifying expert). Dr. Etcoff agreed with the
CASA's testimony and determined that there was no evidence of parental alienation
syndrome.
110 Nev. 437, 440 (1994) Truax v. Truax
testimony and determined that there was no evidence of parental alienation syndrome.
Considering all the evidence and testimony contained in the record, we conclude that the
trial court did not abuse its discretion by adopting the referee's findings.
Therefore, we affirm the order of the district court.
____________
110 Nev. 440, 440 (1994) Valley Bank of Nevada v. Ginsburg
VALLEY BANK OF NEVADA, a Nevada Banking Corporation, and DEAN LANGHAM as
Co-Trustees for DEAN LANGHAM, SHEILA MILLS and ANN LANGHAM;
PATRICIA LUND and MARY McCARTY, Appellants, v. EDWARD GINSBURG
and WILLIAM PATTERSON CASHILL, Successor Co-Trustees of the Revocable
Intervivos Trust of Jeanette Ginsburg; WILLIAM PATTERSON CASHILL and
TERRY CLARKE JUHOLA, Co-Trustees and Trustees and Beneficiaries of the Trust
Created Under the Last Will and Testament of William J. Cashill; RENO
PROPERTIES CORP., a Nevada Corporation; SOLARI-NASH ENTERPRISES, a
Nevada Corporation; SOLARI-BILTZ, a Nevada Partnership; NORMAN H. B.
NASH, E. W. NASH; JOHN NASH and ALBERT B. SOLARI, Respondents.
No. 23487
May 19, 1994 874 P.2d 729
Motions to dismiss appeal from an order of the district court approving a proposed
settlement in a shareholders' derivative action. Second Judicial District Court, Washoe
County; Jerry C. Whitehead, Judge.
Shareholders brought derivative action against corporation and its officers and directors,
seeking accounting of profits that officers and directors gained from alleged transactions and
recovery of all damages proximately caused by alleged waste of corporate assets. Parties
submitted proposed settlement agreement. The district court approved agreement. Non-party
shareholders appealed. Settling shareholders and defendants moved to dismiss appeal. The
supreme court held that: (1) order approving settlement proposal was not final judgment
and was not substantively appealable; (2) non-party shareholders were aggrieved as
required for standing to appeal order to supreme court; and (3) non-party shareholders were
not parties as required for standing to appeal order to supreme court.
Motions to dismiss granted.
Jones, Jones, Close & Brown and David L. Mousel, Reno, for Appellants.
Vargas & Bartlett, Reno, for Respondents Edward Ginsburg, William Patterson Cashill,
and Terry Clarke Juhola.
Robison, Belaustegui, Robb & Sharp, Reno, for Respondents Reno Properties, Solari-Nash
Enterprises, Solari-Biltz, Norman H.B. Nash, E.W. Nash, John Nash and Albert B. Solari.
Order approving final settlement proposal by parties in shareholder derivative action was not final judgment and was not
substantively appealable. Until stipulation to dismiss action would be signed and filed in trial court, or until entire case was resolved by
some other final, dispositive ruling, matters potentially remained for district court's consideration. NRAP 3A(b)(1).
2. Courts.
Supreme court is court of limited appellate jurisdiction, having jurisdiction to entertain appeal only when appeal is authorized by
statute or court rule.
Main objective of rule governing appealability of final judgment is promoting judicial economy by avoiding specter of piecemeal
appellate review. NRAP 3A(b)(1).
Supreme court determines finality of order or judgment for appeal purposes by looking to what order or judgment actually does,
not what it is called. NRAP 3A(b)(1).
Final, appealable judgment is one that disposes of issues presented in case and leaves nothing for future consideration of court.
NRAP 3A(b)(1).
Pre-dismissal order approving proposed settlement is not final judgment for appeal purposes. NRAP 3A(b)(1).
Supreme court has jurisdiction to entertain appeal only when appeal is brought by aggrieved party. NRAP 3A(a).
Non-party shareholders were aggrieved by district court's order approving proposed settlement agreement between shareholders
and corporation and its officers and directors in shareholder derivative action as required for non-party shareholders' standing to appeal
order to supreme court, where district court's decision to approve settlement over non-party shareholders' objection substantially and
adversely affected their interests by purporting to terminate whatever rights they may have had to bring future lawsuits against
corporation arising from same transactions. NRAP 3A(a).
Party is aggrieved as required for standing to appeal to supreme court when either personal right or right of property is adversely
and substantially affected by district court's ruling. NRAP 3A(a).
Non-party shareholders, who objected to proposed settlement agreement between parties in shareholder derivative action before its
approval by district court, were not parties as required for standing to appeal district court's order approving agreement to supreme
court, despite fact that non-party shareholders were notified of action and appeared before district court, where they never intervened
and never became parties of record. NRAP 3A(a).
11. Courts.
Supreme court's jurisdictional rules must be clear and absolute to give all fair notice of what is required to bring matter properly
before supreme court. NRAP 3A(a).
Person or entity is not party as required to appeal district court order to supreme court, unless that person or entity has been
served with process, appeared in court below, and has been named as party of record in trial court. NRAP 3A(a).
OPINION
Per Curiam:
This is an appeal from an order of the district court approving a proposed settlement in a shareholders' derivative action. Respondents
have filed motions to dismiss this appeal. Appellants oppose the motions. We hold that the order appealed from is not substantively
appealable. We further hold that appellantsa group of minority corporate shareholders who were not parties to the action belowhave no
standing to pursue this appeal. Accordingly, we grant the motions to dismiss.
FACTS
In January 1991, Jeanette Ginsburg, a minority shareholder of respondent Reno Properties Corporation (RPC), filed a shareholders'
derivative lawsuit against RPC, its officers and directors. See NRCP 23.1. During the pendency of this lawsuit, Ms. Ginsburg died and the
trustees and beneficiaries of her estate were substituted in as plaintiffs.
1
See NRCP 25(a).
The trustees alleged that RPC's officers and directors supposedly caused the corporation to
engage in transactions that personally benefitted the individual officers and directors, but
worked to the detriment of RPC as a whole. Thus, the trustees sought (1) an accounting of the
profits the individual officers and directors gained from these supposed transactions, and (2)
recovery of all damages proximately caused by the alleged waste of corporate assets.
__________

1
Throughout this opinion, we will refer to the plaintiffs in the action below collectively as the trustees.
On November 14, 1991, the parties reached a compromise of their dispute during a district
court settlement conference. Under the terms of the parties' proposed agreement, RPC will
purchase all of the trustees' RPC stock for $305,000.00. In exchange, the trustees will dismiss
the lawsuit with prejudice as to all RPC shareholders, including all non-party shareholders.
As required by NRCP 23.1, the parties sent notices about the terms of their proposed
settlement to all RPC shareholders. These notices advised that once this lawsuit is settled
and the settlement is approved by the court, another shareholder in [RPC] may not bring a
lawsuit alleging similar allegations and seeking similar relief. In addition, the non-party
shareholders were told that if they wished to object to the settlement, they should appear at a
district court hearing to be held on April 28, 1992.
A group representing seven percent of RPC's shareholdersconsisting of appellants
Valley Bank of Nevada, Dean Langham (co-trustees for Dean Langham, Sheila Mills and
Ann Langham), Patricia Lund and Mary McCartyappeared at the April 1992 hearing to
contest the proposed settlement, and subsequently filed written objections. However, these
shareholders did not seek leave to intervene. See NRCP 24(a). On June 29, 1992, the district
court entered an order approving the settlement proposal. This appeal followed.
On August 12, 1992, respondents (plaintiffs and defendants below) filed a joint motion to
dismiss the appeal. In their motion to dismiss, respondents assert that because appellants were
never parties to the trial court action, they have no standing to appeal. See NRAP 3A(a).
Appellants filed an opposition, respondents filed a reply, and the motion to dismiss was
submitted for disposition.
On March 2, 1993, however, the trustees asked this court to stay consideration of both the
motion to dismiss and the entire appeal, so that the case could be remanded to the district
court. According to their motion, the trustees were in danger of suffering irreparable harm
because even though they had already dismissed the underlying lawsuit, RPC had withheld
the settlement proceeds and thus remained free to exhaust its assets prior to disposition of the
appeal. To prevent this from occurring, the trustees urged this court to stay the appeal and
have the case remanded back to the trial court so that the trial court may institute a legal
means to preserve the status quo until the case is resolved. In other words, the trustees
sought a remand so that the district court could order someoneeither appellants or RPCto
post an appeal bond. See NRAP 8(a).
The trustees' motion for a stay and remand generated a flurry of opposition and
counter-motions. Ultimately, the trustees acknowledged that the district court has never
entered an order dismissing the underlying lawsuit.
acknowledged that the district court has never entered an order dismissing the underlying
lawsuit. Consequently, the trustees filed a second motion to dismiss this appeal, in which they
argue that this court does not have jurisdiction over the appeal because no final, appealable
order was ever entered below. Appellants also oppose this second motion to dismiss.
DISCUSSION
The pending motions present two issues for our resolution. First, the trustees contend that
the district court's order approving the parties' proposed settlement is not substantively
appealable. See NRAP 3A(b)(1). Second, respondents collectively contend that non-party
shareholders who have been given notice of a settlement, who have been invited to comment
on the settlement, and who have formally submitted written opposition, have no standing to
appeal. See NRAP 3A(a). We consider each question in turn.
Substantive appealability
[Headnotes 1, 2]
This is a court of limited appellate jurisdiction. Specifically, this court has jurisdiction to
entertain an appeal only where an appeal is authorized by statute or court rule. See, e.g.,
Castillo v. State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990) (no appeal lies from an
order certifying a juvenile to stand trial as an adult); Taylor Constr. Co. v. Hilton Hotels, 100
Nev. 207, 209, 678 P.2d 1152, 1153 (1984) (no appeal from an order denying summary
judgment); Kokkos v. Tsalikis, 91 Nev. 24, 25, 530 P.2d 756, 756-57 (1975) (no appeal from
an order setting aside a default). We are aware of no statute or court rule that authorizes an
appeal from a district court order approving a proposed settlement, and the parties have cited
none. Appellants nevertheless contend that the district court's order approving the settlement
is appealable because it constitutes a final judgment within the meaning of NRAP
3A(b)(1).
[Headnote 3]
Preliminarily, we must agree with appellants that it makes no difference to our analysis
whether the district court's order approving settlement proposal was specifically labeled as
a final judgment. This court has consistently looked past labels in interpreting NRAP
3A(b)(1), and has instead taken a functional view of finality, which seeks to further the rule's
main objective: promoting judicial economy by avoiding the specter of piecemeal appellate
review. See State, Taxicab Authority v. Greenspun, 109 Nev. 1022, 1025
Greenspun, 109 Nev. 1022, 1025, 862 P.2d 423, 425 (1993); Hallicrafters Co. v. Moore, 102
Nev. 526, 528-29, 728 P.2d 441, 443 (1986); see also Van Cauwenberghe v. Biard, 486 U.S.
517, 521-22 n.3 (1988).
[Headnotes 4, 5]
This court determines the finality of an order or judgment by looking to what the order or
judgment actually does, not what it is called. Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676
(1959). More precisely, a final, appealable judgment is one that disposes of the issues
presented in the case . . . and leaves nothing for the future consideration of the court. Alper
v. Posin, 77 Nev. 328, 330, 363 P.2d 502, 503 (1961); accord O'Neill v. Dunn, 83 Nev. 228,
230, 427 P.2d 647, 648 (1967).
Appellants contend that the district court's order meets this standard because after the
order was issued, the parties could have dismissed this lawsuit by stipulation, which would
have left nothing for the future consideration of the trial court. See NRCP 41(a)(1); Jeep
Corp. v. District Court, 98 Nev. 440, 443-44, 652 P.2d 1183, 1185-86 (1982). This argument,
however, fails to account for NRAP 4(a)(3), which specifies:
[a] notice or stipulation of dismissal filed pursuant to N.R.C.P. 41(a)(1) has the same
effect as a judgment or order signed by the judge and filed by the clerk and constitutes
entry of a judgment or order for the purposes of this Rule. If such a notice or stipulation
dismisses all unresolved claims pending in an action in the district court, the notice or
stipulation constitutes entry of a final judgment or order for the purposes of this Rule.
In other words, our procedural rules specifically account for cases that are resolved by a
stipulation to dismiss, and expressly provide that the stipulation to dismiss constitutes the
final judgment.
[Headnote 6]
Because any dismissal ordereven if the result of a stipulationwould unquestionably
have constituted a final judgment, we decline to construe a pre-dismissal order approving a
proposed settlement as a final judgment. To do so would create the potential that two final
judgments might exist in this casethe order approving the settlement and the stipulation to
dismiss. Indeed, appellants' position applied to its logical conclusion would mean that nearly
every ruling in every case can be labeled as a final judgment, because every ruling might be
followed by a stipulated dismissal. See Jeep Corp., 98 Nev. at 443, 652 P.2d at 1185-86.
The order appealed from here is not the district court's final judgment in this case. A
substantial possibility remains that, for whatever reason, the parties might refuse to stipulate
to dismissal.
2
Indeed, to date, the parties have not stipulated to dismissal of the action below.
Until a stipulation to dismiss this action is signed and filed in the trial court, or until this
entire case is resolved by some other final, dispositive ruling, matters potentially remain for
the district court's consideration. The order approving the settlement proposal accordingly
does not constitute a final judgment within the meaning of NRAP 3A(b)(1), and is
substantively unappealable.
Standing to appeal
[Headnote 7]
Even assuming that the order approving the proposed settlement is substantively
appealable, this court has jurisdiction to entertain an appeal only where the appeal is brought
by an aggrieved party. NRAP 3A(a) limits the right of appeal to part[ies] aggrieved by a
district court's decision.
[Headnotes 8, 9]
There is no question that appellants are aggrieved by the district court's order. A party is
aggrieved within the meaning of NRAP 3A(a) when either a personal right or right of
property is adversely and substantially affected by a district court's ruling. Estate of Hughes
v. First Nat'l Bank, 96 Nev. 178, 180, 605 P.2d 1149, 1150 (1980). The district court's
decision to approve the settlement over appellants' objection substantially and adversely
affected their interests by purporting to terminate whatever rights they may have had to bring
future lawsuits against RPC arising out of the same transactions. Appellants were thus
aggrieved by the district court's order. Therefore, we need only determine whether
appellants were in fact parties to the underlying litigation.
[Headnote 10]
This court has consistently taken a restrictive view of those persons or entities that have
standing to appeal as parties. For example, in Garaventa Co. v. Dist. Court, 61 Nev. 350, 354,
128 P.2d 266, 267-68 (1942), this court held that although the petitioner corporation was
greatly affected by the trial court's order, it nevertheless did not have standing to appeal
because it was never named as a party to the lawsuit.
__________

2
There are a number of different reasons why the parties might refuse to stipulate to dismissal. For example,
appellants might seek to intervene in the action and, if successful, might refuse to sign any stipulation to dismiss
the case. In such a situation, dismissal would have been obtained only by noticed motion, which would require
another ruling from the district court.
it nevertheless did not have standing to appeal because it was never named as a party to the
lawsuit. Our decision in Garaventa declined to follow a line of California cases that would
have allowed an appeal, and instead set forth this more narrow rule that aggrieved party'
means parties who are named as such in the record and who, as such, are served with process
or enter an appearance. Garaventa, 61 Nev. at 354, 128 P.2d at 267-68; see also Rae v. All
American Life & Cas. Co., 95 Nev. 920, 922, 605 P.2d 196, 197 (1979).
More recently, in Aetna Life & Casualty v. Rowan, 107 Nev. 362, 363, 812 P.2d 350,
350-51(1991), we held that an insurance company whose interests were substantially affected
by a district court order denying intervention could not appeal because the company had
never become a party to the lawsuit. Just as in Garaventa, we rejected a line of cases from
other jurisdictions that would have allowed an appeal, and we reaffirmed our traditional
reluctance to afford appeal rights to those not named as parties in the trial court action.
Rowan, 107 Nev. at 363, 812 P.2d at 350-51.
Similarly, in Gladys Baker Olsen Fam. Trust v. Olsen, 109 Nev. 838, 841-42, 858 P.2d
385, 386-87 (1993), we held that a family trust had no right to appeal from an order that
substantially and adversely affected it, because the trust had not been made a party to the
action until after the order had issued. Once again, we rejected a line of out-of-state cases that
permitted non-parties to appeal under similar circumstances, and we emphasized that it has
been the consistent policy of this court to foster simplicity, clarity and certainty in our
jurisdictional rules by refraining from ad hoc dispensations and exceptions that would allow
persons or entities that were not parties of record to appeal. Id. at 841, 858 P.2d at 387.
3

Our cases would therefore seem to preclude this appeal because, although appellants were
notified of this action and appeared before the district court, they never became parties of
record. Indeed, appellants essentially concede this defect, but invite us to overlook it in favor
of certain out-of-state authorities, which seem to authorize appeals by non-parties from orders
approving the settlement of a shareholders' derivative action. E.g., Cohen v. Young, 127 F.2d
721, 724 (6th Cir. 1942); Webcor Electronics v. Whiting, 101 F.R.D. 461, 465 n.11 (D.
__________

3
Accord Beury v. State, 107 Nev. 363, 812 P.2d 774 (1991) (attorney who was not party of record could not
appeal from district court's order denying excess fees); Albany v. Arcata Associates, 106 Nev. 688, 799 P.2d
566 (1990) (attorney who was not a party to district court action had no right to appeal sanctions order).
Del. 1984); Saylor v. Bastedo, 78 F.R.D. 150, 152-53 (S.D.N.Y. 1978).
4

[Headnotes 11, 12]
We decline the invitation. Just as in Garaventa, Rowan and Olsen, principles of
simplicity, clarity and certainty compel us to adhere to our traditionally narrow definition of
the term party. As this court has often stated, our jurisdictional rules must be clear and
absolute in order to give all fair notice of what is required to bring a matter properly before
this court. Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382
(1987). Accordingly, we conclude that, in Nevada, a person or entity is not a party within the
meaning of NRAP 3A(a) unless that person or entity has been served with process, appeared
in the court below and has been named as a party of record in the trial court. See Garaventa,
61 Nev. at 354, 128 P.2d at 267-68.
Appellants cannot meet this standard. They never intervened and thus never became
parties of record in the trial court. Accordingly, we hold that appellants are not parties within
the meaning of NRAP 3A(a), and that as such, they have no standing to appeal from the
district court's order.
CONCLUSION
Because this court lacks jurisdiction to entertain this appeal, we grant the motions to
dismiss and dismiss this appeal without prejudice to appellants' right to pursue alternative
forms of relief.
5

__________

4
A recent United States Supreme Court decision, Marino v. Ortiz, 484 U.S. 301 (1988), casts considerable
doubt on the federal cases relied on by appellants. In Marino, the Court held that because a group of police
officers affected by a consent decree were not parties to the underlying lawsuit, and . . . failed to intervene for
purposes of appeal, they may not appeal from the consent decree approving the lawsuit's settlement. Id. at 304.
To support its decision, the Court observed that [t]he rule that only parties to a lawsuit, or those that properly
become parties, also may appeal an adverse judgment, is well settled. Id.; see also Bell Atlantic Corp. v.
Bolger, 2 F.3d 1304, 1307-08 (3d Cir. 1993) (noting considerable confusion in this area).

5
We deny as moot plaintiffs' motion to stay appeal and remand case to district court.
____________
110 Nev. 449, 449 (1994) City of Las Vegas v. Int'l Ass'n Firefighters
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v.
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL #1285, Respondent.
No. 25295
May 19,1994 874 P.2d 735
Motion to dismiss appeal from a judgment of the district court confirming an arbitrator's
ruling in favor of respondent. Eighth Judicial District Court, Clark County; Jack Lehman,
Judge.
Firefighters' union and city submitted labor dispute to arbitrator, pursuant to labor
agreement. The district court confirmed arbitrator's ruling for union, and city appealed. The
supreme court held that city's failure to take action on appeal for more than one year and
failure to seek extension of time for transmission of record to supreme court warranted
dismissal of city's appeal.
Motion granted; appeal dismissed.
Bradford R. Jerbic, City Attorney, and Larry G. Bettis, Deputy City Attorney, Las Vegas,
for Appellant.
Hilbrecht & Associates, Las Vegas, for Respondent.
Burden of ensuring that appellate record is transmitted to supreme court in timely fashion falls squarely upon appellant. NRAP
11(a).
To obtain extension of time for transmittal of record for appeal upon showing of good cause, appellant must affirmatively seek
such extension and must affirmatively demonstrate good cause. NRAP 11(d).
Motions to dismiss appeals for failure to cause transmission of record should be granted only in most extreme cases. NRAP 12(c).
4. Labor Relations.
City's failure to take action on appeal for more than one year and failure to seek extension of time for transmission of record to
supreme court warranted dismissal of city's appeal from district court's confirmation of arbitration award in favor of firefighters' union.
Even if district court clerk did not advise city's counsel that record preparation process was not on track, city had burden of ensuring
that record transmission occurred in timely fashion. NRAP 11(a), 12(c).
Once designation of record for appeal has been filed, district court clerk has duty to prepare record to completion. Where clerk
determines that record will not be completed in timely fashion, clerk must notify appellant's counsel in writing that extension must be
obtained before record may be transmitted to supreme court.
OPINION
Per Curiam:
Respondent International Association of Firefighters, Local 1285 (Local 1285) has moved
to dismiss this appeal because appellant City of Las Vegas (the City) has failed to take any
steps toward preparation of the appellate record during the almost fourteen months since the
notice of appeal was filed. Because of appellant's indisputably dilatory conduct, we grant
respondent's motion to dismiss.
FACTUAL BACKGROUND
This case involves a manpower dispute between Local 1285 and the City. Under the labor
agreement between the parties, the dispute was submitted to an arbitrator, who ruled in favor
of Local 1285.
The City thereafter filed an action in the district court to modify or correct the arbitrator's
decision. Local 1285 filed a counter action to confirm the arbitrator's ruling. On December 7,
1992, the district court issued an order confirming the arbitrator's decision and entered
judgment in favor of Local 1285. On December 22, 1992, the City filed a notice of appeal,
and later filed a designation of record, which provided that the City hereby designates the
complete record for appeal.
For the next fourteen months, nothing happened in this case. The appellate record was not
transmitted to this court, and the City did not seek even a single extension of time. See NRAP
11(d). Understandably frustrated, on February 14, 1994, Local 1285 moved to dismiss the
City's appeal because of its delay in causing transmission of the record to this court. See
NRAP 12(c). The motion is opposed.
LEGAL ANALYSIS
[Headnotes 1, 2]
Our rules regarding record transmission are plain and unambiguous: The burden of
ensuring that the appellate record is transmitted to this court in a timely fashion falls squarely
upon the appellant. Specifically, NRAP 11(a) requires an appellant to take whatever steps
become necessary to cause transmission of the record on appeal to this court in a timely
manner.
1
As a practical matter, of course, an appellant will often be required to do
nothing more than designate the record, because the district court clerks will usually
prepare and transmit the record in a timely fashion.
__________

1
NRAP 11(a) provides, in pertinent part:
Except as otherwise provided by these or any other court rules, the record on appeal shall be transmitted
to the Supreme Court within 40 days after the filing of the notice of appeal unless the time is shortened
practical matter, of course, an appellant will often be required to do nothing more than
designate the record, because the district court clerks will usually prepare and transmit the
record in a timely fashion. There will inevitably be occasions, however, where the clerk
cannot meet the forty-day deadline specified in NRAP 11(a). On such occasions, NRAP 11(d)
allows an appellant to obtain an extension of time for transmittal of the record upon a
showing of good causebut we emphasize that the appellant must affirmatively seek such an
extension, and the appellant must affirmatively demonstrate good cause.
Placing the burden on appellant to ascertain that the record is transmitted to this court in a
timely fashion is not some procedural trap for the unwary. To the contrary, such a rule is vital
to ensuring that appeals proceed to finality in an expeditious fashion, which is a matter of the
utmost concern to this court, to litigants in general, and to this State's citizens. It is important,
therefore, that this court hold appellants to the requirements delineated in NRAP 11, and that
we not condone the behavior of those who sit idly by while their cases clog this court's
docket. This court's limited resources are best spent reviewing claims that have been
vigorously pursued.
Our procedural rules contemplate severe consequences for appellants who are less than
diligent in the pursuit of their appellate rights. Specifically, NRAP 12(c) contemplates the
dismissal of appeals where the record does not arrive in this court in a timely fashion after an
appellant has failed, for a significant period of time, to take any steps toward causing
transmission of the record.
2

[Headnote 3]
We have not recently had occasion to discuss the standards we use in reviewing motions to
dismiss under NRAP 12(c). We begin from the premise that motions to dismiss for the failure
to cause transmission of the record should be granted only in the most extreme cases. This
limitation follows naturally from this court's oft-stated preference for resolving appeals on
their merits. See, e.g., Price v. Dunn, 106 Nev. 100, 105, 787 P.2d 785, 787 (1990), Hotel
Last Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963). Thus, while we
do not condone any sort of dilatory conduct, we are very reluctant to dismiss an appeal
because of short delays in causing transmission of the record, especially where an
appellant can show some good reason for the delay.
__________
or extended by an order entered under subdivision (d) of this Rule. After filing the notice of appeal the
appellant shall comply with the provisions of Rule 10(b) and shall take any other action necessary to
enable the clerk to assemble and transmit the record . . . .

2
NRAP 12(c) provides, in pertinent part:
If the appellant shall fail to cause timely transmission of the record or to pay the filing fee if a docket fee
is required, any respondent may file a motion in the Supreme Court to dismiss the appeal. . . .
sort of dilatory conduct, we are very reluctant to dismiss an appeal because of short delays in
causing transmission of the record, especially where an appellant can show some good reason
for the delay.
3
See, e.g., Garibaldi Bros. v. Waldren, 72 Nev. 12, 15, 292 P.2d 356, 357
(1956); Hotels El Rancho v. Pray, 64 Nev. 22, 25, 176 P.2d 236, 237 (1947). However, where
the period of delay has been substantial, and where no legally sufficient excuse has been
shown, we have often dismissed appeals because of an appellant's failure to cause timely
transmission of the record. See, e.g., Varnum v. Grady, 90 Nev. 374, 376-77, 528 P.2d 1027,
1028-29 (1974); Dep't Hwys. v. Roman Catholic Bishop, 80 Nev. 1, 2, 388 P.2d 202, 202
(1964); Dreyer v. Dreyer, 74 Nev. 167, 169, 325 P.2d 705, 705-06 (1958).
[Headnote 4]
This motion requires us to apply these standards here to determine whether appellant's
failure to cause timely transmission of the record is sufficiently egregious to warrant
dismissal of the appeal. Upon review of the moving and opposition papers submitted herein,
we are convinced that appellant's lengthy delay is unexcused and that dismissal is in fact
warranted.
The period of delay in this case is both undisputed and egregiously lengthy. Appellant filed
a notice of appeal on December 22, 1992, which means that the record was due to be
transmitted to this court by February 1, 1993. See NRAP 11(a) and NRAP 26(a). Notably,
appellant has not sought a single extension of time, and in fact still has not done so.
4
By its
own admission, moreover, appellant has contacted the district court clerk's office only once
during the past year to check on the status of this case. Remarkably, upon learning that record
preparation had not yet been completed, appellant still did not move for an extension of time,
nor did appellant take any further action regarding the appeal. Instead, appellant continued to
do nothing until it filed its
__________

3
Even though our policy of deciding cases on the merits often induces us not to dismiss cases where dilatory
conduct has indisputably occurred, counsel would be unwise to presume that he or she may violate our
procedural rules with impunity. Counsel should be forewarned that we will not hesitate to impose sanctions for
material violations of our procedural rules. See, e.g., Smith v. Emery, 109 Nev. 737, 856 P.2d 1386 (1993);
Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 860 P.2d 720 (1993); Cuzdey v. State, 103 Nev. 575, 747 P.2d 233
(1987); State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 676 P.2d 1318 (1984).

4
The City did ask for an extension in its opposition to this motion to dismiss. As respondent correctly notes,
however, the City's request is not in proper form because it is not made as a separate motion. See NRAP 27. In
any event, even if the City had filed an extension motion at this late date, it would be denied because the City's
dilatory conduct is inexcusable.
opposition to this motion. In light of appellant's documented pattern of inactivity, it is likely
that if this motion had not been filed, appellant would have continued to do nothing long into
the future.
Only the most compelling of justifications would serve to excuse this more than one year
lapse in pursuing this appeal. Appellant's proffered excuse for its dereliction is that it had an
absolute right to assume that the record preparation process was on track unless the district
court clerk informed counsel otherwise.
We find this argument unavailing. Nevada law clearly places the burden on an appellant to
keep track of whether the record transmission occurs in a timely fashion. Varnum, 90 Nev. at
376-77, 528 P.2d at 1028-29; Roman Catholic Bishop, 80 Nev. at 2, 388 P.2d at 202; Dreyer,
74 Nev. at 169, 325 P.2d at 705-06. Thus, when it appears that a record will not be filed in
this court on time, the appellant must seek extensions and must take any other necessary
action to ensure that the record preparation process stays on track.
5
As our cases
unmistakably demonstrate, e.g. Varnum, 90 Nev. at 376-77, 528 P.2d at 1028, this rule is
ignored only at an appellant's peril.
CONCLUSION
[Headnote 5]
Our review has convinced us that this is one of those extreme cases in which appellant's
procedural derelictions are so severe as to warrant dismissal. However, appellant is not the
only one who appears to have been remiss in the record preparation process. In reviewing the
instant motion, we were disappointed to discover that, after more than a year, the district
court clerk has apparently failed to prepare what appears to be a rather brief and simple
record. We remind the district court clerk that once a designation of record has been filed, the
clerk has a duty to prepare the record to completion. Where the district court clerk determines
he or she will not be able to complete the record in a timely fashion, moreover, the district
court clerk must notify appellant's counsel in writing that an extension must be obtained
before the record may be transmitted to the supreme court.
It is unfortunate when an appeal must be decided without any consideration of the merits;
but this case presents an egregious example of the record preparation process gone awry in all
respects.
__________

5
At a minimum, an appellant should calendar the date the record is due to be filed in the supreme court, and
periodically check with the district court clerk to ensure that deadline will be met.
respects. Because the primary responsibility for this transgression must lie with the appellant,
we hereby dismiss this appeal.
6

____________
110 Nev. 454, 454 (1994) Chapman Industries v. United Insurance
CHAPMAN INDUSTRIES, MYRON CHAPMAN and AUDREY SCHLOSSBERG,
Appellants/Cross-Respondents, v. UNITED INSURANCE COMPANY OF AMERICA,
Respondent/Cross-Appellant.
No. 25372
May 19, 1994 874 P.2d 739
Motion for remand of appeal and cross-appeal from findings of fact, conclusions of law
and judgment in a stockholder derivative action, and from order denying motion for a new
trial. Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
The supreme court held that its jurisdiction was properly invoked, but, under unique
circumstances of case, remand was warranted.
Motion granted.
Bible, Hoy, Trachok, Wadhams & Zive, Reno, for Appellants/Cross-Respondents.
Vargas & Bartlett, Reno, for Respondent/Cross-Appellant.
Statute, providing that party has right to appeal from district court order determining fair cash value of stock, had no application to
stockholder derivative action since statute was repealed before district court entered final judgment in the matter. NRS 78.510(5)
(Repealed).
Right to appeal is not a vested right; rather it is an inchoate right which is wholly derived from statute and the right no longer
exists after repeal of statute granting the right.
Repeal of statute, providing that party has right to appeal from district court order determining fair cash value of stock, did not
foreclose appeal from final judgment entered in stockholder derivative action, given that rule provided for appeal from final judgment
or order in a civil action. NRS 78.510(5) (Repealed); NRAP 3A(b)(1).
__________

6
On March 3, 1994, Local 1285 moved to strike the City's request for an extension of time to cause the clerk to
transmit the appellate record, or in the alternative for permission to file a reply. NRAP 27(a). Cause appearing,
we deny the motion to strike the request for an extension of time. Cause further appearing, we deny Local 1285's
request for permission to file a reply as moot.
Timely motions for amendment of trial court's findings, amendment of the judgment and new trial tolled running of appeal period
and rendered ineffective all notices of appeal which were filed before formal disposition of the timely post-judgment motions and thus,
trial court erred in concluding that it lacked jurisdiction to entertain the timely tolling motions. NRCP 52(b), 59(a), (e); NRAP 4(a)(2).
Motion for reconsideration is not a tolling motion for purposes of rule providing that notice of appeal filed before formal
disposition of any timely post-judgment motion shall have no effect. NRAP 4(a)(2).
Motion for relief from judgment due to mistake, inadvertence or excusable neglect is not a tolling motion for purposes of rule
providing that notice of appeal filed before formal disposition of any timely post-judgment motion shall have no effect. NRCP 60(b);
NRAP 4(a)(2).
Timely motion for new trial is a tolling motion for purposes of rule providing that notice of appeal filed before formal disposition
of any timely post-judgment motion shall have no effect. NRCP 59(a) NRAP 4(a)(2).
Supreme court's jurisdiction in stockholder derivative action was properly invoked by litigant's filing timely notice of appeal from
judgment and order of the district court denying litigant's motion for new trial, but, under unique circumstances of case, remand was
warranted. In its order denying litigant's post-judgment motions, district court indicated its dissatisfaction with judgment and its desire
to consider merits of post-judgment motions, but erroneously believed that it lacked jurisdiction to consider these motions and both
parties agreed that this matter should be remanded to district court.
OPINION
Per Curiam:
This is an appeal and cross-appeal from the district court's findings of fact, conclusions of law and judgment in a stockholder
derivative action. This is also an appeal from an order of the district court denying respondent/cross-appellant's motion for a new trial. On
April 18, 1994, respondent/cross-appellant (United) filed in this court a motion to remand this matter to the district court. On May 2,
1994, appellants and cross-respondents (collectively Chapman) filed in this court a limited opposition to the motion for remand. For the
following reasons, we grant the motion.
On January 26, 1994, the district court entered findings of fact, conclusions of law and judgment in an action concerning stock value
following the merger of two corporations. On February 4, 1994, pursuant to NRCP 52(b), NRCP 59(a), NRCP 59(e), and NRCP 60(b),
United filed timely motions to amend the findings of fact and judgment, for a new trial, and for presentation of additional
testimony.
of fact and judgment, for a new trial, and for presentation of additional testimony. Also on
February 4, 1994, United filed a notice of appeal from the judgment entered on January 26,
1994.
On February 16, 1994, the district court entered an order: (1) granting, in part, an
additional motion filed by United to retax costs; (2) granting a motion filed by Chapman to
add prejudgment interest to the judgment; and (3) granting a motion by United for a stay. On
February 18, 1994, Chapman and United filed notices of appeal.
On March 3, 1994, the district court denied the motions filed by United pursuant to NRCP
52, NRCP 59, and NRCP 60 on the basis that it lacked jurisdiction in light of the parties'
notices of appeal. On March 8, 1994, United filed a second amended notice of appeal. The
record does not disclose, however, whether Chapman filed a timely notice of appeal
following the district court's entry of its order resolving United's motions for relief under
NRCP 52, NRCP 59 and NRCP 60.
United argues in its motion to remand that this matter should be remanded to the district
court for the purpose of amending its judgment on the narrow issue of valuation of
miscellaneous properties, consistent with the advisory opinion issued by the [district] court.
Chapman does not oppose remanding this matter to the district court but does oppose United's
request to limit the district court's consideration of the issues on remand.
The statute governing this appeal
[Headnotes 1, 2]
In their pleadings in the district court and in documents filed in this court, both parties
reference NRS 78.510(5) as the governing statute concerning the filing of the notice of
appeal. That statute, which was repealed in 1991, provided that:
Any party shall have the right to appeal [from an order of the district court determining
the fair cash value of stock] according to existing laws and rules of court, provided the
appeal be taken within 10 days after the signing of the judgment.
1991 Nev. Stat. ch. 442, 360, at 1318. The parties' reliance on NRS 78.510(5) is misplaced.
Because NRS 78.510(5) was repealed before the district court entered a final judgment in this
matter, the statute has no application to this case. The effect of the repeal of a statute having
neither a saving clause nor a general saving statute to prescribe the governing rule for the
effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest
the right to proceed under the statute. Norman J. Singer, Sutherland Statutory Construction
23.33, at 424 (5th ed.
ed. 1993) (footnotes omitted). Except as to proceedings past and closed, the statute is
considered as if it had never existed. Id. The right to appeal is not a vested right; rather it is
an inchoate right which is wholly derived from statute and the right no longer exists after the
repeal of the statute granting the right. Id. 23.35; see also Gary v. Sheriff, 96 Nev. 78, 605
P.2d 212 (1980); Neilson v. Perkins, 85 A. 686 (Conn. 1913); Lake Erie & W. R. Co. v.
Watkins, 62 N.E. 443 (Ind. 1902).
[Headnote 3]
Nonetheless, the judgment entered by the district court on January 26, 1994, was a final
judgment. NRAP 3A(b)(1) provides for an appeal from a final judgment or order in a civil
action. See generally O'Neill v. Dunn, 83 Nev. 228, 230, 427 P.2d 647, 648 (1967); Alper v.
Posin, 77 Nev. 328, 330, 363 P.2d 502, 503 (1961). Thus, the repeal of NRS 78.510(5) does
not foreclose an appeal from the judgment entered below on January 26, 1994. Moreover,
NRAP 3A(b)(2) provides for an appeal from an order granting or refusing a new trial. Thus,
the district court's order denying the motion for a new trial also constitutes an appealable
determination.
The motion to remand
NRAP 4(a) provides the time periods for filing a valid notice of appeal in civil cases.
Pursuant to NRAP 4(a)(2), [t]he running of the time for filing a notice of appeal is
terminated as to all parties by a timely motion filed in the district court by any party pursuant
to [NRCP 50(b), NRCP 52(b), and NRCP 59]. The full time for appeal commences to run
and is to be computed from the date of service of notice of entry of a written order granting or
denying a timely tolling motion.
NRAP 4(a)(2) (emphasis added) further provides:
A notice of appeal filed before the formal disposition of any timely post-judgment
motion enumerated in this subdivision shall have no effect. A notice of appeal must be
filed after the entry of a written order of the district court resolving any of the
post-judgment motions enumerated in this subdivision and no later than thirty (30) days
from the date of service of written notice of entry of that order.
[Headnote 4]
The timely motions filed by United pursuant to NRCP 52(b) and NRCP 59(a) and (e)
tolled the running of the appeal period and rendered ineffective all the notices of appeal
which were filed before the formal disposition of the timely post-judgment motions. Thus, the
district court erred in concluding that it lacked jurisdiction to entertain the timely tolling
motions which were filed by United.
lacked jurisdiction to entertain the timely tolling motions which were filed by United. No
appeal was pending at the time the district court rendered its decision concerning the motions
because, pursuant to NRAP 4(a)(2), the notices of appeal were of no effect.
[Headnote 5]
In their pleadings in the district court and in their motions in this court, the parties rely on
Smith v. Emery, 109 Nev. 737, 856 P.2d 1386 (1993) and Huneycutt v. Huneycutt, 94 Nev.
79, 575 P.2d 585 (1978). According to the parties, these cases are dispositive in determining
whether the district court erred in concluding that it lacked jurisdiction to entertain United's
post-judgment motions and whether the district court followed the correct procedure
concerning the post-judgment motions. The parties' reliance on Smith and Huneycutt is
misplaced. In Smith, this court concluded that the district court lacked jurisdiction to grant a
motion for reconsideration of its order denying a motion for a new trial after a timely notice
of appeal had been filed. A motion for reconsideration is not a tolling motion pursuant to
NRAP 4(a)(2). See Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983)
(petition for rehearing or motion for reconsideration do not toll the time for filing a notice of
appeal). In Smith, the filing of the motion for reconsideration did not render ineffective the
notice of appeal which had been filed prior to the formal disposition of the motion for
reconsideration. Thus, this court concluded in Smith that the district court was divested of
jurisdiction by the filing of the timely notice of appeal.
[Headnotes 6, 7]
In Huneycutt, the appellant filed a motion to remand in this court so that she could pursue
a motion in the district court for relief from the judgment pursuant to NRCP 60(b) and for a
new trial under NRCP 59(a). A motion for relief from the judgment pursuant to NRCP 60(b)
is not a tolling motion pursuant to NRAP 4(a)(2). See, e.g., Smilanich v. Bonanza Air Lines,
72 Nev. 10, 291 P.2d 1053 (1956). A timely motion made pursuant to NRCP 59(a) for a new
trial, however, is a tolling motion for NRAP 4(a)(2) purposes.
Huneycutt was decided in 1978. In 1989, NRAP 4(a)(2) was amended to include the
provision cited above which declares that a notice of appeal filed before entry of a written
order of the district court resolving the post-judgment motions enumerated in NRAP 4(a)(2)
is of no effect. The procedure announced in Huneycutt remains valid where a timely and
effective notice of appeal is filed in the district court prior to the formal disposition of a
motion seeking relief pursuant to NRCP 60(b) or any other non-tolling motion that directly
affects the judgment on appeal.
non-tolling motion that directly affects the judgment on appeal. The amendment of NRAP
4(a)(2) in 1989, however, rendered the Huneycutt procedure unnecessary where a timely
tolling motion has been filed pursuant to NRCP 50(b), NRCP 52(b), or NRCP 59 because, in
such a case, a notice of appeal filed prior to the formal resolution of the motion is of no
effect. Thus, it does not divest the district court of jurisdiction.
[Headnote 8]
On March 8, 1994, United filed a valid timely notice of appeal from the judgment and
from the order of the district court denying United's motion for a new trial. Thus, this court's
jurisdiction has been properly invoked. Under the unique circumstances of this case,
however, we conclude that a remand is warranted. In its order denying United's
post-judgment motions, the district court indicated its dissatisfaction with the judgment and
its desire to consider the merits of the post-judgment motions. The district court erroneously
believed that it lacked jurisdiction to consider these motions. Both parties agree that this
matter should be remanded to the district court for further proceedings. Accordingly, we
vacate the order denying United's post-judgment motions and remand this matter to the
district court for further proceedings.
1

____________
110 Nev. 459, 459 (1994) Idaho Resources v. Freeport-McMoran Gold
IDAHO RESOURCES, INC., an Idaho Corporation, aka NEVADA-IDAHO RESOURCES,
INC.; FIREMAN'S FUND INSURANCE COMPANY, a California Corporation,
Appellants/Cross-Respondents, v. FREEPORT-McMORAN GOLD COMPANY, a
Delaware Corporation, as Agent for the Freeport-FMC Jerritt Canyon Joint Venture, a
Joint Venture Between Freeport-McMoran Gold Company and FMC Jerritt Canyon
Corporation, a Delaware Corporation, Respondent/Cross-Appellant.
No. 23387
May 19, 1994 874 P.2d 742
Appeal and cross-appeal from a judgment, pursuant to a bench trial, and from an order
awarding attorney's fees and costs. Fourth Judicial District Court, Elko County; Jack B.
Ames, Judge.
__________

1
This opinion constitutes our final disposition of this appeal. Any further appeals from the district court's order
or orders following the remand shall be docketed in this court as a new and separate proceeding.
Mining company brought action against contractor, alleging breach of ore processing
contract. The district court ruled that contractor had breached contract but that mining
company was estopped from terminating contract for cause, and appeal was taken. The
supreme court held that mining company could not be equitably estopped from terminating
contract for cause in action in which equitable estoppel was never litigated by parties and was
first raised in judgment itself.
Wilson & Barrows, Elko; Aherin & Rice, Lewiston, Idaho, for
Appellants/Cross-Respondents.
Bible, Hoy, Trachok, Wadhams & Zive and Mark S. Sertic, Reno, for
1. Pleading.
If affirmative defense is not properly asserted, or tried by consent, it is waived.
2. Estoppel.
Mining company could not be equitably estopped from terminating ore processing contract for cause in breach of contract action
in which equitable estoppel was never litigated by parties and was first raised in judgment itself. NRCP 8(c), 54(c).
OPINION
Per Curiam:
Respondent/cross-appellant Freeport-McMoran Gold Company (Freeport), a mining company, contracted with
appellant/cross-respondent Idaho Resources, Inc. (Idaho Resources) to process ore extracted by Freeport at Freeport's mine. When Idaho
Resources failed to process the quantity of ore required by the contract, Freeport terminated the contract. Freeport brought suit against
Idaho Resources, averring, inter alia, that Idaho Resources breached the contract by failing to process the quantity of ore called for in the
contract. Idaho Resources counterclaimed against Freeport, alleging that Freeport breached its contract obligations to Idaho Resources by
failing to deliver to Idaho Resources sufficient quantities of ore to be processed.
After a bench trial, the district court found that Idaho Resources breached the contract and that Freeport did not breach the contract.
Since the record contains substantial evidence to support this conclusion of the district court, it must be upheld. See Hermann Trust v.
Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 {1990); Pandelis Constr. Co. v. Jones-Viking Assoc.,
566, 796 P.2d 590, 591-92 (1990); Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev.
129, 130, 734 P.2d 1236, 1237 (1987). The district court, however, also concluded that
Freeport could not recover damages on Idaho Resources' breach because Freeport was
estopped from terminating the contract for cause. We conclude that the district court's
application of the doctrine of equitable estoppel in the instant case constituted error.
[Headnotes 1, 2]
Equitable estoppel is an affirmative defense and must be affirmatively pleaded. NRCP
8(c). If an affirmative defense is not properly asserted, or tried by consent, it is waived.
Second Baptist Ch. v. First Nat'l Bank, 89 Nev. 217, 220, 510 P.2d 630, 632 (1973). Idaho
Resources never raised the issue of estoppel in any pleadings or any other papers filed with
the court, including its answer, pretrial statement, or post-trial brief. The record suggests that
the issue of equitable estoppel was never litigated by the parties and was first raised in the
judgment itself.
NRCP 54(c) states, [E]very final judgment shall grant the relief to which the party in
whose favor it is rendered is entitled, even if the party has not demanded such relief in his
pleadings. Courts in other jurisdictions have construed the identical rule narrowly, however.
The Utah Supreme Court stated:
Although Rule 54(c)[] permits relief on grounds not pleaded, that rule does not go so
far as to authorize the granting of relief on issues neither raised nor tried.
. . . .
It is error to adjudicate issues not raised before or during trial and unsupported by
the record. The trial court is not privileged to determine matters outside the issues of
the case, and if he does, his findings will have no force or effect. In law or in equity, a
judgment must be responsive to the issues framed by the pleadings, and a trial court has
no authority to render a decision on issues not presented for determination. Any
findings rendered outside the issues are a nullity. A court may not grant judgment for
relief which is neither requested by the pleadings nor within the theory on which the
case was tried, whether that theory was expressly stated or implied by the proof
adduced. Parties may limit the scope of the litigation if they choose, and if an issue is
clearly withheld, the court cannot nevertheless adjudicate it and grant corresponding
relief.
Combe v. Warren's Family Drive-Inns, Inc., 680 P.2d 733, 735-36 (Utah 1984) (citations
omitted). In Evans Products Co. v. West American Ins. Co., 736 F.2d 920 {3d Cir.
West American Ins. Co., 736 F.2d 920 (3d Cir. 1984), the Third Circuit Court of Appeals
reversed the district court after the district court went outside the pleadings and arguments at
trial to reach its decision, stating:
Fed. R. Civ. P. 54(c) permits relief based on a particular theory of relief only if that
theory was squarely presented and litigated by the parties at some stage or other of the
proceedings. Put another way, relief may be based on a theory of recovery only if the
theory was presented in the pleadings or tried with the express or implied consent of the
parties.
. . . .
The theory on which relief was granted to Evans had neither been raised in any of
the pleadings nor been litigated with either the express or implicit consent of the
parties. West therefore was denied a fair opportunity to defend against the theory . . . .
The relief granted by the district court thus was improperly granted because the theory
upon which it was based had not been squarely presented and litigated at any stage of
the proceedings and because West thereby had been prejudiced.
Id. at 923-24 (citations omitted). In National Medical Care, Inc. v. Zigelbaum, 468 N.E.2d
868 (Mass. App. Ct. 1984), the court stated:
In this case, the record amply demonstrates that the judge's invocation of the
doctrine of estoppel was a surprise to all parties. . . . It is undisputed that the defense of
estoppel was not pleaded, that the issue was not raised in the post-trial submissions of
the parties, and that no amendment to include the defense was sought. The parties did
not focus on the question during the trial. . . .
. . . We hold simply that where the affirmative defense is not pleaded, where the
parties do not at trial join issue on the matter and where the evidence does not show
conduct which is inherently wrongful or which is violative of some fundamental
principle of public policy, the judge may not rest his decision on that defense without
more.
Id. at 875 (citations omitted). Therefore, we conclude that it was error for the district court to
raise an estoppel issue here which had not been either pleaded or litigated by the parties. We
have considered all other contentions on appeal and we conclude that they either lack merit or
need not be addressed in light of this disposition.
Accordingly, we vacate the judgment of the district court insofar as it estops Freeport
from recovering damages on Idaho Resources' breach of contract and remand the matter
to the district court for a calculation of damages.
insofar as it estops Freeport from recovering damages on Idaho Resources' breach of contract
and remand the matter to the district court for a calculation of damages.
____________
110 Nev. 463, 463 (1994) McNair v. Rivera
KIMBLE McNAIR, M.D., Appellant, v. ELIZABETH ANN RIVERA, Respondent.
No. 23461
May 19, 1994 874 P.2d 1240
Appeal from district court order denying motion to set aside default judgment. Eighth
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
The supreme court held that: (1) plaintiff made inadequate showing of due diligence in
attempting to serve defendant to support service by publication, and (2) defendant appeared
in the action and thus was entitled to three days' notice of prove-up hearing on motion for
default judgment.
Geraldine Kirk-Hughes, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Respondent.
1. Process.
Plaintiff made inadequate showing of due diligence to support order for service by publication where, although repeated attempts
were initially made to serve defendant with process, only one attempt to serve defendant was documented during six-month extension
of time for service and facts did not suggest that defendant was impervious to diligent and resourceful efforts to serve him with civil
process. NRCP 4(e)(1)(i)
2. Judgment.
Defendant appeared in the action, and thus was entitled to three days' notice of prove-up hearing on motion for default
judgment, where in correspondence with plaintiff's counsel, defense counsel for defendant at medical legal screening panel impliedly
took upon himself responsibility of apprising defendant of any future intent by plaintiff to seek to enter default, even though counsel
had not yet made decision whether to represent defendant in medical malpractice action, and where plaintiff's counsel had suggested in
correspondence that defendant's entering of defense before screening panel would be treated as appearance. NRCP 55(b)(2).
3. Judgment.
Any conditions placed by trial court upon order setting aside default judgment were void where default judgment itself was void
for failure to give defendant three days' notice of prove-up hearing.
give defendant three days' notice of prove-up hearing. NRCP 55(b)(2), 60(b)(3).
OPINION
Per Curiam:
FACTS
In 1989, Dr. Kimble McNair, a physician specializing in obstetrics and gynecology, was convicted of six counts of sexual assault
committed during the examination of his patient-victims. His convictions resulted in four consecutive and two concurrent life sentences.
This court affirmed the judgment and sentences in McNair v. State, 108 Nev. 53, 825 P.2d 571 (1992).
Respondent Elizabeth Ann Rivera, the victim who first reported McNair's conduct, thus triggering his arrest and the coming forward of
other victims, filed two civil actions against McNair after his convictions. Rivera's first complaint sought declaratory relief on the issue of
whether McNair's malpractice insurer was liable for coverage stemming from McNair's criminal conduct. The district court granted
summary judgment in favor of the insurer; we affirmed on appeal. Rivera v. Nevada Medical Liab. Ins. Co., 107 Nev. 450, 814 P.2d 71
(1991).
On November 14, 1990, after having first obtained a finding of reasonable probability of medical malpractice by the Medical-Legal
Screening Panel, Rivera filed the amended complaint against McNair which is the subject of this appeal. The complaint seeks damages
against McNair based upon allegations of medical malpractice and breach of fiduciary duties.
On March 6, 1991, Rivera filed an ex parte application for extension of time to accomplish service of the summons and amended
complaint. The application, supported by affidavits, alleged that seven attempts to serve McNair at his residence
1
had been foiled
by the uncooperative nature of those in the home who refused to open the door or accept
service on McNair's behalf. The application for extension was granted.
On July 3, 1991, the district court again extended the time for service of process until sixty
days after this court's remittitur in Rivera's insurance case. Remittitur issued on July 16, 1991;
Rivera therefore had until the middle of September to serve McNair. However, in lieu of
attempting to effectuate personal service during the period of the extension, Rivera obtained
an order for publication of summons, filed July 12, 1991, which directed that service be
accomplished by publication in the Nevada Legal News and by direct mail to McNair's
address.
__________

1
McNair had been released from custody on bail, pending his appeal.
directed that service be accomplished by publication in the Nevada Legal News and by direct
mail to McNair's address.
The order of publication was supported by an Affidavit for Publication of Service of
Rivera's counsel averring that:
[d]espite repeated attempts the defendant has repeatedly avoided service of the
amended complaint as seen by the affidavit of due diligence (Exhibit A). Discussions
with defendant's counsel regarding this service problem are memorialized in a copy of
my May 14, 1991, letter to Roy Smith (Exhibit B) and a copy of his May 27, 1991,
letter to me (Exhibit C) attached hereto.
(Emphasis added.)
The affidavit of due diligence referenced by Rivera's counsel in his affidavit in support of
the order of publication was dated April 22, 1991, and stated simply that Rivera's process
server had attempted to serve McNair at the oral hearing of his criminal appeal before this
court, almost three months before the court's second extension of time for service, but that
McNair was not present. This is the only documented evidence on the record before us of an
attempt to serve McNair between March 6, the date of the first extension of time for service,
and July 12, the date of the order allowing service by publication.
2
There is no
documentation of any attempt to serve McNair following the court's second extension of time
for service.
The referenced letter to Roy Smith, who was McNair's attorney before the Medical-Legal
Screening Panel, declared the difficulty Rivera's counsel was having in attempting to serve
McNair, but documented no specific attempts to do so. Moreover, the letter contended that
McNair's appearance before the screening panel constituted an appearance that was
tantamount to service under NRCP 5, rather than NRCP 4.
Smith disagreed in response and stated that his firm had not yet decided whether to
represent McNair in the civil action. Nevertheless, Smith requested that Rivera's counsel not
seek a default judgment against McNair without providing his firm with three days' notice
of the intent to do so.3
__________

2
It should be noted that Rivera's application in support of the lower court's second (July 3, 1991) extension of
time for service of process was not included in the record on appeal. Thus, because McNair did not include this
document in the designation of contents of record on appeal, and because Rivera did not file a supplemental
designation, as allowed by NRAP 10(a), this court has not been made cognizant of any additional attempts at
service which might have been documented by this application. However, according to one of McNair's
pleadings below, the court's July 3rd order was issued in response to an application filed the same day and
supported by an affidavit of due diligence signed on April 22, 1991. If this is correct, it appears that the affidavit
of due diligence in support of Rivera's affidavit for publication of service was the same affidavit of due diligence
which had been used to support the second extension of time for service.
judgment against McNair without providing his firm with three days' notice of the intent to do
so.
3

After service by publication had been accomplished and McNair failed to answer, default
was entered against him on September 7, 1991. Shortly thereafter, the court held a prove-up
hearing and entered default judgment against McNair in the amount of $5,000,000. Although
McNair has not supplied this court with a transcript of the hearing upon which the judgment
was based, the court apparently heard the testimony of Carol McKeever of Clark County's
Rape Crisis Center regarding the effect of the rape on Rivera, and also reviewed the transcript
of McNair's criminal trial.
Some five months later, on February 12, 1992, McNair unsuccessfully filed a motion to
vacate the default and set aside the judgment. The order denying the motion chastised McNair
for waiting five months to set aside the judgment, stating it was
clear that Dr. McNair was aware of the judgment against him. This case was one of
great public interest, and the judgment received media attention . . . . After the news
stories, [bail] hearings were held in the criminal prosecution against Dr. McNair . . . .
During at least one of [which] . . . Dr. McNair's criminal attorney discussed the default
judgment.
The court found the delay unreasonable, noting that
[s]etting aside the judgmenton a motion made five months laterwould destroy
[Rivera's] statutory lien and related security on Dr. McNair's property. This would give
Dr. McNair the opportunity to dispose of his property before a new judgment could be
entered, thus forever depriving Ann Rivera of compensation for what her doctor did to
her.
However, in consideration of McNair's interests, the court declared a willingness to set aside
the default judgment and hold a new prove-up hearing provided McNair would agree to one
of two conditions. McNair could either post sufficient security, in the form of a $750,000
bond, or, in the alternative, any modification of the $5,000,000 award following the prove-up
hearing would relate back to the original judgment, thus preserving the priority and integrity
of Rivera's lien and security in McNair's property.
Rather than accepting either of the alternatives, McNair appealed.
__________

3
Following this court's opinion in Rivera's action against McNair's insurance company, Smith apparently
determined that he would not be defending McNair in the civil action.
DISCUSSION
[Headnote 1]
McNair insists that service by publication was improper and ineffectual because the order
authorizing publication was not adequately supported by evidence of due diligence in
attempting to personally serve McNair, as required by NRCP 4(e)(1)(i).
4
McNair thus
concludes that the default judgment must be set aside.
Although Rivera has documented several unsuccessful attempts to serve McNair at his
residence prior to March 6, 1991, these attempts are not at issue here, having formed the basis
for the uncontested March 6, 1991, order extending the time of service. The issue of moment
concerns Rivera's utilization of the added service time provided by the court's extensions. The
district court entered two orders extending the time for service of process which, in
combination, gave Rivera between March 6, 1991, and September 14, 1991, to personally
serve McNair. However, the only documented evidence of any attempt to serve McNair
during this six-month time period is the Affidavit of Due Diligence attached to Rivera's
counsel's affidavit for publication of summons, which lists only one attempt on the part of
Rivera to serve McNair during the time covered by the first extension and no attempt at
service following the second extension.
5

The affidavit for publication of service was filed three months after this one attempt to
serve McNair, on July 12, 1991, with over two months remaining on Rivera's latest extension
of time to effectuate service.
__________

4
NRCP 4(e)(l)(i) provides in pertinent part as follows:
(1) Service by Publication.
(i) General. When the person on whom service is to be made resides out of the state, or has departed
from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the
service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge
thereof, and it shall appear . . . by a verified complaint on file, that a cause of action exists against the
defendant in respect to whom the service is to be made . . . such court or judge may grant an order that
the service be made by the publication of summons.
(Emphasis added.)

5
The Affidavit of Due Diligence provided:
Affiant recived [sic] a Summons & Complaint to be served upon Kimble McNair at North Las Vegas,
Suprem [sic] Court on the l0th day of April, 1991[.] Affiant attempted services [sic] on McNair 11th day
of April, McNair did had [sic] a Court case at North Las Vegas, Suprem [sic] Court but did not appear
personnaly [sic], and was represented by his attorney, Affiant was told not to served [sic] his attorney for
he could not accepted [sic] service of process on behalf of McNair.
effectuate service. The single effort referenced in the affidavit of due diligence clearly falls
short of that required by NRCP 4(e)(1)(i). As this court stated in Price v. Dunn, 106 Nev.
100, 103, 787 P.2d 785, 787 (1990): Where other reasonable methods exist for locating the
whereabouts of a defendant, plaintiff should exercise those methods. When a plaintiff fails
to do this, an affidavit [which] technically complies with NRCP 4(e)(1)(i) is insufficient to
overcome the fact that the plaintiff's actual efforts, as a matter of law, fall short of the due
diligence requirement to the extent of depriving [a defendant] of his fundamental right to due
process. Id.
6

Rivera paints an appellate picture of McNair as a man who made continuous efforts to
evade counsel's persistent attempts to have him personally served. Unfortunately, this picture
is not supported by any affidavit or other evidence cognizable by this court that shows any
real diligence in attempting to serve McNair during the six-month period granted by the
court's two extensions.
McNair was a convicted criminal, who, although out on bail, was nevertheless under
obvious restrictions that would hardly render him impervious to diligent and resourceful
efforts to serve him with civil process. McNair states, for example, that he was required
during this time to report daily and in person to Intake Services at the Clark County Detention
Center. While McNair has provided no documentation of this allegation, it is likely that some
such restriction would be placed upon a person in his situation. The anemic efforts to
effectuate service on McNair, especially with six months to accomplish the task, is analogous
to the situation in Price, where the plaintiff attempted to determine the location of the
defendant by searching the telephone book, the power company records, and making one
phone call to the defendant's stepmother.
__________

6
When the inadequacy of the affidavit of due diligence was discussed during oral argument, Rivera's counsel
argued that his own cover Affidavit for Publication of Summons should serve as evidence of further attempts
to serve McNair. However, the latter affidavit clearly references the affidavit of due diligence for proof of its
claims, stating that the repeated attempts to serve McNair are seen by the affidavit of due diligence.
Counsel's cover Affidavit for Publication of Summons does not, in and of itself, contain any further allegations
of any other attempts to serve McNair. The cover affidavit also references a May 14, 1991 letter to McNair's
former counsel, Roy Smith. This letter, however, while stating that [w]e have been attempting to serve Dr.
McNair for some time and at considerable expense[,] lacks any specific allegations of attempts to serve
McNair. In short, the cover affidavit fails to attest to any specific evidence of attempts to personally serve
McNair.
Moreover, although there is no indication in the record that McNair raised the sufficiency of the affidavit of due
diligence in his motion to set aside the default judgment, Rivera's argument that the issue was not properly
preserved for appeal must fail since the district court's issuance of the order for service by publication on an
inadequate affidavit is plain error. See, e.g., Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991) (court
may review plain error and constitutional error sua sponte).
the situation in Price, where the plaintiff attempted to determine the location of the defendant
by searching the telephone book, the power company records, and making one phone call to
the defendant's stepmother. There were no attempts to make additional, simple efforts such
as calling other known relatives or consulting the phone book covering the area of the
defendant's residence, once informed thereof by the call to the stepmother. Price, at 103, 787
P.2d at 787. We must conclude from the evidence of record that there was no adequate
showing of due diligence to support an order for service by publication.
[Headnote 2]
Further support for the result we are forced to reach on appeal is found in Rivera's failure
to follow the terms of NRCP 55(b)(2), which provides, in pertinent part:
(b) Judgment. Judgment by default may be entered as follows:
. . . .
(2) By the Court. In all other cases the party entitled to a judgment by default shall
apply to the court therefor . . . . [i]f the party against whom judgment by default is
sought has appeared in the action, he (or, if appearing by representative, his
representative) shall be served with written notice of the application for judgment at
least 3 days prior to the hearing on such application. . . .
We conclude that Rivera violated this statute by not providing McNair with three days'
notice of the prove-up hearing, thus rendering the default judgment void (Christy v. Carlisle,
94 Nev. 651, 654, 584 P.2d 687, 689 (1978)), and subject to a motion for relief under NRCP
60(b)(3).
In ruling as we do, it is necessary to address the issue of whether McNair had appeared in
the action for purposes of NRCP 55(b)(2). Rivera does not contest McNair's disavowal of
notice of the prove-up hearing, but argues instead that no notice was required since McNair
had not appeared in the action. This court has construed the proposition of what constitutes an
appearance broadly:
An appearance for purposes of NRCP 55(b)(2) does not require a presentation or
submission to the court; indeed, a course of negotiation between attorneys is sufficient
to constitute an appearance for purposes of NRCP 55(b)(2) where the defendant has
indicated a clear purpose to defend the suit.
Gazin v. Hoy, 102 Nev. 621, 624, 730 P.2d 436, 438 (1986) (citing Franklin v. Bartsas
Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979)).
McNair contends that, under this standard, an appearance was entered by him pursuant to
the correspondence exchanged between Rivera's counsel and McNair's former counsel, Roy
Smith. Specifically, on May 14, 1991, Rivera's attorney, Daniel F. Polsenberg, sent the
following letter to Roy E. Smith, who had represented McNair before the Medical-Legal
Screening Panel:
Dear Roy:
We have been attempting to serve Dr. McNair for some time and at considerable
expense. His efforts to avoid service are so successful, we simply cannot pursue this
course any longer.
In my legal opinion, by defending before the Medical Legal Screening Panel, Dr.
McNair has appeared in this case. Therefore, we consider him served under NRCP Rule
5, rather than Rule 4.
Enclosed is another copy of the amended complaint. We will extend to you another
20 days from the receipt of this letter in which to answer or otherwise respond to the
complaint. If you do neither, I will enter a default against Dr. McNair and proceed
accordingly.
Thank you for your attention to this matter.
On May 27, 1991, following the receipt of Polsenberg's letter, Smith responded as follows:
Dear Dan:
This will confirm our various telephone conferences on May 21, 1991, regarding the
above-referenced case, and, in particular, your letter dated May 14, 1991. As you are
well aware, I certainly disagree with you that our representation of Dr. McNair before
the Medical Legal Screening Panel constitutes a general appearance in the pending
Eighth Judicial District Court case. I believe this firm has repeatedly advised you that
until Dr. McNair, in fact, is personally served that no decision would be made regarding
this firm's representation of Dr. McNair. In any event, it appears that the issues set forth
in your May 14, 1991 letter have, at least temporarily, been resolved: it is my
understanding that you will apply for, and presumably obtain, an Order from Judge
Bonaventure extending your time to serve Dr. McNair for up to 30 days following the
decision of the Supreme Court of Nevada on the pending declaratory relief action. At
that time, and depending on what the Supreme Court does, we will once again discuss
your May 14, 1991, letter. While we await a Supreme Court Order, this will confirm
that you will not enter a default against Dr. McNair without providing the undersigned
with three-days [sic] notice of your intent to do so.
undersigned with three-days [sic] notice of your intent to do so.
Dan, I really appreciate your cooperation on this matter, and, as always, if you have
any questions or comments, please feel free to contact me.
One might conclude that Smith's letter fails to indicate a clear purpose to defend the suit
in stating that no decision had been made regarding whether Smith would continue to
represent McNair, a decision which was eventually made in the negative. The district court so
construed the letter, signing an order stating that Smith's letter failed to indicate an intent to
defend. Although we understand the basis for the district court's ruling, we do not agree with
the result reached by the lower court.
Given the underlying policy to have each case decided upon its merits (Christy, at 654,
584 P.2d at 689), we conclude that Smith's confirmation to Polsenberg that Smith would
receive three days' notice before the entry of any default against his client should be
recognized as an obligation of notice prior to default, irrespective of the possibility that Smith
would not be representing McNair at the time of the notice. At least Smith impliedly took
upon himself the responsibility of apprising McNair of Rivera's intent to seek default even if
other counsel then represented McNair.
Moreover, in his letter to Smith, Rivera's counsel stated that it was his legal opinion that
McNair had made an appearance in the case by defending before the Medical-Legal
Screening Panel. Whether right or wrong, the expression of that conclusion should have
caused Rivera's counsel to realize that he had provided the necessary foundation for giving
McNair the three-day notice required for any defendant who has made an appearance.
7

[Headnote 3]
In addition to the issues previously discussed, Rivera urges the proposition that,
notwithstanding the validity of any of McNair's grounds for setting aside the default
judgment, the district court did provide for the setting aside of the judgment under conditions
fashioned to protect the interests of both parties.
__________

7
Although Rivera's counsel contends that Smith later convinced him that McNair's appearance before the
Medical-Legal Screening Panel was not an appearance for purposes of NRCP 55(b)(2), and that the district court
so found, it is clear from Smith's letter that the two still disagreed on this point at the time Smith wrote his
letter. In any event, such an unexpressed change of opinion by Rivera's counsel, unaccompanied by any
communication to Smith indicating that no notice of intent to take a default would be given, provides no basis, in
law or equity, for favoring the validity of Rivera's position.
fashioned to protect the interests of both parties. Rivera accordingly maintains that overall,
the district court acted wisely and within its sound discretion in imposing just terms'' on
McNair's right to a hearing.
8

Rivera emphasizes that McNair's liability for Rivera's injuries is conclusively established
by statute,
9
and that the only issue McNair may contest at a hearing is the amount of Rivera's
damages. Rivera suggests that the district court order conditionally vacating the default
judgment and providing for a new prove-up hearing protects and advances McNair's interest
in contesting the amount of any damage award while protecting Rivera's right to be assured of
some means of satisfying her judgment. Rivera supports her position by citing to various
commentaries and case law regarding the setting aside of default judgments under the federal
rules of civil procedure.
10

Unfortunately, the district court's final order, with its attendant conditions, is not a
sustainable order, however equitable its intent. Because the default judgment was void,
having been entered without notice of prove-up hearing and following an erroneously entered
order to allow service by publication, any conditions placed upon an order setting aside the
judgment are likewise void. The legally dead default judgment may not be a source of life to
another order that purports to provide life support to the original judgment unless certain
conditions are accepted by McNair.
__________

8
NRCP 60(b) provides that relief from a final judgment should be granted upon such terms as are just.

9
NRS 41.133 provides that [i]f an offender has been convicted of the crime which resulted in the injury to the
victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for the
injury.

10
For example, according to 7 James W. Moore & Jo Desha Lucas, Moore's Federal Practice 60.19 (2nd ed.,
1993), one of the factors a district court should consider in determining whether to set aside a default judgment
is whether there are any intervening equities which make it inequitable to grant relief . . . .
Additionally, it has been stated that:
Relief from a judgment is to be upon such terms as are just. Thus the court, in addition to its general
discretion whether to open a judgment, has further discretion to impose such conditions as it deems fit,
with the moving party then giv[en] the choice either of complying with the conditions or allowing the
judgment to stand.
11 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure 2857 (1973). Accordingly, it has
been held that [i]n granting a motion to vacate a default judgment the District Court may impose reasonable
conditions . . . . It may also be appropriate, in some cases, for the defendant to be required to post bond to secure
the amount of the default judgment pending trial on the merits. Thorpe v Thorpe, 364 F.2d 692, 694 (D.C. Cir.
1966).
accepted by McNair. Accordingly, we are compelled to reverse the district court's order and
require that the default judgment be set aside unconditionally.
We are aware of the unfortunate consequences which may result from this decision.
Although Rivera's cause of action against McNair is not lost, her ability to satisfy any future
judgment against McNair may be in severe jeopardy. This we deeply regret. Nevertheless,
McNair is entitled to the procedural protections of the law. It is this court's often unhappy
duty to uphold the law even in instances where, in the name of equity, we would prefer to
ignore it.
CONCLUSION
The district court's order is reversed, and this matter is remanded to the district court with
instructions to enter an order unconditionally granting McNair's motion to set aside the
default judgment.
____________
110 Nev. 473, 473 (1994) State, Dep't of Mtr. Vehicles v. Lovett
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. ROBERT E. LOVETT, Respondent.
No. 23669
May 19, 1994 874 P.2d 1247
Appeal from an order of the district court reversing a hearing officer's order upholding the
revocation of respondent's driving privileges by the Department of Motor Vehicles. Eighth
Judicial District Court, Clark County; Gerard Bongiovanni, Judge.
Motorist sought judicial review of the Department of Motor Vehicles and Public Safety
(DMV) decision revoking motorist's driver's license for his refusal to submit to blood alcohol
test requested by federal park service ranger. The district court reversed, and appeal was
taken. The supreme court held that federal park service ranger is a police officer within
meaning of state statute defining that term and as a result, ranger may be considered agent of
the DMV in revoking driving privileges of motorist.
Reversed.
Frankie Sue Del Papa, Attorney General, and Laurie B. Foremaster, Deputy Attorney
General, Carson City, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
Construction of statute is question of law subject to de novo review. NRS 233B.135(3)(d).
2. Statutes.
Where statute is susceptible to more than one interpretation, it should be construed in line with what reason and public policy
would indicate legislature intended.
3. Statutes.
Statutes are generally construed with view of promoting, rather than defeating, legislative policy behind them.
4. Automobiles.
Since federal park service ranger is authorized by federal regulations to make arrests within his territory for violations of state
traffic laws, federal park ranger is a police officer within meaning of state statute defining police officer as any officer authorized to
make arrests for violations of traffic laws and as a result, park ranger may be considered agent of the Department of Motor Vehicles
and Public Safety (DMV) in revoking driving privileges of motorists. NRS 484.118.
5. Criminal Law.
Assimilative Crimes Act is not implicated when there are governing federal regulations. 18 U.S.C. 13.
6. Automobiles.
Motorist is deemed under Nevada law to have given consent to blood alcohol test so long as that test is requested by individual
determined to be a police officer under state law and since federal park service ranger so qualified, state Department of Motor
Vehicles and Public Safety (DMV) was entitled to revoke motorist's driver's license for motorist's refusal to submit to blood alcohol
test when requested to do so by ranger. NRS 484.118, 484.383.
7. States.
Federal preemption analysis is, fundamentally, a task of statutory construction and there is reluctance to find federal preemption of
otherwise legitimate state action in ambiguous cases.
8. Automobiles; States.
Since dual federal and state sanctions for refusing to submit to blood alcohol test neither conflict with nor duplicate each other,
they may coexist without frustrating the purpose of either scheme or the authority of either sovereign and absent clear signal from
Congress that it intended federal regulations to preempt revocation of state issued driver's license, there is no federal preemption.
OPINION
Per Curiam:
The State of Nevada, Department of Motor Vehicles and Public Safety (DMV), asks this court to hold that federal park rangers are
police officers within the meaning of the Nevada implied consent laws, and that they are therefore authorized to serve as agents of the
DMV in revoking the driving privileges of Nevada motorists.
motorists. We hold that the broad language of the relevant statutes supports this construction.
In addition, we find no persuasive reason to hold that applicable federal regulations were
intended to thwart a state's interest in revoking the state driver's license of a suspected drunk
driver who refuses to submit to an evidentiary test to determine blood alcohol level, even
when that test was requested by a federal park service ranger. Accordingly, we reverse the
district court's order reversing the revocation of respondent's driving privileges by the DMV.
On May 6, 1991 National Park Service Ranger Ryan Regnell (Regnell) arrested
respondent Robert Edward Lovett (Lovett) for operating a motor vehicle while under the
influence of alcohol in the Lake Mead National Recreation Area (LMNRA), in violation of
36 C.F.R. 4.23 (1992).
1
Although Regnell initiated the stop inside the LMNRA, Lovett did
not stop until he was outside the federal park. Regnell took Lovett into custody, issued a
federal citation and explained Lovett's obligation to provide samples of his blood alcohol
content under federal law and under the Nevada implied consent statutes.
2
Lovett refused to
give samples that would indicate blood alcohol content, stating that he would rather lose his
license than take any test.
Regnell then served Lovett with a Notice of Revocation of driver's license, and completed
an Officer's Certification of Cause form, mandatory procedures for police officers under the
Nevada implied consent statutes. Regnell, as agent for the DMV, then seized Lovett's
license.
3
A DMV hearing officer upheld the revocation on administrative review. The
district court granted Lovett's petition for judicial review, reversed the hearing officer and
reinstated Lovett's driving privileges, and the state appealed.
__________

1
36 C.F.R. 4.23 (1992) provides, in relevant part, that [o]perating or being in actual physical control of a
motor vehicle is prohibited while . . . [u]nder the influence of alcohol . . . .

2
NRS 414.383, the state statute imposing this obligation, provides that any person who drives . . . 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 [to determine] the alcoholic content of his blood . . . .
36 C.F.R. 4.23(c)(1), (2) (1992), the federal provisions requiring blood testing, provide that [a]t the request .
. . of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park
area [is driving while under the influence] the operator shall submit to [a test].''

3
NRS 484.385(1) provides that, As agent for the department, the officer who directed that a test be given . . .
shall immediately serve an order of revocation of the license . . . on a person who fails to submit to the test . . .
[and] shall immediately transmit the person's license . . . to the department along with [a] written certificate [of
cause].
[Headnote 1]
Construction of a statute is a question of law subject to de novo review. NRS
233B.135(3)(d); American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301,
1302 (1983). Accordingly, we consider anew the arguments raised by Lovett below.
Lovett argues that a federal officer may not revoke his license because the state implied
consent statutes have not been incorporated into federal law. He relies on federal authority
to support this position. We note at the outset, however, that this case is fundamentally
different from the federal cases involving license revocation. See infra. In the instant case it
was the state, not the federal government, that revoked Lovett's license. Thus, we view the
dispositive inquiry to be whether Nevada law provides that federal rangers are police officers.
If the Nevada statute so provides, federal rangers are authorized to act as agents in seizing and
revoking a Nevada driver's license on behalf of the state, specifically the DMV. We conclude
that the broad language in the relevant statutes permits this construction.
The Nevada implied consent statute provides that any driver on a highway or other
premises to which the public has access, is deemed to have given consent to an evidentiary
test to determine blood alcohol level, when such test is administered at the direction of a
police officer having reasonable grounds to believe that the person [was driving while under
the influence]. NRS 484.383 (emphasis added). If a driver refuses a test, the requesting
officer must revoke the driver's license. NRS 484.384.
4

Police officer is defined, in the traffic laws chapter of the Nevada statutes, as every
officer authorized to direct or regulate traffic or to make arrests for violations of traffic laws,
ordinances or regulations. NRS 484.118 (emphasis added). Park service rangers are
authorized by federal regulations to make arrests within their territories for violations of state
traffic laws. These regulations provide that [u]nless specifically addressed by regulations in
this chapter, traffic and the use of vehicles within a park area are governed by State law . . . .
Violating a part of State law is prohibited. 36 C.F.R. 4.2(a), (b) (1992).
The DMV argues that because federal rangers are authorized to make arrests for violations
of traffic laws, that Regnell falls within the definition of police officer. The plain meaning
of the
__________

4
The police officer must serve an order of revocation of driver's license on the person who failed to submit to
an evidentiary test, and must seize the license. NRS 484.385(1). The officer must also transmit the license to the
DMV, together with a written certificate that the officer had reasonable grounds to believe the person had been
driving while under the influence and refused to submit to a blood alcohol test. NRS 484.385(2)(b).
text supports this construction. Lovett argues that the provision was intended to apply only to
state police officers. He also relies on the text of the statute for his position.
The statute does not, on its face, apply only to state police officers; nor does it apply to
officers authorized only by the state to make arrests for violations of state traffic laws. Lovett
does not point to text or legislative history to support his position, which is at odds with the
plain meaning of the statute.
[Headnotes 2, 3]
Lovett appears to argue that the statute is open to varying interpretations. Although we
consider the statute to be sufficiently clear, we also note that where a statute is susceptible to
more than one interpretation it should be construed in line with what reason and public
policy would indicate the legislature intended. State, Dep't Mtr. Vehicles v. Vezeris, 102
Nev. 232, 236, 720 P.2d 1208, 1211 (1986). Moreover, statutes are generally construed with a
view to promoting, rather than defeating, legislative policy behind them. Ebarb v. State, Dep't
of Mtr. Vehicles, 107 Nev. 985, 987, 822 P.2d 1120, 1122 (1991).
This court has liberally construed the implied consent statutes to advance the goal of
keeping drunk drivers off the streets. State, Dep't of Mtr. Vehicles v. Kinkade, 107 Nev. 257,
259, 810 P.2d 1201, 1202 (1991); Ebarb, 107 Nev. at 987, 822 P.2d at 1122. Construing the
instant provision to include federal officers as police officers within the meaning of Nevada
law advances this goal. In the absence of any indication by the legislature that federal officers
are not to be considered police officers under the statute, we decline to construe the statute
narrowly to defeat this purpose.
[Headnote 4]
Accordingly, we conclude that a federal park service ranger is a police officer within the
meaning of the Nevada statute defining that term. As a result, a park ranger may be
considered an agent of the department in revoking a license.
Lovett argues that Regnell could not revoke his driver's license under Nevada's implied
consent provision, because that provision has not been incorporated into federal law. In this
case, however, Regnell did not read the implied consent admonishment and revoke Lovett's
license under his authority as a federal officer. He was acting as an agent of the state DMV,
which revoked Lovett's license. This distinction is fundamental.
Lovett cites a number of cases holding that license revocation schemes have not been
incorporated into federal law under the Assimilative Crimes Act, 18 U.S.C. 13 (1988) (the
Act), and that federal judges are therefore without jurisdiction to revoke a state license.
See, e.g., U.S. v.
and that federal judges are therefore without jurisdiction to revoke a state license. See, e.g.,
U.S. v. Snyder, 852 F.2d 471, 474-75 (9th Cir. 1988); U.S. v. Rowe, 599 F.2d 1319, 1320
(4th Cir. 1979); U.S. v. Best, 573 F.2d 1095, 1100 (9th Cir. 1978); U.S. v. Love, 141 F.R.D.
315 (D. Colo. 1992). Under these cases, federal courts were prohibited from revoking
state-issued driver's licenses based upon state implied consent laws because such revocation
is administrative, and is not a criminal punishment within the meaning of the Act. Id.
We do not dispute that these cases appropriately concluded that federal judges lack
authority to revoke a state-issued driver's license as punishment for a federal offense.
However, it is one matter to limit a federal judge to federal sanctions when sentencing a
defendant charged under federal law; it is quite another to hold that Congress intended to
foreclose legitimate state action through failing to incorporate implied consent laws into
federal law.
[Headnote 5]
In any event, the Act is not implicated when there are governing federal regulations. See
U.S. v. Palmer, 945 F.2d 246 (9th Cir. 1991) (federal regulations, not the Act, were
applicable when defendant charged with driving under the influence in national park); U.S. v.
Spivey, 781 F.Supp. 676, 678 (D. Haw. 1991). The National Park Service has enacted
regulations to govern traffic and the use of vehicles in the federal parks. See Palmer, 945
F.2d at 246; 36 C.F.R. 4.2. (1992). These regulations therefore govern this controversy.
The mandate of the regulations governing traffic in federal parks is broad. The regulations
provide that all state traffic and vehicle laws are applicable in federal parks except those
specifically addressed in the regulations. See Palmer, 945 F.2d at 246; 36 C.F.R. 4.2
(1992). The regulations do not purport to limit the applicability of state law to substantive
criminal measures alone. See 52 Fed. Reg. 10,675 (1987) (qualifications of those
administering tests and their liability left to state law and stricter state intoxication levels
supercede federal law). Nor do the regulations specifically address implied consent or license
revocation.
We view the implied consent provisions as applicable to Lovett's conduct, even if Regnell
or the federal district courts would be powerless to revoke his driver's license thereunder. See
Snyder, 852 F.2d at 474-75 (even if federal law incorporated administrative sanctions
federalism principles would preclude federal revocation of a state license); U.S. v. Knott, 722
F. Supp. 1365, 1366-67 (E.D. Va. 1989) (only federal law may give federal court power to
revoke state driver's license); Love, 141 F.R.D. at 31S {federal judge may not revoke state
license under regulations).
318 (federal judge may not revoke state license under regulations).
[Headnote 6]
As a result, Lovett was deemed under Nevada law to have given consent to a blood alcohol
test, so long as that test was requested by an individual determined to be a police officer
under state law. Since we have held that Regnell so qualifies, the state DMV was entitled to
revoke Lovett's license for his refusal to submit to the test. As a result, Lovett's incorporation
argument must fail.
[Headnote 7]
Moreover, Lovett's incorporation argument, as applied to the regulations, is more properly
styled as a preemption argument, involving an inquiry into whether the controverted
provision was specifically addressed in the regulations. Preemption analysis is,
fundamentally, a task of statutory construction. See Laurence Tribe, American Constitutional
Law 6-29 at 510 (2d ed. 1988). In addition, there is a reluctance to find preemption of
otherwise legitimate state action in ambiguous cases. See id. 6-25 at 479.
The regulations provide that [u]nless specifically addressed by regulations in this chapter,
traffic and the use of vehicles within a park area are governed by State law . . . . 36 C.F.R.
4.2 (1992), (emphasis added). The comments to the rulemakings further explain that state
traffic provisions are superceded by the regulations where state provisions conflict with or
duplicate provisions of the federal regulations. See 52 Fed. Reg. 10,678 (1987) ([these
regulations] supersede any State . . . provisions that might conflict with or duplicate these
sections and must be applied by NPS law enforcement personnel in lieu of State law).
Although sanctions for refusing to submit to a blood alcohol test are addressed in the
regulations, implied consent and license revocation are not specifically addressed.
Moreover, the state provision resulting in revocation of a state-issued driver's license neither
duplicates nor conflicts with federal sanctions. Federal sanctions under the regulations are
limited to admissibility of the fact of refusal at trial and issuance of a citation for failure to
submit to a requested blood alcohol test. 36 C.F.R. 4.23(c)(2) (1992).
5
When a motorist is
prosecuted in a federal forum, however, state sanctions are limited to license revocation.
__________

5
Federal judges may also revoke the driving privileges of a driver who failed to submit to a requested blood
alcohol test, limited to the federal enclave, under a section of the United States Code. See 18 U.S.C. 3118
(1993). However, as the sanction is limited to the federal enclave and is only
[Headnote 8]
Since the dual sanctions neither conflict with nor duplicate each other, they may co-exist
without frustrating the purpose of either scheme or the authority of either sovereign. As a
result, we decline to find that Congress intended to preempt the authority of a state to revoke
a state-issued driver's license when a suspected drunk driver refuses to submit to a blood
alcohol test. In the absence of a clear signal from Congress that it intended the federal
regulations to preempt revocation of a state-issued driver's license by the issuing state, we
decline to find preemption.
We conclude that the state action in revoking Lovett's license was proper under the
relevant statutes and regulations. Accordingly, we reverse the district court order reinstating
Lovett's driving privileges and remand to the district court with instructions to issue an order
reinstating the order of the DMV hearing officer upholding the revocation of Lovett's license.
I dissent because a park ranger is not a police officer, as defined by NRS 484.383, and,
as a federal officer, does not have the state power to carry out the tests and directions
provided in that statute.
A federal officer made the arrest in this case pursuant to federal law. In the park area
federal regulations have adopted state traffic laws, and violating state traffic laws is
prohibited in the park. Thus, violating state traffic laws (by, for example, driving on the
wrong side of the road) constitutes violation of federal regulations and subjects the offender
to federal sanctions. Federal enforcement officers are necessarily enforcing federal traffic
laws; they are, of course, not empowered by either the state or the federal government to
enforce state traffic laws.
Lovett was prosecuted under federal law; but, because Lovett was also found driving under
the influence outside of the federal reservation and in state territory, the federal officer
undertook to enforce state law by carrying out the functions of state police officers that are
authorized under our state statute, NRS 484.383. The officer in this case is a federal officer
and not a state police officer and as such has no authority to enforce state law. The same
situation would arise if a Texas Ranger attempted to enforce a Las Vegas traffic ordinance in
Las Vegas. The federal officer has no authority to act as state police officer in this case,
unless, of course, he has been deputized as a state officer and is thus empowered to
enforce Nevada law.
__________
enforceable by a federal judge, this provision does not conflict with or duplicate the state's broader sanction of
revoking the license altogether.
case, unless, of course, he has been deputized as a state officer and is thus empowered to
enforce Nevada law.
I gather from the record that the practice of allowing federal park officers to act as state
agents or officials in cases like this is as a matter of convenience. This practice is clearly out
of order, however, and should be discontinued. I will not elaborate further, as I believe to be
highly probable that when the appropriate federal officials get a copy of this Opinion, they
will see the obvious and understand that federal officers have no power to enforce state law.
This unlawful practice will then be stopped, and the problem will go away.
____________
110 Nev. 481, 481 (1994) Vacation Village v. Hitachi America
VACATION VILLAGE, INC., dba VACATION VILLAGE HOTEL & CASINO, and C.E.H.
PROPERTIES, LTD., Appellants, v. HITACHI AMERICA, LTD., Respondent.
No. 23876
May 19, 1994 874 P.2d 744
Appeal from an order of the district court dismissing appellants' complaint for failure to
state a claim upon which relief can be granted. Eighth Judicial District Court, Clark County;
Thomas A. Foley, Judge.
Casino sued telephone equipment manufacturer for breach of implied warranty of
merchantability. The district court dismissed for failure to state claim. Casino appealed. The
supreme court held that casino was lessee under finance lease with finance company, and thus
implied warranty extended to casino.
[Rehearing pending]
David Gzesh, Las Vegas, for Appellants.
Lefebvre, Barron & Oakes and Charles F. Burrows, Las Vegas, for Respondent.
1. Bailment.
Agreement between casino and finance company was finance lease, where casino assigned its right to purchase telephone system
and related equipment to finance company, from whom casino had agreement to lease equipment. Finance company did not select,
manufacture or supply equipment but rather merely provided casino with financial assistance necessary to accommodate acquisition of
equipment, and casino directed finance company where to acquire equipment. NRS 104A.2103(1)(g).
Standard of review for dismissal for failure to state claim is rigorous, as reviewing court must construe pleading liberally and draw
every fair intendment in favor of non-moving party. NRCP 12(b)(5).
On review of dismissal for failure to state claim, all factual allegations of complaint must be accepted as true. NRCP 12(b)(5).
Complaint will not be dismissed for failure to state claim unless it appears beyond doubt that plaintiff could prove no set of facts
which, if accepted by trier of fact, would entitle him or her to relief. NRCP 12(b)(5).
On appeal from order granting motion to dismiss for failure to state claim, sole issue presented is whether complaint states claim
for relief. NRCP 12(b)(5).
On review of dismissal for failure to state claim, supreme court's task is to determine whether challenged pleading sets forth
allegations sufficient to make out elements of right to relief. NRCP 12(b)(5).
7. Pleading.
Test for determining whether allegations of complaint are sufficient to assert claim for relief is whether allegations give fair notice
of nature and basis of legally sufficient claim and relief requested. NRCP 12(b)(5).
8. Bailment.
Implied warranty of merchantability for business telephone system and related equipment extended to casino, as lessee under
finance lease with finance company, where manufacturer manufactured and supplied finance company with telephone equipment that
was subject matter of finance lease. Fact that lease agreement provided that finance company was not required to enforce
manufacturer's warranties on behalf of itself or casino did not change result. NRS 104.2314, 104.2315, 104A.2209.
9. Bailment.
Casino, as lessee of telephone equipment under finance lease with finance company, could bring complaint against equipment
manufacturer for breach of implied warranty of merchantability, despite casino's lack of privity with manufacturer. NRS 104A.2209.
OPINION
Per Curiam:
Appellant Vacation Village, Inc. negotiated the purchase of telephone equipment manufactured by respondent and supplied through a
third-party distributor. Then it assigned its right to purchase the equipment to General Electric Capital Corporation (GECC), from whom
Vacation Village had an agreement to lease the equipment. After the equipment was installed in Vacation Village's casino, a problem arose
with the operation and use of the equipment. Consequently, Vacation Village filed a complaint against respondent for breach of
the implied warranty of merchantability provided for under Nevada's Uniform Commercial Code.
against respondent for breach of the implied warranty of merchantability provided for under
Nevada's Uniform Commercial Code. Respondent asserted that the UCC does not apply to
leases and moved the district court for dismissal pursuant to NRCP 12(b)(5) for failure to
state a claim upon which relief can be granted. The district court granted respondent's motion
and the complaint was dismissed with prejudice. For reasons stated hereafter, the district
court's order of dismissal is reversed and remanded for proceedings consistent with this
opinion.
FACTS
Appellant Vacation Village, Inc. is a Nevada corporation doing business as Vacation
Village Hotel & Casino (Vacation Village), in Las Vegas, Nevada. C.E.H. Properties, Ltd. is
a Nevada limited partnership that owns real property upon which Vacation Village Hotel &
Casino is situated. Hitachi America, Ltd. (Hitachi) is a foreign corporation duly authorized to
transact business in Nevada.
[Headnote 1]
This dispute arose from a finance lease
1
entered into between Vacation Village and
GECC for the lease-purchase of a business telephone system and related equipment
(collectively referred to as the equipment) which were manufactured and supplied by
Hitachi. Vacation Village arranged for the purchase of the Hitachi equipment through RCA
Corporation. Vacation Village assigned its contract right to purchase the equipment to GECC.
GECC completed the purchase and then leased the equipment to Vacation Village, with an
option for Vacation Village to purchase the equipment upon lease expiration.
Shortly after the equipment was installed at Vacation Village, problems developed with its
operation and use. As a result, Vacation Village filed an action in the district court against
Hitachi alleging that Hitachi breached the implied warranty of merchantability by selling
GECC defective equipment which ultimately was leased to Vacation Village.
Hitachi moved the district court for dismissal pursuant to NRCP 12(b)(5), asserting that
Nevada's Uniform Commercial Code (UCC) and its implied warranties of merchantability do
not apply to leases; thus, appellant had failed to state a claim upon which relief could be
granted.
__________

1
GECC did not select, manufacture or supply the equipment that is the subject matter of the agreement between
GECC and Vacation Village. GECC merely provided Vacation Village with the financial assistance necessary to
accommodate the acquisition of the equipment. Moreover, Vacation Village directed GECC where to acquire the
equipment. Thus, the agreement between GECC and Vacation Village was a finance lease. See NRS
104A.2103(g).
apply to leases; thus, appellant had failed to state a claim upon which relief could be granted.
On October 15, 1992, the district court granted Hitachi's motion and dismissed Vacation
Village's complaint with prejudice, on the same grounds.
LEGAL DISCUSSION
[Headnotes 2-4]
The standard of review for a dismissal under NRCP 12(b)(5) is rigorous as this court
must construe the pleading liberally and draw every fair intendment in favor of the
[non-moving party].' Squires v. Sierra Nev. Educational Found., 107 Nev. 902, 905, 823
P.2d 256, 257 (1991) (quoting Merluzzi v. Larson, 96 Nev. 409, 411, 610 P.2d 739,
741(1980)). All factual allegations of the complaint must be accepted as true. Capital
Mortgage Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126 (1985). A complaint will not 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 [or her] to
relief. Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985) (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
[Headnotes 5-7]
On appeal from an order granting an NRCP 12(b)(5) motion to dismiss, [t]he sole issue
presented . . . is whether a complaint states a claim for relief. Merluzzi v. Larson, 96 Nev.
409, 411, 610 P.2d 739, 741 (1980), overruled on other grounds by Smith v. Clough, 106
Nev. 568, 796 P.2d 592 (1990). This court's task is to determine whether . . . the challenged
pleading sets forth allegations sufficient to make out the elements of a right to relief. Edgar,
101 Nev. at 227, 699 P.2d at 111. The test for determining whether the allegations of a
complaint are sufficient to assert a claim for relief is whether the allegations give fair notice
of the nature and basis of a legally sufficient claim and the relief requested. Ravera v. City of
Reno, 100 Nev. 68, 70, 675 P.2d 407, 408 (1984); see also Breliant v. Preferred Equities
Corp., 109 Nev. 842, 858 P.2d 1258 (1993); Western States Constr. v. Michoff, 108 Nev.
931, 936 P.2d 1220 (1992).
Warranty of merchantability
[Headnote 8]
Hitachi manufactured and supplied GECC with telephone equipment that was the subject
matter of the finance lease between Vacation Village and GECC. The UCC provides that
unless excluded or modified, there is an implied warranty that a good is merchantable and
suitable for the particular purpose for which it is sold.
which it is sold. See NRS 104.2314; NRS 104.2315. Nonetheless, Hitachi asserts that it was
not subject to the implied warranties under the UCC because the finance lease between
Vacation Village and GECC was a lease and not a sale. In support of this proposition, Hitachi
cites to U C Leasing, Inc. v. Laughlin, 96 Nev. 157, 160, 606 P.2d 167, 169 (1980), where
this court held that a true lease is not subject to the provisions of Nevada's UCC.
However, Hitachi's reliance on U C Leasing is misplaced. The precedent set forth in U C
Leasing has been abrogated by the subsequent enactment of NRS 104A (UCCLeases).
1989 Nev. Stat., ch. 166, 1 at 340. These statutes took effect on January 1, 1990, and
provide for an implied warranty of merchantability in finance lease agreements. See NRS
104A.2209. Vacation Village and GECC entered into the finance lease subsequent to the
enactment of NRS 104A, thus, the implied warranty of merchantabilily applies to the instant
situation.
Vertical privity
Hitachi asserts that the agreement between GECC and Vacation Village expressly provides
that GECC is not required to enforce the manufacturer's warranties on behalf of itself or on
behalf of Vacation Village, indicating that Vacation Village was not intended as a third-party
beneficiary of the agreement between Hitachi and GECC. However, Hitachi offers no
authority in support of this proposition. Moreover, whether GECC was required to enforce
Hitachi's warranties on behalf of Vacation Village is not dispositive of whether Hitachi's
warranties extend to Vacation Village.
[Headnote 9]
In pertinent part, NRS 104A.2209 provides that:
1. The benefit of the supplier's promises to the lessor under the supply contract and
of all warranties, whether express or implied . . . extends to the lessee to the extent of
the lessee's leasehold interest under a finance lease related to the supply contract . . . .
(Emphasis added.) Vacation Village is the lessee under a finance lease with GECC, and as
such, the implied warranties of merchantability extend to Vacation Village. In addition, this
court has held that lack of privity between the buyer and manufacturer does not preclude an
action against the manufacturer for the recovery of economic losses caused by breach of
warranties. Hiles Co. v. Johnston Pump Co., 93 Nev. 73, 79, 560 P.2d 154, 157 (1977)
(citations omitted). Thus, Vacation Village can bring a complaint against Hitachi for breach
of warranty despite Vacation Village's lack of privity with Hitachi.
a complaint against Hitachi for breach of warranty despite Vacation Village's lack of privity
with Hitachi.
CONCLUSION
Appellants' complaint sets forth allegations sufficient to make out the elements of a right
to relief. Moreover, appellants' complaint gave fair notice to respondent of the nature and
basis of a legally sufficient claim and the relief requested. Consequently, the district court's
dismissal of appellants' complaint for failure to state a claim upon which relief can be granted
was error. Accordingly, the district court's order of dismissal is reversed and remanded for
____________
110 Nev. 486, 486 (1994) Serrett v. Kimber
JAY SERRETT, Appellant, v. SHAYNE M. KIMBER and LIBERTY MUTUAL FIRE
INSURANCE COMPANY, Respondents.
No. 23938
May 19, 1994 874 P.2d 747
Appeal from summary judgment. Second Judicial District Court, Washoe County; Jerry
Carr Whitehead, Judge.
Insured filed action against automobile insurer, seeking to stack uninsured motorist
coverages for both of insured's vehicles covered by policy. The district court granted
summary judgment in favor of insurer. Insured appealed. The supreme court held that: (1)
anti-stacking provision of policy satisfied clarity and prominence requirements of statute
authorizing anti-stacking provisions, and (2) affidavit of insurer's employee was alone
insufficient to satisfy statutory requirement of single premium for valid anti-stacking
provision.
Robison, Belaustegui, Robb & Sharp, Reno, for Appellant.
Hamilton & McMahon, Reno, for Respondents.
If neither party disputes any material fact, then construction of insurance policy is reviewed solely as question of law.
2. Insurance.
Any ambiguities in insurance policy will be construed against insurer and in favor of insured.
3. Insurance.
Clarity requirement of statute authorizing anti-stacking provisions in insurance policy requires that anti-stacking
provision be clearly written, not difficult to understand, and comprehensible to average insured.
insurance policy requires that anti-stacking provision be clearly written, not difficult to understand, and comprehensible to average
insured. NRS 687B.145(1).
4. Insurance.
Anti-stacking provision of uninsured motorist insurance policy satisfied clarity requirement of statute authorizing anti-stacking
provisions, despite fact that amended provision was organized differently than anti-stacking clause in original policy. Nothing in
amendment could lead insured to believe amendment did not apply to his policy, nor would amendment create confusion for average
layperson. NRS 687B.145(1).
5. Insurance.
Anti-stacking provision of amendment to uninsured motorist insurance policy was conspicuously different from balance of
amendment and satisfied prominence requirement of statute authorizing anti-stacking provisions, even though provision was printed in
same bold-faced, large style as two other anti-stacking clauses in policy. Similar emphasis for all anti-stacking provisions did not
diminish prominence of any one of them. NRS 687B.145(1).
6. Insurance.
Affidavit of insurer's employee was alone insufficient to establish that insured had not purchased separate uninsured motorist
coverage for same risk for which premium had been calculated to provide full reimbursement under that coverage and, thus, affidavit
failed to satisfy statutory requirement of single premium for anti-stacking provision in uninsured motorist insurance policy covering
multiple vehicles. NRS 687B.145(1).
OPINION
Per Curiam:
This single issue appeal requires us to determine if an anti-stacking provision complies with the requirements of NRS 687B.145(1),
thereby preventing appellant from stacking his uninsured motorist coverages. For the reasons explained hereafter, we are persuaded that the
district court erred when it found that the subject provision complied with the statute and that respondents Shayne Kimber and Liberty
Mutual Fire Insurance Company (hereafter collectively Liberty) were entitled to summary judgment as a matter of law.
FACTS
Appellant Jay Serrett was seriously injured in an automobile accident caused by an uninsured motorist. At the time of the accident,
Serrett was insured by Liberty. Serrett's insurance policy provided coverage for a 1977 Oldsmobile and a 1983 Peugeot, with uninsured
motorist (UM) coverage of $100,000 per person and $300,000 per accident. The declaration page attached to the policy indicates
that Serrett may have paid two separate premiums for UM coverage.1
attached to the policy indicates that Serrett may have paid two separate premiums for UM
coverage.
1

Serrett's original policy contained the following anti-stacking provision:
PART CUNINSURED MOTORISTS COVERAGE
****
LIMIT OF LIABILITY
A. The limit of liability shown in the Declarations for this coverage is our maximum
limit of liability for all damages resulting from any one accident. This is the most we
will pay regardless of the number of:
1. Insureds;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
Prior to the accident in which Serrett sustained his injuries, Liberty amended Serrett's
policy by endorsement No. PP 01820288, which simply republished the original anti-stacking
provision in larger, bold-faced print. The cost of Serrett's injuries exceeded the per person
limit of one policy and Serrett requested that the UM coverages on his two vehicles be
stacked. Liberty refused in light of the anti-stacking provision and denied all liability in
excess of $100,000.
Serrett commenced an action in the district court, to which Liberty responded with a
motion for summary judgment. After a hearing on the motion, the district court granted
summary judgment, ruling that the UM coverages were not subject to stacking. This appeal
followed.
DISCUSSION
[Headnotes 1, 2]
Because, on summary judgment, this court reviews the entire record anew and without
deference to the findings of the district court, in that sense our review is de novo. Caughlin
Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993). A party
is entitled to summary judgment if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. NRCP 56(c). Where, as here, neither party
disputes any material fact, the construction of an insurance policy is reviewed solely as a
question of law.
__________

1
The annual premiums are explained as follows:
Liability; Medical Payments; Un- Coverage for
insured/Underinsured Coverage Damage to Auto TOTAL
Oldsmobile
- - - - -
$414.00 $149.00 $563
Peugeot
- - - - - - -
$322.00 $287.00 $609
neither party disputes any material fact, the construction of an insurance policy is reviewed
solely as a question of law. Nationwide Mut. Ins. v. Moya, 108 Nev. 578, 582, 837 P.2d 426,
428 (1992). Moreover, any ambiguities in the policy will be construed against the insurer and
in favor of the insured. National Union Fire Ins. v. Reno's Executive Air, 100 Nev. 360, 365,
682 P.2d 1380, 1383 (1984).
Prior to 1979, we regularly invalidated anti-stacking provisions and allowed insureds to
combine their coverage limits on separate policies. Bove v. Prudential Insurance Co., 106
Nev. 682, 685, 799 P.2d 1108, 1110 (1990). In 1979, however, the legislature enacted NRS
687B.145(1),
2
which provided the means whereby insurance companies could prevent the
stacking of UM coverages. Now, efficacious anti-stacking provisions must be expressed in
clear language and be prominently displayed in the policy, binder or endorsement.
Additionally, the insured must not have purchased separate coverage on the same risk or paid
a premium calculated for full reimbursement to the insurer under that coverage. NRS
687B.145(1); Neumann v. Standard Fire Ins., 101 Nev. 206, 209, 699 P.2d 101, 103 (1985).
We now consider whether the anti-stacking provision at issue meets the requirements
enunciated by NRS 687B.145(1).
A. The clarity requirement
[Headnote 3]
An anti-stacking provision must not only be clearly written, it must not be difficult to
understand. Neumann, 101 Nev. at 210, 699 P.2d at 104. Indeed, if the clarity prong of NRS
687B.145(1) is to serve any purpose, it must be truly comprehensible to the average
insured. Torres v. Farmers Ins. Exchange, 106 Nev. 340, 347, 793 P.2d 839, 843 (1990).
Serrett concedes that the instant provision is expressed in clear language, yet he relies upon
Neumann in
__________

2
NRS 687B.145(1) provides as follows:
1. Any policy of insurance or endorsement providing coverage under the provisions of NRS 690B.020 or
other policy of casualty insurance may provide that if the insured has coverage available to him under
more than one policy or provision of coverage, any recovery or benefits may equal but not exceed the
higher of the applicable limits of the respective coverages, and the recovery or benefits must be prorated
between the applicable coverages in the proportion that their respective limits bear to the aggregate of
their limits. Any provision which limits benefits pursuant to this section must be in clear language and be
prominently displayed in the policy, binder or endorsement. Any limiting provision is void if the named
insured has purchased separate coverage on the same risk and has paid a premium calculated for full
reimbursement under that coverage.
(Emphasis added.)
yet he relies upon Neumann in arguing that mislettering and mislabelling between the
original policy and any amendment to the policy make the provision ambiguous and difficult
for a layperson to understand. We disagree.
[Headnote 4]
In Neumann we declared that an otherwise clear anti-stacking provision may be rendered
unclear if an amendment to the provision incorrectly references the amended language of the
original policy and causes confusion rather than clarification. Neumann, 101 Nev. at 210,
699 P.2d at 104. The amendment in Neumann was confusing because it referred its readers to
nonexistent sections and mislabeled paragraphs in the original policy and justifiably caused
the insured to conclude that it did not apply to his policy. Id. In contrast, there is nothing in
the instant amendment that could lead Serrett to conclude that it did not apply to his policy,
nor would the amendment create confusion for the average layperson. Although the original
policy and amendment are organized differently, the amendment correctly identifies the
affected provisions of the policy and leaves no doubt as to its purpose or effect.
3
Thus, the
amendment complies with the clarity requirement.
B. The prominence requirement
An anti-stacking provision must be more prominently displayed than other provisions of
an insurance policy or amendment; otherwise, the prominence requirement of NRS
687B.145(1) would be ineffectual. We have earlier held that a provision is sufficiently
prominent if it is different from its surrounding terms. Neumann, 101 Nev. at 211, 699 P.2d
at 105; see also Bove v. Prudential Ins. Co., 106 Nev. 682, 687, 799 P.2d 1108, 1111 (1990)
(the clause must direct the reader's attention toward the critical language, and have greater
prominence than other provisions' ). The prominence requirement is necessary 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. Neumann, 101 Nev. at
210, 699 P.2d at 104 (citing John A. Glenn, Annotation, Validity and Construction of
Statutes Relating to Style or Prominence With Which Provisions Must be Printed in
Insurance Policy, 36 A.L.R. 3d 464, 469 {1971)).
__________

3
For example, the LIMIT OF LIABILITY Section is marked by an A in the original policy and a D in
the amendment; nonetheless, the amendment immediately reconciles the inconsistency by the following
explanation:
D. Paragraph A. of the Limit of Liability provision is replaced by the following:
. . . .
tion, Validity and Construction of Statutes Relating to Style or Prominence With Which
Provisions Must be Printed in Insurance Policy, 36 A.L.R. 3d 464, 469 (1971)).
[Headnote 5]
The anti-stacking provision in the instant amendment was printed in bold-faced, large
letters and was conspicuously different from the balance of the amendment. In fact, the sole
purpose of the amendment was to bring the provision into conformity with the prominence
requirement of NRS 687B.145(1).
4
Nevertheless, Serrett challenges the adequacy of the
amendment's prominence because two other exclusionary provisions (regarding liability and
medical payments) in the amendment are printed in the same bold-faced, large style. The
existence of two other anti-stacking provisions, which are virtually identical to the UM
provision in substance and style, does not diminish the prominence of any one of them. To
the contrary, we conclude that the three prominently displayed provisions call attention to
themselves to no lesser degree than if only one of the provisions existed in the policy. The
anti-stacking provision at issue here clearly satisfies the prominence requirements of NRS
687B.145(1).
C. The single premium requirement
[Headnote 6]
Having concluded that the amendment was both clear and prominent, we must now
determine whether Serrett purchased separate coverage for the same uninsured motorist risk
and paid a premium calculated for full reimbursement under that coverage. The burden of
proving that Liberty did not violate the third prong of the test for avoiding the imposition of
stacking rests with Liberty, who has virtually sole access to the relevant documents and
possesses the expertise needed to explain and justify its premiums. In short, much if not all of
the essential evidentiary material relevant to this issue is in Liberty's control. See Bove, 106
Nev. at 688, 799 P.2d at 1112.
Serrett contends that when he purchased insurance coverage from Liberty he intended to
receive full uninsured motorist coverage on each of his vehicles, and that he was never
informed that his premiums were calculated in a way that would preclude stacking.
Additionally, the declaration page attached to Serrett's policy indicates that Serrett may
have been charged separate premiums for uninsured motorist coverage on each of his
vehicles.
__________

4
The amendment contained the following prefatory language:
NOTICE
The contrasting boldface type contained in this endorsement is in compliance with the Nevada statutory
requirements that anti-stacking provisions be prominently displayed in the policy, binder or
endorsement.
policy indicates that Serrett may have been charged separate premiums for uninsured motorist
coverage on each of his vehicles. Liberty opposes Serrett's contention by use of an affidavit
from one of its employees, which states in pertinent part:
In the specific policy of Jay Serrett and Helen Serrett, [Liberty] did not sell a
separate policy of uninsured/underinsured motorist coverage. Rather, Liberty Mutual
Insurance Company, in accord with its position that Nevada is a non-stacking state,
charges a flat rate for uninsured/underinsured motorist coverage.
Accordingly, [Liberty] did not sell Jay Serrett two separate coverages for
uninsured/underinsured motorist coverage based upon a premium calculated to return a
full payment for each person or accident.
In other states, specifically Florida, the insured may elect to receive a stacking of
uninsured motorist coverage. In such instances, [Liberty] has created a separate
premium purchase price for each of the separate risks. The premium in those specific
instances is charged for a full payment of all of the benefits per person and per accident.
That specific premium is not a part of the [Liberty] policies and underwriting in
Nevada.
We have found no evidence that Serrett was charged a flat rate for UM coverage, nor are
we persuaded that such a rate, without additional evidence, would be dispositive of this issue.
Although Liberty attempted to explain the actuarial basis for its premiums during oral
argument, it relied upon the above affidavit as its sole evidence that Serrett did not purchase
separate coverage for the same risk for which he paid a premium calculated to provide full
reimbursement under that coverage. Given the rather arcane or cryptic justification for
Liberty's billing, as presented to the district court and on appeal, we are compelled to
conclude that summary judgment was improper.
5
Our decision in Bove contemplates the
introduction of actual evidence that is possessed by the insurer. Thus, something more than
an unsupported affidavit from a Liberty employee is required to meet the third requirement of
NRS 6S7B.145{1).
__________

5
We do not mean to imply that the position asserted by Liberty is not justified. Nor do we pretend to
understand what hoops an insurer may have to jump through in order to provide lucid proof of the basis for its
charges in these types of cases. We must assume, however, that insurance companies do have a statistical
formula and rationale for the charges billed to their insureds in cases where multiple vehicles are covered. We
trust that Liberty will be in a position, with some effort, to provide cogent, understandable evidence justifying its
charges if indeed such charges are supportable under Nevada law.
ment of NRS 687B.145(1). See also Clauson v. Lloyd, 103 Nev. 432, 743 P.2d 631 (1987)
(holding that a self-serving affidavit will not support summary judgment); Catrone v. 105
Casino Corp., 82 Nev. 166, 171, 414 P.2d 106, 109 (1966) (affidavits are ineffective when
they state conclusion[s] without factual support in the record).
CONCLUSION
The anti-stacking provision is clearly written and prominently displayed. However, Liberty
failed to meet its burden of proof with respect to whether Serrett purchased separate coverage
for the same risk and paid a premium calculated to provide Liberty full reimbursement for the
separate coverage. Therefore, the summary judgment is reversed and the matter is remanded
for further proceedings consistent with the concerns expressed in this opinion.
____________
110 Nev. 493, 493 (1994) Garcia v. Ideal Supply Co.
PAUL GARCIA, Appellant, v. IDEAL SUPPLY CO., INC., and AZTEC PLUMBING, INC.,
Respondents.
No. 23935
May 19, 1994 874 P.2d 752
Appeal from district court order denying motion for relief from default judgment. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Action was brought to recover payment on debts. The district court denied defendant's
motion for relief from default judgment. Defendant appealed. The supreme court held that
default judgment was void since no default was entered prior to judgment.
Sabbath & Mehesan, Las Vegas; Perry and Spann, Reno, for Appellant.
Edwards, Hale & Hansen and Dennis M. Prince, Las Vegas, for Respondents.
1. Judgment.
Default judgment was void since no default was entered prior to judgment.
2. Judgment.
Motion for relief from void judgment need not be made within reasonable time; void judgment may be attacked at any time. NRCP
60(b), (b)(3).
3. Judgment.
Void judgment is void for all purposes and may not be given life under theory based upon lack of legal precedent.
OPINION
Per Curiam:
Respondents Ideal Supply Co., Inc. (Ideal) and Aztec Plumbing, Inc. filed a complaint against appellant Paul Garcia. An appearance
was entered by Garcia's counsel, but no answer to the complaint was ever filed. Respondents never entered a default against Garcia, but did
obtain a default judgment. After many months, Garcia unsuccessfully moved for relief from the judgment.
[Headnote 1]
On appeal, Garcia raises several grounds for reversing the district court's order denying his motion to set aside the default judgment.
We do not reach the majority of Garcia's assignments of error, but conclude instead that the default judgment was void because the
requisite default was never entered, and reverse on that basis.
FACTS
On September 27, 1990, respondents filed a complaint against Garcia, alleging the existence of various debts incurred by Garcia and
still owing to the respondents. The complaint was served one day after it was filed. Garcia was granted at least one extension of time to
respond to the complaint, and on November 2, 1990, an Entry of Appearance on behalf of Garcia was filed by his then-counsel Thomas
Crowe. No answer to the complaint was ever filed.
On November 5, 1990, respondents filed a Notice of Intent to File Default stating that default would be filed on November 7, 1990.
No default was ever entered. On December 6, 1990, a Notice of Hearing to Prove Up Default was filed. However, Garcia did not appear
at the prove-up hearing.
At the prove-up hearing, the court heard testimony from the president of Ideal concerning the debts owed, and a default judgment in
the amount of $225,121.80 plus interest and costs was entered on December 20, 1990.
The case lay dormant for a time until respondents filed a writ of garnishment on the defendant in a personal injury action filed by
Garcia. On August 28, 1992, approximately one year and eight months after entry of the default judgment against him, Garcia filed a
Motion for Relief from Judgment; Motion to Set Aside Default and for Leave to Answer to Complaint."
Aside Default and for Leave to Answer to Complaint. The district court denied Garcia's
request for relief, thus prompting this appeal.
DISCUSSION
The dispositive issue herein is the failure of respondents to enter Garcia's default prior to
securing a default judgment against him. In Jacobs v. Sheriff, 108 Nev. 726, 837 P.2d 436
(1992), this court addressed the issue of the validity of a default judgment which followed the
entry of an invalid default. Specifically, the default entered in Jacobs was determined to be
invalid because it had not been signed by the district court clerk. Ruling that a default
judgment entered before a valid default has been entered is void[,] id. at 729, 837 P.2d at
438, we reversed the lower court's order denying relief from the default judgment.
In the instant case, no default at all was entered prior to securing the default judgment. A
fortiori, the rule announced in Jacobs has even greater application here. The default judgment
entered against Garcia without benefit of a prior default is void. Given the dispositive nature
of our ruling, it is unnecessary to address issues of the timeliness of Garcia's motion or the
existence of a meritorious defense.
[Headnote 2]
NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and while
motions made under NRCP 60(b) are generally required to be made within a reasonable
time and to be adjudicated according to the district court's discretion, this is not true in the
case of a void judgment. This has been explained with regard to the federal equivalent of
NRCP 60(b)(3) as follows:
Necessarily a motion under this part of the rule differs markedly from motions under
the other clauses of Rule 60(b). There is no question of discretion on the part of the
court when a motion is made under [this portion of the Rule]. Nor is there any
requirement, as there usually is when default judgments are attacked under Rule 60(b),
that the moving party show that he has a meritorious defense. Either a judgment is void
or it is valid. Determining which it is may well present a difficult question, but when
that question is resolved, the court must act accordingly.
By the same token, there is no time limit on an attack on a judgment as void. . . .
[E]ven the requirement that the motion be made within a reasonable time, which
seems literally to apply . . . cannot be enforced with regard to this class of motion.
11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2862 (1973).
CONCLUSION
[Headnote 3]
For the reasons discussed above, the default judgment entered against Garcia is void. We
therefore reverse the order of the district court denying Garcia's motion to have the default
judgment set aside and remand this matter to the district court for entry of an order vacating
the default judgment.
1

____________
110 Nev. 496, 496 (1994) O'Lane v. Spinney
JOHN O'LANE, Appellant, v. MARLYN SPINNEY, Respondent.
No. 23753
May 19, 1994 874 P.2d 754
Appeal from district court order denying a motion to terminate receivership. Eighth
Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Judgment creditor sought to renew her default judgment more than six years after
judgment was entered. The district court entered order appointing receiver to take control of
judgment debtor's assets and financial affairs and denied judgment debtor's motion to
terminate receivership, and judgment debtor appealed.
__________

1
Understandably, the parties were not attuned to our recent Jacobs decision during oral argument. Accordingly,
it was determined at that time to allow the parties to supplement their briefs in order to determine with certainty
whether, in fact, no default had been entered against Garcia prior to the entry of the default judgment. Garcia's
supplemental material supplied additional evidence that no default was ever entered, including an affidavit by
Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case file. Respondents also
acknowledged that no default was ever entered but argue in their supplemental brief that Jacobs should not be
applied retroactively, noting that the default judgment at issue herein was entered prior to our Jacobs decision.
This argument is without merit. The court in Jacobs determined, consistent with law from other jurisdictions,
that the default judgment entered in Jacobs was void. We accordingly ordered the district court to grant relief
from the void judgment, despite the fact that the ruling in Jacobs was, of course, preceded by entry of the default
judgment against Jacobs. If this case, rather than Jacobs, were before us as a case of first impression, we would
have reached the same conclusion. A void judgment is void for all purposes and may not be given life under a
theory based upon lack of legal precedent. Our decision today is not a retroactive application of Jacobs, but
simply a reaffirmation of the law we found controlling in Jacobs.
The supreme court, Steffen, J., held that: (1) time for seeking to renew default judgment was
not tolled, pursuant to bankruptcy statute, for entire period that judgment debtor was in
bankruptcy, but (2) grounds might exist for equitably tolling deadline, to the extent that
judgment debtor's bankruptcy petitions were filed with no legitimate prospect or intention of
obtaining discharge, but simply as subterfuge to avoid satisfying judgment.
Remanded.
[Rehearing denied September 6, 1994]
Young and Shearing, JJ., dissented.
Edwards & Kolesar, Chtd. and Dan R. Waite, Las Vegas, for Appellant.
Andras F. Babero, Las Vegas, for Respondent.
1. Judgment.
Regardless of whether automatic stay prohibited ministerial act of creditor's renewing its judgment, creditor's alleged inability to
renew judgment while judgment debtor's Chapter 7 case was pending did not provide basis for reviving judgment which had lapsed
based on creditor's failure to renew it during the more than two months intervening between dismissal of bankruptcy case and creditor's
renewal request. 11 U.S.C. 362; NRS 17.214.
2. Bankruptcy.
Time for renewing judgment was not tolled, pursuant to bankruptcy statute, for entire time that judgment debtor was in
bankruptcy, but was extended for at most 30 days after judgment creditor received notice of termination of stay. 11 U.S.C. 108(c)(2).
3. Judgment.
Basis might exist for equitably tolling, during the time that judgment debtor was in bankruptcy, the time for creditor to seek to
renew its judgment, if it could be demonstrated that judgment debtor's bankruptcy petitions offered no legitimate prospect or intention
of discharge of indebtedness and were simply a subterfuge to avoid satisfying creditor's judgment.
Action would be remanded to trial court for determination as to whether time limit on motion by judgment creditor to renew its
judgment should be equitably tolled based on judgment debtor's alleged misconduct in filing Chapter 7 petitions with no legitimate
prospect or intention of discharging his indebtedness, simply as subterfuge to avoid satisfying creditor's judgment.
OPINION
The facts of this case are brief and uncontested. The respondent, Marlyn Spinney, obtained a default judgment against the appellant,
John O'Lane, for injuries caused by medical malpractice.
appellant, John O'Lane, for injuries caused by medical malpractice. The judgment was
entered on May 31, 1984. More than four years later, on July 22, 1988, O'Lane filed for
Chapter 7 bankruptcy. O'Lane's bankruptcy case was dismissed without discharge on January
30, 1989. O'Lane then refiled for bankruptcy on February 8, 1989. On June 21, 1990, the
bankruptcy court again dismissed the proceeding denying O'Lane a discharge of his debts.
On August 29, 1990, approximately six years and ninety days after the entry of her default
judgment, Spinney attempted to renew her judgment by filing a renewal affidavit pursuant to
NRS 17.214. On March 8, 1991, the district court appointed a receiver to take control of
O'Lane's assets and financial affairs. O'Lane thereafter moved to terminate the receivership on
grounds that Spinney's judgment had lapsed because of her failure to timely renew her
judgment as required by NRS 17.214. The district court disallowed O'Lane's motion and this
appeal followed.
DISCUSSION
NRS 11.190 gives judgment creditors six years within which to enforce their judgments.
1
If a judgment has not been satisfied during the initial six-year period, the judgment creditor
may renew the judgment for six additional years pursuant to NRS 17.214.
2
Judgment
renewal is simple: the judgment creditor simply files an affidavit with the clerk of the court
where the judgment is entered within ninety days before the judgment expires. In the instant
case, Spinney's judgment was entered on May 31, 1984. Therefore, a renewal affidavit must
have been filed after March 2, 1990, and before June 1, 1990. Spinney filed her renewal
affidavit on August 29,1990.
Spinney advances three arguments in defense of her untimely renewal filing: (1) she was
prevented from renewing her judgment by the automatic stay provision of the Bankruptcy
Code; (2) the limitation period of NRS 11.190 was tolled by the automatic stay while O'Lane
was under the jurisdiction of the bankruptcy court; and {3) equity demands that O'Lane
be held accountable for his malpractice.
__________

1
NRS 11.190 provides, in relevant part:
Actions other than those for the recovery of real property, unless further limited by specific statute, can
only be commenced as follows:
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory
within the United States, or the renewal thereof.

2
1. A judgment creditor . . . may renew a judgment which has not been paid by filing an affidavit with the
clerk of the court where the judgment is entered and docketed, within 90 days before the date the
judgment expires by limitation. . . .
stay while O'Lane was under the jurisdiction of the bankruptcy court; and (3) equity demands
that O'Lane be held accountable for his malpractice. We conclude that Spinney's first two
arguments are without merit. We further conclude that we are powerless to grant Spinney's
request for an equitable determination.
[Headnote 1]
Spinney first argues that the automatic stay prevented her from filing a renewal affidavit.
We are persuaded by existing federal law that Spinney is incorrect. The United States Court
of Appeals for the Second Circuit has recently examined this exact issue in In re Morton, 866
F.2d 561 (1989), and concluded that the stay does not prohibit the ministerial act of renewing
a judgment.
In Morton a creditor held a pre-petition judgment lien against the debtor which expired by
limitation while the debtor was in bankruptcy. The judgment creditor made an unsuccessful
attempt to extend its lien, then argued that regardless of whether its efforts to renew the lien
were successful, the automatic stay removes any requirement under state law to obtain an
extension of its lien. Id. at 563. The Morton court, considering the purposes for the
automatic stay, concluded:
The automatic stay provision of the bankruptcy code operates only as a stay of any
act to create, perfect, or enforce a lien against property of the estate. Significantly, the
section does not explicitly prohibit acts to extend, continue, or renew otherwise valid
statutory liens, nor is there any indication from the legislative history that congress
intended such a result.
Action by a lienholder under [state law] does not result in an enlargement of the lien,
nor does it threaten property of the estate which would otherwise be available to general
creditors. To the contrary, extension . . . simply allows the holder of a valid lien to
maintain the status quoa policy not adverse to bankruptcy law, but rather in complete
harmony with it.
Id. at 564 (citations omitted); see also Barber v. Emporium Partnership, 800 P.2d 795, 797
(Utah 1990) (stating that state courts have similarly interpreted the automatic stay provisions).
We decline to decide what the bankruptcy court would have done if Spinney had either
sought relief from the stay or went ahead and filed her renewal affidavit. As an ordinary rule,
creditors who are unsure if the stay applies to them should assume the stay is applicable and
seek appropriate relief pursuant to 11 U.S.C. 362(f). 2 Collier on Bankruptcy 362.04[4]
(Lawrence P. King ed., 15th ed. 1992). This court may not, with propriety, revive Spinney's
judgment based upon the dubious proposition that an action to renew a judgment
violates the automatic stay provisions of the Bankruptcy Code.
revive Spinney's judgment based upon the dubious proposition that an action to renew a
judgment violates the automatic stay provisions of the Bankruptcy Code.
[Headnote 2]
Spinney also contends that NRS 11.190 was tolled by 11 U.S.C. 108(c) during the time
O'Lane was in bankruptcy. Assuming, but not deciding, that 108(c) operated to extend
Spinney's judgment for thirty days beyond the stay's termination, we do not agree that the
period of limitations applicable to the judgment would have been tolled for each of the 327
days O'Lane was in bankruptcy. In pertinent part, Section 108(c) provides:
[I]f applicable nonbankruptcy law . . . fixes a period of commencing or continuing a
civil action in a court other than a bankruptcy court on a claim against the debtor . . .
and such period has not expired before the date of the filing of the petition, then such
period does not expire until the later of
(1) the end of such period, including any suspension of such period occurring on
or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay . . . .
Subsection (2) clearly anticipates that nonbankruptcy limitation periods may expire while the
debtor is in bankruptcy; therefore, Spinney's argument that limitation periods are always
tolled for the duration of bankruptcy is incorrect. Moreover, other courts have looked at this
issue and concluded that expired limitation periods are only extended for thirty days pursuant
to 108(c).
Apropos to the point, the Morton court declared:
[W]e today hold that the tolling provisions of 108(c) apply to New York's ten-year
period governing judgment liens on real property. . . .
. . . .
We note that this result is in full harmony with congress's purpose in enacting
108(c). Recognizing that a petition in bankruptcy could sometimes give a debtor unfair
advantage over a claimant by allowing the debtor to remain under the protection of the
automatic stay until the limitation period governing the claimant's action had expired,
congress acted to solidly preserve the rights of a party stayed from commencing or
continuing an action against the debtor because of the bankruptcy case. It did so by
extending the period for commencing or continuing a civil action against the debtor
to, at a minimum, 30 days after termination or expiration of the automatic stay.
Morton, 866 F.2d at 566-67 (citations omitted); see also In re Hunters Run Ltd. Partnership,
875 F.2d 1425 (1989).
The automatic stay was terminated on June 21, 1990, when the bankruptcy court docketed
its judgment denying O'Lane a discharge. O'Lane immediately sent notice to Spinney that the
stay had been terminated; however, Spinney did not file her renewal affidavit until more than
sixty days had elapsed. We are forced to conclude, therefore, that even if 108(c) would have
operated to provide Spinney an additional thirty-day period within which to renew her
judgment, her effort to do so was untimely.
[Headnotes 3, 4]
Finally, Spinney argues that principles of equity should serve as a basis for sustaining the
district court's ruling. Unfortunately, we are not in a position to rule on the availability of an
equitable basis for affirming the district court's rejection of O'Lane's motion to terminate the
receivership. The legality of the receivership is dependent upon the continuing validity of
Spinney's judgment against O'Lane. Although there is no basis in law for legally preserving or
resuscitating the judgment, there would be a basis for invoking the doctrine of equitable
tolling during the period of O'Lane's bankruptcy proceedings if it could be shown that O'Lane
had no legitimate basis for seeking protection under the Bankruptcy Act. In other words, if it
could be demonstrated that O'Lane's bankruptcy petitions offered no legitimate prospect or
intention of a discharge of his indebtedness, and that the filings were simply a subterfuge to
avoid satisfying Spinney's judgment, then the district court could properly conclude that the
Spinney judgment was subject to preservation and continuing validity based upon the
doctrine of equitable tolling. See generally Copeland v. Desert Inn Hotel, 99 Nev. 823, 673
P.2d 490 (1983).
Because this court is in no position to determine whether the requisite support for invoking
an equitable tolling exists, we must remand this matter to the district court to provide Spinney
an opportunity to prove, if she can, that an evidentiary foundation exists for equitable relief
and the continuation of the receivership. In the event Spinney is unable to prove the requisite
factual and legal basis for equitable relief, the receivership must be terminated.
3

CONCLUSION
For the foregoing reasons, we remand this matter to the district court for purposes of
conducting an evidentiary hearing in order to determine, consistent with this opinion, whether
the doctrine of equitable tolling applies.
__________

3
We note that Spinney's counsel on appeal did not represent Spinney in her ineffectual attempts to satisfy or
preserve her judgment against O'Lane.
of equitable tolling applies.
4
In the event Spinney evinces no desire to participate in such a
hearing, the district court is instructed to promptly terminate the receivership.
Rose, C. J., and Springer, J., concur.
Young, J., with whom Shearing, J., joins, dissenting:
I respectfully dissent. NRS 11.190(1)(a) clearly provides that a judgment creditor has six
years to collect upon a judgment. There is nothing within this provision nor is there any
principle contained in the United States Bankruptcy Code that justifies the result of the
majority decision.
The plain and undisputed facts of this case provide that Spinney obtained a judgment
against O'Lane and failed to protect that judgment by filing for recertification within the
statutory window provided by NRS 17.214. Although I find O'Lane's wranglings in
bankruptcy court repugnant, they do not warrant application of equitable tolling. Oftentimes
difficult and emotional cases create bad precedent. This is such a case.
The majority's decision cites Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490
(1983), and concludes that the doctrine of equitable tolling may have preserved Spinney's
judgment while O'Lane was in bankruptcy. My colleagues suggest remand to determine
whether O'Lane sought bankruptcy protection as a subterfuge to avoid satisfying Spinney's
judgment. I submit that no action upon remand or any further findings by the district court
could support the application of equitable tolling.
In Copeland, Nevada's only equitable tolling case, we reversed a district court summary
judgment order, reasoning that equitable tolling preserved a claimant's unlawful discharge
cause of action. Id. at 826, 673 P.2d at 492. The claimant in Copeland did not file a timely
anti-discrimination charge against her employer because she relied upon statements from the
Nevada Equal Rights Commission (NERC) that they would look into the matter and get
back to her. Id. at 825, 673 P.2d at 491. The court focused upon the public policy goals of
Nevada's anti-discrimination laws and the claimant's reliance upon statements made by
NERC. We held that equitable tolling applied in the context of Nevada's anti-discrimination
employment statutes because it effectuated the laudable goals contained therein. We
elaborated upon the holding by asserting that several factors should be examined before
applying equitable tolling in a given case. Among those factors was consideration of the
claimant's diligence in pursuing the claim for relief. Id. at S26, 673 P.2d at 492.
__________

4
In the event Spinney needs to engage in discovery in order to present an evidentiary basis for an equitable
tolling, we are confident the district court will provide an adequate opportunity for her to do so.
consideration of the claimant's diligence in pursuing the claim for relief. Id. at 826, 673 P.2d
at 492.
The facts of this appeal simply do not fit within the definition or purpose of equitable
tolling. The factors listed in Copeland cannot be satisfied. Spinney did not diligently pursue
her remedy in the instant case. It is inescapable that Spinney realized she had a viable
judgment against her former doctor and let that judgment lapse without recertification.
O'Lane's underlying conduct, no matter how egregious, had nothing to do with that failing.
I fear that preserving Spinney's judgment will open the door and allow a litigant to
challenge statute of limitations prohibitions any time a defendant has engaged in some form
of non-related and allegedly reprehensible conduct. I am also concerned that the majority's
decision muddies the legal waters and will create issues of fact in almost every forthcoming
statute of limitations summary judgment decision.
Although this case represents the tragedy that may ensue when a lawyer neglects a filing
deadline, it does not merit waving the equitable tolling wand to circumvent plain statute of
limitations requirements. Spinney's loss of a collection remedy appears to be a garden variety
case of nonfeasance. Her remedy rests in a claim against her lawyer and not with this court's
application of equitable tolling.
For the foregoing reasons, I would reverse the district court's ruling. I therefore
respectfully dissent from the majority opinion.
____________
110 Nev. 503, 503 (1994) MacKenzie Insurance v. National Insurance
MacKENZIE INSURANCE AGENCIES, INC., Appellant, v. NATIONAL INSURANCE
ASSOCIATION, Respondent.
No. 23035
May 19, 1994 874 P.2d 758
Appeal from summary judgment. Second Judicial District Court, Washoe County; Steven
R. Kosach, Judge.
Independent insurance agency which had entered into an agency agreement with insurance
company brought action against insurance company alleging breach of contract when
insurance company refused to pay agreed upon fifteen percent commission. The district court
granted summary judgment for insurance company. Independent insurance agency appealed.
The supreme court, Springer, J., held that genuine issue of material fact existed as to whether
agency and insurance company entered into a new agreement with different commission
rate or whether agency waived its rights under written contract, precluding summary
judgment.
a new agreement with different commission rate or whether agency waived its rights under
written contract, precluding summary judgment.
Reversed.
Steffen, J., dissented.
Anderson, Pearl, Hardesty, Lyle, Murphy & Stone and Todd A. Bader, Reno, for
Appellant.
Georgeson, McQuaid, Thompson & Angaran, Reno, for Respondent.
1. Insurance.
Fact that agency relationship between independent insurance agency and insurance company was terminable by either party, with
or without cause, did not mean that right of termination by written notice included lesser right of imposing prospectively changes and
conditions of contract, including terms of compensation.
2. Insurance.
Insurance company's unilateral reduction in commission payments given to independent insurance agency did not release
insurance company from its contractual obligations for so long as contract remained in effect where written contract provided that
either party could end contract by giving written notice of termination to other party, and neither party gave to other notice of
termination provided for in contract.
3. Judgment.
Genuine issue of material fact existed as to whether independent insurance agency and insurance company with which it had
entered into an agency agreement entered into a new agreement with a new commission rate or whether independent insurance agency
waived its rights under written contract to receive fifteen percent commission, precluding summary judgment in independent insurance
agency's action alleging breach of contract when insurance company refused to pay agreed upon fifteen percent commission.
OPINION
The summary judgment entered against plaintiff-appellant MacKenzie Insurance Agencies (MacKenzie) is reversed. There are issues of
fact to be tried, and defendant-respondent National Insurance Association (NIA) is not entitled to judgment as a matter of law.
MacKenzie is a Nevada corporation doing business as an independent insurance agency that sells lines of insurance under agency
agreements with various insurance companies. On January 30, 1989, MacKenzie entered into an agency agreement with NIA that
provided for a commission at the rate of fifteen percent of MacKenzie's total sales.
NIA that provided for a commission at the rate of fifteen percent of MacKenzie's total sales.
The agency agreement, prepared by NIA, also contained the following termination provision:
This agreement shall terminate at any time (1) by either party giving the other written
notice, with or without cause, and (2) immediately without notice upon cancellation,
revocation, or expiration of the Agent's license issued by the State. Termination shall
cancel all authority granted to the Agent.
After signing the agreement, MacKenzie began placing policies with NIA at the contract
rate of fifteen percent. Some time after the parties signed the contract, NIA sent MacKenzie a
document styled as an Addendum to the Agency Agreement, which purported to reduce
MacKenzie's commission from fifteen to five percent effective May 15, 1990. MacKenzie
continued to sell NIA policy renewals and new policies after NIA advised MacKenzie of its
intention to reduce MacKenzie's commission rate to five percent. Throughout the period from
January 30, 1989, to May 15, 1990, MacKenzie received its commissions at the contract rate
of fifteen percent. After May 15, 1990, however, NIA paid commissions on new and renewal
business at the rate of five percent, based upon the unilateral Addendum.
On September 10, 1990, NIA sent to MacKenzie a letter indicating that NIA was
terminating the parties' agency agreement. MacKenzie then filed an action against NIA
claiming that NIA had breached its contract when it refused to pay the agreed-upon fifteen
percent commission. NIA moved for summary judgment, which the district court granted.
[Headnote 1]
The trial court ruled that since the relationship between MacKenzie and NIA was
terminable by either party, with or without cause, the right of termination by written notice
included the lesser right of imposing prospectively, changes in the conditions of the contract,
including the terms of compensation. This is an incorrect interpretation of the parties'
contract.
[Headnote 2]
The written contract in question provides that either party could end the contract by giving
written notice of termination to the other party. Neither party gave to the other the written
notice of termination provided for in the contract: and, prima facie, the contract continued to
be binding until it was terminated in accordance with its terms. The unilateral reduction in
commission payments instituted by NIA does not release it from its contractual obligations
for so long as the contract remained in effect.
[Headnote 3]
The trial court incorrectly ruled that either party to the written contract had the privilege
of imposing prospectively, changes in the conditions of the contract. If this were true, and
either party had actually had the privilege of imposing unwanted changes in the contract on
the other, then there would be no point in having a written contract which set the commission
percentage agreed to be paid. The contract gives the parties an option to terminate by giving
written notice; it does not give either party the privilege of imposing unilateral changes in
the conditions of the contract. MacKenzie had the right to receive the fifteen percent
commission rate agreed-upon by the parties until the contract was terminated in accordance
with its terms, unless, of course, MacKenzie waived the required written notice or agreed
expressly or impliedly to accept less than was provided for in the written contract. Whether
MacKenzie and NIA entered into a new agreement or whether MacKenzie waived its rights
under the written contract are factual questions that must be dealt with at trial. On this record,
NIA is not entitled to judgment as a matter of law. The summary judgment is reversed.
Rose, C. J., and Young and Shearing, JJ., concur.
Steffen, J., dissenting:
I respectfully dissent.
The facts are essentially undisputed, and despite the majority's factual recital, I will
necessarily refer to various facts of record in order to lend context to this dissent.
In entering into an agency contract with National Insurance Association (NIA), MacKenzie
Insurance Agencies, Inc. (MacKenzie) agreed to a fifteen percent commission on total
insurance sales placed with NIA. MacKenzie, an independent insurance agency that sells
insurance pursuant to agency agreements with a number of insurers, also agreed, under the
terms of the agency contract with NIA, to the following termination provision:
This agreement shall terminate at any time (1) by either party giving the other
written notice, with or without cause, and (2) immediately without notice upon
cancellation, revocation, or expiration of the Agent's license issued by the State.
Termination shall cancel all authority granted to the Agent.
Within several months after MacKenzie commenced selling NIA policies, NIA unilaterally
executed an addendum to the agreement which, by its terms, reduced MacKenzie's
commissions to five percent effective May 15, 1990. MacKenzie contends without record
support, that it objected to the addendum. In any event, MacKenzie continued to sell new
NIA policies and policy renewals after the reduced commission rate became effective.
any event, MacKenzie continued to sell new NIA policies and policy renewals after the
reduced commission rate became effective. Throughout the period from January 30, 1989, to
May 15, 1990, MacKenzie received its commissions at the contract rate of fifteen percent.
After May 15, however, MacKenzie accepted commissions on new and renewal business at
the modified rate of five percent.
On September 10, 1990, MacKenzie received a letter from NIA indicating that it was
terminating the agency agreement. Without challenging the propriety of the termination,
MacKenzie filed an action against NIA alleging, inter alia, breach of contract in the unilateral
reduction of MacKenzie's commission. NIA responded with a motion for summary judgment
that was granted by the district court.
The trial court ruled that since the relationship between MacKenzie and NIA was
terminable by either party, with or without cause, that right included the lesser right, in either
party, of prospectively imposing changes in the provisions of the contract, including the terms
of compensation. I am persuaded that the district court's reasoning is both compelling and
legally correct.
The termination clause in the agency agreement provided that either party could terminate
the agreement with or without cause upon written notice. MacKenzie insists that NIA's
unilateral addendum could not effectively modify the agreement because there was no mutual
agreement between the parties regarding the addendum.
Typically, the insurer can change the compensation scale prospectively by simply sending
[the agent] a general advisory memorandum to that effect, usually to be attached to the
physical contract itself. 2 Bertram Harnett et al., Responsibilities Of Insurance Agents And
Brokers 8.05[2] (1992). In Mall Tool Co. v. Far West Equip. Co., 273 P.2d 652, 655
(Wash. 1954), the court was faced with a contract between a manufacturer and a distributor
which could be terminated at the will of the manufacturer upon thirty days' notice. The Mall
Tool Co. court concluded that because the contract was terminable at will, the manufacturer
could propose a modification at any time as a condition of its continuance. Moreover, the
court noted that the distributor had the choice of accepting or rejecting the modification,
knowing that a refusal would result in the termination of the agreement. Id. at 655.
In the instant case, NIA presented MacKenzie with a modification of the original
agreement. MacKenzie simply could have refused to sell or renew NIA policies under the
reduced commission rate, thus precipitating either the termination of the agency agreement or
a cancellation of the addendum. Instead, MacKenzie elected to continue writing and renewing
NIA policies after the effective date of the addendum, and accepted the reduced amount
of the commission.
the effective date of the addendum, and accepted the reduced amount of the commission. By
its conduct, MacKenzie accepted the terms of the addendum. See Adair Homes, Inc. v. Jarrell,
650 P.2d 180, 183 (Or. Ct. App. 1982) (conduct can manifest acquiescence in modification);
Wal-Go Assoc. v. Leon, 624 P.2d 507, 510 (N.M. 1981) (course of dealing may modify an
agreement); Resource Eng'g, Inc. v. Siler, 500 P.2d 836, 839 (Idaho 1972) (consent to
modification of prior written contract may be implied from course of conduct consistent with
asserted modification); and Fast v. Kahan, 481 P.2d 958, 961 (Kan. 1971) (assent to
modification may be implied from circumstances and conduct).
Ordinarily, [w]hile one party to a contract cannot alter its terms without the assent of the
other parties, the fact of agreement may be implied from a course of conduct in accordance
with its existence. 17A C.J.S. Contracts 375, at 425 (1963). Although NIA did unilaterally
modify the terms of the agreement, MacKenzie continued to secure new clients and to accept
the reduced commission. Moreover, the nature of the contract in the instant case invested the
parties with the power of prospective unilateral modification because of the right of the
contracting parties to terminate the contract at any time without cause. Of necessity, the
greater right in either party to terminate without cause included the lesser right to unilaterally
and prospectively modify contract terms unilaterally.
Another basis for denying relief to MacKenzie exists in the form of a waiver. Waiver has
been defined as the intentional relinquishment of a known right. Mahban v. MGM Grand
Hotels, 100 Nev. 593, 596, 691 P.2d 421, 423 (1984). [W]aiver may be implied from
conduct which evidences an intention to waive a right, by conduct which is inconsistent with
any other intention than to waive the right. Id. A determination of whether there has been a
waiver is usually a question best reserved for the trier of fact. Id. However, the circumstances
of this action clearly indicate waiver as a matter of law.
In this instance, NIA did not purport to terminate or provide notice of termination of the
agency agreement in the May 3, 1990, addendum to the agency agreement. Upon receipt of
the addendum lowering the commission, MacKenzie continued to place insurance and renew
policies with NIA. Despite MacKenzie's unsupported suggestion that it somehow protested
the lowering of its commissions, it nevertheless accepted the five percent commission rate
without complaint until NIA terminated the agency agreement.
I am forced to conclude from the record that MacKenzie knowingly and intentionally
waived any right of complaint it may have had concerning the prospective reduction in its rate
of commission; it also elected not to exercise its contractual right to terminate the
agreement, thus registering its unmistakable unwillingness to do further business with
NIA at the reduced rate of commission.
commission; it also elected not to exercise its contractual right to terminate the agreement,
thus registering its unmistakable unwillingness to do further business with NIA at the reduced
rate of commission. MacKenzie was at liberty to either terminate its relationship with NIA or
continue under the modified terms of the contract for so long as the contract remained in
effect. It chose the latter. I suggest that MacKenzie is hardly in a position to complain of a
breach of contract when it operated under the amended terms, without complaint, for
approximately five months prior to instigating this litigation.
In my opinion, the district court focused directly and properly on the dispositive issue in
this case, and property granted summary judgment in favor of NIA. I therefore dissent.
____________
110 Nev. 509, 509 (1994) Deal v. Baines
STEVE DEAL, Appellant, v. RICHARD BAINES, Respondent.
No. 24190
May 23, 1994 874 P.2d 775
Appeal from an order of the district court setting aside judgment and dismissing action.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Cross-claim defendant filed motion to set aside judgment and dismiss action. The district
court granted motion. Appeal was taken. The supreme court held that: (1) motion to vacate
for excusable neglect or because prior judgment was void was untimely, and (2) rule
permitting dismissal of action for want of prosecution could not be invoked to vacate
judgment.
Reversed.
Gordon & Silver and Michael E. Kostrinsky, Las Vegas, for Appellant.
J. Michael Oakes, Las Vegas, for Respondent.
1. Appeal and Error; Judgment.
Motions to set aside judgment for mistakes, inadvertence, excusable neglect, or fraud are within sound discretion of district court,
and supreme court will not disturb district court's decision absent abuse of discretion. NRCP 60(b).
2. Judgment.
Even if judgment debtor did not learn of judgment until he was served with order for examination of judgment debtor some ten
months later, he did not file within reasonable time his motion to vacate that judgment on ground that it was void; he waited nearly
two years to file his motion to vacate judgment, and failed to explain that delay.
110 Nev. 509, 510 (1994) Deal v. Baines
his motion to vacate judgment, and failed to explain that delay. NRCP 60(b)(3).
3. Judgment.
Rule permitting dismissal of action for want of prosecution could not be invoked to vacate judgment on counterclaim, even if trial
occurred beyond five year mandatory dismissal period. No motion was made to dismiss for want of prosecution and, in any event, that
rule may not be invoked to vacate prior judgment, but may only be used to dismiss action. NRCP 41(e).
4. Judgment.
Rule permitting dismissal of action for want of prosecution may not be invoked to vacate prior judgment, but may only be used to
dismiss action. NRCP 41(e).
OPINION
Per Curiam:
This is an appeal from a district court order dismissing an action and setting aside a judgment on a crossclaim. For the reasons set
forth below, we hold that the district court erred in setting aside the judgment.
FACTS
In 1980 appellant Steve Deal (Deal) sold all of the stock of Roma Marble, Inc. to respondent Richard Baines (Baines). Pursuant to the
terms of the stock sale, Baines was to have repaid and indemnified Deal and ensured that Deal was held harmless from a $24,537 loan
made by Valley Bank of Nevada (Valley Bank) to Roma Marble, as well as other liabilities of the company.
On February 24, 1981, Valley Bank sued Baines, Deal and a third defendant. On March 25, 1981, Deal crossclaimed against Baines,
asserting two causes of action. First, Deal sought indemnification should he be held liable in the Valley Bank action. Second, Deal
requested $14,500 for amounts owed Deal under the Stock Purchase Agreement of Roma Marble, attorney's fees and costs, and such other
and further relief as the court deems just.''
On September 8, 1981, the district court granted summary judgment in favor of Valley Bank against Baines. The order granting
summary judgment was silent as to Deal. Baines twice appealed the order granting summary judgment to this court, with this court
dismissing both appeals in August 1982 and November 1983, respectively.
On January 29, 1987, Deal filed a Note for Trial Docket regarding the contract dispute in his crossclaim against Baines. A trial was
held on Deal's crossclaim on September 16, 19S7, at which Baines did not appear, and the district court awarded Deal
$14,500 plus interest, $3,500 in attorney's fees and costs, and $29,000 for an Internal Revenue Service Debt.
110 Nev. 509, 511 (1994) Deal v. Baines
1987, at which Baines did not appear, and the district court awarded Deal $14,500 plus
interest, $3,500 in attorney's fees and costs, and $29,000 for an Internal Revenue Service
Debt. Judgment was entered on February 8, 1990.
On January 8, 1991 a judgment debtor examination was conducted, at which Baines' new
(and present) counsel appeared. On August 4, 1992, Deal served a writ of garnishment on
property in which Deal believed Baines retained an ownership interest. On September 3,
1992, Deal subpoenaed the Nevada State Contractor's Board regarding information pertaining
to this property and other assets belonging to Baines.
On September 28, 1992, Baines filed a Motion to Set Aside Judgment and Dismiss
Action.
1
Baines requested that the district court set aside its 1990 judgment pursuant to
NRCP 41(e),
2
stating that five years had elapsed from the February 1981 Valley Bank filing
of the Complaint to the September 1987 trial. Baines argued that since dismissal of the case
was mandatory under Rule 41(e), no judgment should have ever been entered.
Alternatively, Baines requested that the district court set aside the judgment pursuant to
NRCP 60(b)(1),
3
arguing that it was entered as a result of excusable neglect on the part of
Baines, or that it be set aside as a void judgment under NRCP 60(b)(3) since the judgment
was entered on a trial that took place beyond the five year mandatory dismissal period of
NRCP 41(e). On November 18, 1992, the district court granted the motion and vacated its
prior judgment.
__________

1
We note that the portion of the Baines' motion which attempts to dismiss the action is misleading since
judgment was rendered on Deal's crossclaim and there was no longer any action to dismiss.

2
NRCP 41(e) states, in relevant part:
(e) Want of Prosecution. . . . Any action heretofore or hereafter commenced shall be dismissed by the
court in which the same shall have been commenced or to which it may be transferred on motion of any
party, or on the court's own motion, after due notice to the parties, unless such action is brought to trial
within five years after the plaintiff has filed his action, except where the parties have stipulated in writing
that the time may be extended. . . .

3
NRCP 60(b) states, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, Etc. On motion and upon such terms as are just,
the court may relieve a party or his legal representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . [or] (3) the judgment
is void . . . . The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than
six months after the judgment, order, or proceeding was entered or taken.
110 Nev. 509, 512 (1994) Deal v. Baines
DISCUSSION
Since the district court did not state whether it based its order vacating the judgment
against Baines on Rule 60(b), Rule 41(e) or a combination of the two, we consider them in
turn.
[Headnote 1]
Deal argues that the district court erred in vacating its prior judgment since Baines failed
to file his Rule 60(b) motion in a timely manner. We agree. Motions under NRCP 60(b) are
within the sound discretion of the district court, and this court will not disturb the district
court's decision absent an abuse of discretion. Carlson v. Carlson, 108 Nev. 358, 361, 832
P.2d 380, 382 (1992).
Baines argued below and asserts on appeal that he was entitled to relief pursuant to Rule
60(b)(1) because of excusable neglect.
4
Rule 60(b) states that a motion under subsection
(b)(1) must be brought not more than six months after judgment, order, or proceeding was
entered or taken. Clearly, Baines failed to act within this time limitation since the judgment
was entered in February 1990 and Baines filed his Rule 60(b) motion in September 1992.
[Headnote 2]
Baines alternatively argued that he was entitled to relief pursuant to Rule 60(b)(3). He
asserted that because the judgment was entered on a trial that took place beyond the five-year
mandatory dismissal period of Rule 41(e), it was a void judgment.
Motions under Rule 60(b)(3) must be made within a reasonable time. NRCP 60(b). Five
years passed between the September 1987 trial and the filing of Baines' September 1992
motion. Baines argues that he did not have the opportunity to file a timely Rule 60(b) motion
because he did not learn of the February 1990 judgment until he was served with an Order for
Examination of Judgment Debtor in December 1990. Assuming, arguendo, that this is true,
Baines fails to explain why he then waited nearly two years to file his motion to vacate the
judgment.
We hold that under the circumstances of this case, it was unreasonable to wait nearly two
years to file a motion under Rule 60(b)(3) to vacate a judgment. This is particularly true since
Deal continued to attempt to collect on the judgment during those two years, uncovering
Baines' assets and serving writs of execution and garnishment upon them. Granting Baines'
motion to vacate the judgment against him based on Rule 60{b) constituted an abuse of
discretion.
__________

4
Baines' excusable neglect argument appears to have been based on his assertion that he was not made aware
of the September 16, 1987 trial on Deal's crossclaim.
110 Nev. 509, 513 (1994) Deal v. Baines
the judgment against him based on Rule 60(b) constituted an abuse of discretion.
[Headnote 3]
Nor can Rule 41(e) be invoked to vacate the district court's prior judgment. Baines argued
below and argues on appeal that since dismissal of Deal's crossclaim was mandatory, the
judgment against him should not have been entered. Baines' argument is without merit and
should have been rejected by the district court. A dismissal under Rule 41(e), even where
mandatory under the five-year rule, requires a motion to dismiss, either by a party or the
court's own motion. No such motion occurred and the crossclaim was allowed to proceed to
judgment. Therefore, dismissal under Rule 41(e) was, under the untimely circumstances of
this case, improper.
[Headnote 4]
Second, Rule 41(e) may not be invoked to vacate a prior judgment but may only be used to
dismiss an action. If a party, or the district court on its own motion, fails to move the
district court to dismiss an action for want of prosecution pursuant to Rule 41(e), the party
may not then attempt, through Rule 41(e) alone or Rule 41(e) in conjunction with Rule
60(b)(3), to vacate the resulting judgment. Baines waived his right to compel dismissal of
Deal's crossclaim pursuant to Rule 41(e), and the district court was without authority to
vacate the resulting judgment against Baines.
In light of our decision in this case, we need not consider appellant's other contentions. We
reverse the district court's order setting aside the judgment against Baines and direct the
district court to reinstate the judgment entered pursuant to Deal's crossclaim.
____________
110 Nev. 513, 513 (1994) Hetter v. District Court
GREGORY HETTER, M.D., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark, and The Honorable
LEE GATES, District Judge, Respondent, MARGARET SANCHEZ, Real Party in
Interest.
No. 23453
May 19, 1994 874 P.2d 762
Original petition for a writ of mandamus or prohibition. Eighth Judicial District Court,
Clark County; Lee Gates, Judge.
Patient brought action for invasion of privacy and for violation of right of publicity against
plastic surgeon for use of patient's before-and-after photos in brochure. On plastic surgeon's
petition for writ of mandamus or prohibition challenging discovery order, the supreme court,
Shearing, J., held that: (1) discovery order requiring, inter alia, that plastic surgeon provide
his attorney with names of former and present patients required disclosure of privileged
information and was blanket discovery order without regard to relevance, and (2) before tax
returns or financial records were discoverable on issue of punitive damages, patient was
required to demonstrate some factual basis for punitive damage claim.
Petition for writ of mandamus granted.
Pearson & Patton, Las Vegas, for Petitioner.
Louis P. Sanchez, Las Vegas, for Real Party in Interest.
1. Mandamus.
Generally, extraordinary writs are not available to review discovery orders.
In action for invasion of privacy and for violation of right of publicity brought against plastic surgeon for use of patient's
before-and-after photos, discovery order requiring plastic surgeon to provide his attorney with names of former and present patients,
requiring attorney to mail letter to patients stating nature of case and asking them to call attorney if they recalled subject publications,
and requiring in camera verification by court that letters were mailed, required disclosure of privileged information and was blanket
discovery order without regard to relevance. Disclosure of patients' names revealed that plastic surgery had been done, and patient
information was irrelevant to issue of damages. NRS 49.225.
Rules of evidence governing privileged matters at trial also govern such matters when they arise during discovery. Whenever claim
of privilege would be proper at trial, it is proper at discovery stage. NRS 49.225.
4. Witnesses.
Disclosure of patient's name does not necessarily violate doctor-patient privilege, however, when circumstances are such that
nature of problem or treatment is disclosed by disclosure of name, name is also privileged. NRS 49.225.
Defendant's financial condition is proper subject of discovery on issue of punitive damages. NRS 49.225.
Before tax returns or financial records are discoverable on issue of punitive damages, plaintiff must demonstrate some factual
basis for punitive damage claim. NRS 49.225.
OPINION
This petition for a writ of mandamus or prohibition challenges a discovery order of the
district court.
Real Party in Interest, Margaret Sanchez (Sanchez) filed a complaint for invasion of
privacy and for violation of her right of publicity under NRS 598.980-.988 against her plastic
surgeon (Hetter) for using her before-and-after pictures on brochures without her consent.
Hetter alleges that Sanchez consented to the publication in return for which he reduced the
cost of her second surgery. In discovery proceedings the district court ordered that the plastic
surgeon provide his attorney with a list of his former and present patients since September
1990. The order required the attorney to send a letter to these patients stating the nature of
the case and asking them to call the attorney if they recall the subject publications. The
order also required the attorney to submit the patient list to the court for in camera
verification that the letters were mailed. The district court also ordered that Hetter disclose to
plaintiff that portion of his tax returns which show[s] the profits and losses of his medical
practice.
Hetter then filed this petition for relief, challenging the orders on the ground of
physician-patient privilege and lack of relevancy.
[Headnotes 1, 2]
Generally, extraordinary writs are not available to review discovery orders. Clark County
Liquor v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). However, writs have issued to
prevent improper discovery in two situations where disclosure would cause irreparable injury:
(1) blanket discovery orders without regard to relevance and (2) discovery orders requiring
disclosure of privileged information. Id. The discovery order in this case involves both of
these issues.
This discovery order seeks to intrude into one of the most private areas of a person's
existencehis relationship with his doctor. The privacy of this relationship has been
recognized in our law. NRS 49.225 states:
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 the diagnosis or treatment under the
direction of the doctor, including members of the patient's family.
Both the physicians and the courts are obligated to respect this privilege, unless there are
overriding public policy considerations.
[Headnote 3]
Statutes giving a privilege to communications between physicians and their patients are
intended to inspire confidence in the patient and to encourage him to make a full disclosure to
the physician as to his symptoms and condition by preventing the physician from making
public information that would result in humiliation, embarrassment, or disgrace to the patient.
The patient should be able to rest assured with the knowledge that the law recognizes the
communication as confidential, and guards against the possibility of his feelings being
shocked or his reputation tarnished by subsequent disclosure. 81 Am. Jur. 2d Witnesses 438
(1992) (with cases cited therein). The rules of evidence governing privileged matters at trial
also govern such matters when they arise during discovery, and whenever a claim of privilege
would be proper at trial, it is proper at the discovery stage. See Clark County Liquor, 102
Nev. at 659-60, 730 P.2d at 447.
[Headnote 4]
The disclosure of a patient's name does not necessarily violate the doctor-patient privilege.
However, when the circumstances are such that the nature of the problem or treatment is
disclosed by disclosure of the name, the name is also privileged. Marcus v. Superior Court,
18 Cal. App. 3d 22 (1972). Certainly here we know that the disclosure of a patient's name
discloses that plastic surgery is involved. Most people (as even Sanchez admits) would regard
the fact that they had or are considering a facelift, a hair transplant or a breast augmentation
as a confidential matter they would not want disclosed.
In the context of malpractice suits, the courts considering the issue have uniformly held
that the names of other patients to whom the physician has given similar treatment may not be
obtained through discovery. Dag E. Ytreberg, Annotation, Discovery, In Medical Malpractice
Action, Of Names Of Other Patients To Whom Defendant Has Given Treatment Similar To
That Allegedly Injuring Plaintiff, 74 A.L.R.3d 1055 (1976). In a malpractice case a
compelling argument may be made that the names of other patients treated for similar
conditions are highly relevant, but the courts have consistently refused to allow disclosure of
the names of those patients, giving priority to the doctor-patient privilege. In Marcus, the
court rejected the argument that discovery of the names should be allowed because patients
are still free to invoke the privilege not to discuss the matter.
still free to invoke the privilege not to discuss the matter. 18 Cal. App. 3d at 25. Sanchez
makes a similar argument that the other patients' participation in any subsequent discussion is
voluntary. This does not obviate the fact that confidential information about the patients
would already have been disclosed to the attorney and to the court in violation of the patients'
privilege and that the patients receiving the brochure would have lost confidence in the
discretion of their doctor.
The only issue on which the patient information could conceivably be relevant is on the
issue of damages. Sanchez alleges that she is entitled to the profits that Hetter obtained by the
unauthorized use of her picture on the theory of unjust enrichment. The two causes of action
Sanchez alleges are invasion of her common law right of privacy and her right of publicity
under NRS 597.810 (formerly NRS 598.988).
This court has recently offered some guidance on these causes of action, including
damages available, as they are recognized in Nevada. PETA v. Berosini, 110 Nev. 78, 867
P.2d 1121 (1994). In PETA this court recognized the four torts of privacy set forth in
Restatement (Second) of Torts 652A as follows:
The four species of privacy tort are: (1) unreasonable intrusion upon the seclusion of
another; (2) appropriation of the name or likeness of another; (3) unreasonable publicity
given to private facts; and (4) publicity unreasonably placing another in a false light
before the public.
110 Nev. at 92-93, 867 P.2d at 1130. Sanchez's allegations clearly fall within the category of
appropriation of the name or likeness of another. Id. At least that is the basis for Sanchez's
claim that she is entitled to Hetter's profits from each of the surgeries he performed as a result
of his patients' seeing Sanchez's picture.
Recognizing the confusion that has surrounded this tort, this court in PETA described and
clarified it as follows:
The common law appropriation tort ordinarily involves the unwanted and unpermitted
use of the name or likeness of an ordinary, uncelebrated person for advertising or other
such commercial purposes, although it is possible that the appropriation tort might arise
from the misuse of another's name for purposes not involving strictly monetary gain. . .
. The appropriation tort seeks to protect an individual's personal interest in privacy; the
personal injury is measured in terms of the mental anguish that results from the
appropriation of an ordinary individual's identity.
. . . [t]he invasion of privacy . . . is a personal injury, an injury that is redressable
by general damages for the mental anguish and embarrassment suffered by reason
of the unwanted public use of the private person's name.
injury that is redressable by general damages for the mental anguish and embarrassment
suffered by reason of the unwanted public use of the private person's name.
110 Nev. at 100-101, 867 P.2d at 1134-1135.
Clearly, under this tort, Sanchez's damages are totally unrelated to any information she
may glean from Hetter's other patients. The damages are personal to her, reflecting the effect
on her.
The other cause of action Sanchez alleges is the violation of her right of publicity, which
in this state has been codified in NRS 597.770 to 597.810 (formerly NRS 598.980-598.988).
In PETA, this court described the right of publicity tort as follows:
The right of publicity tort, on the other hand, involves the appropriation of a celebrity's
name or identity for commercial purposes. . . The right to publicity seeks to protect the
property interest that a celebrity has in his or her name; the injury is not to personal
privacy, it is the economic loss a celebrity suffers when someone else interferes with
the property interest that he or she has in his or her name.
. . . When . . . the name of a famous or celebrated person is used unauthorizedly, that
person's main concern is not with bruised feelings, but rather, with the commercial loss
inherent in the use by another of the celebrated name or identity. The commercial or
property interest that celebrities have in the use of their names and identities is
protected under what has been termed the right of publicity.
There is a certain reciprocity between the two kinds of interests, personal and
proprietary; and, accordingly, the more the aspects of one tort are present, the less likely
are the aspects of the other tort to be present. The more obscure the plaintiffs are, the
less commercial value their names have and the more such plaintiffs will be seeking to
redress personal interests in privacy in a common law appropriation action, and not
commercial or property interests in their name or likeness as a claimed violation of a
right of publicity. The more famous and celebrated the plaintiffs, the less injury is likely
to be claimed to their privacy interests, their interest in being left alone, because their
names and likenesses already have wide recognition and are not appropriate subjects for
invasions of personal privacy. Generally speaking, a private person will be seeking
recovery for the appropriation tort, and a celebrity will be recovering for the right of
publicity tort.
110 Nev. at 100-100, 867 P.2d at 1134-1135.
The Nevada statute has not limited the cause of action to celebrities, but the damages
recoverable under NRS 597.810 are: (1) Actual damages, but not less than $750; and (2)
Exemplary or punitive damages, . . . Sanchez argues that she needs the patient list because
she is entitled to $750 for each of Hetter's patients who saw her picture. There is nothing in
the statute or legislative history to suggest that this is a correct interpretation. It seems clear
that what the legislature intended was to allow plaintiffs a minimum of $750 in damages even
if no actual damages could be proven in order to discourage such appropriation. This statute
provides a complete and exclusive remedy for the right of publicity tort. PETA, 110 Nev. at
103, 867 P.2d at 1136. Restitution is not available under this statute as Sanchez's damages
would be limited to the commercial value of the use of her likeness, or what she could have
received for sale of her before-and-after pictures. Thus, Hetter's patient information and tax
return are irrelevant to the issue of compensatory damages in this action.
[Headnote 5]
The district court also ordered Hetter to provide Sanchez that portion of his tax returns
which show the profits and losses of his medical practice. In view of the above analysis
regarding Sanchez's measure of damages, the information from the tax returns is irrelevant on
the issue of compensatory damages. However, Sanchez also seeks punitive damages, and a
defendant's financial condition is a proper subject of discovery on that issue. There are many
circumstances under which discovery of income tax returns are clearly appropriate. See
Annotation, Discovery And Inspection Of Income Tax Returns In Actions Between Private
Individuals, 70 A.L.R.2d 240 (1960). However, because of the policy considerations of
protecting taxpayer privacy and encouraging the filing of full and accurate tax returns, both
state and federal courts have subjected discovery requests for income tax returns to a
heightened scrutiny, especially in the context of requests for punitive damages. In Maresca v.
Marks, 362 S.W.2d 299, 301 (Tex. 1962), the Supreme Court of Texas stated:
The protection of privacy is of fundamentalindeed, of constitutionalimportance.
Subjecting federal income tax returns of our citizens to discovery is sustainable only
because the pursuit of justice between litigants outweighs protection of their privacy.
But sacrifice of the latter should be kept to the minimum, and this requires scrupulous
limitation of discovery to information furthering justice between the parties which, in
turn, can only be information of relevancy and materiality to the matters in
controversy.
the parties which, in turn, can only be information of relevancy and materiality to the
matters in controversy.
In Shaver v. Yacht Outward Bound, 71 F.R.D. 561, 564 (N.D. Ill. 1976), a federal district
court stated:
[F]ederal courts have been cautious in ordering the disclosure of tax returns insisting, at
the very least, that it reasonably appear they are relevant and material to the matters in
issue. In most instances, it has been held that production of a tax return should not be
ordered unless there appears to be a compelling need for the information it contains,
such as is not otherwise readily obtainable.
(Citations omitted.)
Some courts have even held that liability must be established before the plaintiff is
allowed access to a defendant's income tax returns. In Suozzi v. Parente, 554 N.Y.S.2d 617
(N.Y. App. Div. 1990), for instance, a defamation plaintiff was not entitled to discovery of
the defendant's income tax returns in support of a punitive damages claim until the issue of
liability was resolved in the plaintiff's favor. In Eastern Auto Distributors v. Peugeot Motors,
Etc., 96 F.R.D. 147, 148 (1982), a United States district court held that while courts have not
recognized the existence of a general privilege against disclosure of tax returns, a qualified'
privilege emerges from the case law that disfavors the disclosure of income tax returns as a
matter of general federal policy. See William A. Edmundson, Note, Discovery Of Federal
Income Tax Returns And The New Qualified Privileges, 5 Duke L.J. 938, 940 (1984).
[Headnote 6]
While this state does not recognize a privilege for tax returns or necessarily require that
liability for punitive damages be established before discovery of financial condition, public
policy suggests that tax returns or financial status not be had for the mere asking. Claims for
punitive damages can be asserted with ease and can result in abuse and harassment if their
assertion alone entitles plaintiff to financial discovery. See Moran v. International Playtex,
Inc., 480 N.Y.S.2d 6, 8 (N.Y. App. Div. 1984). We hold that before tax returns or financial
records are discoverable on the issue of punitive damages, the plaintiff must demonstrate
some factual basis for its punitive damage claim. Disclosure of Hetter's tax returns at this
point is unwarranted.
For the foregoing reasons, we grant the Petition. Accordingly, the clerk of this court shall
issue a Writ of Mandamus commanding the district court to vacate that portion of its July 20,
1992 order which would allow discovery of petitioner's patient list and tax returns and to
proceed in a manner consistent with the views expressed in this opinion.
order which would allow discovery of petitioner's patient list and tax returns and to proceed
in a manner consistent with the views expressed in this opinion.
Rose, C. J., and Steffen, Young and Springer, JJ., concur.
____________
110 Nev. 521, 521 (1994) SIIS v. Foster
THE STATE INDUSTRIAL INSURANCE SYSTEM and THE RIVIERA, INC., Appellants,
v. FLOYD FOSTER, JR., Respondent.
No. 24048
May 19, 1994 874 P.2d 766
Appeal from district court order upholding benefits award by appeals officer. Eighth
Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Workers' compensation proceeding was brought. After hearing officer affirmed decision of
State Industrial Insurance System (SIIS), appeals officer reversed. On petition for judicial
review, the district court upheld appeal officer's decision. Appeal was taken. The supreme
court held that claimant did not fall under judicially created exception to statute providing
that heart disorders are deemed not to be an injury by accident sustained by an employee
arising out of and in the course of his employment.
Reversed.
R. Scott Young, General Counsel and Nancy K. Richins, Associate General Counsel,
Carson City, for Appellant State Industrial Insurance System.
Gordon & Silver, Ltd. and Kimberly Wanker, Las Vegas, for Appellant The Riviera, Inc.
Burke & Christopherson, Las Vegas, for Respondent.
Because appeal in workers' compensation case was inextricably tied to statutory law and judicially created exception to statute,
independent review, rather that more differential standard of review, was appropriate. NRS 233B.135(3), 616.110(2).
Additional strenuous work duties performed by workers' compensation claimant, who had preexisting history of heart disease, did
not constitute exceptional and extraordinary physical exertion and, thus, did not fall under judicially created exception to statute
providing that heart disorders are deemed not to be an injury by accident sustained by employee arising out of
and in the course of employment; claimant was required to work later hours over a gradual period of time
but his increased work hours involved same basic duties he had performed for the previous 12 years.
110 Nev. 521, 522 (1994) SIIS v. Foster
heart disorders are deemed not to be an injury by accident sustained by employee arising out of and in the course of employment;
claimant was required to work later hours over a gradual period of time but his increased work hours involved same basic duties he had
performed for the previous 12 years. NRS 616.110(2).
OPINION
Per Curiam:
On March 16, 1990, Floyd Foster suffered a myocardial infarction (heart attack) while working as a slot mechanic for the Riviera Hotel
& Casino (Riviera). Foster filed a claim for industrial insurance compensation, which was denied by the State Industrial Insurance
System (SIIS) pursuant to NRS 616.110(2). After a hearings officer affirmed the SIIS decision, an appeals officer, relying upon SIIS v.
Weaver, 103 Nev. 196, 734 P.2d 740 (1987), reversed the decision of the hearings officer. On petition for judicial review, the district court
upheld the appeals officer's decision. For the reasons stated below, we reverse.
FACTS
Foster was 51 years of age at the time of his heart attack. A long-term smoker, whose father had died from a heart attack at age 43,
Foster considered himself to be in very good health. Foster normally worked an eight hour shift and he was occasionally required to lift
and move gaming machines that weighed in excess of 200 pounds. In late 1989 or early 1990, the Riviera commenced extensive
renovations that required Foster and fifteen other employees to move and install approximately 3,000 gaming machines. As a result, Foster
worked twelve to sixteen hours per day in the weeks immediately preceding his heart attack. Although the work was admittedly more
strenuous than usual, Foster spent most of his time installing, putting the machine[s] together, drilling, mounting and wiring.
Foster worked approximately eight hours on the day of his heart attack, during which time he did not engage in any onerous or unusual
activity. Specifically, Foster installed an EDT system that involved drilling access holes and . . . running cable. Foster began feeling faint,
and at his supervisor's direction, went home. Eventually, Foster was admitted to the hospital; there, his treating physician was unable to
designate the heart attack as job incurred. Almost a year later, Foster's own doctor came to the opposite conclusion:
There is little doubt in my mind that Mr. Foster sustained his myocardial infarction as a result of a rather sudden increase in his
work load in both hours spent and severity of labor over a period of four weeks prior to the myocardial infarction.
110 Nev. 521, 523 (1994) SIIS v. Foster
over a period of four weeks prior to the myocardial infarction. I believe that this
increase in physical work, superimposed upon an extraordinary over-time schedule,
definitely precipitated his inferior wall infarction. . . . As such, it is my feeling that his
myocardial infarction is, or should be, compensable since it followed extraordinary
exertion in the course of his employment.
The appeals officer relied upon the second doctor's opinion to find a clear causal
relationship between Foster's work and his heart attack, and to conclude that Foster's injury
was therefore compensable. On petition for judicial review, the district court upheld the
appeals officer's decision based upon the conclusion that the circumstances of Foster's injury
fell within the exception to NRS 616.110(2) announced in State Industrial Insurance System
v. Weaver, 103 Nev. 196, 734 P.2d 740 (1987).
DISCUSSION
[Headnote 1]
The sole issue presented by this appeal is whether our decision in Weaver applies to the
uncontroverted circumstances of Foster's heart attack. Because this appeal is inextricably tied
to NRS 616.110(2) and its judicially-created exception, an independent review, rather than
the more deferential standard required by NRS 233B.135(3), is appropriate. See Maxwell v.
SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993) (statutory construction is a question of
law inviting independent appellate review of administrative ruling rather than a more
deferential standard).
[Headnote 2]
NRS Chapter 616 provides compensation for injuries suffered by workers as a result of
employment accidents.
1
Our legislature has clearly exempted heart attacks and other
heart-related episodes from the chapter's purview. NRS 616.110(2).
2
Although preexisting
diseases may be compensable where aggravated or accelerated by an employment injury, in
Spencer v. Harrah's Inc.,
__________

1
An accident is defined as: [A]n unexpected or unforeseen event happening suddenly and violently, with or
without human fault, and producing at the time objective symptoms of an injury. NRS 616.020. An injury that
results from an accident is defined as: [A] sudden and tangible happening of a traumatic nature, producing an
immediate or prompt result, including injuries to artificial members. NRS 616.110.

2
NRS 616.110(2) states:
For the purposes of this chapter, coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom, shall be deemed not to be an injury
by accident sustained by an employee arising out of and in the course of his employment.
110 Nev. 521, 524 (1994) SIIS v. Foster
Inc., 98 Nev. 99, 641 P.2d 481 (1982), we held that compensation is unavailable when
preexisting heart disease is aggravated by an employment condition. See also SIIS v. Connor,
102 Nev. 335, 721 P.2d 384 (1986). However, in SIIS v. Buckley, 100 Nev. 376, 682 P.2d
1387 (1984), we determined that there is no statutory prohibition to compensation when a
sudden, unforeseen and violent application of force occasioned by an employment accident
causes injury to the heart.
3
Id. at 379, 782 P.2d at 1389.
In Weaver, we narrowly extended the Buckley rule to allow compensation in severely
limited instances where exceptional and extraordinary physical exertion demanded by the
employment aggravates a preexisting heart disorder and causes death. Id. at 200, 734 P.2d at
742. Russell Weaver was a 59-year-old security inspector at the Nevada Test Site with a
history of coronary heart disease. Despite Weaver's age and health, he was required by his
employer to run one mile in eight-and-a-half minutes in order to retain his employment
position. Weaver's duties did not normally require running and in seventeen years he had
never before been required to run a mile. In the mid-July heat of southern Nevada, Weaver
ran a mile within the prescribed time, took a drink of water, and immediately succumbed to
cardiac arrest. Id. at 197, 734 P.2d at 741.
Foster argues that his strenuous work duties constituted the same exceptional and
extraordinary physical exertion present in Weaver. We disagree. Foster was required to work
greater hours over a gradual period of time, yet his increased work hours involved the same
basic duties he had performed for the previous twelve years. Whereas the exceptional,
employer-mandated physical stress upon Weaver's heart rose to the level of a violent
causative force similar to the defibrillator accident in Buckley, there was no comparable
exertion or causal force in Foster's case. There is simply no evidence that Foster's cardiac
event resulted from a violent causative force at work that would suffice for invoking the
highly limited rule in Weaver. Foster's condition, and the circumstances surrounding his
attack, strongly suggest that Foster's heart attack could have occurred anywhere or at anytime.
Spencer v. Harrah's Inc., 98 Nev. at 102, 641 P.2d at 483. In any event, if we were to
recognize coverage in the instant case, the Weaver rule would be expanded and rationalized
__________

3
In Buckley, a nurse with no preexisting heart disease or disorder accidently came into contact with a
defibrillator, which sent a strong electrical shock through her body. As a direct result of the shock, her mitral
valve prolapsed. We concluded that the accident was properly without the scope and intent of NRS 616.110(2)
because it resulted from an identifiable causative force.
110 Nev. 521, 525 (1994) SIIS v. Foster
to the point of devouring the legislature's unambiguous intent as expressed in NRS
616.110(2). This we refuse to do.
Our decision obviates the need to determine whether Foster's heart attack resulted from an
employment accident as required by NRS 616.615.
CONCLUSION
For the reasons discussed above, the order of the district court upholding the decision of
the appeals officer is reversed.
____________
110 Nev. 525, 525 (1994) Stroup v. State
TERRY L. STROUP, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24302
May 19, 1994 874 P.2d 769
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of second
degree murder. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Following jury trial before the district court defendant was convicted of second degree
murder. Defendant appealed. The supreme court held that: (1) jury's failure to make finding
that use of deadly weapon was involved in murder precluded enhancement of defendant's
sentence for use of deadly weapon, and (2) refusal to give defendant's proffered instruction on
justifiable homicide did not violate his right to have jury instructed on theory of case.
Nathan Tod Young, Minden, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Art Wehrmeister, District Attorney,
Gary W. Barr, Deputy District Attorney, and Kirk Vitto, Deputy District Attorney, Nye
1. Criminal Law.
Trial court erred in enhancing defendant's sentence for use of deadly weapon in commission of crime where jury did not make
specific finding whether weapon was indeed used to commit second degree murder; it was irrelevant whether it was obvious under
facts that deadly weapon was used to kill victim or whether jury's failure to make finding was due merely to failure to include a finding
on verdict form. NRS 193.165.
2. Criminal Law.
Refusal to give defendant's proffered instruction on justifiable homicide did not violate defendant's right to have jury instructed on
his theory of case where law encompassed in proffered instruction was fully covered in another instruction.
OPINION
Per Curiam:
FACTS
Appellant Terry L. Stroup (Stroup) and his friend, Melvin Skoglund (Skoglund) worked as woodcutters. Their employer was Larry
Miller (Miller), who owned the Salisbury Ranch near Tonopah. In September 1992, Stroup and Skoglund were living in a tent at a wood
camp in a remote area called Baxter Springs.
During one of their weekly trips to Tonopah for provisions, Stroup and Skoglund encountered the victim Larry Dixon (Dixon), who
was an acquaintance of theirs. Dixon asked if he could accompany them back to the wood camp as he had no place to stay. He told them
that he had been accused of stealing from the person with whom he had been living and had been asked to leave. Stroup and Skoglund
reluctantly allowed Dixon to return with them to the wood camp.
The following morning, September 3, 1992, two more people, Sharon Lundy (Lundy) and her boyfriend Allen Elliot (Elliot), came
to the camp to cut wood. In the afternoon, after splitting wood for several hours and drinking heavily, Stroup and Skoglund returned to their
tent to sleep. Lundy, Elliot and Dixon remained outside.
A short time later, Skoglund awoke to find Dixon beating him. Dixon was apparently upset by an argument between Lundy and
Skoglund which had taken place earlier in the day, but which had been settled amicably. Dixon left the tent and then returned shortly
thereafter and continued to beat Skoglund. Dixon left and returned a third time. Skoglund later testified that Dixon also began hitting
Stroup. Dixon then left and returned a fourth and fifth time. The fifth time Dixon returned, Stroup shot and killed him. It is unclear whether
Dixon had completely entered the tent when he was shot or whether he was immediately outside. Lundy later testified that Dixon had been
acting like a madman prior to and during the attack.
Later that evening, Stroup and Skoglund took Dixon's body to Miller's ranch. The following morning, Miller told another employee to
take Stroup into town, after which Miller and Skoglund buried Dixon's body on the property with a backhoe.
Miller later reported his actions to the Nye County Sheriff's Office. Stroup was arrested and
later charged with murder with the use of a deadly weapon pursuant to NRS 200.010, NRS
200.030, and NRS 193.165.
A jury trial was held. The jury found Stroup guilty of second degree murder, but made no
finding as to the use of a deadly weapon. The district court sentenced Stroup to eleven years
for second degree murder with an enhancement pursuant to NRS 193.165 of eleven years for
the use of a deadly weapon. The judgment of conviction filed by the court stated that [t]he
court adjudged the Defendant guilty of the crime(s) of murder in the second degree with the
use of a deadly weapon. However, the jury verdict form only mentioned second degree
murder. This appeal ensued.
Stroup asserts a number of errors on appeal, including: (1) the district court
unconstitutionally enhanced his sentence for the use of a deadly weapon in light of the fact
that the jury made no specific finding that he had used a deadly weapon in the commission of
the crime; and (2) the district court erred in refusing to give his proffered instruction
regarding justifiable homicide.
DISCUSSION
We first address Stroup's assertion that the district court improperly enhanced his sentence
pursuant to NRS 193.165 in light of the fact that the jury did not make a finding as to the use
of a deadly weapon. NRS 193.165(1) provides that a crime committed with the use of a
deadly weapon shall be enhanced by imprisonment for a term equal to and in addition to the
term of imprisonment prescribed by statute for the crime. However, NRS 193.165(2) states
that the statute does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact.
(Emphasis added.)
[Headnote 1]
We addressed the use of NRS 193.165 in Zgombic v. State, 106 Nev. 571, 798 P.2d 548
(1990). Zgombic involved the question of whether construction boots were a deadly weapon.
There, we held that some weapons can be determined as a matter of law to be inherently
dangerous, and thus the only question remaining for the trier of fact is whether the deadly
weapon was used in the commission of the crime. Id. at 577, 798 P.2d at 551-52. If it is not
clear whether the weapon is deadly, the jury must then determine that issue in addition to
whether the weapon was used to commit the crime. Id. Regardless of whether the weapon is
deadly or not, the jury must determine whether that weapon was indeed used to commit the
crime before NRS 193.165 may be utilized to enhance a defendant's sentence.
was indeed used to commit the crime before NRS 193.165 may be utilized to enhance a
defendant's sentence.
The State contends that it would be absurd to argue that the jury could have returned a
verdict in this case of guilty without the use of a deadly weapon when there was no doubt that
Stroup used a gun to kill Dixon. However, we note that it is irrelevant whether it was obvious
that Stroup used a deadly weapon to commit the crime. It is also irrelevant whether the jury's
verdict was due merely to a failure to include a finding of the use of a deadly weapon on the
verdict form. NRS 193.165 requires the jury to find the use of a deadly weapon in the
commission of the crime before the defendant's sentence may be enhanced. In this case, the
jury made no such finding. Accordingly, we reverse the enhancement of Stroup's sentence for
the use of a deadly weapon.
[Headnote 2]
We next address Stroup's assertion that the district court erred in refusing his proffered
jury instruction as to justifiable homicide. At trial, Stroup requested that the following
instruction be given to the jury:
If you find that Terry Stroup killed Larry Dixon at a time when Dixon was intending or
endeavoring in a violent, riotous, tumultuous, or surreptitious manner to enter the
habitation of Terry Stroup and Mr. Skoglund for the purpose of assaulting or offering
personal violence to either of them, then the killing was justifiable and it is your duty to
return a verdict of not guilty.
The court rejected this instruction in favor of the following:
Justifiable homicide is the killing of a human being in necessary self-defense, or in
defense of habitation, property or person, against one who manifestly intends, or
endeavors, by violence or surprise, to commit a felony, or against any person or persons
who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious
manner, to enter the habitation of another for the purpose of assaulting or offering
personal violence to any person dwelling or being therein.
We have held that it is not error to refuse to give an instruction when the law encompassed
therein is substantially covered by another instruction given to the jury. Ford v. State, 99 Nev.
209, 211, 660 P.2d 992, 993 (1983). However, we have also held that a defendant has the
right to have the jury instructed on his theory of the case as disclosed by the evidence, no
matter how weak or incredible the evidence might be. Margetts v. State, 107 Nev. 616,
619-20, 818 P.2d 392, 394 (1991). Stroup contends that he was denied due process in light
of Margetts because the court refused to give his offered instruction on justifiable
homicide.
was denied due process in light of Margetts because the court refused to give his offered
instruction on justifiable homicide.
Stroup misinterprets our holding in Margetts. While Margetts does give the defendant the
right to have the jury instructed on his theory of the case, Margetts does not give the
defendant the absolute right to have his own instruction given, particularly when the law
encompassed in that instruction is fully covered by another instruction. Stroup's theory of the
case was justifiable homicide. The instruction given by the court fully encompassed this
theory of defense. Thus, Stroup's jury was sufficiently instructed on his theory of the case.
Accordingly, we cannot conclude that the district court erred in refusing to give Stroup's
proffered instruction regarding justifiable homicide.
In summary, we affirm Stroup's conviction. However, we hold that the district court erred
in enhancing Stroup's sentence pursuant to NRS 193.165 for the use of a deadly weapon when
the jury made no finding as to that fact. We therefore reverse the district court's enhancement
of Stroup's sentence for the use of a deadly weapon. We have carefully considered Stroup's
other assertions of error and find them to be without merit.
Stroup's defense in this case is that he was defending himself, or, more particularly, that he
was defending his habitation, in this case a tent. Dixon kept intruding into Stroup's tent,
assaulting Stroup and his tent-mate and acting like a madman, until, on the fifth break-in,
Stroup shot Dixon.
Stroup, properly and understandably, asked the trial court to instruct the jury that if it
found him to be acting in his own defense, the jury had a duty to return a verdict of not
guilty. The trial court refused to give such an instruction. By refusing to tell the jury that it
should acquit Stroup if it found self defense or defense of habitation, Stroup was denied a
fair trial.
The trial court did give to the jury a technical definition of justifiable homicide, but the
court refused to go further and advise the jury that if self-defense or defense of habitation
were found, it should then acquit the defendant. The trial court's technical instruction defining
justifiable homicide may have had some meaning to a law student, but it was of no use to the
jury absent the specific instruction that this kind of homicide must result in a not guilty
verdict.
1
The Majority apparently sees nothing wrong with refusing to instruct the jury
that a jury finding of justifiable homicide must result in acquittal, and it does not even
discuss the point.
__________

1
The California Criminal form jury instructions set forth the following jury instruction to be given when the
evidence to support the issue of justification or excuse is properly presented in a homicide case:
Upon a trial of a charge of murder, a killing is lawful, if it was [justifiable] [excusable]. The burden is on
the prosecution to prove
nothing wrong with refusing to instruct the jury that a jury finding of justifiable homicide
must result in acquittal, and it does not even discuss the point. I would reverse this case based
on my conviction that if the jury had been instructed properly, it would have been aware of its
duty to return a verdict of not guilty and would have returned such a verdict.
____________
110 Nev. 530, 530 (1994) Falcon v. State
JULIAN RICHARD FALCON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24732
May 19, 1994 874 P.2d 772
Appeal from a judgment of conviction, pursuant to a jury verdict, of twenty-eight criminal
counts. Fifth Judicial District Court, Mineral County; John P. Davis, Judge.
Following jury trial before the district court, defendant was convicted of several crimes,
including seventeen counts of sexual assault with use of a deadly weapon and one count of
first degree kidnapping with use of deadly weapon. Defendant appealed. The supreme court
held that: (1) presence of alternate juror in jury room during first two hours of deliberations
did not prejudice defendant, and (2) state proved by preponderance of evidence that
defendant's waiver of Fifth Amendment rights was intelligent and voluntary, notwithstanding
defendant's alleged ingestion of drugs prior to his arrest.
Affirmed.
Lawton and Drakulich, Fallon, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Craig Jorgenson, District Attorney
and Dennis C. Wilson, Deputy District Attorney, Mineral County, for Respondent.
1. Jury.
Presence of alternate juror in jury room during first two hours of deliberation did not deny defendant right to trial by jury.
Presumption of prejudice was rebutted by evidence that alternate juror did not participate in deliberations and his presence
had no impact on jury's verdict.
__________
beyond a reasonable doubt that the homicide was unlawful, that is, not [justifiable] [excusable]. If you have a reasonable doubt
that the homicide was unlawful, you must find the defendant not guilty.
California Jury Instructions, Criminal, 5.15 (5th ed. 1988) (CALJIC) (emphasis added). This is all Stroup wanted in this case, and I
believe that he was entitled to have the jury instructed in such a manner.
pate in deliberations and his presence had no impact on jury's verdict. NRS 175.391.
2. Criminal Law.
Defendant's waiver of Miranda rights was voluntary and intelligent, notwithstanding his alleged ingestion of drugs prior to his
arrest; defendant was not interviewed until approximately eleven and one-half hours after crime was reported and six and one-half
hours after his arrest, neither booking officer nor detective observed defendant to be incoherent or incapable of understanding
circumstances, and detective testified that defendant exhibited none of classic symptoms of intoxication or of being under influence of
controlled substances.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict of numerous criminal counts. For reasons stated below, we
FACTS
On October 21, 1992, at 9:30 p.m., appellant Julian Richard Falcon (Falcon) burst into the apartment of Chris Nepper. Falcon was
carrying a large axe. In the apartment at the time were Nepper, his girlfriend, his three-year-old daughter and his girlfriend's three-year-old
daughter. Thus began Falcon's nearly six-hour reign of terror.
Falcon threatened to kill all four individuals if they refused to cooperate. He forced Nepper and the children to one room. He then
proceeded, with axe or knife in hand, to force Nepper's girlfriend to inhale cocaine, smoke marijuana, perform numerous acts of oral sex on
him and engage in sexual intercourse. He also handed her a knife and told her to kill Nepper. At some point, he forced Nepper to smoke
marijuana and locked him in a closet. Falcon finally left sometime after 3 a.m., at which time Nepper called the police.
After leaving the apartment, Falcon went down an alley to his mother's house, leaving footprints in the wet sand. He put the axe in a
shed, smoked and ingested more of his drugs, and then went into the house.
The police arrived at the home of Falcon's mother at approximately 7:30 a.m. Falcon's mother informed the officers that Falcon was not
there, but permitted them to enter his bedroom. There, the officers found Falcon hiding in a closet. Falcon was arrested and taken to the
Mineral County Jail.
At the jail, Falcon's booking officer filled out an arrest and property form. She also filled out a visual observation opinion form in
which she stated that she observed that Falcon showed no signs of abnormal behavior or of being under the influence of
controlled substances or alcohol.
signs of abnormal behavior or of being under the influence of controlled substances or
alcohol.
Later that afternoon, at approximately 2 p.m., Captain Edward Smith read Miranda
warnings to Falcon. Captain Smith observed that Falcon appeared normal and sober except
that his eyes were somewhat glassy. Captain Smith asked Falcon to spell his name which he
did with no incoherence or difficulty. In addition, Captain Smith asked Falcon several other
questions and was satisfied that Falcon was able to understand his rights enough to make an
intelligent waiver. Falcon testified that he knew he did not have to speak to Captain Smith
without his attorney, but that he wanted to, so he signed a card waiving his rights.
Falcon was later bound over and a jury trial was held. Two hours after the jury had retired
to deliberate, it was discovered that the alternate juror had entered the jury room with the
jury. The alternate juror was removed and the jury continued its deliberations which lasted for
approximately nineteen hours before a verdict was reached.
The jury found Falcon guilty of seventeen counts of sexual assault with the use of a deadly
weapon, one count of first degree kidnapping with the use of a deadly weapon, one count of
second degree kidnapping with the use of a deadly weapon, one count of burglary, two counts
of dissuading a witness from reporting the crimes, one count of supplying a controlled
substance, two counts of use of a controlled substance to aid in the commission of a crime,
one count of possession of a controlled substance, and two counts of being under the
influence of a controlled substance (methamphetamine and marijuana).
Following the verdicts, Falcon's counsel moved for a mistrial due to the presence of the
alternate juror in the jury room for the first two hours of deliberations. Each juror, including
the alternate, was then called in by the judge to testify as to the alternate's actions and impact
on the final verdict. The alternate testified that he merely sat by a window and did not
participate in any deliberations. All the jurors testified that the alternate did not participate in
any way and had no impact on their verdict. Following this testimony, the district court
denied Falcon's motion for a mistrial, finding that no actual prejudice had resulted from the
presence of the alternate during the first two hours of deliberations.
Falcon now appeals, asserting two errors below: (1) the presence of the alternate juror
deprived him of his constitutional right to trial by jury; and (2) the waiver of his right to
remain silent after receiving Miranda warnings was not voluntary and intelligent because he
was under the influence of drugs and alcohol, and therefore any information gained from him
during that time was inadmissible.
DISCUSSION
[Headnote 1]
We first address Falcon's claim that the presence of the alternate juror in the jury room
during the first two hours of deliberations denied him his right to trial by jury. Though we
have not dealt with this precise issue previously, we enunciated a presumption of prejudice
standard for juror misconduct in Isbell v. State, 97 Nev. 222, 626 P.2d 1274 (1981). There,
we held that any non-juror having private communication with a juror in a criminal case on
any subject connected with the trial is presumptively prejudicial. Id. at 226, 626 P.2d at 1276.
A hearing before the trial court is the appropriate method for determining whether prejudice
existed. Id., 626 P.2d at 1277. The burden is on the respondent to show that the
communication was not prejudicial. Id. Determining whether prejudice exists is a factual
determination, one that will not be disturbed on appeal if supported by substantial evidence.
Id.
Our statutes provide guidelines for the sequestering of jurors during deliberations. NRS
175.391 provides that the officer in charge of the jurors shall keep them separate from other
persons during deliberations. NRS 175.061 provides for alternate jurors to replace regular
jurors after the jury has retired to deliberate. However, no statute provides for the dismissal of
alternate jurors once deliberations begin.
Clearly, the presence of an alternate juror during deliberations violates NRS 175.391. Such
unauthorized contact with the jury creates a presumption of prejudice under Isbell. Therefore,
the State had the burden of refuting this presumption of prejudice with substantial evidence.
As stated above, the court held a hearing following the verdict at which all jurors testified
as well as the alternate juror. There was no testimony that the alternate juror participated in
the deliberations, nor was there testimony that the presence of the alternate for the first two
hours of deliberations had any impact on the jury's verdict. Indeed, several jurors testified that
they were unaware of the presence of the alternate until he was told to leave. Therefore, we
conclude that the State successfully refuted the presumption of prejudice arising from the
presence of the alternate juror during the first two hours of deliberations. Accordingly, the
district court did not err in denying Falcon's motion for a mistrial.
[Headnote 2]
We now turn to Falcon's assertion that the district court erred in admitting statements
made by him after receiving Miranda warnings because he was under the influence of
controlled substances at the time and was unable to make a voluntary and intelligent waiver
of his rights.
intelligent waiver of his rights. We have held that the validity of a defendant's waiver of his
Fifth Amendment rights after receiving Miranda warnings must be determined in each case
by examining the facts and circumstances of the case such as the background, conduct and
experience of the defendant. Anderson v. State, 109 Nev. 1129, 1133, 865 P.2d 318, 320
(1993) (citing Edwards v. Arizona, 451 U.S. 477 (1981)); see also Stewart v. State, 92 Nev.
168, 170-71, 547 P.2d 320, 321 (1976) (mere intoxication will not preclude the admission of
a defendant's statements unless it is shown that the intoxication was so severe as to prevent
the defendant from understanding his statements or his rights). The State must prove by a
preponderance of the evidence that the defendant knowingly and intelligently waived his Fifth
Amendment rights. Scott v. State, 92 Nev. 552, 554, 554 P.2d 735, 736-37 (1976) (citing
Lego v. Twomey, 404 U.S. 477 (1974)).
Falcon now contends that Captain Smith knew he had taken controlled substances and still
chose to read him his Miranda rights and question him. Falcon claims that reasonable doubt
exists as to whether his waiver of his rights was voluntary and intelligent in view of his
physical condition.
We disagree. As the State points out, Falcon was interviewed approximately eleven and
one-half hours after the crime was reported and six and one-half hours after his arrest. Neither
his booking officer nor Captain Smith observed Falcon to be incoherent or incapable of
understanding the circumstances and what was being said to him. Captain Smith testified that
during questioning, Falcon exhibited none of the classic symptoms of intoxication or of being
under the influence of controlled substances. Falcon sat straight on his chair and was able to
respond to questions with no difficulty. After asking Falcon a number of questions to
determine intoxication, if any, Captain Smith was satisfied that Falcon was able to
comprehend and voluntarily and intelligently waive his rights. In addition, Falcon himself
testified that he willingly spoke to Captain Smith, knowing he was not required to do so.
After viewing the totality of the circumstances, we conclude that the State has shown by a
preponderance of the evidence that Falcon voluntarily and intelligently waived his Fifth
Amendment rights. Therefore, we hold that the district court did not err in admitting
statements made by Falcon after receiving Miranda warnings and waiving his Fifth
Amendment rights.
In conclusion, we hold that while a presumption of prejudice arose from the presence of
the alternate juror during the first two hours of deliberations, the State successfully refuted
that presumption to show that no actual prejudice resulted. Therefore, the district court did
not err in denying Falcon's motion for a mistrial. In addition, we hold that the State proved by
a preponderance of the evidence that Falcon intelligently and voluntarily waived his Fifth
Amendment rights.
ance of the evidence that Falcon intelligently and voluntarily waived his Fifth Amendment
rights. Therefore, the district court did not err in admitting Falcon's statements made after his
waiver of those rights. Accordingly, we affirm the decision of the district court.
____________
110 Nev. 535, 535 (1994) Castillo v. State
ALEJANDRO JOSE CASTILLO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24559
May 23, 1994 874 P.2d 1252
Appeal from a judgment of conviction entered upon a plea of guilty of one count each of
sexual assault and battery with intent to commit sexual assault. Ninth Judicial District Court,
Douglas County; David R. Gamble, Judge.
Defendant was convicted, pursuant to plea bargain, by the district court of sexual assault,
battery with intent to commit sexual assault, and felony failure to appear, and he appealed
sentence. The supreme court, Rose, C. J., held that: (1) amendment to juvenile transfer statute
prohibiting adult certification of juveniles under age sixteen did not apply retroactively; (2)
defendant's life sentence with possibility of parole was not cruel and unusual punishment; (3)
district court's consideration of victim impact statements from victims' relatives was harmless
error; and (4) statute allowing certification of juvenile as adult did not violate due process
clause.
Affirmed.
[Rehearing denied September 6, 1994]
Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott Doyle, District Attorney, and
Michael P. Gibbons, Chief Deputy District Attorney, Douglas County, for Respondent.
1. Statutes.
Changes in statutes are presumed to operate prospectively absent clear legislative intent to apply statute retroactively.
2. Infants.
There was no indication of legislative intent that amendment to statute prohibiting juveniles under sixteen years of age from being
tried as adults be applied retroactively to defendant who committed offense before statute became effective. NRS 62.080.
3. Infants.
Statutory amendment prohibiting certification of juveniles under age sixteen for trial as adults did not apply retroactively, since
change was not of constitutional dimension; it responded to judicial decision, rather than to ambiguous statute, and defendant was
asking court to consider arguments that would not have been available had he complied with law. NRS 62.080.
4. Statutes.
Statutory amendment is considered remedial only if it clarifies and technically corrects ambiguous statute.
5. Statutes.
Absent clear legislative intent to contrary, clarifying amendments will be applied retroactively only if they do not contravene any
judicial construction of statute.
6. Criminal Law.
Defendant's sentence of life imprisonment with possibility of parole was not cruel and unusual punishment for sexual assault,
battery with intent to commit sexual assault, and felony failure to appear, where written plea bargain signed by defendant under which
four other felony charges against him were dismissed stated that he could be given maximum sentence for each offense, his sentence
was within statutory limits, and his escape and flight to different state where he committed further crimes showed flagrant disregard for
law. U.S. Const. amend. 8.
Minimum time to be served for sexual assault on life sentence or on definite term of years is same, five years. NRS 200.366(2)(b).
8. Criminal Law.
Trial court has wide discretion in imposing sentence, and unless there is showing of abuse of discretion, sentence will be upheld.
9. Criminal Law.
If sentence is within statutory limits, it will not be considered cruel and unusual punishment unless it is so disproportionate to
crime that it shocks conscience and offends fundamental notions of human dignity. U.S. Const. amend. 8.
10. Criminal Law.
District court's consideration of letter from one victim's ex-husband describing impact of battery with intent to commit sexual
assault of victim and their young son who witnessed it and letter from other victim's parents describing impact of sexual assault on
victim was harmless error. NRS 176.015(3)(b), (5); 213.005.
11. Criminal Law.
Judge's reliance upon prejudicial matters in sentencing is abuse of discretion that requires resentencing hearing before different
judge.
12. Infants.
Statutory provision for certification of juvenile felony offender as adult was not unconstitutional in failing to announce criteria to
be employed for certification. Certifying order was appealable, and court created criteria to be considered when making transfer
decision. NRS 62.080.
Due process clause of Federal Constitution requires states to enact standards for those who apply law to avoid arbitrary and
discriminatory enforcement. U.S. Const. amend. 14.
Statutes are presumed valid, and burden is on person challenging statute to prove it is unconstitutional.
15. Statutes.
When former statute is amended, or doubtful interpretation rendered certain by subsequent legislation, amendment is persuasive
evidence of legislative intent regarding statute.
OPINION
Appellant Alejandro Jose Castillo (Castillo) was one month shy of his sixteenth birthday when he committed six offenses, each of
which would have been a felony if committed by an adult.
1
He was charged after he turned sixteen and was
certified to stand trial as an adult pursuant to NRS 62.080. Castillo then fled the state before
he could be tried or sentenced. He was arrested two years later in Florida and pleaded guilty
to sexual assault, battery with intent to commit sexual assault, and felony failure to appear.
The district court sentenced Castillo to life with the possibility of parole for sexual assault, to
run consecutively to a ten year sentence for battery with intent to commit sexual assault and
concurrently with a six year sentence for failure to appear. Castillo argues on appeal that: (1)
amended NRS 62.080, which prevents a juvenile from being certified as an adult unless he
commits a crime after age sixteen, should retroactively apply to him, (2) his sentence is
unconstitutional, (3) the district court relied on improper evidence at the sentencing hearing,
and (4) NRS 62.080 violates the right to due process in failing to provide specific guidelines
for the certification process. For the reasons stated below, we reject Castillo's contentions and
affirm his conviction.
__________

1
We note that this is the fourth time Castillo's case has been before us for review. In State v. District Court, 105
Nev. 644, 781 P.2d 776 (1989), we held that certification of a minor to stand trial as an adult pursuant to NRS
62.080 required only that the State charge a minor after the age of sixteen, not that the minor commit the charged
offense after the age of sixteen, and granted the State's petition for a writ of mandamus to bring a petition to
certify Castillo. In Castillo v. State, 106 Nev. 349, 792 P.2d 1133 (1990), we held that the order of the district
court denying Castillo's petition for transfer back to the juvenile court was not a final appealable order, but that
the order of the juvenile court certifying Castillo as an adult was a final appealable order. On December 18,
1990, this court entered an order dismissing Castillo's appeal of the juvenile court's certification, finding no
abuse of discretion by the juvenile court and no prosecutorial manipulation by the State in charging Castillo after
he turned sixteen. Castillo v. State, Docket No. 20840 (Order Dismissing Appeal, December 18, 1990).
FACTS
On the evening of May 4, 1988, Castillo entered Lynne's residence wearing a black ski
mask and gloves. Lynne was sleeping in her bed along with her four-year-old son. Upon
observing Lynne, Castillo began to assault hergrabbing her by the hair and slamming her
head into the brass bedposts. He then tried to remove her sweat pants while pushing his knee
into her chest and stomach. Lynne managed to scream and alert her roommate, and Castillo
ran away.
On the evening of May 5, 1988, Castillo left his residence and hid near Debbie's home.
Debbie was eighteen years old and had been out with a girlfriend. She dropped off her friend
and then pulled into her garage and exited her car. Castillo emerged from the shadows and
knocked Debbie to the ground. Debbie began screaming and Castillo began punching her in
the face. Castillo then climbed on top of Debbie and grabbed her by the hair. He pounded her
head into the cement floor so hard that she lost consciousness for a few minutes. Castillo
pulled most of her clothing off and began forcible sexual intercourse. He withdrew his penis
and ejaculated on her face. Castillo got up and kicked Debbie in the stomach before riding
away on a stolen bicycle. Debbie ran into her house to get help from her parents. Her mouth
was cut and swollen and her left eye was swollen shut. She was immediately transported to
Carson-Tahoe Hospital.
Castillo was arrested on May 6, 1988, and charged with possession of stolen propertythe
bicycle used on May 5, 1988. Castillo entered an admission to a juvenile petition charging
grand larceny and possession of stolen property and was granted probation. He turned sixteen
years old on June 8, 1988. On July 18, 1988, the State filed a petition alleging delinquency
with the juvenile court, charging Castillo with sexual assault, attempted sexual assault, two
counts of battery with intent to commit sexual assault, and two counts of burglary. Castillo
was arrested, placed into custody at the juvenile detention center in Carson City, and
transferred to the Nevada Youth Training Center in Elko after he escaped from the Carson
City facility.
On August 9, 1988, the State filed a motion pursuant to NRS 62.080 to certify Castillo to
be tried as an adult. The juvenile judge denied the State's motion, and subsequently this court
issued a writ of mandamus reinstating the State's petition for certification. See State v.
District Court, 105 Nev. 644, 781 P.2d 776 (1989). In response to our decision, on May 13,
1991, the Nevada Legislature amended NRS 62.080 to state that no child may be [certified
as an adult] unless he was 16 years of age or older at the time he allegedly committed the
offense charged. NRS 62.080(1).
Meanwhile, pursuant to our grant of the State's petition for writ of mandamus, the district
court considered the State's petition and certified Castillo to stand trial as an adult. Castillo
appealed to this court, futilely attempting to transfer his case back to juvenile court. See
Castillo v. State, 106 Nev. 349, 792 P.2d 1133 (1990). At his arraignment on April 10, 1990,
Castillo declined to enter a plea, and the district court entered a not guilty plea to all charges.
While Castillo's second appeal was pending, the State filed a motion for bail increase.
Castillo failed to appear for the hearing, and a bench warrant was issued for his arrest.
Castillo subsequently failed to appear for the jury trial that was scheduled for June, 1990, and
continued until September, 1990.
Castillo was finally arrested in Florida in September, 1992, as a result of illegal activities.
Between June, 1990, and September, 1992, Castillo obtained a Florida identification card and
driver's license in the name of Luis Ortiz, received six traffic citations while using the name
Luis Ortiz, and had his driver's license suspended indefinitely for failure to pay fines. Castillo
was arrested for disorderly conduct, trespassing, and burglary, resulting in two misdemeanor
convictions. Castillo's burglary arrest involved Castillo approaching a woman from behind
and telling her she had gum stuck to her shoe, then bending down, removing the victim's
shoe, and licking and kissing her foot and toes. The victim grabbed her shoe and ran into a
business, and Castillo was subsequently observed burglarizing the victim's vehicle.
On April 1, 1993, pursuant to a plea bargain in which four of the original felony charges
were dismissed, Castillo entered a guilty plea to two chargesone for sexual assault on
Debbie and one for battery with intent to commit sexual assault on Lynne. He also pleaded
guilty to the felony charge of failure to appear that was filed against him on February 2, 1993.
The district court imposed the maximum sentence for each offense. Castillo appeals from this
sentence.
DISCUSSION
Whether amended NRS 62.080 should apply retroactively
Prior to 1991, NRS 62.080 provided:
If a child 16 years of age or older is charged with an offense which would be a
felony if committed by an adult, the juvenile division of the district court, after full
investigation, may in its discretion retain jurisdiction or certify the child for proper
criminal proceedings to any court which would have trial jurisdiction of such offense if
committed by an adult; but no child under 16 years of age may be so certified.
In 1991, the Nevada Legislature amended NRS 62.080 to state: [n]o child may be [certified
as an adult] unless he was 16 years of age or older at the time he allegedly committed the
offense charged. 1991 Nev. Stat., ch. 160, sec. 11, pp. 304-05. Castillo asserts that the
district court erred in failing to apply amended NRS 62.080 to his case. Because Castillo
committed the crimes one month shy of his sixteen birthday, retroactive application of NRS
62.080(1) would result in a finding that the district court lacked jurisdiction to try Castillo as
an adult.
[Headnote 1]
In Nevada and neighboring jurisdictions, changes in statutes are presumed to operate
prospectively absent clear legislative intent to apply a statute retroactively. Allstate Insurance
Co. v. Furgeson, 104 Nev. 772, 776, 766 P.2d 904, 907 (1988); Walstrom v. State, 104 Nev.
51, 53 n.3, 752 P.2d 225, 227 n.3 (1988); accord White v. Western Title Co., 710 P.2d 309,
316 (Cal. 1990); Riley v. People, 828 P.2d 254, 257 (Colo. 1992).
[Headnote 2]
There is no indication that the Legislature intended that amended NRS 62.080 apply
retroactively. The amendment was a small part of an omnibus crime bill that was not debated
because all parties were in agreement. Though the law was passed in May, 1991, it did not
become effective until October 1, 1991. The only indication of legislative intent with regard
to the amendment is found in the minutes of the Assembly Judiciary Committee, which state:
Section 11 dealt with juvenile-adult jurisdiction. The Nevada Supreme Court case of
State of Nevada v. District Court in November, 1989 resulted in confusion in the law
on this issue. . . . Mr. Picker opined the legislature intended if the crime was committed
by a person who was 16 at the time of the crime, then he qualified for adult
adjudication upon a motion of the district attorney. Section 11 would clarify the statute
toward that intent.
Hearing on A.B. 383 Before the Assembly Judiciary Committee, March 20, 1991, p. 4. As the
above-quoted passage shows, the Legislature, as a result of this court's opinion in State v.
District Court, 105 Nev. 644, 781 P.2d 776 (1989), was well aware of Castillo's case at the
time that it amended the statute. If the Legislature was concerned with Castillo or others in
his situation and intended the statute to apply retroactively, they could have so directed.
Nowhere in the legislative history does the Legislature indicate an intent that the amendment
apply retroactively.
[Headnote 3]
Appellant argues that because NRS 62.080 is a statute which is both procedural and
remedial, it should apply retroactively despite such lack of legislative intent. See Harrison v.
Otis Elevator Co., 935 F.2d 714, 719 (5th Cir. 1991) (stating that procedural acts describe
methods for enforcing, processing, administering or determining rights or liabilities, and
holding that [i]t is well settled that legislation that is interpretive, procedural, or remedial
must be applied retroactively, while substantive amendments are given only prospective
application); see also Wash. Nat. Ins. v. Sherwood Assoc., 795 P.2d 665, 669 n.9 (Utah Ct.
App. 1991) (a remedial statute in the context of a retroactivity determination means a
statutory change in the judicial procedure available to pursue a claim, and a clarification of
prior legislative intent).
We reject appellant's contention for the following reasons. First, we note that the majority
of state courts do not mandate that such statutes be applied retroactively, but instead leave the
determination to the court's discretion. See Texas County Irr. and Water Resources Ass'n v.
Oklahoma Water Resources Board, 803 P.2d 1119 (Okla. 1992) (a clarifying amendment
can be given retrospective application if it does not affect vested rights); In re F.D.
Processing, Inc., 832 P.2d 1303, 1307 (Wash. Ct. App. 1993) (amendments may be
retroactivity applied if they are remedial in nature and do not affect substantive rights).
Second, in analogous situations, this court has ruled that changes in criminal procedure
based upon judicial decisions were to be applied prospectively, not retroactively. See Gier v.
Ninth Judicial District Court, 106 Nev. 208, 789 P.2d 1245 (1990); Heinrich v. State, 97 Nev.
358, 630 P.2d 1224 (1981). The changes in law in Gier and Heinrich involved changes in the
grand jury and guilty plea process. Since such changes were procedural and were not of
constitutional dimension, we concluded that they were not to be applied retroactively.
Similarly, the change in NRS 62.080 is an important procedural change, but is not of
constitutional dimension and need not be applied retroactively.
[Headnotes 4, 5]
Third, an amendment is considered remedial only if it clarifies or technically corrects an
ambiguous statute. In re F.D. Processing, Inc., 832 P.2d at 1308. The legislative minutes
reveal that the Legislature amended NRS 62.080 to clarify the confusion caused by the
decision of State v. District Court, 105 Nev. 644, 781 P.2d 776 (1989). However, despite
language in the legislative history indicating that the Legislature intended to "clarify" their
original intent, courts have held that legislative enactments responding to judicial
interpretations of a statute by affirmatively changing the statute are not "clarifications"
of original legislative intent, but are amendments presumed to operate prospectively
absent contrary legislative intent.
clarify their original intent, courts have held that legislative enactments responding to
judicial interpretations of a statute by affirmatively changing the statute are not
clarifications of original legislative intent, but are amendments presumed to operate
prospectively absent contrary legislative intent. See Marine Power v. Washington State Hum.
Rights, 694 P.2d 697, 701 (Wash. Ct. App. 1985). Such decisions are based on the fact that
after the supreme court of a state has interpreted the statute in question, it is no longer
ambiguous and therefore cannot be clarified by the Legislature. Id. Therefore, absent clear
legislative intent to the contrary, clarifying amendments will be applied retrospectively only if
they do not contravene any judicial construction of the statute. F.D. Processing, 832 P.2d at
1308; Marine Power, 694 P.2d at 700 (legislative clarification, as opposed to a legislative
amendment, is generally retroactive, but a legislature may not overrule by legislative
enactment a prior authoritative supreme court opinion construing a statute: such a result
would make the legislature a court of last resort).
Lastly, since Castillo was scheduled for trial in 1990 and failed to appear when he fled to
Florida, he is asking this court to consider arguments that would not have been available to
him had he complied with the law. Allowing Castillo benefit from his intentional, illegal
absence from the State goes against common notions of fairness and justice. In a similar case,
the Supreme Court of Minnesota refused to allow such a benefit to a seventeen year old
charged with homicide in the juvenile court. See In the Matter of Welfare of S.V., 296
N.W.2d 404 (Minn. 1980). The juvenile left the state, moved to Texas, and was not arrested
until after he turned twenty-one. The court rejected the appellant's contention that because he
was over twenty-one and the juvenile court lacked jurisdiction, he could not be prosecuted for
his crime. Id. at 407. Refusing to accept this home free argument allowing the offender to
benefit from his illegal flight, the court ruled that the adult court automatically obtained
jurisdiction. Id. at 407-08. We likewise refuse to allow Castillo to illegally flee the state and
come back yelling home free now that NRS 62.080 has been amended.
Thus, we conclude that the district court did not err in failing to apply NRS 62.080
retroactively to Castillo.
Whether Castillo's sentence is constitutional
[Headnote 6]
Castillo claims that his sentence constitutes cruel and unusual punishment, in violation of
the Eighth Amendment. See Solem v. Helm, 463 U.S. 277 (1983) (criminal sentences
disproportionate to the crime committed violate the Eighth Amendment).
to the crime committed violate the Eighth Amendment). He argues that because he was not a
true adult when he committed the offenses, did not use a deadly weapon, did not cause
substantial bodily harm to either victim, and did not engage in something more deviant
than forcible rape, this court should find his sentence unconstitutional. He further maintains
that he was an immature and impulsive juvenile when he committed these acts and that
examination by two competent psychologists four years apart have failed to turn up any
serious personality disorders. Lastly, he asserts that the uncontroverted evidence that he had
been ingesting anabolic steroids at the time of the attacks, in connection with his desires to
be a star football player for the Douglas High Tigers, should mitigate his punishment.
2
We
conclude that Castillo's arguments are without merit for the following reasons.
First, we note that the written plea bargain signed by Castillo, pursuant to which four other
felony charges were dismissed, stated that he could be given the maximum sentence for each
offense.
[Headnote 7]
Second, the minimum time to be served for sexual assault on a life sentence or on a
definite term of years is the same, five years. See NRS 200.366(2)(b). Therefore, it is possible
that even though Castillo was given a life sentence, he could be paroled at the same time he
would have if given a lesser sentence.
3

__________

2
We note that the evidence of steroid ingestion and its relation to the crimes committed is anything but
uncontroverted. Castillo has maintained throughout this case that he was just a crazy kid on steroids when he
committed the crimes. At the sentencing hearing, John Warren (Warren), a pharmacist, testified on Castillo's
behalf. He stated that there may be a cause and effect relationship between the taking of anabolic steroids and
violent crimes, but admitted on cross-examination that less than one percent of the reported number of people
who admitted to taking anabolic steroids become violent. Warren also admitted that he did not know if Castillo
had actually ingested anabolic steroids because he did not interview Castillo. Instead, Warren relied on the
representation of Castillo's attorney, who told Warren that Castillo's brother had said that he gave Castillo
steroids and that Castillo had told his brother that he took the steroids during the time period of the crimes.
Warren additionally testified that no study indicates that steroids would cause somebody to commit sexual
assault.

3
At the sentencing hearing, Castillo's counsel argued that a twenty-five year sentence would be appropriate,
acknowledging that such a sentence would probably mean that Castillo would serve five years then be paroled
because he has already been evaluated by two psychologists who say that he does not have an identifiable
personality disorder characteristic of chronic sex offenders. In briefs before this court, Castillo's counsel stated
that under Castillo's current sentence, even if he is a model prisoner, the grant of parole
[Headnotes 8, 9]
Third, the trial court has wide discretion in imposing a sentence, and unless there is a
showing of abuse of discretion, the sentence will be upheld. Randell v. State, 109 Nev. 5, 846
P.2d 278 (1993); see Deveroux v. State, 96 Nev. 388, 390, 610 P.2d 722, 723-24 (1980) (a
judge has discretion in deciding what weight to accord to youth and lack of a prior criminal
record in sentencing). If a sentence is within the statutory limits, it will not be considered
cruel and unusual punishment unless it is so disproportionate to the crime that it shocks the
conscience and offends fundamental notions of human dignity. Lloyd v. State, 94 Nev. 167,
170, 576 P.2d 740, 743 (1978).
The evidence in the record shows that Castillo committed premeditated, brutal crimes.
Castillo's escape from the juvenile detention center and flight to Florida, where he committed
further crimes and an act of sexual deviancy, show not only an attempt to avoid
responsibility, but also a flagrant disregard for the law. Castillo's cries for mitigation based on
claims that he was immature when he committed the crimes, that he did not engage in
something more deviant than forcible rape, and that he was taking steroids in order to be a
star football player, are further attempts to avoid taking responsibility for what are serious,
adult offenses meriting adult punishment.
4
We support the current trend that juvenile
offenders who commit serious violent crimes should be prosecuted as adults, and we thus
conclude that Castillo's sentence is constitutional.
Whether the district court relied on improper evidence in sentencing appellant
[Headnote 10]
At the sentencing hearing, Debbie and Lynne chose not to testify. The district court,
however, ruled that it could consider a letter submitted by Lynne's ex-husband describing the
impact of the crime on Lynne and Lynne's son and a letter sent by Debbie's parents
describing the impact of the crime on Debbie.
__________
before his thirtieth birthday is slim. Even if this statement is true, in light of the psychiatric evaluations, Castillo
will most likely end up serving no more than ten years before becoming eligible for parole. See NRS 200.375.
Thus, Castillo's assertion that his sentence is unconstitutional is an argument over approximately five years of
imprisonment.
The State has argued that a life sentence is necessary to assure the imposition of lifetime parole, crucial to
maintaining supervision of Castillo, and that the severity of the crimes and Castillo's subsequent criminal
behavior justifies consecutive maximum sentences.

4
We question why the Legislature, given the rise in serious violent crimes committed by youthful offenders, has
not seen fit to provide for certification of juveniles under sixteen who commit such crimes. We ask the
Legislature to review this statute at the next legislative session.
the crime on Lynne and Lynne's son and a letter sent by Debbie's parents describing the
impact of the crime on Debbie. Castillo argues that the district court's consideration of these
victim impact statements was clear error.
[Headnote 11]
Though a judge is allowed wide discretion in sentencing, if the judge relies upon
prejudicial matters, such reliance constitutes an abuse of discretion that necessitates a
resentencing hearing before a different judge. Goodson v. State, 98 Nev. 493, 495-96, 654
P.2d 1006, 1007 (1982).
NRS 176.015(3)(b) provides a victim the opportunity to appear personally or by counsel
and reasonably express any views concerning the crime, the person responsible, and the
impact of the crime on the victim. NRS 176.015(5) states that the term victim has the
meaning ascribed to it in NRS 213.005.
5

Castillo argues that Ron, Lynne's ex-husband, does not fit any part of the definition of
victim and that his statement should not have been considered. The plea bargain agreement
stated, however, that the court could consider the facts surrounding all of the original charges
at the time of sentencing. The district court, reasoning that Lynne's son was a victim of the
burglary with which Castillo was originally charged, concluded that Ron could speak on his
son's behalf. Though Ron does not fit into any description within the meaning of victim that
would enable him to give a statement for Lynne, it is not clear, since the focus of the
discussion was on the statements regarding Lynne's son, that the district court even
considered Ron's statements regarding Lynne. Even if it did, we conclude that such
consideration was harmless error.
Additionally, we conclude that though Debbie's parents do not fit within the express
wording of NRS 213.005, their letter was directly related to the impact that the crime had on
Debbie. Therefore, the district court's consideration of this letter was harmless error.
Whether NRS 62.080 violates constitutional due process requirements in failing to provide
sufficient guidelines
[Headnote 12]
Appellant argues that NRS 62.080 is unconstitutional in failing to announce the criteria to
be employed in certifying juvenile felony offenders as adults.
__________

5
NRS 213.005 defines victim as either a person against whom a crime has been committed, a person who has
been injured or killed as a direct result of the commission of a crime, or the surviving spouse, parents, or
children of such a person.
[Headnotes 13, 14]
The due process clause of the Fourteenth Amendment requires the states to enact standards
for those who apply the laws, in order to avoid arbitrary and discriminatory enforcement.
Sheriff v. Martin, 99 Nev. 336, 339, 662 P.2d 634, 637 (1983). However, statutes are
presumed valid, and the burden is on the person challenging the statute to prove it is
unconstitutional. Wilmeth v. State, 96 Nev. 403, 610 P.2d 735 (1980). There must be a clear
showing of invalidity to overcome such a burden. Sheriff v. Martin, 99 Nev. 336, 340, 662
P.2d 634, 637 (1983).
Appellant relies largely on United States ex rel. Pedrossa v. Sielef, 434 F. Supp. 493 (N.D.
Ill. 1977), modified on other grounds, 598 F.2d 1064 (7th Cir. 1979), a case in which an
Illinois court faced a vagueness challenge to a similar transfer statute. The court found that
the statute was unconstitutional, stating:
Neither was the vagueness in the statute removed by any Illinois decisions
construing the statute to require criteria for the transfer decision. Nothing prevented the
Illinois juvenile judge from using any criteria he desired no matter how arbitrary. This
potential for arbitrariness was aggravated by the absence of provisions requiring a
statement of reasons for the transfer (the judge in this case gave no reasons), or
allowing appellate review of the transfer decision.
Id. at 496.
We note, however, that Pedrossa is not persuasive for the following reasons. In the case of
In the Matter of Seven Minors, 99 Nev. 427, 434-36, 664 P.2d 947, 952 (1983), we created
criteria for courts to consider in certifying juveniles for transfer to adult court. After
establishing public protection as the controlling principle upon which the transfer decision is
to be based, we held that a court should consider the nature and seriousness of the charged
offense, the persistency and seriousness of the adjudicated or admitted past criminal offenses,
and the personal attributes or admitted past criminal offenses, and the personal attributes of
the offender. Id. Thus, judges are not free to use arbitrary criteria in the certification process.
Moreover, in Castillo v. State, 106 Nev. 349, 792 P.2d 1133 (1990), this court held that an
order certifying a juvenile for transfer to district court is an appealable order, so that review of
a transfer decision is possible. Therefore, the concerns expressed by the Pedrossa court are
not present in Nevada.
[Headnote 15]
Additionally, this court has stated:
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 so as to give it force
and not nullify its manifest purpose.
Woofter v. O'Donnell, 91 Nev. 757, 762, 542 P.2d 1396, 1400 (1975). When a former statute
is amended, or a doubtful interpretation rendered certain by subsequent legislation, such
amendment is persuasive evidence of legislative intent with regard to the statute. Id. The
decisional matrix announced by this court in Seven Minors had been in place for the eight
years leading up to the amendment of NRS 62.080 in 1991. If the Legislature had intended
guidelines other than those set out by this court in Seven Minors, they could have amended
the statute to provide such guidelines, just as they amended the statute to provide that
juveniles under sixteen who commit crimes cannot be certified after this court's decision in
State v. District Court, 105 Nev. 644, 781 P.2d 776 (1989). Thus, we conclude that Castillo
has not met the burden of proving that NRS 62.080 is unconstitutional.
Accordingly, we affirm Castillo's conviction.
Steffen, Young and Shearing, JJ., concur.
Springer, J., concurring:
In my opinion, the legislature's 1991 amendment to NRS 62.080 was merely a clarification
of the meaning of the statute made necessary by our incorrect interpretation of the statute in
State v. District Court, 105 Nev. 644, 781 P.2d 776 (1989). In that case we ruled that the
statute relating to certification of a child 16 years of age or older to be prosecuted in adult
criminal proceedings allowed the state to prosecute as adults children who commit felonies
prior to their sixteenth birthday. Under this ruling the state could simply wait until an accused
child reached the age of 16 years of age or older, and then proceed to pursue adult
prosecution against a child who committed an offense while he or she was still under sixteen
years of age. As I said in my Dissent in State v. District Court, 105 Nev. 644, 781 P.2d 776
(1989), the statute provides for certification to the adult court only those underaged persons
who commit crimes after they have reached their sixteenth birthday. It makes no sense to me
that a child of thirteen or fourteen who commits a felony offense would not be subject to
adult prosecution, but would become subject to criminal prosecution after he or she reaches
the age of sixteen. The legislature has, rightly or wrongly, drawn the line at sixteen; and the
state should not be allowed to override this policy simply by waiting for the offender to
reach his or her sixteenth birthday.
policy simply by waiting for the offender to reach his or her sixteenth birthday. I continue to
believe that Castillo's certification was improper and see the legislature's amendment of the
statute as merely a clarification of this point. However, this court's prior decision in State v.
District Court is now the law of the case in this matter and is binding upon this court in the
present proceedings. See, e.g., Andolino v. State of Nevada, 99 Nev. 346, 662 P.2d 631
(1983) (once an issue has been determined in a previous appeal on the same facts it is binding
in all subsequent proceedings). On the more narrow question presented by Castillo's appeal,
whether the amended version of NRS 62.080 ought to be applied retroactively, I concur in the
Majority's reasoning. For these reasons, I concur in the judgment affirming the conviction.
____________
110 Nev. 548, 548 (1994) Olsen Family Trust v. District Court
THE GLADYS BAKER OLSEN FAMILY TRUST, by and Through Its Trustee, GLADYS
BAKER OLSEN, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Clark, and The Honorable
FRANCES-ANN FINE, District Judge, Respondents, and BETTY L. OLSEN and
ALFRED G. OLSEN, Real Parties in Interest.
No. 24760
May 24, 1994 874 P.2d 778
Original petition for writ of prohibition to arrest an order of the district court. Eighth
Judicial District Court, Clark County; Frances-Ann Fine, Judge.
Wife brought action against former husband to enforce divorce decree obligations. The
district court awarded trust assets to wife, and trust sought writ of prohibition. The supreme
court held that wife suing to enforce former husband's divorce decree obligation was required
to join trust which owned disputed assets, and her failure to join trust was fatal to district
court judgment awarding assets to her.
Petition granted.
Edwards & Kolesar, Chtd. and Dan R. Waite, Las Vegas, for Petitioner.
Pearson & Patton, Las Vegas; Becker, Hunt & Hess, Portland, Oregon, for Real Party in
Interest Betty Olsen.
Alfred G. Olsen, In Proper Person, Las Vegas, for Real Party in Interest.
1. Prohibition.
Writ of prohibition may issue to arrest proceedings of district court exercising its judicial functions when such proceedings are in
excess of jurisdiction of district court. NRS 34.320.
2. Prohibition.
Writ of prohibition does not serve to correct errors; its purpose is to prevent courts from transcending limits of their jurisdiction in
exercise of judicial but not ministerial power.
3. Prohibition.
Object of writ of prohibition is to restrain inferior courts from acting without authority of law in cases where wrong, damage, and
injustice are likely to follow from such action.
4. Prohibition.
Writ of prohibition may issue only where there is no plain, speedy, and adequate remedy at law. NRS 34.330.
5. Parties.
Joinder, rather than knowledge of lawsuit and opportunity to intervene, is method by which potential parties are subjected to
jurisdiction of court.
6. Divorce.
Wife suing to enforce former husband's divorce decree obligation was required to join trust which owned disputed assets, and her
failure to join trust was fatal to district court judgment awarding assets to her. NRCP 19(a).
OPINION
Per Curiam:
BACKGROUND
The underlying action arises from a divorce proceeding in Oregon. In 1985, real party in interest Betty L. Olsen (Betty) obtained a
divorce decree from her former husband, real party in interest Alfred G. Olsen (Al). The Olsens had been married for approximately
thirty-four years. Pursuant to the decree of divorce, Al was ordered to pay Betty $38,094.81, plus spousal support in the amount of
$1,500.00 per month for as long as Betty lived. To date, however, Betty has been unsuccessful in satisfying her judgment against Al.
In 1988, petitioner Gladys Baker Olsen
1
created a revocable trust, The Gladys Baker Olsen Family
Trust (the Trust), and established herself as the trustee and sole life beneficiary. The Trust
was initially funded with two pieces of Oregon real property, capital reserve certificates,
debentures, bonds, a bank account and over 21,000 shares of various stock; assets whose
aggregate value exceeded $2,000,000.00.
__________

1
Gladys is the 100-year-old mother of Al.
account and over 21,000 shares of various stock; assets whose aggregate value exceeded
$2,000,000.00. The Trust agreement originally provided that upon Gladys' death, Valley Bank
of Nevada becomes successor trustee and Al becomes sole beneficiary. Any distributions
from the Trust to Al, however, are subject to: (1) the successor trustee's discretion, and (2) an
express spendthrift provision precluding Al's creditors from anticipating the Trust assets
before they are distributed to him. In short, while Gladys is living, Al has nothing more than
an expectancy.
2

In April, 1991, the Trust paid cash for a condominium home located at 341 Mill Hollow
Road, Las Vegas, Nevada (the condo) and Al was allowed to live there rent free. At her
deposition, Gladys stated that she derived great comfort and satisfaction from this purchase
because Al had been living in a small trailer that had inadequate air conditioning. Moreover,
Al's monthly income of $650.00, derived solely from social security and veteran benefits, did
not allow him to live in anything better.
In August, 1992, Al borrowed $23,701.00 from the Trust to purchase a 1993 Mercury
Grand Marquis. In exchange, the Trust received Al's promissory note and a security interest in
the vehicle.
On February 12, 1993, Betty obtained a writ of execution on the condo. She contended that
the Trust was being used as a shield to prevent her from obtaining satisfaction of her
judgments against Al. Conversely, Al maintained that, although he lived in the condo, he was
neither the legal nor equitable owner of the property. Consequently, Al filed a motion to
determine the issue of exemption.
3
When Betty and Al appeared for the hearing on this
motion, the district court informed the parties that it needed to have an evidentiary hearing.
That hearing was scheduled for arguments on May 24, 1993. During the interim, Gladys'
deposition was taken and she steadfastly maintained that the condo was hers.
Several days before the scheduled evidentiary hearing, Betty moved to have Al held in
contempt of court for failing to pay spousal support. The district court consolidated that
matter with the evidentiary hearing set for May 24, 1993.
__________

2
On January 22, 1993, the Trust was amended to name Gladys Baker Olsen Holdings, Inc. as successor trustee.
Gladys owns all the stock in this corporation. The district court concluded that the change of successor trustee
was intended to place Al in the position of trustee through the use of an elaborate parent/subsidiary corporation
scheme.

3
Public records indicate that the Trust is the owner of the condo and that Al was never in the chain of title; the
condo passed directly from the developer to the Trust.
the evidentiary hearing set for May 24, 1993. On that morning, Al contacted his attorney, Dan
Waite, and stated that he was in Arizona and would not be present in court. As a result,
Attorney Waite moved the district court to withdraw as Al's counsel and that motion was
granted.
Then, without going forward with the evidentiary hearing, the district court held Al in
contempt of court and ordered him imprisoned, until
he comes up with the money that the Court and/or Mrs. [Betty] Olsen finds to be
reasonable under the circumstances, [only then] he'll get out.
In short, the district court was very upset with Al and asserted its displeasure. It was in this
context that the district court, without taking any evidence, held that Betty could satisfy her
judgment against Al by executing upon the Trust assets. In doing so, the district court
declared:
I don't believe there's a need for further testimony based on the actions of Mr. Alfred
Olsen. In fleeing the jurisdiction, and I do find him to have fled the jurisdiction, it is
clear to this Court that he has been less than truthful and candid regarding his assets and
his interests in the Gladys Baker Olsen trust. Therefore, based on equity, the Court is
invading the corpus of the trust and granting to Plaintiff, Betty Olsen, the home located
at Mill Hollow and the [Mercury Grand Marquis]. [Al] has exercised undue influence
in the creation and the maintenance of that trust throughout its life and his present
action reinforces this proposition. The Court finds that [Al] essentially held this
property in trust for [Betty] and we could, I guess, assume or call it a constructive trust.
On June 2, 1993, the district court issued a written order that went beyond its oral order of
May 24, 1993. Besides allowing execution upon the Trust's assets, the written order also: (1)
ordered the removal of Gladys as trustee from her own trust; (2) rejected the successor trustee
which Gladys had selected; (3) ordered the law firm of Edwards & Kolesar, Chtd., (counsel)
to select a new trustee; (4) declared the spendthrift provision in the Trust agreement void as
against public policy; (5) ordered counsel to redraft the trust agreement in a manner which
eliminated all spendthrift provisions to Al; (6) declared Gladys in breach of her fiduciary
duties for allowing the Trust to purchase the condo and for lending Al money to purchase the
1993 Grand Marquis; (7) invalidated the Trust's promissory note and security interest in the
1993 Grand Marquis; (8) froze all the assets of the Trust so that they could not be sold; and
{9) transferred title to the condo and 1993 Grand Marquis to Betty.
that they could not be sold; and (9) transferred title to the condo and 1993 Grand Marquis to
Betty.
Ultimately, in response to that order, the Trust filed this petition for a writ of prohibition.
DISCUSSION
Nature of the remedy
[Headnotes 1-4]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its
judicial functions when such proceedings are in excess of the jurisdiction of the district court.
NRS 34.320; see also Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986). A
writ of prohibition does not serve to correct errors; its purpose is to prevent courts from
transcending the limits of their jurisdiction in the exercise of judicial but not ministerial
power. Low v. Crown Point Mining Co., 2 Nev. 75 (1866) (cited in O'Brien v. Trousdale, 41
Nev. 90, 167 P. 1007 (1917)). Its object is to restrain inferior courts from acting without
authority of law in cases where wrong, damage and injustice are likely to follow from such
action. Silver Peak Mines v. Second Judicial District Court, 33 Nev. 97, 110 P. 503 (1910). A
writ of prohibition may issue only where there is no plain, speedy, and adequate remedy at
law. NRS 34.330; State ex rel. Schloss v. Stevens, 34 Nev. 146, 116 P. 605 (1911).
Intervention
The Trust's key argument supporting its petition for writ of prohibition is direct and
simple: the Trust was never made party to the action before the district court, therefore the
district court did not have jurisdiction to issue orders and judgments against it. Conversely,
Betty argues that even though the Trust was not a party to the underlying action, it is bound
by the district court's judgment because legal counsel for Al and the Trust is one and the
same; therefore, the Trust had notice that its interest could be affected and it should have
intervened pursuant to NRCP 24(a)(2).
This court rejected a similar proposition in Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833
(1954), where it held:
The law does not impose upon any person absolutely entitled to a hearing and burden
of voluntary intervention in a suit to which he is a stranger. . . . Unless duly summoned
to appear in a legal proceeding, a person not a privy may rest assured that a judgment
recovered therein will not affect his legal rights.
Bowler, 70 Nev. at 381, 269 P.2d at 838 (quoting Chase National Bank v. City of Norwalk,
291 U.S. 431, 441 (1934)).
[Headnote 5]
Furthermore, this court's decision in Bowler is supported by the United States Supreme
Court's subsequent decision in Martin v. Wilks, 490 U.S. 755 (1988). In Martin, the
petitioner argued that respondents were bound by a decision rendered in an earlier action on
the basis that respondents were aware of the earlier litigation and failed to intervene. The
United States Supreme Court rejected petitioner's argument when it held that a party seeking
a judgment binding on another cannot obligate that person to intervene; he must be joined:
Joinder as a party, rather than knowledge of a lawsuit and an opportunity to
intervene, is the method by which potential parties are subjected to the jurisdiction of
the court and bound by a judgment or decree. The parties to a lawsuit presumably know
better than anyone else the nature and scope of relief sought in the action, and at whose
expense such relief might be granted. It makes sense, therefore, to place on them a
burden of bringing in additional parties where such a step is indicated, rather than
placing on potential additional parties a duty to intervene when they acquire knowledge
of the lawsuit.
Id. at 765 (footnote omitted); accord Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d
677, 684 (7th Cir. 1992) (nonparty not bound by decision even though it was aware of
litigation which could affect its interests and even though the nonparty responded to
discovery requests by the parties). Thus, it is well settled that joinder rather than knowledge
of a lawsuit and opportunity to intervene is the method by which potential parties are
subjected to the jurisdiction of the court.
Moreover, since the early case of Robinson v. Kind, 23 Nev. 330, 47 P. 977 (1897), this
court has required that all persons materially interested in the subject matter of the suit be
made parties so that there is a complete decree to bind them all. If the interest of absent
parties may be affected or bound by the decree, they must be brought before the court or it
will not proceed to decree. Id. at 335, 47 P. at 978. Consistent with these principles, NRCP
19(a) provides:
A person who is subject to service of process and whose joinder will not deprive the
court of jurisdiction over the subject matter of the action shall be joined as a party in the
action if (1) in his absence complete relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the subject of the action and is so
situated that the disposition of the action in his absence may {i) as a practical
matter impair or impede his ability to protect that interest . . . .
interest relating to the subject of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair or impede his ability to protect
that interest . . . .
More recently, this court has held that a party must be joined under NRCP 19(a) if he claims
an interest in the subject matter of the action. Lewis v. Smart, 96 Nev. 846, 849, 619 P.2d
1212, 1213 (1980). In Schwob v. Hemsath, 98 Nev. 293, 646 P.2d 1212 (1982), this court
held that a corporation was an indispensable party where it held legal title to real property in
controversy and that failure to join the corporation was fatal to a judgment regarding that
property. Id. at 294, 646 P.2d at 1214. Further, this court held that failure to join an
indispensable party may be raised by the appellate court sua sponte. Id.
[Headnote 6]
In the instant case, the Trust has legal title to, and claims absolute ownership of, all Trust
assets which are the subject matter of the action in the lower court. Pursuant to NRCP 19(a)
and this court's holdings in Robinson, Lewis, and Schwob, Betty was required to join the Trust
as a party. Therefore, we conclude that Betty's failure to join the Trust as a party is fatal to the
district court's judgment.
Further, we conclude that the order of the district court is void. Accordingly, we grant this
petition. The clerk of this court shall forthwith issue a writ of prohibition precluding the
district court from enforcing its void order and from issuing any orders affecting the rights of
the Trust until it is properly joined as a party.
____________
110 Nev. 554, 554 (1994) Pertgen v. State
WES JOSEPH PERTGEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21141
May 31, 1994 875 P.2d 361
Appeal from an order of the district court denying appellant's petition for post-conviction
relief in a death penalty case. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
After conviction for first-degree murder, among other things, was affirmed on appeal, 105
Nev. 282, 774 P.2d 429 (1989), petition was filed for post-conviction relief in death penalty
case. The district court denied petition. Petitioner appealed. The supreme court held that: (1)
petitioner failed to establish ineffective assistance of counsel during guilt phase, and (2)
failure to define aggravating circumstance of "depravity of mind" and "torture" for jury
constituted serious constitutional error.
define aggravating circumstance of depravity of mind and torture for jury constituted
serious constitutional error.
Affirmed in part, reversed in part and remanded.
[Rehearing denied July 22, 1994]
Sgro & Perry, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme court's previous holding on direct appeal that defendant's confession was not obtained in violation of his Fifth and Sixth
Amendment rights was law of the case and precluded assertion of that claim on appeal from denial of post-conviction relief. U.S.
Const. amends. 5, 6.
2. Criminal Law.
To state claim of ineffective assistance of counsel that is sufficient to invalidate judgment of conviction, defendant must
demonstrate that counsel's performance fell below objective standard of reasonableness, and that counsel's errors were so severe that
they rendered jury's verdict unreliable. U.S. Const. amend. 6.
3. Criminal Law.
Defense counsel's allowing defendant to exercise his constitutional right to testify at trial, despite defense counsel's advice that he
not do so, did not constitute ineffective assistance of counsel. U.S. Const. amend. 6.
4. Criminal Law.
Supreme court's holding on direct appeal of murder prosecution, that counsel's failure to obtain or present adequate psychiatric
testimony regarding defendant's sanity was not ineffective assistance of counsel, was law of the case and precluded defendant from
raising issue on appeal from denial of motion for post-conviction relief. U.S. Const. amend. 6.
5. Criminal Law.
Defense counsel's failure to present theory of diminished capacity in murder prosecution was a tactical decision and did not
constitute ineffective assistance. U.S. Const. amend. 6.
6. Criminal Law.
Defense counsel was not ineffective in failing to listen to tape of defendant's confession, failing to introduce tape into evidence at
trial, and failing to provide copy of tape to appellate counsel, which argument was premised on assumption that tape conflicted with
trial testimony regarding defendant's confession. Record revealed that testimony adduced at trial was not inconsistent with taped
confession and confession was not obtained unconstitutionally. U.S. Const. amend. 6.
7. Criminal Law.
Although defense counsel's failure to object to instances of prosecutorial misconduct fell below objective standard of
reasonableness, errors were not so severe that they rendered convictions unreliable under Strickland standard for determining whether
counsel was ineffective. U.S. Const. amend. 6.
8. Criminal Law.
As a general rule, issues raised in post-conviction petition which could have been raised on direct appeal are considered waived
absent showing of good cause and actual prejudice.
9. Criminal Law.
Supreme court would consider post-conviction movant's challenges to aggravating circumstances used to justify imposition of
death penalty, although issues had not been raised previously, where defendant asserted that defense counsel's derelictions in failing to
raise claims deprived him of Sixth Amendment right to effective assistance of trial and appellate counsel. U.S. Const. amend, 6.
10. Criminal Law.
Under certain circumstances, valid claim of ineffective assistance of appellate counsel may establish good cause such that supreme
court on appeal of post-conviction proceeding may review apparently meritorious issues that should have been raised on direct appeal.
U.S. Const. amend. 6.
11. Homicide.
Trial court's failure during penalty phase of capital murder trial to define terms depravity of mind and torture for jury
constituted serious constitutional error; bare aggravating circumstance of depravity of mind and torture was unconstitutionally vague as
jury was not given any narrowing instructions. U.S. Const. amend. 8; NRS 200.033(8).
12. Homicide.
To perform a proper harmless error analysis when aggravating circumstance is found to be invalid, supreme court must thoroughly
examine role invalid aggravating factor played in sentencing process in capital murder trial to ensure that individualized sentencing
determination has been made.
13. Homicide.
Where death sentence was infected by vague invalid aggravating factor, new sentencing calculus was required where there were no
valid aggravating circumstances remaining.
When jury is left with unfettered discretion to impose death penalty in arbitrary or capricious manner, violation of Eighth and
Fourteenth Amendments occurs. U.S. Const. amends. 8, 14.
15. Criminal Law.
Defense counsel was ineffective in failing to object to aggravating circumstance of depravity of mind and torture as trial court's
failure to define the terms for the jury constituted serious constitutional error. U.S. Const. amends. 6, 8.
16. Homicide.
Fact that aggravating circumstances listed on special verdict form differed from those listed on notice of intent to seek death
penalty did not violate statute, providing that state may introduce evidence of additional aggravating circumstances only if it has been
disclosed to defendant before commencement of penalty hearing, where state did not introduce evidence of the three aggravating
circumstances at issue. Under doctrine of cumulative error, erroneous inclusion of three additional aggravating fact circumstances
which were not included in notice of intent to seek death penalty, along with other errors, warranted reversal of death penalty. NRS
175.552(3).
OPINION
Per Curiam:
Appellant Wes Joseph Pertgen brutally murdered his landlord, who was found shot,
stabbed, beaten and bound in a refrigerator. He also kidnapped, beat and raped a woman, who
was found in a drainage ditch, chained and covered with sagebrush. He was convicted of
first-degree murder with use of a deadly weapon, first-degree kidnapping with use of a deadly
weapon, sexual assault with use of a deadly weapon, attempted murder with use of a deadly
weapon, and possession of a firearm by an ex-felon. For committing these crimes, Pertgen
was sentenced to death, and in addition, to four consecutive life terms, two consecutive
twenty year terms, and one six year term. This capital case has previously been before this
court on direct appeal. See Pertgen v. State, 105 Nev. 282, 774 P.2d 429 (1989) (affirming
Pertgen's convictions and sentences).
Subsequent to this court's affirmance, on September 6, 1989, appellant filed in the district
court a petition for post-conviction relief. Following an evidentiary hearing, the district court
denied the petition. This appeal followed. Appellant raises issues pertaining to both the guilt
phase and the penalty phase of his trial. We conclude that appellant's allegations of error in
the guilt phase are without merit. We therefore affirm that portion of the district court's order.
With regard to the penalty phase, we conclude that serious constitutional error infected the
penalty hearing. The error prejudiced appellant's defense such that the imposition of the death
penalty was improper. We are therefore constrained to reverse and remand for a new penalty
hearing.
DISCUSSION
Guilt phase
1. Validity of appellant's confession
[Headnote 1]
Appellant contends that his confession was obtained in violation of his Fifth and Sixth
Amendment rights, and that therefore any evidence regarding his confession should have
been suppressed. He asserts that this error prejudiced him because without evidence of the
confession, he alleges that he could not be linked to the murder.
This issue was raised in appellant's direct appeal and rejected by this court. See Pertgen,
105 Nev. at 287, 774 P.2d at 432. Our previous holding on this issue is now the law of the
case. Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975). The doctrine of the law of the case
cannot be avoided by a more detailed and precisely focused argument. Id. at 316, 535
P.2d at 799.
of the case cannot be avoided by a more detailed and precisely focused argument. Id. at 316,
535 P.2d at 799. Furthermore, the record is clear that appellant's confession was knowingly
and voluntarily given. Appellant's contention therefore lacks merit.
2. Ineffective assistance of counsel
[Headnote 2]
Next, appellant contends that he was denied effective assistance of counsel during the guilt
phase of his trial. To state a claim of ineffective assistance of counsel that is sufficient to
invalidate a judgment of conviction, a defendant must demonstrate that counsel's performance
fell below an objective standard of reasonableness, and that counsel's errors were so severe
that they rendered the jury's verdict unreliable. See Strickland v. Washington, 466 U.S. 668
(1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004
(1985).
[Headnote 3]
Appellant bases his ineffectiveness claim on four assignments of error. First, he contends
that trial counsel was ineffective for allowing appellant to testify at trial. Our review of the
record, however, reveals that appellant testified against the advice of counsel. Appellant had a
constitutional right to testify on his own behalf. Phillips v. State, 105 Nev. 631, 782 P.2d 381
(1989). Appellant has failed to demonstrate how allowing him to exercise his constitutional
right to testify fell below an objective standard of reasonableness under Strickland.
[Headnotes 4, 5]
Second, appellant contends that trial counsel was ineffective because counsel inadequately
prepared and presented the insanity defense at trial. Appellant further contends that trial
counsel failed to present the theory of diminished capacity to negate intent. Counsel's failure
to obtain or present adequate psychiatric testimony regarding appellant's sanity was raised and
rejected in appellant's direct appeal. Pertgen, 105 Nev. at 284, 774 P.2d at 430. Our previous
holding on this issue is therefore the law of the case. Hall v. State, 91 Nev. 314, 535 P.2d 797
(1975). In addition, we conclude that counsel's failure to present a theory of diminished
capacity was a tactical decision. Consequently, appellant has failed to demonstrate that
counsel's performance fell below an objective standard of reasonableness under Strickland.
[Headnote 6]
Third, appellant contends that trial counsel was ineffective because counsel failed to listen
to the tape of appellant's confession, failed to introduce the tape into evidence at trial, and
failed to provide a copy of the tape to appellate counsel.
to provide a copy of the tape to appellate counsel. This argument is premised on the
assumption that the tape conflicted with the trial testimony regarding appellant's confession.
Our review of the record, however, reveals that the testimony adduced at trial was not
inconsistent with the taped confession. As previously determined, appellant's confession was
not obtained unconstitutionally. Therefore, appellant has failed to demonstrate that counsel's
performance fell below an objective standard of reasonableness under Strickland.
[Headnote 7]
Fourth, appellant contends that trial counsel was ineffective because counsel failed to
object to numerous instances of prosecutorial misconduct. Although we conclude that
counsel's failure to object fell below an objective standard of reasonableness, we have
determined that the errors were not so severe that they rendered appellant's convictions
unreliable under Strickland. Accordingly, appellant's claim of ineffective assistance of
counsel during the guilt phase of his trial must fail.
Penalty phase
1. Preliminary comment
[Headnote 8]
Appellant challenges, on multiple grounds, the aggravating circumstances used to justify
imposition of the death penalty in this case. To begin, we note that, although he could have,
appellant did not raise these issues at trial or on direct appeal. As a general rule, issues raised
in a post-conviction petition which could have been raised on direct appeal are considered
waived absent a showing of good cause and actual prejudice. See former NRS 177.375(2);
Johnson v. Warden, 89 Nev. 476, 477-78, 515 P.2d 63, 64 (1973).
[Headnote 9]
Nevertheless, appellant argues that defense counsel should have raised these issues
previously. He asserts that defense counsel should have challenged the constitutionality of the
aggravating circumstances and should have noticed discrepancies between the notice of intent
to seek the death penalty, the special verdict form, and the jury instructions. Appellant asserts
that counsel's derelictions deprived him of his Sixth Amendment right to the effective
assistance of trial and appellate counsel. See generally, Strickland v. Washington, 466 U.S.
668 (1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S.
1004 (1985). He argues that these issues are not waived because counsel's ineffectiveness
establishes both good cause and actual prejudice.
[Headnote 10]
Under certain circumstances, a valid claim of ineffective assistance of appellate counsel
may establish good cause such that we may review apparently meritorious issues that should
have been raised on direct appeal. Under the unique circumstances of this case, we consider
appellant's allegations to be sufficient to overcome this significant procedural hurdle.
Moreover, the power of this court to address plain error or issues of constitutional dimension
sua sponte is well established. Emmons v. State, 107 Nev. 53, 60-61, 807 P.2d 718, 723
(1991); see also Edwards v. State, 107 Nev. 150, 153 n.4, 808 P.2d 528, 530 n.4 (1991)
(where appellant presents an adequate record for reviewing serious constitutional issues, this
court will address such claims on the merits). Because this case involves the ultimate
punishment and because appellant's claims of ineffective assistance of counsel are directly
related to the merits of his claims, we will consider appellant's claims on the merits in order
to determine whether appellant received ineffective assistance of counsel.
2. Constitutionality of aggravating circumstances
[Headnote 11]
Appellant first challenges the two aggravating circumstances found by the jury to support
his death sentence: depravity of mind and torture. He contends that these aggravating
circumstances were not supported by the evidence and that, because the terms depravity of
mind and torture were not defined for the jury, they were unconstitutionally vague in
violation of his Eighth Amendment rights. We agree that the terms depravity of mind and
torture were unconstitutionally vague because they were not defined for the jury. Moreover,
under the unique circumstances of this case, we conclude that the omission was highly
prejudicial.
At the penalty hearing, the jury was given numerous instructions regarding its role in
deciding the penalty, but no instructions regarding the definition of the aggravating
circumstances upon which the state sought imposition of the death penalty. Instruction No. 7
listed the possible aggravating circumstances, which included the following:
4. The murder involved torture.
5. The murder involved depravity of mind.
Significantly, the jury was not instructed regarding the definition of torture or depravity of
mind, nor were any instructions given regarding the significance or meaning to attach to
these terms.
terms. The jury returned a special verdict in which two aggravating circumstances were
written in by hand and checked: The murder involved torture and The murder involved
depravity of mind
1
The jury found no mitigating circumstances. Thereafter, the jury
sentenced appellant to death. See NRS 175.554.
2

We hold that the failure to define the terms depravity of mind and torture for the jury
constituted serious constitutional error. Preliminarily, we note that it is improper to refer to
the aggravating circumstances found in this case, depravity of mind and torture, as
constituting two aggravating circumstances. As we noted in Jimenez v. State, 106 Nev. 769,
774, 801 P.2d 1366, 1369 (1990), [d]espite the disjunctive language used in NRS
200.033(8), the referenced provision embraces only one aggravating circumstance.
3
Thus,
although the special verdict erroneously identified torture and depravity of mind as two
separate aggravating circumstances, it should be read as enumerating only one aggravating
circumstance, one which includes depravity of mind and torture as a single aggravating
circumstance.
The state argues that NRS 200.033(8) passes constitutional muster. As a general
proposition, the state is correct in its assertion that the statute has withstood constitutional
scrutiny in Nevada. Cases in which we have upheld an aggravating circumstance based on
NRS 200.033(8) are set forth in the margin. Significantly, however, each of the cases cited is
distinguishable from the case at bar because, in each instance, the jury was instructed
regarding the definition of the applicable terms.
__________

1
For an explanation of why these aggravating circumstances were not on the special verdict form provided to
the jury and had to be written in by hand, see discussion at pages 565-566, infra.

2
The version of NRS 175.554(2) then in effect provided, in part:
2. The jury . . . shall determine:
(a) Whether an aggravating circumstance or circumstances are found to exist;
(b) Whether a mitigating circumstance or circumstances are found to exist; and
(c) Based upon these findings, whether the defendant should be sentenced to life imprisonment or death.
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.
The statute has since been amended. See 1993 Nev. Stat., ch. 182 2 at 322-23.

3
NRS 200.033(8) provides as follows:
The only circumstances by which murder of the first degree may be aggravated are:
. . . .
8. The murder involved torture, depravity of mind or the mutilation of the victim.
from the case at bar because, in each instance, the jury was instructed regarding the definition
of the applicable terms.
4

By contrast, in this case the jury was given no definitions whatsoever to guide it in its
application of the aggravating circumstance involving depravity of mind and torture.
Thus, this case is analogous to Godfrey v. Georgia, 446 U.S. 420 (1980), in which the United
States Supreme Court overturned a death penalty conviction and noted that the trial judge's
sentencing instructions gave the jury no guidance concerning the meaning of [the applicable
statutory] terms. Godfrey, 446 U.S. at 429. In Godfrey, the state courts had simply used the
bare terms of the statute without giving the jury any instructions by which the meaning of
those terms could be limited. Id. at 426. It was this lack of further definition which resulted in
the Court's finding the aggravating circumstances unconstitutionally vague.
Similarly, under the circumstances of this case, the bare aggravating circumstance of
depravity of mind and torture is unconstitutionally vague because the jury was not given any
narrowing instructions. The case relied on by the state, Walton v. Arizona, 497 U.S. 639
(1990), supports our conclusion:
When a jury is the final sentencer, it is essential that the jurors be properly instructed
regarding all facets of the sentencing process. It is not enough to instruct the jury in the
bare terms of an aggravating circumstance that is unconstitutionally vague on its face.
That is the import of our holding in Maynard [v. Cartwright, 486 U.S. 356 (1988)] and
Godfrey.
Id. at 653. Although the Court upheld the imposition of a death sentence, Walton is factually
distinguishable from the present case.
__________

4
See, e.g., Parker v. State, 109 Nev. 383, 394-96, 849 P.2d 1062, 1069-70 (jury instructed regarding definitions
of mutilate and depravity of mind), cert. denied,
------
U.S.
------
, 114 S. Ct. 570 (1993); Robbins v. State,
106 Nev. 611, 627 n.4, 798 P.2d 558, 569 n.4 (1990) (jury was instructed regarding the definitions of torture
and depravity of mind), cert. denied, 499 U.S. 970 (1991); Rogers v. State, 101 Nev. 457, 467, 705 P.2d 664,
671 (1985) (statute provides adequate guidance to the jury when the district court defines the terms torture,
depravity of mind, and mutilate), cert. denied, 476 U.S. 1130 (1986); Neuschafer v. State, 101 Nev. 331,
336 n.2, 705 P.2d 609, 612 n.2 (1985) (penalty jury fully instructed on the applicable definitions); Ybarra v.
State, 100 Nev. 167, 177, 679 P.2d 797, 803 (1984) (depravity of mind not unconstitutionally vague when the
court meticulously defined it for the jury), cert. denied, 470 U.S. 1009 (1985); Deutscher v. State, 95 Nev.
669, 677, 601 P.2d 407, 412-13 (1979) (district court meticulously defined terms for the sentencing panel; jury
was therefore provided adequate guidance for applying aggravating circumstances).
case. In Walton, the death sentence was imposed by a trial judge, who is presumed to know
the law and to apply it in a constitutional manner. Id. By contrast, in this case the death
sentence was imposed by a jury. A jury cannot be expected to know and apply the law in a
constitutionally narrow manner unless it is properly instructed. In this instance the jury
received no limiting instructions whatsoever regarding the sole aggravating circumstance. We
therefore conclude that, under the circumstances of this case, an error of constitutional
magnitude occurred because the terms depravity of mind and torture were not defined for
the jury.
Our inquiry does not end at this juncture, however. In Clemons v. Mississippi, 494 U.S.
738, 741, 748-49, 752-54 (1990), the United States Supreme Court confirmed that reweighing
and harmless error analyses, though not required, are constitutionally permissible under
appropriate circumstances. Likewise, it is permissible for us to remand for resentencing when
the circumstances necessitate such action. We have elected to follow each of these
alternatives under appropriate circumstances. See, e.g., Canape v. State, 109 Nev. 864,
876-83, 859 P.2d 1023, 1031-35 (1993) (applying Clemons' reweighing and harmless error
analyses); Paine v. State, 107 Nev. 998, 1001, 823 P.2d 281, 283 (1991) (remanding for new
penalty hearing).
Reweighing involves disregarding the invalid aggravating circumstances and reweighing
the remaining permissible aggravating and mitigating circumstances. In this case, however,
because the jury found no other aggravating circumstance besides depravity of mind and
torture, disregard of the invalid aggravating circumstance leaves no valid aggravating
circumstances remaining. Thus, there is nothing left to reweigh. Accordingly, reweighing is
not a viable alternative under the circumstances of this case. Cf. Maynard v. Cartwright, 486,
U.S. 356, 365 (1988).
[Headnotes 12, 13]
Furthermore, we cannot conclude that the error regarding the aggravating circumstance
was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 21-24
(1967). To perform a proper harmless error analysis, we must thoroughly examine the role the
invalid aggravating factor played in the sentencing process in order to ensure that an
individualized sentencing determination has been made. Stringer v. Black, 503 U.S. 222, 230,
112 S. Ct. 1130, 1136 (1992). Where, as here, the death sentence has been infected by a
vague or otherwise constitutionally invalid aggravating factor, we must actually perform a
new sentencing calculus in order for the sentence to stand. Richmond v. Lewis,
------
U.S.
------
,
------
, 113 S. Ct. 528, 535 (1992).
[Headnote 14]
In this instance, the jury was left with untrammeled discretion to impose or withhold the
death penalty because it was not properly instructed regarding the sole aggravating
circumstance of depravity of mind and torture. When the jury is left with unfettered discretion
to impose the death penalty in an arbitrary or capricious manner, a violation of the Eighth and
Fourteenth Amendments occurs. Furman v. Georgia, 408 U.S. 238 (1972). [T]he channelling
and limiting of the sentencer's discretion in imposing the death penalty is a fundamental
constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and
capricious action. Maynard v. Cartwright, 486 U.S. 356, 362 (1988); see Stringer v. Black,
503 U.S. 222, 235-236, 112 S. Ct. 1130, 1139 (1992) (vague aggravating circumstance fails
to channel sentencer's discretion).
Moreover, our review of the pertinent case law has revealed no cases in which the sentence
has been upheld when the sole aggravating circumstance has been found to be constitutionally
inadequate. The presence of at least one valid aggravating circumstance is a fundamental
prerequisite in determining whether a defendant is eligible for the death penalty. See NRS
175.554 (The jury . . . may impose a sentence of death only if it finds at least one
aggravating circumstance . . . .) When we are presented with no valid aggravating
circumstances, we cannot uphold the death sentence because the presence of aggravating
circumstances is the very cornerstone of our capital sentencing scheme. Thus, in this case,
despite the presence of facts which could support the aggravating circumstance of depravity
of mind and torture, the sentence cannot stand because of the absence of any constitutionally
valid aggravating circumstances.
[Headnote 15]
Accordingly, we are compelled to conclude that the death penalty in this case was imposed
in an arbitrary and capricious manner. The sentence does not comply with the narrowing
requirement of Furman and its progeny, nor does it comply with our statutory sentencing
scheme. Appellant's claim that he was denied the effective assistance of counsel has merit
because counsel failed to challenge the constitutionality of appellant's sentence. Counsel's
performance therefore fell below an objective standard of reasonableness. Moreover,
appellant has demonstrated that counsel's deficient performance prejudiced his defense to
such a degree that it rendered his sentence unreliable. Strickland, 466 U.S. at 687.
Consequently, we must reverse and remand for a new penalty hearing.
3. Notice of aggravating circumstances
[Headnote 16]
Appellant next contends that he was given inadequate notice of aggravating circumstances
and an insufficient opportunity to defend against them, in violation of his constitutional
rights. The aggravating circumstances listed on the special verdict form differed from those
listed on the Notice of Intent to Seek the Death Penalty.
5
The jury instructions mirrored the
Notice of Intent to Seek the Death Penalty, not the special verdict form. Because the special
verdict form listed three aggravating circumstances which were not contained in the Notice of
Intent to Seek the Death Penalty, and on which the jury was not instructed, appellant contends
that he was deprived of his right to be notified of the aggravating circumstances against which
he would have to defend himself. See former NRS 175.552.
6
He contends that this error
__________

5
It appears that the jury was mistakenly given the wrong verdict form. The Notice of Intent to Seek the Death
Penalty listed five aggravating circumstances. They were:
(1) The murder was committed by a person who was previously convicted of a felony involving the use of
threat of violence to another. . . .
(2) The murder was committed while the person was engaged in the commission of or an attempt to
commit any robbery. . . .
(3) The murder was committed while the person was engaged in the commission of or an attempt to
commit any sexual assault. . . .
(4) The murder involved torture. . . .
(5) The murder involved depravity of mind. . . .
The special verdict form provided to the jury listed the following aggravating circumstances:
------
The murder was committed by a person under sentence of imprisonment.
------
The murder was committed by a person who was previously convicted of a felony involving the use
or threat of violence to the person of another.
------
The murder was committed while the person was engaged in the commission of a robbery or
burglary.
------
The murder was committed for the purpose of avoiding or preventing a lawful arrest.

When the jury, returned the special verdict form, none of the above choices was checked (the aggravating
circumstance involving robbery or burglary had been checked, but the checkmark was subsequently scratched
out by the jury foreman). The following aggravating circumstances, however, were written in by hand and
checked:
--
x
--
The murder involved torture.
--
x
--
The murder involved depravity of mind.

6
NRS 175.552 has since been amended. The relevant portion of the statute may now be found at NRS
175.552(3). See 1993 Nev. Stat., ch. 182 1 at 322.
violated his Eighth and Fourteenth Amendment rights. Appellant concedes that the jury did
not find any of the aggravating circumstances typed on the special verdict form, but
nevertheless contends that he was prejudiced by their presence on the verdict form because
the jury was allowed to consider many more choices than it should have.
Appellant has failed to establish that a prejudicial error occurred when the jury was
mistakenly given the wrong verdict form. Pursuant to former NRS 175.552, at the penalty
hearing [t]he state may introduce evidence of additional aggravating circumstances . . . only
if it has been disclosed to the defendant before the commencement of the penalty hearing.
(Now NRS 175.552(3), see 1993 Nev. Stat., ch. 182 1 at 322.) The purpose of this rule is to
provide the accused notice and to insure due process so that the accused can meet any new
evidence which may be presented during the penalty hearing. Emmons v. State, 107 Nev. 53,
62, 807 P.2d 718, 724 (1991). The erroneous inclusion of three additional aggravating
circumstances which were not included in the notice of intent to seek the death penalty was
not violative of NRS 175.552 because the state did not introduce evidence of the three
aggravating circumstances at issue.
Nevertheless, under the doctrine of cumulative error, we consider this issue as providing
additional support for our decision to reverse and remand for a new penalty hearing. Cf.
Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986) (although individual errors may be
harmless, the cumulative effect of multiple errors may deprive a defendant of the
constitutional right to a fair trial). Although providing the jury the wrong special verdict form
was, by itself, insufficient to warrant reversal, the cumulative effect of the various errors
committed during the penalty phase warrant reversal. The accumulation of error is more
serious than either isolated breach, and resulted in the denial of a fair trial. Sipsas, 102 Nev.
at 125, 716 P.2d at 235. When viewed in concert, the errors committed during the penalty
phase of appellant's trial were of such magnitude that we are unable to consider them to be
harmless beyond a reasonable doubt. Neither trial counsel nor appellate counsel challenged
these obvious errors. Thus, appellant has established that counsel was ineffective and that he
has not waived these issues. See Strickland v. Washington, 466 U.S. 668 (1984); former NRS
177.375(2); Johnson v. Warden, 89 Nev. 476, 477-78, 515 P.2d 63, 64 (1973).
CONCLUSION
For the reasons set forth above, we affirm the district court's order with regard to the guilt
phase of appellant's trial. We reverse the district court's order with regard to the penalty
phase.
reverse the district court's order with regard to the penalty phase. We remand this case to the
district court with instructions that it conduct a new penalty hearing that comports with the
views expressed in this opinion.
Rose, C. J., Steffen and Young, JJ., and Huffaker, D. J.,
7
concur.
____________
110 Nev. 567, 567 (1994) County Comm'rs v. Las Vegas Discount Golf
BOARD OF COUNTY COMMISSIONERS of Clark County, Nevada; and JAY BINGHAM,
DON SCHLESINGER, PAUL J. CHRISTENSEN, THALIA M. DONDERO,
YVONNE ATKINSON GATES, KAREN HAYES and BRUCE WOODBURY; and
GOLF CENTERS OF AMERICA, INC., Appellants, v. LAS VEGAS DISCOUNT
GOLF & TENNIS, INC., Respondent.
No. 25535
June 14, 1994 875 P.2d 1045
Motion for confession of error in an appeal from an order of the district court issuing a
permanent writ of mandamus. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Writ of mandamus was sought to require Board of County Commissioners to set aside its
agreement with successful bidders on golf concessions at airport and to allow all applicants to
resubmit proposals to run concession. The district court issued permanent writ of mandamus.
Board and successful bidder appealed. The supreme court held that successful bidder's failure
to comply with briefing schedule set by order of supreme court was a confession of error.
Motion granted; order vacated and case remanded.
Rex Bell, District Attorney and James L. Taylor, Deputy District Attorney, Clark County,
for Appellant Board of County Commissioners of Clark County.
Lionel Sawyer & Collins and Cam Ferenbach, Las Vegas, for Appellant Golf Centers of
America, Inc.
__________

7
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.
Moran & Weinstock, Las Vegas; Goodman & Chesnoff, Las Vegas, for Respondent.
1. Mandamus.
Failure of successful bidder on golf concession at airport to comply with briefing schedules set by order of supreme court in action
for writ of mandamus directing Board of County Commissioners to set aside agreement with successful bidder and allow all applicants
to resubmit proposals was a confession of error.
2. Mandamus.
Writ of mandamus is not appropriate to compel performance of discretionary act.
OPINION
Per Curiam:
On September 7, 1993, the Board of County Commissioners of Clark County, Nevada (the Board), publicly advertised its desire to
receive proposals to run a golf concession at McCarran International Airport in Las Vegas, Nevada.
1
Five companies,
including appellant Golf Centers of America, Inc. (GCA) and respondent Las Vegas
Discount Golf and Tennis, Inc., (LVDGT) submitted proposals. Following a public hearing
on the matter, the Board accepted GCA's proposal. Respondent then petitioned the district
court for a writ of mandamus requiring the Board to set aside the selection of GCA to run the
golf concession. On February 18, 1994, the district court issued findings of fact and
conclusions of law and ordered the clerk of the court to issue a permanent writ of mandamus
to the Board requiring it to set aside its agreement with GCA and to allow all applicants to
re-submit proposals to run the airport concession. The Board and GCA appeal.
2

On April 29, 1994, appellants asked this court to expedite the appeal process because of
the economic hardship to appellants and because the issues presented in this appeal were fully
briefed in the court below; respondent filed an opposition to appellants' request to expedite
the appeal. Cause appearing,
3
we granted appellants' request to expedite the appeal and
ordered the parties to adhere to the following briefing schedule: Appellants' opening brief
was to be filed on or before May 9, 1994, and respondent's answering brief was to be filed
on or before May 24, 1994.
__________

1
This opinion was originally issued on June 7, 1994, as an order of remand. On June 8, 1994, respondent
sought reconsideration of our order. Upon reconsideration, we determined that our order was correct in all
material respects, and we further determined that the original order should be placed in opinion form and
published in the Nevada Reports.

2
The members of the Board, Jay Bingham, Don Schlesinger, Paul J. Christensen, Thalia M. Dondero, Yvonne
Atkinson Gates, Karen Hayes, and Bruce Woodbury, also appeal in their official capacities as members of the
Board.

3
According to affidavits filed with this court, Clark County estimates that if this project is delayed for one year
the costs to Clark County would be
appellants' request to expedite the appeal and ordered the parties to adhere to the following
briefing schedule: Appellants' opening brief was to be filed on or before May 9, 1994, and
respondent's answering brief was to be filed on or before May 24, 1994. Any reply brief was
to be filed on or before June 3, 1994. We also set this appeal for oral argument in June of
1994. Respondent filed a motion asking this court to reconsider its order expediting the
appeal because it was unreasonable and unwarranted. We denied that motion. Respondent
also filed a motion to dismiss the appeal, which this court also denied.
Respondent did not meet the May 24, 1994, filing deadline set forth in our order. Because
of the expedited briefing schedule, on May 26, 1994, the office of the clerk of this court took
the unusual step of attempting to contact counsel for respondent by telephone to inquire about
the status of the answering brief that was now past due. Counsel was unavailable and did not
return the call. The clerk's office attempted to contact counsel again on May 27, 1994, and
twice more on May 31, 1994, each time to no avail.
On May 31, 1994, appellants filed a motion for confession of error, urging this court to
exercise its discretion under NRAP 31(c) and treat respondent's failure to file an answering
brief as a confession of error. On June 6, 1994, respondent filed an opposition, arguing that
this court should deny the motion for confession of error, and should instead vacate the
expedited briefing schedule. According to respondent, our supposedly unreasonable
briefing schedule, and not its contumacious conduct, has resulted in its failure to file the
answering brief.
4

NRAP 31(c) empowers this court to deny a respondent the right to oral argument if
respondent fails to file a timely answering brief, or the court may treat respondent's failure as
a confession of error and make appropriate disposition of the appeal at that point. In
State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984), we warned
that in the future, when this court perceives a lack of regard for its rules or decisions, we
may well impose sanctions such as striking a brief, dismissing an appeal, or finding a
confession of error. Additionally, the attorneys involved may be referred to the bar for
discipline. (footnote omitted); see also Summa Corp. v. Brooks Rent-A-Car, 95 Nev. 779
__________
some $686,385.00. The loss in additional revenues at McCarran Airport also causes harm to the general public
because it forces the airport to maintain its current landing fees, which could be substantially reduced if the golf
concession goes through. GCA also estimates that it is losing some $26,000.00 per week while this matter is
pending on appeal.

4
Appellants' proposed reply to the opposition was returned unfiled because of procedural deficiencies. NRAP
27(a).
Rent-A-Car, 95 Nev. 779, 602 P.2d 192 (1979) (treating failure to file an answering brief as a
confession of error); Melvin L. Lukins & Sons v. Kast, 91 Nev. 116, 532 P.2d 602 (1975)
(reversing judgment without considering the merits because respondent failed to file an
answering brief); accord Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975).
[Headnotes 1, 2]
Respondent's failure to comply with the briefing schedule set by order of this court would
be, in and of itself, sufficient grounds for this court to find a confession of error. Such a
finding is particularly warranted in the instant case, however, because any delay in disposition
of this appeal costs appellants, the taxpayers of Clark County, and the customers of the
airport in general, thousands of dollars daily. Accordingly, we will treat respondent's failure
to comply with the schedule set by order of this court as a confession of error. The district
court is ordered to vacate its findings of fact, conclusions of law and order. The Board's prior
decision is reinstated, and the district court is ordered to entertain no further proceedings in
this matter other than to remand the case to the Board. The Board may then take whatever
further action it considers appropriate.
5

Rose, C. J., Steffen, Springer and Shearing, JJ., and Zenoff, Sr. J.,
6
concur.
__________

5
We have reviewed the record on appeal and also note without deciding that the district court's decision
appears to have been erroneous. A writ of mandamus is not appropriate to compel the performance of a
discretionary act. See, e.g., Building and Constr. Trades v. Public Works, 108 Nev. 605, 836 P.2d 633 (1992).
NRS 496.090 vests the Board with the discretion to enter into contracts or other commercial arrangements under
such terms and conditions as it may choose so long as they are reasonable and uniform. It does not appear that
the Board manifestly abused that discretion to such a degree as to warrant the issuance of an extraordinary
writ. Thus if this court were to reach the merits of this appeal, it appears quite likely that the Board would
prevail.

6
The Honorable Robert E. Rose, Chief Justice, assigned The Honorable David Zenoff, Senior Justice, to sit in
the place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 19, SCR 10.
____________
110 Nev. 571, 571 (1994) Walker v. State
DANNIE RAY WALKER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22968
July 1, 1994 876 P.2d 646
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of
attempted murder. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
The supreme court, Rose, C. J., held that trial court erred in declining to instruct jury as to
lesser included offense of assault with use of deadly weapon.
Steffen and Springer, JJ., dissented.
Morgan D. Harris, Public Defender and Stephen J. Dahl, Deputy Public Defender, Clark
James Tufteland and Ulrich W. Smith, Deputy District Attorneys, Clark County, for
Respondent.
1. Assault and Battery; Criminal Law.
In prosecution which resulted in conviction of defendant of three counts of attempted murder with use of deadly weapon for firing
shots at three rival gang members, trial court erred in declining to instruct jury as to lesser included offense and assault with use of
deadly weapon, warranting reversal of convictions and remand for new trial.
2. Criminal Law.
Defendant may only demand jury instruction on lesser included offense when offense for which instruction is sought is lesser
included offense of charged offense, defendant's theory of defense is consistent with conviction for lesser included offense, and
evidence of lesser offense exists.
Assault with deadly weapon is lesser included offense of attempted murder with use of deadly weapon; only difference between
offenses is whether at time of shooting defendant intended to kill victims or whether he intended merely to injure them, intent to injure
is subset of, and necessarily included in, intent to kill, and one cannot intend to kill without also intending to injure.
4. Criminal Law.
In prosecution for attempted murder with use of deadly weapon, defendant's theory of defense was consistent with conviction for
lesser included offense of assault with use of deadly weapon. Defense was entitled to proceed on disparate theories that defendant was
not gunman and defendant, if he was gunman, did not intend to kill victims.
Evidence was sufficient to support instructing jury as to lesser included offense of assault with use of deadly weapon. Testimony
was elicited at trial that defendant was less than a car length away from victims when he was shooting and
yet defendant never hit victims, at one point direct line of fire between defendant and victims was through
and between gas pumps and yet no gas pumps were hit, and defendant did not chase victims farther than
edge of parking lot.
elicited at trial that defendant was less than a car length away from victims when he was shooting and yet defendant never hit victims,
at one point direct line of fire between defendant and victims was through and between gas pumps and yet no gas pumps were hit, and
defendant did not chase victims farther than edge of parking lot.
OPINION
Appellant Dannie Ray Walker (Walker) was convicted of three counts of attempted murder with the use of a deadly weapon for firing
shots at three rival gang members in a gas station parking lot. At trial, Walker requested that the jury be instructed as to the offense of
assault with the use of a deadly weapon, and the district court refused. We conclude that the district court erred in declining to instruct the
jury as to the lesser included offense of assault with the use of a deadly weapon, and we reverse Walker's three convictions for attempted
murder and remand the case for a new trial.
FACTS
On August 6, 1990, Patrick Darrett (Darrett), Earnest Hines (Hines), and Paul Synagogue (Synagogue) pulled into an AM/PM
Mini-Mart (AM/PM) in a notorious gang area of Las Vegas to purchase gas. A faction of the Crips street gang, known as the Gerson Park
Kingsmen, is known to control the area around the AM/PM. Walker was identified at trial as a member of this Crips street gang. The
colors of the Gerson Park Kingsmen are green and black, and Walker wore green and black at the time of the shooting.
Darrett, at the time of the shooting, wore red and black, the colors of the Bloods street gang. Hines and Synagogue were two notorious
members of the Bloods street gang. While Darrett was in the process of purchasing gas, Walker, standing just outside the store, addressed
Darrett, saying What up cuz, to which Darrett replied, What up Blood? Hines testified that this exchange is intended, in the street gang
subculture, to be offensive and to be a challenge. Hines testified that, once such an exchange takes place, they [the parties involved]
supposed to, you know, get um up, and that the words are [s]hooting words, or fighting words, whichever way it goes. Hines also
testified that [t]he colors speak just as well as the words, and that gang members will shoot, stab, or fight members of a gang who wear
colors in the rival gang's territory.
After the exchange of words, Darrett returned to the rear of his car, where Hines and Synagogue stood, to start pumping
gas.
car, where Hines and Synagogue stood, to start pumping gas. A person dressed in green and
black, identified as Walker at trial, began walking toward the front of Darrett's car, shooting
at Darrett, Hines, and Synagogue with what appeared to be a semi-automatic handgun capable
of rapid fire. At the time the shooting started, Walker was approximately forty to forty-five
feet from Darrett, Hines, and Synagogue. Darrett, Hines, and Synagogue ducked behind
Darrett's car as Walker continued to advance while firing. Walker advanced to the front of the
car, at which point he stopped firing, but continued to point the gun at the three victims. As
Walker started to walk around the front of the car, the victims stood up, at which point
Walker began firing again and the victims ran. As Darrett, Hines, and Synagogue were
running away, Walker continued to fire, and he chased the three victims as far as the end of
the AM/PM parking lot. Darrett, Hines, and Synagogue escaped from the AM/PM without
being shot. Hines testified that he heard one or more bullets whistle past him, and that he saw
flashes of light but did not actually see a gun.
A police investigation for physical evidence of the discharge of firearms at the AM/PM
revealed nothing. The police were unable to find any shell casings, projectiles, bullet holes,
1
ricochet marks, or broken glass at the AM/PM. Witnesses testified that none of the bullets
fired at the victims collided with the gas pumps, Darrett's car, or anything else. The handgun
allegedly used by Walker was never found.
Walker was charged with three counts of attempted murder with the use of a deadly
weapon. Walker was tried before a jury for the attempted murders of Darrett, Hines, and
Synagogue, and on September 6, 1991, the jury returned verdicts of guilty as to all three
counts.
DISCUSSION
[Headnote 1]
At trial, Walker requested that the district court give a jury instruction allowing the jury to
find Walker guilty of the lesser included or lesser related offense of assault with a deadly
weapon if the jury felt the facts did not support the attempted murder charges. The district
court refused to give the instruction, stating that [t]here is no lesser included offense for an
attempt to kill and that the instruction was not consistent with the defense's theory of the
case. Walker contends the district court erred in refusing to give the instruction, and we agree.
__________

1
There were many bullet holes in the wall of the AM/PM store, but the police were unable to determine which
holes were fresh and which were created by previous shootings.
[Headnote 2]
In Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989), we stated:
Instructions on lesser offenses are required because a procedure which affords the trier
of fact no option other than conviction or acquittal when the evidence shows that the
defendant is guilty of some crime but not necessarily the one charged, increases the risk
that the defendant may be convicted notwithstanding the obligation to acquit if guilt is
not proven beyond a reasonable doubt. The pressures which create that risk thus affect
the reliability of the fact finding process and thereby undermine the reasonable doubt
standard.
Moore, 105 Nev. at 383, 776 P.2d at 1238 (quoting People v. Geiger, 674 P.2d 1303, 1307-08
(Cal. 1984)). However, a defendant is not entitled to present to the jury a shopping list of
alternatives to the crimes charged. Moore, 105 Nev. at 383, 776 P.2d at 1239. A defendant
may only demand a jury instruction on a lesser included offense when the following
conditions are satisfied: (1) the offense for which the instruction is sought is a lesser included
offense of the charged offense, (2) the defendant's theory of defense is consistent with a
conviction for the lesser included offense, and (3) evidence of the lesser offense exists. See
Lord v. State, 107 Nev. 28, 36, 806 P.2d 548, 553 (1991); Moore, 105 Nev. at 383, 776 P.2d
at 1239; Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986); Kiper v. State, 98
Nev. 593, 595, 655 P.2d 526, 526-27 (1982); Block v. State, 95 Nev. 933, 936, 604 P.2d 338,
340-41 (1979).
Lesser included offense
[Headnote 3]
The district court found that assault with a deadly weapon is not a lesser included offense
of attempted murder with the use of a deadly weapon. This was clear error.
In Crawford v. State, 107 Nev. 345, 811 P.2d 67 (1991), we stated that a crime is a lesser
included offense if the greater offense cannot be committed without committing the lesser
offense. Id. at 351, 811 P.2d at 71; see Block, 95 Nev. at 936, 604 P.2d at 340-41. Attempt
is defined, in part, in NRS 193.330 as [a]n act done with intent to commit a crime, and
tending but failing to accomplish it. Attempted murder requires a specific intent to kill the
person or persons against whom the acts in question are directed. Graves v. State, 82 Nev.
137, 142, 413 P.2d 503, 506 (1966). Assault is defined in NRS 200.471 as an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of
another."
mit a violent injury on the person of another. The only difference in this case, then, between
attempted murder with the use of a deadly weapon and assault with a deadly weapon is
whether at the time of the shooting Walker intended to kill the three victims or whether he
intended merely to injure them. Since an intent to injure is a subset of, and necessarily
included in, an intent to kill, and since one cannot intend to kill without also intending to
injure, we conclude that assault with a deadly weapon is a lesser included offense of
attempted murder with the use of a deadly weapon.
This conclusion comports with our opinion in Ruland v. State, 102 Nev. 529, 728 P.2d 818
(1986). In Ruland, the defendant was convicted of attempted murder and resisting arrest. Id.
at 530, 728 P.2d at 818. The defendant claimed the trial court erred in refusing to instruct the
jury on a number of lesser included offenses relating to assault. Id. at 530, 728 P.2d at 819.
We stated, The first lesser-included offense instructions which [the defendant] requested can
be characterized as lesser assaults.' An assault with a dangerous weapon or an assault with
intent to kill are assaults of a degree and severity less than that of attempted murder. Id. at
531, 728 P.2d at 819. While we determined that the defendant in Ruland was not entitled to
the assault instructions because the defendant testified that the gun accidentally discharged,
and therefore the assault instructions were inconsistent with the defendant's theory of the
case, we nonetheless recognized assault with a deadly weapon as a lesser included offense of
attempted murder. Id. at 531-32, 728 P.2d at 819-20; see Graves v. State, 84 Nev. 262, 265,
439 P.2d 476, 477, cert. denied, 393 U.S. 919 (1968) (assault with intent to kill may be a
lesser included offense of attempted murder if there is evidence of assault); Graves v.
Young, 82 Nev. 433, 438, 420 P.2d 618, 620-21 (1966) ([t]here is a question whether under
prosecution for attempted murder, assault with intent to kill may be a lesser included offense.
If there is evidence of an assault we hold that it would be. . . . If there were no evidence of an
assault, it would not be a lesser included offense. Attempted murder can be committed with
or without assault).
Consistency with defendant's theory of defense
[Headnote 4]
To be entitled to an instruction as to a lesser included offense, the defendant's theory of
defense must he consistent with a conviction for the lesser offense. See Moore, 105 Nev. at
382, 776 P.2d at 1238 (Nevada law requires jury instructions on defendant's theory of the
case when the theory involves a defense or a lesser included offense); Ruland, 102 Nev. at
531, 728 P.2d at 819 (defendant is entitled to a jury instruction on his or her theory of the
case; defendant is not entitled to a jury instruction as to a lesser included offense where
such an instruction would be inconsistent with the defendant's theory of the case as
evidenced by the defendant's own testimony);
theory of the case; defendant is not entitled to a jury instruction as to a lesser included offense
where such an instruction would be inconsistent with the defendant's theory of the case as
evidenced by the defendant's own testimony); Block, 95 Nev. at 936, 605 P.2d at 340 (where
there is any reasonable theory of the case under which the defendant might be convicted of a
. . . lesser included offense, the court must, if requested, instruct on the lesser included
offense); Lisby v. State, 82 Nev. 183, 187-88, 414 P.2d 592, 595 (1966) (a lesser included
offense instruction is unnecessary where the defendant denies any complicity in the crime
charged and thus lays no foundation for any intermediate verdict). The district court found
this requirement was not satisfied because the defendant's primary theory of defense was that
Walker was not the gunman.
Yet, at the hearing to settle the jury instructions, defense counsel maintained that his
theory of defense included arguing to the jury in closing that, even if the jury found that
Walker was the gunman, Walker did not have the intent to kill. Defense counsel stated:
Your Honor, in this case the Defendant's, one of the Defendant's theories, aside from
the fact that he wasn't there, is that if you, ladies and gentlemen of the jury, even if you
find that he was there, you cannot state beyond a reasonable doubt that the State has
proven that he intended to kill the three individuals that were being shot at that night.
At trial, defense counsel elicited testimony that, although the gunman was very close to the
victims when he was shooting, he did not hit the victims or any other object. This supports a
defense theory that the reason nobody was hit, despite the gunman's proximity to the victims,
was because the gunman was not shooting with the intent to kill. In closing argument, the
defense stated:
And that brings me to the next part, the intent to kill. You have to consider the
circumstances surrounding the act itself and if you find that there was an attempt to kill
based upon what the evidence was and what the circumstances surrounding the event
were, then you can find that it was attempt murder. Now, if it wasn't attempt murder,
unfortunately, it was nothing. And if you stood next to someone and pointed a gun right
at them and you shot and you intended to kill them from this distance, you could at least
hit them, you could at least hit something around them. Just because someone saw fire
come out of something doesn't mean that someone was trying to kill them. And I would
submit to you that if there was no deadly weapon, there was no attempt murder. I don't
know what he was shooting but something was wrong because there weren't any
holes.
know what he was shooting but something was wrong because there weren't any holes.
The defense was entitled to proceed on the disparate theories that Walker was not the gunman
and that Walker, if he was the gunman, did not intend to kill the victims. We conclude that a
conviction for assault with a deadly weapon would have been consistent with the defendant's
theory of defense.
Evidence of the lesser offense
[Headnote 5]
To mandate an instruction on a lesser included offense, there must be some evidence, no
matter how weak or incredible, such that, if believed, it would support a conviction on the
lesser offense.
2
Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986); Williams v.
State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983); see Hillis v. State, 103 Nev. 531, 535, 746
P.2d 1092, 1094 (1987) ([w]hen there is no evidence at trial tending to reduce the greater
offense, an instruction on a lesser offense may be properly refused); Block v. State, 95 Nev.
933, 936, 604 P.2d 338, 340 (1979) (instruction is necessary where there is any evidence at
all, however slight, of the lesser offense). The record contains evidence suggesting that
Walker did not intend to kill Darrett, Hines, and Synagogue. Testimony was elicited at trial
that Walker was very, very close to the three victims when he was shootingcloser than a
car-length. Yet, Walker never hit any of the victims. Testimony was also elicited that, at one
point, the direct line of fire between Walker and the victims was through
__________

2
In Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989), we expanded the defendant's right to the submission
of jury instructions from instructions concerning lesser included offenses to instructions concerning lesser
related offenses. Id. at 382-83, 776 P.2d at 1238. A defendant may demand a jury instruction on a lesser related
offense when the following conditions are satisfied: (1) the lesser offense is closely related to the offense
charged, (2) the defendant's theory of defense is consistent with a conviction for the related offense, and (3)
evidence of the lesser offense exists. Lord v. State, 107 Nev. 28, 36, 806 P.2d 548, 553 (1991); Moore, 105 Nev.
at 383, 776 P.2d at 1239. In Lord, we defined lesser related offenses as offenses which are related to the
principal offense but are not lesser included offenses of the principal offense. Lord, 107 Nev. at 36, 806 P.2d at
553.
While prongs two and three of this lesser related offense test appear to be identical to those of the lesser
included offense test set forth in this opinion, they are not. Where a jury instruction is sought on a lesser related
offense, a more stringent showing of evidence as to the lesser offense (prong three) is required. Before a lesser,
non-included offense instruction may be given to the jury, there must be some evidence in the record to
rationally support a conviction on the lesser offense.' Lord v. State, 107 Nev. 28, 37, 806 P.2d 548, 553 (1991)
(quoting People v. Early, 692 P.2d 1116, 1120 (Colo. Ct. App. 1984)).
and between gas pumps, and yet no gas pumps were hit. There was further testimony that,
though the three victims were hiding behind their car to avoid Walker's shots, and at least one
of the victims was peering through a window watching Walker advance, the car was never
hit. Finally, Walker did not chase the three victims farther than the edge of the parking lot.
We therefore conclude that there is sufficient evidence which, if believed, would support a
finding that Walker did not intend to kill the three victims and would therefore support a
conviction on the lesser included offense of assault with a deadly weapon.
We conclude that the district court erred in refusing to submit to the jury Walker's
requested instruction on assault with a deadly weapon. Assault with the use of a deadly
weapon is a lesser included offense of attempted murder with the use of a deadly weapon, and
defense counsel elicited evidence at trial which, consistent with the defense's theory of
defense, would have supported a conviction for assault with the use of a deadly weapon
instead of attempted murder. Accordingly, a jury instruction as to assault with the use of a
deadly weapon should have been given.
We have carefully considered all other contentions of error on appeal and we conclude that
they either lack merit or need not be further addressed. Since we cannot conclude beyond a
reasonable doubt that the jury would not have convicted Walker of assault with the use of a
deadly weapon rather than attempted murder had the instruction been given, we reverse
Walker's three convictions for attempted murder and remand the case for a new trial.
Steffen, J., with whom Springer, J., joins, dissenting:
In my view, the majority has incorrectly concluded that assault with the use of a deadly
weapon is a lesser included offense of attempted murder. I also submit that the lesser related
offense instruction, even if otherwise proper, should not have been given because it would
have been inconsistent with Walker's theory of defense. I therefore dissent, convinced that
Walker's convictions were justified by the evidence.
Because the majority would have affirmed Walker's convictions absent the district court's
refusal to instruct the jury on assault with the use of a deadly weapon, I will primarily address
the single issue upon which the majority bases its justification for reversal.
The majority declares that
[s]ince an intent to injure is a subset of, and necessarily included in, an intent to kill,
and since one cannot intend to kill without also intending to injure, we conclude that
assault with a deadly weapon is a lesser included offense of attempted murder with
the use of a deadly weapon.
kill without also intending to injure, we conclude that assault with a deadly weapon is a
lesser included offense of attempted murder with the use of a deadly weapon.
The majority's logic escapes me. Unless the majority has adopted the novel and unsupported
interpretation of the term injury as an identical synonym for kill, it seems irrefutably clear
that a person could intend to assault and injure without intending to assault and kill. Life is
replete with examples of assaults with deadly weapons where it has been evident that the
intent was to injure rather than to kill. Moreover, I suggest that history confirms that far more
often, assaults with deadly weapons occur as crimes of passion, intimidation or revenge with
an intent to injure but not to murder.
Indeed, the majority observes that [t]he only difference in this case, then, between
attempted murder with the use of a deadly weapon and assault with a deadly weapon is
whether at the time of the shooting Walker intended to kill the three victims or whether he
intended merely to injure them. An element of the crime of attempted murder is the specific
intent to kill. Graves v. State, 82 Nev. 137, 142, 413 P.2d 503, 506 (1966). If, as the majority
writes, Walker merely intended to injure, rather than kill the three victims, he could not be
convicted of attempted murder. He could, however, be convicted of assault with a deadly
weapon. An assault with the intent to injure is an entirely different crime than the crime of
attempted murder, which requires the specific intent to kill.
In Crawford v. State, 107 Nev. 345, 811 P.2d 67 (1991), we enunciated the test for
determining whether a crime is a lesser included offense as whether the offense in question
cannot be committed without committing the lesser offense. Id. at 351, 811 P.2d at 71. It is
patently clear that a person may commit attempted murder, with its specifically required
element of intent to kill, without committing an assault with a deadly weapon, an offense
which requires only the specific intent to injure.
Respectfully, I suggest that the majority's conclusion that an intent to injure is a subset of,
and necessarily included in, an intent to kill, is not a defensible proposition. The intent to
kill is the intent to kill, not the intent to injure. The two types of intent are distinctly different
and the crime for which a defendant may be found guilty will depend upon which of the two
forms of intent motivated the actor as proved beyond a reasonable doubt.
Although Ruland v. State, 102 Nev. 529, 728 P.2d 818 (1986), may indeed be read for the
proposition that an assault with a deadly weapon is a lesser included offense of attempted
murder, I suggest that the point is not in the form of a holding, and that in any event, we
should clarify the opinion by making it clear that assault with a deadly weapon is not a
lesser included offense of attempted murder.
any event, we should clarify the opinion by making it clear that assault with a deadly weapon
is not a lesser included offense of attempted murder.
It seems equally clear to me that assault with a deadly weapon would, in most cases, be a
lesser related offense to attempted murder. In Lord v. State, 107 Nev. 28, 806 P.2d 548
(1991), we reaffirmed the right of a defendant to have the jury instructed on a lesser related
offense when the following conditions are met: (1) the lesser offense is closely related to the
offense charged; (2) defendant's theory of defense is consistent with a conviction for the
[lesser] related offense; and (3) evidence of the lesser offense exists. Id. at 36, 806 P.2d at
553. We also confirmed in Lord that lesser related offenses are offenses which are related to
the principal offense but are not lesser included offenses of the principal offense. Id.
Notably, defense counsel recognized that assault with a deadly weapon constituted a lesser
related offense, and referred to it as such in the proffered defense instruction rejected by the
district court. However, the district court apparently (with some justification) concluded that
the lesser related offense was being offered as a lesser included offense, thus prompting the
district judge to rule that there is no lesser included offense for an attempt to kill. I suggest,
however, that the real issue before us is whether the district court erred by not instructing the
jury on the lesser related offense of assault with a deadly weapon. In my opinion, the district
judge properly refused to give such an instruction.
In evaluating the test for a lesser related offense, stated above, it is clear that the first and
third elements of the test are satisfied in the instant case. However, the second element,
requiring a defense theory that is consistent with a conviction for the related offense, is absent
here. The district court cogently described both defendant's evidence and theory as one of
uninvolvement: Walker was assertedly not at the crime scene. Walker allegedly did not shoot
a weapon. There was no case presented by the defendant suggesting that Walker was firing a
weapon with an intent other than to kill or any intent at all, since he claimed he was neither
present nor firing a weapon.
In Ruland, this court affirmed the district court's rejection of an assault instruction in an
attempted murder case under circumstances far more compelling than here. Ruland involved
a defendant who admitted having a weapon, but claimed that it discharged accidentally, and
that he was not guilty of any attempt or threat to do bodily harm. This court in Ruland held
that Ruland's categorical denial of any criminal assault precludes his claiming any error
resulting from the jury's not being instructed as to an assault theory. Ruland, at 532, 728
P.2d at 819-820.
In the instant case, Walker's defense was that he was not present; he fired no weapon.
1
It
is therefore clear from our ruling in Ruland that the trial judge did not err in refusing to
instruct the jury on the inconsistent theory of assault with a deadly weapon.
For the reasons discussed above, I would have affirmed Walker's convictions. I therefore
dissent.
____________
110 Nev. 581, 581 (1994) University of Nevada v. Tarkanian
UNIVERSITY OF NEVADA; UNIVERSITY OF NEVADA, LAS VEGAS; DR. LEONARD
GOODHALL, as President of the University of Nevada, Las Vegas, and Officer of the
University of Nevada; and FRANKIE SUE DEL PAPA, LILLY FONG, DOROTHY
GALLAGER, CHRIS KARAMANOS, JOAN DENNY, DANIEL J. KLAICH, JOHN
McBRIDE, JOANN SHERRIN AND JUNE WHITELY as Members of the Board of
Regents of the University of Nevada, Appellants, v. JERRY TARKANIAN,
Respondent.
No. 23494
July 7, 1994 879 P.2d 1180
Appeal from an order of the district court granting respondent's motion for attorney's fees
and costs. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Basketball coach brought action against university which employed him, its president and
the regents, seeking declaratory and injunctive relief from a severance order barring him from
association with the university's athletic program. The district court rendered judgment in
favor of coach, and defendants appealed. The supreme court, Mowbray, C, J., 95 Nev. 389,
594 P.2d 1159 (1979), reversed and remanded. Coach again brought action in district court,
this time adding National Collegiate Athletic Association (NCAA) as party. The district court
granted the injunction and awarded attorneys fees. NCAA appealed and coach
cross-appealed.
__________

1
It is true that defense counsel wanted the option to argue to the jury alternatively that if the jury found Walker
present at the scene of the crime, the State nevertheless failed to prove beyond a reasonable doubt that Walker
intended to kill the three victims that were being fired upon. Obviously, Walker's counsel could have argued that
the State failed to meet its burden of proof concerning any element of the crime. However, Walker could not
insist upon an instruction regarding assault with a deadly weapon when neither the evidence nor the questions
presented by the defense related to Walker's presence at the scene or his lack of intent to kill. Walker's defense,
entirely inconsistent with an assault instruction, was that he was not present and that he did no shooting.
appealed and coach cross-appealed. The supreme court, 103 Nev. 331, 741 P.2d 1345 (1987),
affirmed in part, reversed in part, and remanded. Thereafter, the NCAA appealed to United
States Supreme Court. The United States Supreme Court, Justice Stevens, 488 U.S. 179
(1989), reversed and remanded. On remand, the district court vacated all prior orders
regarding NCAA. Coach subsequently moved for order seeking to impose his costs. The
district court awarded coach $150,725.58, and university appealed. The supreme court held
that: (1) as prevailing civil rights litigant, coach was entitled to award of reasonable attorney's
fees, and (2) district court did not abuse its discretion in awarding total fee award against
university.
Affirmed.
Jones, Jones, Close & Brown and Gary R. Goodheart, Las Vegas; Donald Klasic, General
Counsel University System, Reno, for Appellants.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
1. Civil Rights.
Notwithstanding discretionary language of statute regarding award of attorney's fees to prevailing civil rights plaintiff, legislative
history indicates that prevailing plaintiff should receive fees almost as matter of course. 42 U.S.C. 1988.
2. Civil Rights.
Civil rights statutes were enacted to vindicate rights of parties who had suffered violations of civil rights laws and to encourage
private enforcement of these laws through compensation to attorneys. 42 U.S.C. 1983.
3. Civil Rights.
As general rule, prevailing civil rights plaintiff may recover reasonable attorney's fees as costs unless losing defendant can
establish existence of special circumstances which would make award unjust. 42 U.S.C. 1983, 1988.
4. Civil Rights.
Civil rights defendant bears burden of showing existence of special circumstances warranting denial of attorney's fees to prevailing
civil rights plaintiff, and defendant must make strong showing to justify denial of fees to prevailing plaintiff. 42 U.S.C. 1983, 1988.
On appeal from order awarding costs and attorney's fees to prevailing civil rights plaintiff, reviewing court must determine whether
order represents abuse of trial court's discretion. 42 U.S.C. 1983, 1988.
6. Civil Rights.
District court has virtually no discretion to deny fee award to prevailing civil rights plaintiff; however, in fixing amount of award,
trial judge has broader discretion as amount must merely be reasonable. 42 U.S.C. 1983, 1988.
7. Civil Rights.
Apportionment of attorney's fees by trial court amongst 1983 defendants is discretionary. 42 U.S.C. 1983, 1988.
8. Civil Rights.
Only limitation on district court's discretion to award fees to successful civil rights plaintiff jointly and severally is that it must do
so consistently with preexisting background of substantive liability rules. District court should make every effort to achieve most fair
and sensible solution that is possible. 42 U.S.C. 1983, 1988.
9. Civil Rights.
Although apportionment of attorney's fees awarded to successful civil rights plaintiff may in some cases be more equitable result
than awarding fees jointly and severally, there is no rule that requires it whenever possible. 42 U.S.C. 1983, 1988.
10. Civil Rights.
Requiring single civil rights defendant to pay all of successful civil rights plaintiff's costs, including attorney's fees, incurred in
civil rights action against two defendants was not abuse of discretion, where defendant helped cause plaintiff to suffer single,
indivisible injury. 42 U.S.C. 1983, 1988.
11. Civil Rights.
Although trial court must make reasonable attorney's fee award to successful civil rights plaintiff, method upon which reasonable
fee is determined is subject to discretion of court. 42 U.S.C. 1983, 1988.
12. Civil Rights.
Awarding one hundred percent of fee award to civil rights plaintiff against single defendant was not abuse of discretion, even
though plaintiff could have been considered limited success plaintiff since he did not ultimately prevail on his claims against other
defendant, in view of evidence that original fee award was reduced for plaintiff's unsuccessful first trial, that award of fees for
defending against other defendant's appeal was vacated, and that plaintiff was in fact ordered to pay some of other defendant's fees on
appeal. 42 U.S.C. 1983, 1988.
13. Judgment.
As general rule, judgments are to be construed like other written instruments and given most reasonable and consistent
construction as possible.
14. Civil Rights.
District court's fee award to successful civil rights plaintiff required single defendant to pay all of plaintiff's costs, including
attorney's fees, incurred in civil rights action against two defendants, in view of evidence that apportionment or attorney's fees was
secondary and incidental to finding of liability on part of defendants and that court intended to impose joint and several liability on
both defendants. 42 U.S.C. 1983, 1988.
15. Civil Rights.
Requiring university to pay all of basketball coach's costs, including attorney's fees, incurred in civil rights action against
university and National Collegiate Athletic Association (NCAA) was not abuse of discretion, even though university alleged that coach
litigated primarily against NCAA, where United States Supreme Court determined that NCAA was not liable for alleged civil rights
violations because it was not state actor, and where university suspended coach and was found to have violated coach's due
process rights in so doing.
have violated coach's due process rights in so doing. 42 U.S.C. 1983, 1988.
16. Civil Rights.
Attorney's fees under section 1988 are not awarded to punish defendants, but rather, attorney's fees are awarded to encourage
meritorious civil rights actions by ensuring reasonable compensation for victorious plaintiffs' attorneys. 42 U.S.C. 1983, 1988.
17. Judgment.
Doctrine of res judicata precludes parties or those in privity with them from relitigating cause of action or issue which has been
finally determined by court of competent jurisdiction.
18. Judgment.
Doctrine of res judicata is intended to prevent multiple litigation causing vexation and expense to parties and wasted judicial
resources by precluding parties from relitigating issues they could have raised in prior action concerning same controversy.
19. Judgment.
For res judicata to apply, issue decided in prior litigation must be identical to issue presented in current action; initial ruling must
have been on merits and have become final; and party against whom judgment is asserted must have been party or in privity with party
to prior litigation.
20. Judgment.
Issue preclusion, or collateral estoppel, maybe implicated when one or more of parties to earlier suit are involved in subsequent
litigation on different claim.
21. Judgment.
Under doctrine of issue preclusion, if common issue was actually decided and necessary to judgment in earlier suit, its relitigation
will be precluded. Restatement (Second) of Judgments 13.
22. Judgment.
Collateral estoppel is generally invoked when separate causes of action are presented in first and second suits, and doctrine
provides that any issue that was actually and necessarily litigated in one action will be estopped from being relitigated in subsequent
suit.
23. Judgment.
District court was not collaterally estopped from requiring single civil rights defendant to pay all of successful civil rights
plaintiff's costs in plaintiff's action against two defendants based on original judgment which required defendant to pay only ten
percent of award, in view of evidence that in prior litigation parties did not raise or litigate issue of each defendant's relative liability to
plaintiff or culpability for deprivation of plaintiff's due process rights and where prior district court order did not state that its
apportionment was based on such determination of relative culpability. 42 U.S.C. 1983, 1988.
24. Judgment.
Claim preclusion, or merger and bar, is triggered when judgment is entered, and valid and final judgment on claim precludes
second action on that claim or any part of it.
25. Judgment.
Preclusive effect of valid final judgment is generally as to subsequent action on same claim or part thereof, not as to subsequent
proceedings in same litigation.
26. Judgment.
Claim of prevailing plaintiff is merged into judgment for claim preclusion purposes.
27. Judgment.
If defendant prevails in action, plaintiff is thereafter barred from subsequent suit on same claim. Restatement (Second) of
Judgments 24.
28. Judgment.
Issue of each civil rights defendant's degree of culpability or liability was not at issue in original action for injunctive relief and,
therefore, doctrine of res judicata did not prevent district court from awarding all costs against single civil rights defendant on remand,
in view of evidence that central issue in injunctive proceedings were whether defendants deprived plaintiff of federal right under color
of state law and where defendant's interest was not adverse to other defendant's, as there were no monetary damages at stake. 42 U.S.C.
1983, 1988.
29. Judgment.
For res judicata purposes, judgment against several defendants settles nothing as to their relative rights and liabilities inter se,
unless their hostile and conflicting claims were actually brought in issue, litigated and determined.
Because civil rights plaintiff seeking injunctive relief received full relief initially, he was not aggrieved party and could not have
appealed from original judgment. 42 U.S.C. 1983; NRAP 3A(a).
Supreme court had jurisdiction to consider or modify district court's costs award allocated between two defendants in civil rights
action, even though plaintiff cross-appealed only from that portion of order and judgment denying him attorney's fees as damages,
where defendant appealed from entire judgment, including fee award. 42 U.S.C. 1983, 1988.
If non-appealing party's rights under judgment are dependent upon and interwoven with parts of judgment determining appealing
parties' rights, appellate court can reverse entire judgment if justice so requires.
Rule under which judgment becomes final as to non-appealing party, even though judgment is reversed on appeal, does not apply
where portions of judgment adverse to non-appealing party are so interwoven with whole that appeal from part affects other parts, and
in such situation, reviewing court can reverse entire judgment if necessary to do justice.
OPINION
Per Curiam:
This litigation between basketball coach Jerry Tarkanian (Tarkanian) and his former employersthe University of Nevada at Las
Vegas and its Board of Regents (collectively referred to as UNLV)has had a long and tortuous history. It began in 1977, when the
National Collegiate Athletic Association {NCAA) concluded that Coach Tarkanian had violated numerous NCAA
rules and urged UNLV to suspend him from his coaching duties.
when the National Collegiate Athletic Association (NCAA) concluded that Coach Tarkanian
had violated numerous NCAA rules and urged UNLV to suspend him from his coaching
duties.
Coach Tarkanian responded by filing this lawsuit, in which he ultimately sued both UNLV
and the NCAA for allegedly violating his federal due process rights. See 42 U.S.C. 1983
(1979). Coach Tarkanian prevailed in the district court. The case then commenced a lengthy
appellate journeymaking two trips to this court and one to the United States Supreme
Courtwhich eventually resulted in affirmance of the judgment against UNLV and reversal
of the judgment against the NCAA. At the conclusion of these initial appeals, the case
returned to the district court, which ordered UNLV to pay Tarkanian's costs and attorney's
fees in an amount of $150,725.58 plus interest.
UNLV now appeals from the district court's order granting Coach Tarkanian his costs and
attorney's fees. In what we hope will be the final ruling in this lengthy litigation, we affirm
the district court's order.
FACTS
In 1977, following a lengthy investigation, the NCAA concluded that UNLV and
Tarkanian had violated numerous NCAA rules.
1
The NCAA accordingly imposed sanctions
against UNLV and recommended that UNLV suspend Tarkanian or else face even stiffer
sanctions. UNLV decided to follow this recommendation and thereafter informed Tarkanian
of its decision.
The day before the suspension was to take effect, however, Tarkanian sued UNLV in
district court for declaratory and injunctive relief. Tarkanian alleged, inter alia, that UNLV's
suspension of him would violate the Fourteenth Amendment of the Constitution by depriving
him of property and liberty interests without due process of law.
Tarkanian prevailed at trial, and UNLV appealed to this court. This court reversed the
judgment of the district court on the grounds that Tarkanian had failed to join a necessary
party, the NCAA. See University of Nevada v. Tarkanian, 95 Nev. 389, 594 P.2d 1159
(1979).
Tarkanian again sued in district court, this time adding the NCAA as a party. On June 25,
1984, after a bench trial, the district court held that both UNLV and the NCAA had deprived
Tarkanian of procedural and substantive due process in attempting to suspend Tarkanian
from his position as head basketball coach for two years.
__________

1
The NCAA sponsors and regulates intercollegiate athletic competition throughout the United States. Member
institutions, such as UNLV, are required to abide by NCAA rules as a condition to participation in NCAA
sponsored events. Where the NCAA determines that its rules have been violated by one of the member
institutions, it has the power to impose a variety of sanctions.
Tarkanian of procedural and substantive due process in attempting to suspend Tarkanian from
his position as head basketball coach for two years. Tarkanian was denied his claim for
attorney's fees as damages under state law but obtained his requested injunctive relief as well
as attorney's fees and costs pursuant to 42 U.S.C. 1988 (1980). The district court
permanently enjoined both defendants from severing Tarkanian's relations with the UNLV
intercollegiate athletic program.
The NCAA brought a motion to retax and settle costs, which was heard on December 4,
1984. On January 21, 1985, the district court entered an order denying the NCAA's motion to
retax and settle costs and awarding Tarkanian $195,951.92 in costs, including attorney's fees.
The district court further ordered that the costs were to be apportioned as follows: (1) the
NCAA was to pay ninety percent ($176,356.73) of the award, and (2) UNLV was to pay ten
percent of the award ($19,595.19).
The NCAA alone appealed from the district court judgment and order apportioning costs.
UNLV did not appeal, and Tarkanian cross-appealed only from the district court's denial of
his state law attorney's fees as damages claim.
2
This court upheld the injunction but partially
reversed the award of attorney's fees because it included fees for the first trial and $5,000.00
in undocumented costs. See Tarkanian v. Nat'l Collegiate Athletic Association, 103 Nev. 331,
741 P.2d 1345 (1987). Accordingly, this court remanded the matter for a recalculation of
attorney's fees. Id.
On September 9, 1987, Tarkanian filed a motion for an award of attorney's fees incurred
on appeal to this court. By order entered February 25, 1988, this court denied Tarkanian's
motion without prejudice to his right to file the same in district court and stated that
Tarkanian was entitled to reasonable attorney's fees for services rendered on appeal.
__________

2
After the district court entered its order, UNLV sent Tarkanian's counsel (Lionel Sawyer & Collins) a check
for ten percent of Tarkanian's award, along with a release and satisfaction. Tarkanian's counsel responded by
letter dated February 25, 1985, which stated:
We received your letter of February 21, 1985 enclosing UNLV's check in the amount of $19,595.19,
[and] a RELEASE and a SATISFACTION OF ORDER. As your letter requires execution of the release
and satisfaction before we cash the check, we will just hold the check in trust pending resolution of the
following problem.
Specifically, while we are willing to execute the satisfaction of order, neither Jerry Tarkanian nor this
firm are willing to release UNLV at this time. As you have yourself acknowledged to me, it is possible
that the NCAA will argue and the Nevada Supreme Court will agree that UNLV should pay more than
10% of the cost award. While we believe such a determination to be remote, that is a risk UNLV has
decided to take by not appealing and is not a risk that is fairly passed off to the plaintiff and his counsel
by way of the release.
UNLV thereafter agreed to let Tarkanian cash the check after he signed only the satisfaction but not the release.
without prejudice to his right to file the same in district court and stated that Tarkanian was
entitled to reasonable attorney's fees for services rendered on appeal. Pursuant to this court's
mandate, Tarkanian moved to recalculate costs. The district court granted the motion,
awarding costs and attorney's fees of $336,859.78 against the NCAA, which included costs of
the appeal to this court.
In the meantime, the NCAA appealed to the United States Supreme Court. See NCAA v.
Tarkanian, 488 U.S. 179 (1988). In a 5-4 decision, the Court reversed, concluding that the
NCAA could not be held liable because its actions did not constitute state action and were not
performed under color of state law pursuant to 42 U.S.C. 1983 (1979). The Court held that
UNLV was the entity that actually suspended Tarkanian, which suspension was the state
action that created liability under the statute. The case was then remanded to this court for
further proceedings.
Upon remand from the United States Supreme Court, this court remanded the case to the
district court and ordered the district court to enter an order vacating the injunctive decree
against the NCAA and also vacating any orders assessing attorney's fees against the NCAA.
This court refused to address the NCAA's request for vacatur of the injunction against UNLV,
stating: [W]e remand this matter to the district court for further proceedings in which all the
original parties to this litigation shall have an opportunity to address the propriety of the
NCAA's request. Tarkanian v. NCAA, Docket No. 16256 (Order of Remand at 6, September
28, 1989). This court further suggested that the district court receive appropriate evidence,
entertain appropriate legal argument from all concerned parties, and enter appropriate
findings of fact and conclusions of law on any or all matters it deems pertinent to a proper
constitutional and equitable result. Id. at 3.
Accordingly, the district court vacated all prior orders holding the NCAA liable for
Tarkanian's attorney's fees and vacated the injunctive decree insofar as it pertained to the
NCAA. The district court left undisturbed the injunction against UNLV, stating that it
remained in full force and effect. Additionally, the district court expressly declared: This
order is without prejudice to plaintiff's right to file an application for costs and fees against all
defendants other than the NCAA, and the Court hereby retains jurisdiction for that purpose.
Tarkanian subsequently moved for an order seeking to impose his costs, including
attorney's fees, against UNLV. On June 8, 1992, the district court granted Tarkanian's motion.
The district court found that as a prevailing plaintiff in a civil rights action, Tarkanian was
entitled to reimbursement for his costs, including attorney's fees, pursuant to 42 U.S.C.
19SS {19S0) and Kentucky v. Graham, 473 U.S. 159 {19S5).
attorney's fees, pursuant to 42 U.S.C. 1988 (1980) and Kentucky v. Graham, 473 U.S. 159
(1985).
3
Accordingly, the district court awarded Tarkanian $150,725.58 in costs, plus
interest thereon. UNLV appeals.
DISCUSSION
[Headnote 1]
Tarkanian was awarded attorney's fees as costs under 42 U.S.C. 1988 (1982) as a
prevailing plaintiff in a section 1983 civil rights action. In pertinent part, the Civil Rights
Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988 (1982), provides: In any action or
proceeding to enforce a provision of section[] . . . 1983 . . . of this title, . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs. Notwithstanding the discretionary language of section
1988, [t]he legislative history indicates that a prevailing plaintiff should receive fees almost
as a matter of course. Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978); accord Ackerly
Communications, Inc. v. City of Salem, 752 F.2d 1394, 1396 (9th Cir.), cert. denied, 472
U.S. 1028 (1985). The Supreme Court has recently explained that a civil rights plaintiff
prevails when actual relief on the merits of his [or her] claim materially alters the legal
relationship between the parties by modifying the defendant's behavior in a way that directly
benefits the plaintiff. Farrar v. Hobby,
------
U.S.
------
,
------
, 113 S. Ct. 566, 569 (1992).
[Headnote 2]
The civil rights statutes were enacted to vindicate the rights of parties who had suffered
violations of civil rights laws and to encourage private enforcement of these laws through
compensation to attorneys. Hall v. Hall, 738 F.2d 718, 721 (6th Cir. 1984). [T]he purpose
of 1988 [is] to enable litigants with valid claims to present their claims without having to
bear the burden of the costs. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474
(10th Cir, 1985). In Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court stated,
the logical place to look for recovery of fees is to the losing partythe party legally
responsible for relief on the merits." Id. at 164.
__________

3
On December 6, 1993, UNLV flied with this court Appellants' Motion that the Supreme Court take Judicial
Notice of Papers filed in the Eighth Judicial District Court (the Motion). The Motion requested that this court
take judicial notice of statements made in an affidavit filed by Lionel Sawyer & Collins, in support of a motion
filed in the Eighth Judicial District Court in another proceeding involving the parties to this appeal. We decline
to take judicial notice of the affidavit as it is from a different proceeding that bears no relation whatsoever to this
case. Occhiuto v. Occhiuto, 97 Nev. 143, 145, 625 P.2d 568, 569 (1981).
responsible for relief on the merits. Id. at 164. The Court further stated that liability on the
merits and responsibility for fees go hand in hand. Id. at 165.
[Headnotes 3, 4]
As a general rule, a prevailing plaintiff may recover reasonable attorney's fees as costs
under section 1988 unless the losing defendant can establish the existence of special
circumstances which would make the award unjust. See Graham, 473 U.S. at 163-64. The
defendant bears the burden of showing the existence of special circumstances, and must
make a strong showing' to justify denial of section 1988 fees to [a] prevailing plaintiff[].
Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985). Because the civil rights statutes do
not expressly provide such a special circumstances exception, moreover, the judicially
imposed provision should be narrowly construed so as not to interfere with the congressional
purpose in passing such statutes. Id.
Standard of review
[Headnote 5]
On appeal from an order awarding costs and attorney's fees to a prevailing civil rights
plaintiff, the reviewing court must determine whether the order represents an abuse of the
trial court's discretion. See Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir. 1986).
As this court has explained: The award of attorney's fees resides within the discretion of the
court. Moreover, in the absence of a manifest abuse of discretion, the court's decision on the
issue will not be overturned. County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492,
653 P.2d 1217, 1220 (1982); accord Chowdry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459
(1993); Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 562-63, 598 P.2d 1147, 1149 (1979).
[Headnote 6]
Simply to label the matter discretionary, however, is to tell only part of the story. The
degree of the trial court's discretion depends on the nature of the particular ruling being
challenged. For example, the district court has virtually no discretion to deny a fee award to
a prevailing plaintiff. Dan B. Dobbs, Awarding Attorney Fees Against Adversaries:
Introducing the Problem, 1986 Duke L.J. 435, 448 (1986); see Albemarle Paper Co. v.
Moody, 422 U.S. 405, 415 (1975). By contrast, in fixing the amount of an award, the trial
judge has broader discretion as the amount must merely be reasonable. See 42 U.S.C.
1988 (1982). In the relatively unsettled area of the law concerning apportionment of fees
assessments, moreover, it appears that the trial judge's discretion is tempered only by
reason and fairness.
apportionment of fees assessments, moreover, it appears that the trial judge's discretion is
tempered only by reason and fairness. See Grendel's Den, 749 F.2d at 959-60; accord Kosters
v. Perales, 903 F.2d 131 (2nd Cir. 1990).
UNLV challenges the district court order awarding attorney's fees to Tarkanian on three
main grounds. First, UNLV contends that the district court abused its discretion by ordering
UNLV to pay one hundred percent of Tarkanian's attorney's fees incurred in this litigation,
even though the district court's original order held UNLV responsible for only ten percent of
Tarkanian's fees. Second, UNLV raises the related contention that the district court's January
21, 1985, order awarding attorney's fees became a final judgment and res judicata as to
UNLV since UNLV did not appeal from the original order, and that the district court
therefore erred by imposing a new cost and fee order. Finally, UNLV argues that this court
lacked jurisdiction to consider or modify the order apportioning attorneys fees. We address
each contention in turn.
The district court order awarding attorney's fees
We first consider whether the district court abused its discretion on remand by ordering
UNLV to pay all of Tarkanian's costs, including attorney's fees, incurred in this litigation. To
resolve this issue, we must initially look to the district court's fee award itself. The original
order awarding fees provides, in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to
N.R.S. 18.005 et seq. and 42 U.S.C. 1988 plaintiff is awarded the amount of
$195,951.92 as costs including attorney's fees.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the award of
costs including attorney's fees shall be apportioned among defendants as follows: (1)
defendant NCAA shall be assessed and shall pay to plaintiff the amount of
$176,356.73, which is equal to 90% of the award; and (2) defendant UNLV shall be
assessed and shall pay to plaintiff the amount of $19,595.19, which is equal to 10% of
the award.
UNLV contends that this order should be read to have made UNLV and the NCAA
severally liable for only the amount awarded against each, and the trial court accordingly
abused its discretion when it construed the order to say otherwise. UNLV seeks support for its
position from the decision in Koster v. Perales, 903 F.2d 131 (2nd Cir. 1990), which stated
that a trial court "may allocate the fee award between the responsible parties, setting the
percentage for which each is liable where the claims against the defendants are separate
and distinct or where culpability is significantly unequal, or it may hold the responsible
parties jointly and severally liable for the fee award." Id. at 139 {citation omitted;
emphasis added).
court may allocate the fee award between the responsible parties, setting the percentage for
which each is liable where the claims against the defendants are separate and distinct or
where culpability is significantly unequal, or it may hold the responsible parties jointly and
severally liable for the fee award. Id. at 139 (citation omitted; emphasis added). UNLV
argues that this or in the above-quoted language from Koster is disjunctive and stands for
the proposition that a court may either allocate liability for a specific percentage of the award
(thus indicating the imposition of several liability), or it may hold the parties jointly and
severally liable for the entire amount awarded. A review of the case law addressing the issue
of apportionment of attorney's fees reveals that UNLV's argument is not persuasive.
[Headnote 7]
As with most attorney's fee rulings, apportionment of attorney's fees by a trial court
amongst section 1983 defendants is discretionary. See Koster v. Perales, 903 F.2d 131 (2nd
Cir. 1990); Grendel's Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984). The Second Circuit
put it thusly in Koster:
The allocation of fee liability is a matter committed to the district court's discretion
and will not be disturbed unless the determination evidences an abuse of discretion.
Although the law governing apportionment of attorney's fees assessments remains
relatively unsettled, district courts have appropriately considered a variety of factors in
allocating fee liability including the relative culpability of the parties, and the
proportion of time spent litigating against each defendant.
Koster, 903 F.2d at 139 (citations omitted).
Similarly, in Grendel's Den, the court acknowledged that the law concerning
apportionment of fees assessments remains relatively unsettled and . . . a number of theories
for apportioning fees have been advanced. Grendel's Den, 749 F.2d at 959. The court
discussed the simplest approach of dividing the award equally among the defendants, and
the more sophisticated approaches of apportionment by degree of each defendant's liability .
. . and apportionment by relative time spent litigating against each defendant. Id. at 959-60
(citations omitted). The court noted [e]ach of these theories may be more or less valid in a
given case. For example, where discrete injuries have been demonstrably caused by different
parties, apportionment on the basis of degree of liability may be most practical and
equitable. Id. at 960.
In this case, there were no such discrete injuries, and thus the most common basis for
fee apportionment does not exist here.
the most common basis for fee apportionment does not exist here. Instead, Tarkanian's injury
was singular and was caused by the combined actions of both the NCAA and UNLV. Justice
White put it best when he observed that UNLV suspended Tarkanian because it embraced
the NCAA rules governing conduct of its athletic program and adopted the results of the
hearing conducted by the NCAA, as it had agreed it would. Under these facts, . . . the NCAA
acted jointly with UNLV. NCAA v. Tarkanian, 488 U.S. 179, 203 (1988) (White, J.,
dissenting).
Courts have traditionally imposed joint and several liability under such
circumstancesthat is, where two or more defendants combine to cause a single, indivisible
injury, courts have generally held each defendant responsible for the entire amount of the
judgment. See, e.g., Price v. Aztec Ltd., Inc., 701 P.2d 294, 297 (Idaho Ct. App. 1985); Azure
v. City of Billings, 596 P.2d 460, 470 (Mont. 1979); Powell v. Powell, 370 P.2d 909, 911
(Okla. 1962); see generally W. Page Keeton et al., Prosser & Keeton on the Law of Torts,
52, at 347 (5th ed. 1984).
While we recognize that fee liability is not altogether analogous to liability on the merits,
we see no reason to prohibit the imposition of joint and several fee liability where the losing
defendant has caused the plaintiff to suffer a single, indivisible harm. We accordingly agree
with those courts that have afforded trial courts discretion to impose such fee liability. See,
e.g., Smith v. Updegraff, 744 F.2d 1354, 1368 (8th Cir. 1984); Riddell v. National
Democratic Party, 712 F.2d 165, 169 (5th Cir. 1983); and see Dan B. Dobbs, Awarding
Attorneys Fees Against Adversaries: Introducing the Problem, 1986 Duke L.J. 435, 458
(1986).
[Headnotes 8, 9]
Specifically, we adopt in Nevada the following statement of the law:
The only limitation on the district court's discretion to award fees jointly and severally
is that it must do so consistently with the pre-existing background of substantive
liability rules. See Kentucky v. Graham, 473 U.S. at 171, 105 S. Ct. at 3108; Dean v.
Gladney, 621 F.2d 1331,1339-40 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S. Ct.
1521, 67 L. Ed. 2d 819 (1981) (defendants must be joint tortfeasors). Of course, the
district court should make every effort to achieve the most fair and sensible solution
that is possible. Grendel's Den, 749 F.2d at 960.
Thus, although apportionment may in some cases be a more equitable resolution,
there is no rule in this circuit that requires it whenever possible . . . .
Koster v. Perales, 903 F.2d 131, 139 (2nd Cir. 1990) (emphasis added).
[Headnote 10]
Applying this rule here, we conclude that the district court acted within its discretion when
it held UNLV responsible for the entire fee award, because UNLV helped cause Tarkanian to
suffer a single, indivisible injury. We caution, however, that our opinion should not be
construed to mean that the imposition of joint and several fee liability is required whenever
joint and several liability is imposed. Rather, we emphasize that the matter is purely a
discretionary one.
[Headnote 11]
UNLV also contends that a plaintiff who obtains relief against only one out of several
defendants cannot recover a full fee award, which necessarily includes fees incurred litigating
against the successful defendant. While there is some support for this position, see Pawlak v.
Greenawalt, 713 F.2d 972, 979 (3rd Cir. 1983), it does not represent a hard and fast rule.
Ultimately, a trial court must award a reasonable fee, however the method upon which a
reasonable fee is determined is subject to the discretion of the court. For instance, the Court
of Appeals for the Ninth Circuit acknowledged that a district court has the discretion to
reduce a lodestar
4
figure to account for a plaintiff's limited success. The court explained:
In cases in which a plaintiff's success is limited, we have instructed the district court
to apply a two-part analysis: First, the court asks whether the claims upon which the
plaintiff failed to prevail were related to the plaintiff's successful claims. . . . If the
unsuccessful and successful claims are related, then . . . the court evaluates the
significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended. If the plaintiff obtained excellent results, full compensation
may be appropriate, but if only partial or limited success was obtained, full
compensation may be excessive.
Corder v. Gates, 947 F.2d 374, 379 (9th Cir. 1991) (quoting Cabrales v. County of Los
Angeles, 864 F.2d 1454, 1465 (9th Cir.
__________

4
After a court has determined that attorney's fees are appropriate, it then must multiply the number of hours
reasonably spent on the case by a reasonable hourly rate to reach what is termed the lodestar amount. Herbst v.
Humana Health Ins. of Nevada, 105 Nev. 586, 590, 781 P.2d 762, 764 (1989); see also Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564-66 (1986); Patton v. County of Kings, 857
F.2d 1379, 1382 (9th Cir. 1988); Southerland v. International Longshoremen's and Warehousemen's Union, 845
F.2d 796, 800-01 (9th Cir. 1988).
Cir. 1988)), vacated on other grounds, 490 U.S. 1087 (1989), reinstated, 886 F.2d 235 (9th
Cir. 1989), cert. denied, 494 U.S. 1091 (1990). After emphasizing that the purpose of a fee
award is to encourage litigation and voluntary compliance with civil rights laws,' Corder,
947 F.2d at 379 (quoting Woods v. Graphic Communications, 925 F.2d 1195, 1207 (9th Cir.
1991)), the Ninth Circuit explained:
In cases such as the present one, where a plaintiff brings an action against a large
number of defendants, but manages to prevail only with regard to a few, perhaps an
award granting 100% of the accrued attorney's fees encourages too much litigation.
While it is true that the plaintiffs succeeded in proving a civil rights violation, they did
so at the cost of forcing many individuals to bear the expense of defending against
apparently meritless allegations. . . . Plaintiffs initially accused more than fifty
defendants of violating their civil rights, yet obtained a verdict against three. . . .
Obviously, then, the district court would have sound reasons for reducing a fee award in
this type of a situation.
On the other hand, our cases also make clear that the district court could have
awarded plaintiffs the full lodestar amount. In Rivera v. City of Riverside, 763 F.2d
1580 (9th Cir. 1985), aff'd on other grounds, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed.
2d 466 (1986), plaintiffs sued thirty-two defendants, including thirty individual police
officers. Plaintiffs prevailed against only six officers. . . . Nevertheless, we held that the
district court did not abuse its discretion when it declined to reduce the attorney's fee
award for limited success, despite the plaintiffs' failure to prevail against the majority of
the original defendants. Thus, Cabrales and Rivera together indicate that district courts
have considerable discretion in determining attorney's fees, a rule that is in conformity
with the teachings of Blanchard [Blanchard v. Bergeron, 489 U.S. 87 (1989)] and
Hensley [Hensley v. Eckerhart, 461 U.S. 424 (1983)].
Corder, 947 F.2d at 379-80 (footnotes omitted). In Cabrales, the plaintiff was the mother of
former inmate Sergio Cabrales, who brought suit against more than twenty sheriff's deputies
and the county after her mentally ill son hanged himself while in solitary confinement. She
succeeded only on her claim that the county maintained a policy of indifference to the safety
and medical needs of the inmates. The Ninth Circuit upheld the district court's twenty-five
percent reduction for limited success. Cabrales v. County of Los Angeles, 864 F.2d 1454,
1465 (9th. Cir. 1988), vacated on other grounds, 490 U.S. 1087 (1989), reinstated, 886 F.2d
235 (9th Cir. 1989), cert. denied, 494 U.S. 1091 (1990).
[Headnote 12]
Tarkanian could be considered a limited success plaintiff since he did not ultimately
prevail on his claim against the NCAA. However, it is most significant that Tarkanian was
given all the relief he sought under his section 1983 action. The Corder court stated: If a
plaintiff ultimately wins on a particular claim, she [or he] is entitled to all attorney's fees
reasonably expended in pursuing that claimeven though she may have suffered some
adverse rulings. Corder, 947 F.2d at 379 n.5 (quoting Cabrales v. County of Los Angeles,
935 F.2d 1050, 1053 (9th Cir. 1991)). Applying either a limited success analysis, or
viewing Tarkanian as having prevailed on his claim despite some adverse rulings, we
conclude that the district court did not abuse its discretion in awarding one hundred percent of
the fee award to Tarkanian against UNLV. We note that the original fee award was reduced
for Tarkanian's ultimately unsuccessful first trial, and the award of fees for defending against
the NCAA's appeal was vacated. Tarkanian was in fact ordered to pay some of the NCAA's
fees on appeal. Thus, Tarkanian's unsuccessful claims have been considered at various points
throughout this litigation, and the fees were accordingly reduced to arrive at a reasonable fee
award.
[Headnotes 13, 14]
A logical construction of the order itself mandates the same result. As a general rule,
judgments are to be construed like other written instruments and given the most reasonable
and consistent construction as possible. See Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d
355 (1950). This court has previously stated:
Where a judgment is susceptible of two interpretations, that one will be adopted which
renders it the more reasonable, effective and conclusive, and which makes the judgment
harmonize with the facts and law of the case, and be such as ought to have been
rendered.
Id. at 292, 217 P.2d at 365 (quoting Aseltine v. District Court, 57 Nev. 269, 273, 62 P.2d 701,
702 (1936)); see also Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95 (1929).
As discussed previously, the district court first found that Tarkanian was a prevailing
plaintiff. It then awarded Tarkanian his statutory fees under section 1988 against both
defendants. At the behest of the parties, the district court then apportioned the award. The
apportionment of the attorney's fees was secondary and incidental to the finding of liability on
the part of UNLV and the NCAA. There is also evidence in the record to indicate that the
district court intended to impose joint and several liability on the NCAA and UNLV.
the NCAA and UNLV. The district court's original conclusions of law provide:
4. Both the Defendant NCAA and the Defendant UNLV have deprived the Plaintiff
Tarkanian of procedural due process . . . .
5. Both the Defendant NCAA and the Defendant UNLV have deprived the Plaintiff
Tarkanian of substantive due process . . . . [T]he decision by NCAA was arbitrary and
capricious, and the decision of UNLV was vicariously so.
The district court continued: (UNLV) carried out the real aim of the NCAA (severing
Tarkanian), not out of respect for the NCAA's Findings,' but due to fear of the seemingly
omnipotent Enforcement Division of NCAA. Thus, a reasonable, effective, and conclusive
interpretation of the judgment and award of attorney's fees supports joint and several liability
for the fee award.
[Headnote 15]
UNLV argues that it is unfair to burden it with the entire fee award since Tarkanian
litigated primarily against the NCAA, the true villain in this case. We recognize that this
appeal involves a battle between two relatively innocent parties. Nonetheless, we are bound
by the doctrine of law of the case; this court must adhere to the determination of the United
States Supreme Court that the NCAA is not a state actor. Additionally, it must be
remembered that UNLV did suspend Tarkanian, and the district court found UNLV violated
Tarkanian's due process rights in so doing. It is not inequitable that UNLV pay the attorney's
fees incurred in vindication of Tarkanian's civil rights, as the district court has unfailingly
found that UNLV violated Tarkanian's civil rights. UNLV has consistently been a losing
party in this civil rights litigation, and Tarkanian has consistently prevailed against UNLV.
On remand, the district court was presented with the option of imposing responsibility for the
payment of the attorney's fees on either a prevailing civil rights litigant or a losing defendant.
We perceive no abuse of discretion in its choosing to impose the costs of this lawsuit on the
latter.
[Headnote 16]
Moreover, this court is mindful of the purpose of the fee award in civil rights litigation.
Attorney's fees under section 1988 are not awarded to punish defendants. Attorney's fees are
awarded to encourage meritorious civil rights actions by ensuring reasonable compensation
for victorious plaintiffs' attorneys. Corder v. Gates, 947 F.2d 374, 383 (9th Cir. 1991). The
basic purpose of a 1983 damages award should be to compensate persons for injuries
caused by the deprivation of constitutional rights."
injuries caused by the deprivation of constitutional rights. Farrar v. Hobby,
------
U.S.
------
,
------
, 113 S. Ct. 566, 573 (1992); Carey v. Piphus, 435 U.S. 247, 254 (1978).
In light of the express purpose of section 1988, the fact that Tarkanian obtained all the
relief he sought under section 1983, and given a reasonable construction of the original
judgment and order awarding and apportioning attorney's fees, we conclude that the district
court did not abuse its discretion on remand when it ordered that UNLV must pay all of
Tarkanian's costs, including attorney's fees.
Res judicata
UNLV did not appeal from the June 25, 1984, judgment or the January 21, 1985, order
apportioning costs. UNLV contends that the order awarding and apportioning costs was thus
a final judgment and res judicata as to UNLV. UNLV maintains that the original judgment
and order apportioning fees imposed several liability on UNLV for ten percent of the fees and
on the NCAA for ninety percent of the fees. UNLV urges that the doctrine of res judicata
precluded Tarkanian from seeking a reapportionment of costs on remand.
[Headnotes 17-19]
Generally, the doctrine of res judicata precludes parties or those in privity with them from
relitigating a cause of action or an issue which has been finally determined by a court of
competent jurisdiction. Horvath v. Gladstone, 97 Nev. 594, 597, 637 P.2d 531, 533 (1981);
Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979). The doctrine is intended to prevent
multiple litigation causing vexation and expense to the parties and wasted judicial resources
by precluding parties from relitigating issues they could have raised in a prior action
concerning the same controversy. Hulsey v. Koehler, 267 Cal. Rptr. 523, 526 (Ct. App.
1990). For res judicata to apply, three pertinent elements must be present: (1) the issue
decided in the prior litigation must be identical to the issue presented in the current action; (2)
the initial ruling must have been on the merits and have become final; and (3) the party
against whom the judgment is asserted must have been a party or in privity with a party to the
prior litigation. Horvath, 97 Nev. at 597, 637 P.2d at 531.
Additionally, there are two different species of res judicata that might arguably apply here:
issue preclusion and claim preclusion.
[Headnotes 20-22]
Issue preclusion, or collateral estoppel, may be implicated when one or more of the parties
to an earlier suit are involved in subsequent litigation on a different claim.
subsequent litigation on a different claim. Issues that were determined in the prior litigation
arise in the later suit. If the common issue was actually decided and necessary to the judgment
in the earlier suit, its relitigation will be precluded. Charles Wright states:
The general rule of issue preclusion is that if an issue of fact or law was actually
litigated and determined by a valid and final judgment, the determination is conclusive
in a subsequent action between the parties . . . . For purposes of issue preclusion, a final
judgment includes any prior adjudication of an issue in another action that is
determined to be sufficiently firm to be accorded conclusive effect.
Charles A. Wright, Law of Federal Courts 100A, at 682 (4th ed. 1983); see Restatement
(Second) of Judgments 13 (1982). Collateral estoppel is generally invoked when separate
causes of action are presented in the first and second suits. The doctrine provides that any
issue that was actually and necessarily litigated in one action will be estopped from being
relitigated in a subsequent suit.
[Headnote 23]
Collateral estoppel thus applies to issues that were actually and necessarily litigated.
UNLV argues that the district court judgment and order apportioning costs imposed several
liability on UNLV for ten percent of the judgment. To apply collateral estoppel to the instant
case, the issue of the NCAA's and UNLV's relative liability to Tarkanian must have been
actually and necessarily litigated. The record on appeal does not contain any indication that
the parties raised or litigated the issue of each defendant's relative liability to Tarkanian or
culpability for the deprivation of Tarkanian's due process rights. Nor does the district court
order state that its apportionment was based on such a determination of relative culpability.
To give preclusive effect to an issue, it must be clear that the issue was actually adjudicated.
Thus, there is no issue preclusion here.
[Headnotes 24-27]
Claim preclusion, or merger and bar, is triggered when a judgment is entered. A valid and
final judgment on a claim precludes a second action on that claim or any part of it. See
Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979). The preclusive effect is generally as to
a subsequent action on the same claim or part thereof, not as to subsequent proceedings in the
same litigation. See Office Services Corp. of America v. CAS Systems, Inc., 666 P.2d 1373
(Or. Ct. App.), rev. denied, 670 P.2d 1036 (Or. 1983); Charles A. Wright, Law of Federal
Courts 100A {4th ed.
100A (4th ed. 1983). The claim of a prevailing plaintiff is merged into the judgment. If the
defendant prevails, the plaintiff is thereafter barred from subsequent suits on the same claim.
See Restatement (Second) of Judgments 24 (1982). The modern view is that claim
preclusion embraces all grounds of recovery that were asserted in a suit, as well as those that
could have been asserted, and thus has a broader reach than collateral estoppel. See Batterman
v. Wells Fargo Ag. Credit Corp., 802 P.2d 1112 (Colo. Ct. App. 1990); Matter of Herbert M.
Dowsett Trust, 791 P.2d 398 (Haw. Ct. App. 1990); Madsen v. Borthick, 769 P.2d 245, 247
(Utah 1988).
[Headnotes 28, 29]
Because the issue of UNLV's relative culpability and inter se liability was not actually
litigated, the inquiry in the instant case becomes whether the issue might have been properly
litigated in the district court. A careful consideration of the original posture and nature of this
litigation compels a negative response. Tarkanian sought injunctive relief; the NCAA and
UNLV were jointly named as defendants in Tarkanian's section 1983 action. The central
issues were whether the NCAA and UNLV deprived Tarkanian of a federal right under color
of state law. UNLV was not adverse to the NCAA, and there were no monetary damages at
stake, thus the issue of each defendant's degree of culpability or liability inter se was not in
issue. For res judicata purposes, a judgment against several defendants settles nothing as to
their relative rights and liabilities inter se, unless their hostile and conflicting claims were
actually brought in issue, litigated and determined. See Burrell v. Southern Pacific Co., 474
P.2d 466 (Ariz. Ct. App. 1970); B & E Installers v. Mabie & Mintz, 101 Cal. Rptr. 919 (Ct.
App. 1972); Gies v. Nissan Corp., 204 N.W.2d 519, 523 (Wis. 1973). We conclude,
therefore, that the doctrine of res judicata did not prevent the district court from awarding all
the costs against UNLV on remand.
The record in this lengthy litigation does not support UNLV's argument that the
apportionment award determined each defendant's relative culpability and liability inter se.
Rather, the judgment in this case was the determination that both the NCAA and UNLV
violated Tarkanian's civil rights under section 1983. Accordingly, Tarkanian had a statutory
right to recover attorney's fees under section 1988. The district judge then had the discretion
to apportion the fees as he deemed fit. Counsel for UNLV and for Tarkanian both requested
that the court apportion the award of attorneys fees. This apportionment did not reflect a
determination of several liability. As discussed previously, there is no relevant statutory or
case law, state or federal, that mandates that fees be apportioned in accord with liability or
culpability in section 19S3 actions.
section 1983 actions. Because the issue of whether the defendants were severally liable or
jointly and severally liable was not in issue nor decided, the apportionment order cannot be
given conclusive or preclusive effect on that issue. We thus conclude that the doctrine of res
judicata did not preclude the district court from awarding Tarkanian his costs and ordering
that UNLV pay said costs on remand.
Jurisdiction
Tarkanian cross-appealed only from that portion of the order and judgment entered June
25, 1984, denying him attorney's fees as damages. UNLV contends that under well-settled
principals of appellate procedure, reversal or modification of a judgment against a defendant
who appeals does not affect the judgment against a non-appealing co-defendant, which is
final, res judicata and cannot be modified. Thus, UNLV argues that this court, and the United
States Supreme Court, never acquired jurisdiction to consider, modify, or vacate the district
court order awarding costs against UNLV. UNLV seeks support from Mahaffey v. Investor's
Nat'l Sec., 102 Nev. 462, 725 P.2d 1218 (1986), wherein this court dismissed an untimely
cross-appeal, stating that a timely notice of cross-appeal is jurisdictional with respect to the
cross-appeal. Id. at 464, 725 P.2d at 1219. UNLV also cites to two federal appellate court
decisions which stand for the proposition that a reviewing court may not enlarge the rights of
an appellee when no cross-appeal is filed. See Davis v. Murphy, 587 F.2d 362, 365 (7th Cir.
1978) (If [plaintiff] were dissatisfied with the district court award [of attorney's fees], he
should have filed a cross-appeal in this court. Lacking such an appeal this court cannot review
the district court's decision.); North Texas Producers Ass'n v. Metzger Dairies, Inc., 348
F.2d 189, 197 (5th Cir. 1965) ([I]n the absence of a cross-appeal, this Court cannot enlarge
the rights of the appellee.).
[Headnote 30]
For purposes of this appeal, we find it unnecessary and inappropriate for this court to
address the issue of whether the United States Supreme Court had jurisdiction to consider,
modify, or vacate the district court judgment as it pertained to UNLV. There are, however,
several aspects of UNLV's jurisdiction argument that we feel compelled to address. First,
Tarkanian received full relief in the initial judgment and order awarding costs, thus he had no
occasion to appeal from it. We are not persuaded that Tarkanian could or should have
anticipated the outcome of the NCAA's appeal to the United States Supreme Court. Indeed,
because Tarkanian received full relief initially, he was not an aggrieved party and could not
have appealed from the original judgment.5 See NRAP 3A{a); In re Estate of Hughes, 96
Nev. 17S
judgment.
5
See NRAP 3A(a); In re Estate of Hughes, 96 Nev. 178, 605 P.2d 1149 (1980);
Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937); see also Farnham v.
Farnham, 80 Nev. 180, 391 P.2d 26 (1964) (successful party is not an aggrieved party and
thus is not entitled to file cross-appeal).
[Headnotes 31-33]
UNLV's argument that this court lacked jurisdiction to consider or modify the district
court's costs award is also flawed.
6
Significantly, the NCAA appealed from the entire June
25, 1984, judgment. Since the NCAA's notice of appeal designated the entire judgment and
the fee award, this court had jurisdiction to consider the same on appeal. See NRAP 3(c).
Further, this court's adjudication of the NCAA's rights and Tarkanian's rights would
necessarily have an impact on UNLV's rights. Where a non-appealing party's rights under a
judgment are dependent upon and interwoven with the parts of a judgment determining the
appealing parties' rights, an appellate court can reverse the entire judgment if justice so
requires. See Grouse Creek Ranches v. Budget Financial Corp., 87 Nev. 419, 488 P.2d 917
(1971); Blache v. Blache, 233 P.2d 547 (Cal. 1951); Kvenild v. Taylor, 594 P.2d 972 {Wyo.
__________

5
As noted previously, Tarkanian did appeal from that portion of the judgment he was aggrieved by.

6
Tarkanian cites to the case of Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 497 (5th Cir. 1982), for
the proposition that appellate courts have the discretionary power to retain all the parties in a lawsuit on remand.
UNLV argues, at some length, that Anthony is no longer viable in light of the United States Supreme Court's
decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988).
In Torres, a notice of appeal from a judgment of dismissal listed the names of fifteen out of sixteen plaintiffs as
parties to the appeal in the body of the notice, but did not list the petitioner. The Court held that failure to name a
party in a notice of appeal, as required by FRAP 3(c), bars the appellate court from exercising jurisdiction over
that party, even if the failure to do so was due to a clerical error. The Court held that because the petitioner was
not named, and all others were specifically named, the notice of appeal failed to give[] fair notice of the
specific individual or entity seeking to appeal. Id. at 318. The use of the phrase et al. in the caption also failed
to provide notice of a particular defendant's intent to appeal, particularly since all the others were specifically
named. Id. Thus, the Court held that the court of appeal had properly held that the dismissal was final as to the
petitioner. From this, UNLV argues that this court did not have jurisdiction over UNLV as a non-appealing party
and that the district court judgment was final, res judicata, and not subject to modification on remand.
The primary difficulty with UNLV's argument is that Torres did not announce a general rule of appellate
procedure; it was interpreting a specific rule of procedure. See Chicano Educ. & Manpower Serv. v. Dept. of
Labor, 909 F.2d 1320, 1329 (9th Cir. 1990). That rule, FRAP 3(c), places certain requirements on parties
bringing an appeal. Compare NRAP 3(c). The case at hand presents an entirely different question.
594 P.2d 972 (Wyo. 1979). The rule under which a judgment becomes final as to a
non-appealing party, even though a judgment is reversed on appeal, is not applied where
portions of a judgment adverse to the non-appealing party are so interwoven with the whole
that an appeal from a part affects other parts. In such a situation, a reviewing court can
reverse an entire judgment if necessary to do justice. In re Sanderson's Estate, 6 Cal. Rptr.
893 (Ct. App. 1960).
We acknowledge the principle argued by appellant that a judgment will not be set aside
or altered on appeal in favor of a person who has not filed a timely notice of appeal, whether
an appellee or a co-party of the appellant is well recognized and quite generally applied. 9
James Moore, Moore's Federal Practice 204.11[5] (1993). Nonetheless, the facts of this case
do not warrant an application of that principle. In the prior appeal, this court did not alter a
judgment in favor of an appellee who did not cross-appeal. Rather, this court upheld the
injunction ordered by the district court, partially reversed the award of attorney's fees, and
remanded the matter for further proceedings, which included a recalculation of attorney's fees.
See Tarkanian v. Nat'l Collegiate Athletic Association, 103 Nev. 331, 741 P.2d 1345 (1987).
Finally, we note that Tarkanian did not seek to attack the district court judgment. As the
prevailing party below, he could argue in support of the judgment without filing a
cross-appeal, even if his rationale differed from that of the district court. [E]ven if an
appellee does not file a cross-appeal or cross-petition, he may defend the judgment in his
favor with any argument that is supported by the record. 9 James Moore, Moore's Federal
Practice 204.11[3] (1993); see United States v. American Railway Express Co., 265 U.S.
225 (1924); see also Engleson v. Burlington N. R.R., 972 F.2d 1038, 1041 (9th Cir. 1992) (a
cross-appeal is not necessary to assert arguments in support of judgment as entered, even if
alternative theories are raised); accord Johnson v. Enron Corp., 906 F.2d 1234, 1238 (8th Cir.
1990).
Further, with regard to any equitable concerns, UNLV was permitted to fully participate on
remand to the district court even though it had not appealed. As noted by this court in its
order of remand:
Although UNLV did not appeal the injunctive decree previously entered against it, that
fact alone will not necessarily preclude the university from participating in further
proceedings below. See System Federation v. Wright, 364 U.S. 642, 647 (1961) (a court
possesses continuing authority to modify injunctive decree where the circumstances,
whether of law or fact, obtaining at the time of its issuance have changed, or new ones
have since arisen"); Foley v. Smith, 437 F.2d 115 {5th Cir. 1971) {on remand, a trial
court may pass upon any issues not expressly or impliedly disposed of on appeal);
Hawkins v. Cleveland, C.,
have changed, or new ones have since arisen); Foley v. Smith, 437 F.2d 115 (5th Cir.
1971) (on remand, a trial court may pass upon any issues not expressly or impliedly
disposed of on appeal); Hawkins v. Cleveland, C., C. & St. L. Ry., 99 F. 322 (7th Cir.
1900) (where decision and mandate of a reviewing court reverses a lower court's
judgment and remands the matter for further proceedings not inconsistent with the
appellate decision, the lower court has the same authority to permit amendment of the
pleadings for the purpose of enlarging the issues and of admitting further proofs as it
had before the entry of the reversed decree).
Tarkanian v. NCAA, Docket No. 16256 (Order of Remand at 2-3, September 28, 1989). We
conclude that UNLV's arguments are without merit as this court had jurisdiction to consider
the entire judgment appealed from. Further, we note that the district court complied with the
directions of this court on remand, and we perceive no abuse of discretion by the district
court. We have considered all of the other issues raised by UNLV on appeal and find them
unpersuasive.
CONCLUSION
Under Kentucky v. Graham, 473 U.S. 159 (1985), and 42 U.S.C. 1988 (1982), the party
legally responsible for relief on the merits is the party who should also bear fee liability.
Tarkanian has consistently prevailed against UNLV and was given the requested injunctive
relief he sought. As a prevailing civil rights litigant, Tarkanian is entitled to an award of
reasonable attorney's fees. The amount of the award was found to be reasonable by the district
court, and we have no evidence to indicate otherwise. We conclude that the district court did
not abuse its discretion in awarding the total fee award against UNLV. Accordingly, we
affirm the order of the district court.
7

__________

7
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
____________
110 Nev. 605, 605 (1994) Waltz v. Waltz
MARY K. WALTZ, Appellant, v. JOHN E. WALTZ, Respondent.
No. 24141
July 7, 1994 877 P.2d 501
Appeal from an order of the district court modifying a divorce decree. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Former wife appealed from order of the district court which terminated alimony. The
supreme court held that language in divorce decree providing that husband was to pay wife
$200 per month as permanent alimony, which was to increase on pro rata basis with cost of
living adjustments to husband's military retirement pay, was sufficient to satisfy statutory
requirements for permanent alimony.
Reversed.
Marshal S. Willick, Las Vegas, for Appellant.
Lynn R. Shoen, Las Vegas, for Respondent.
Divorce.
Language in divorce decree providing that husband was to pay wife $200 per month as permanent alimony, which was to increase
on pro rata basis with cost of living adjustments to husband's military retirement pay, was sufficient to satisfy statutory requirement for
permanent alimony, where the payment was a substitute for wife's $217 per month interest in community property. NRS 125.150(5).
OPINION
Per Curiam:
This is an appeal from an order of the district court terminating an award of alimony. For reasons stated below, we reverse the decision
of the district court.
FACTS
Appellant Mary K. Waltz (Mary) and respondent John E. Waltz (John) were married April 10, 1978, and divorced July 27, 1989.
The divorce decree awarded John his entire military pension from his twenty years of military service. The decree also ordered John to pay
[Mary], by military allotment, the sum of $200.00 per month as permanent alimony, which amount he shall increase on a pro rata basis
with each cost of living adjustment of his military retirement. Mary was married to John for less than ten full years of his service
and therefore could not make a direct division of the military pension {in which she had a community property
interest) enforceable by means of direct collection from the military pay center.1 The military pension appears
to have been the couple's most valuable asset.
110 Nev. 605, 606 (1994) Waltz v. Waltz
less than ten full years of his service and therefore could not make a direct division of the
military pension (in which she had a community property interest) enforceable by means of
direct collection from the military pay center.
1
The military pension appears to have been the
couple's most valuable asset.
Mary was represented by Robert LePome (LePome) in her divorce. John was initially
represented by Michael Root (Root) who filed an answer to Mary's complaint for John. The
two counsel negotiated the property division of the divorce. Specifically, the two negotiated
an agreement whereby Mary would receive $200.00 per month in lieu of her share of the
military pension which would have totaled $217.00 per month. Mary's share was to be
characterized as permanent alimony in the decree to ensure collectability should she
remarry. Once this aspect of the property was settled, John terminated Root's services and
represented himself in proper person during the remaining property discussions.
LePome testified that he met with John and went over all the terms of the property
settlement including the trade of $17.00 per month for the permanent alimony award. He also
testified that he and John went over the reasoning for this trade-off and that the alimony
award was intended to be for the life of the parties. LePome also explained these terms to
Mary. John, however, claimed that he had never agreed to anything but standard alimony.
John waived notice of hearing and the decree of divorce was entered on July 27, 1989.
Mary remarried her first husband on October 14, 1989. Apparently, John called Mary's house
on a number of occasions after the divorce, but claimed that he never knew she had remarried
until the first hearing before a domestic relations referee in 1992. However, Mary's husband
testified that he had intercepted John's calls to Mary in late 1989, and had told John to leave
Mary alone because she was [his] wife now.
Following the divorce, John failed to pay the required alimony. In 1991, two years after the
decree, Mary retained her present counsel to bring a motion to reduce John's arrears to
judgment. The referee recommended reducing John's arrears to judgment in the amount of
$6,392.93 plus $400.00 in attorney's fees. Mary then initiated garnishment through the
military pay center.
Thereafter, John retained his present counsel and filed a motion to hold Mary in contempt
of court.
__________

1
10 U.S.C. 1408(d)(2) (1988) provides that the spouse of a member of the armed services may not obtain direct
payment of retirement pay awarded as a division of property if that spouse was married to the member for less
than ten years of service creditable in determining the member's eligibility for retired pay.
110 Nev. 605, 607 (1994) Waltz v. Waltz
to hold Mary in contempt of court. The motion alleged that Mary had failed to pay back taxes
as required by the decree and that Mary had not returned certain property. The motion also
requested a reduction in alimony because John claimed he had been without legal counsel and
was unaware of his rights when he agreed to the alimony.
Mary responded to this motion by providing a receipt showing that John had received his
personal property and that her wages had been garnished to pay the back taxes. She also
counter-claimed for further reduction of arrears to judgment.
The domestic relations referee who heard the case noted that Mary had a presumptive right
to $217.00 per month of the military retirement pay, and that this right had been foregone in
the final divorce decree. The referee held that the alimony provision in the decree was a
pension provision and that John received the benefit of the bargain by the reduction of $17.00
per month. The referee concluded that the intent of the decree was to award Mary an
irrevocable monthly entitlement to the military pension in the form of permanent alimony.
John filed an objection to the referee's recommendation. The district court judge held an
evidentiary hearing after which he sustained John's objection. The court held that the decree
provided for permanent alimony and was not ambiguous. Further, John, a nonlawyer
representing himself, had relied on the clear and unambiguous language of the decree.
However, pursuant to NRS 125.150(5), alimony must cease upon the payee spouse's
remarriage. The court noted that if the parties' intention had been to provide for alimony to
continue after remarriage, the decree could have been phrased to reflect such an intent. Since
the decree was unambiguous, the court ordered that John was not liable for alimony after
Mary's remarriage.
Mary appeals, arguing that the district court erred in holding that the alimony provision in
the divorce decree was not a property settlement and therefore terminable upon her
remarriage. We agree and reverse.
DISCUSSION
Alimony is a creature of statute. As to the cessation of alimony upon remarriage of a payee
spouse, NRS 125.150(5) provides:
In the event of the death of either party or the subsequent remarriage of the spouse to
whom specified periodic payments were to be made, all the payments required by the
decree must cease, unless it was otherwise ordered by the court.
110 Nev. 605, 608 (1994) Waltz v. Waltz
(Emphasis added.) It should be noted that this provision refers only to alimony, not
permanent alimony. In the instant case, the divorce decree stated as follows:
It is further ordered, adjudged and decreed that [John] is ordered to pay [Mary], by
military allotment, the sum of $200.00 per month as permanent alimony, which amount
he shall increase on a pro rata basis with each cost of living adjustment of his military
retirement.
(Emphasis added.) This alimony provision specifically ties the amount to cost of living
adjustments in John's military pension, as well as states that the payment is to be made by
military allotment. Therefore, we conclude that this provision illustrates that this alimony is
tied to Mary's community property interest in John's military pension. In addition, the use of
the terms permanent alimony as opposed to simply alimony, indicates that the parties'
intent was to provide for payment on a permanent basis. The question is whether this
language is sufficient to satisfy the unless it was otherwise ordered by the court language of
NRS 125.150(5). Coupled with the testimony heard below concerning the intent of the
parties, we conclude that it is.
The intent of the parties, based upon the testimony at the evidentiary hearing, appears to
have been that this permanent alimony was in lieu of Mary's right to a part of John's
military pay. Mary testified that she had discussed the provisions of the decree concerning
alimony with John and LePome and that John had agreed to the exchange. LePome testified
that he had negotiated the property terms with Root. In addition, LePome testified that he had
explained to John that the permanent alimony provision in the decree meant that the alimony
would continue until the death of either party. LePome also provided an affidavit which was
admitted during the hearing. In the affidavit, LePome stated that it was fully understood that
the $200.00 per month alimony' was a substitute for $217.00 per month interest in
community property and hence the word permanent alimony' was used and tied to [John's]
cost-of-living adjustments of the military retirement.''
John's testimony was contradictory in that he claimed that he had never agreed to such a
provision. John testified that his understanding of the purpose of the provision was that it
would make the alimony tax deductible to him. John also testified that the cost of living
adjustment was meant to match the cost of living for alimony, not military retirement. John
never explained what he understood he received in exchange for Mary agreeing to $200.00
per month instead of $217.00. Finally, he admitted that he had discussed military retirement
with Root, but that the discussion was not "extensive."
110 Nev. 605, 609 (1994) Waltz v. Waltz
he had discussed military retirement with Root, but that the discussion was not extensive.
Regardless of John's testimony, and in light of all the other evidence presented at the
hearing, we cannot conclude that the divorce decree provided for terminable alimony. This
court addressed a similar property settlement in Krick v. Krick, 76 Nev. 52, 348 P.2d 752
(1960). There, the divorce decree contained a provision for monthly payments to the wife as
part of a property settlement. This court held that those payments were not alimony and thus
did not cease upon her remarriage. Id. at 56, 348 P.2d at 754.
In the instant case, the divorce decree did not specifically refer to a property settlement.
Nevertheless, we conclude that the district court erred in its construction of the decree.
Although the decree does not clearly state that alimony was to be permanent and in lieu of
Mary's claim to John's military pension, the majority of the testimony at trial indicated such a
purpose. In Krick, we held that NRS 125.150(5) cannot be used as authority to order cessation
of alimony payments when those payments were clearly a property settlement. Krick, 76 Nev.
at 55-56, 348 P.2d at 754. Accordingly, based upon the testimony and evidence below, we
hold that the district court erred in ordering that the decree provided for terminable alimony,
and that pursuant to NRS 125.150(5), John was no longer required to pay alimony to Mary
after her remarriage. Therefore, we reverse the decision of the district court.
____________
110 Nev. 609, 609 (1994) Paine v. State
FREDERICK LAVELLE PAINE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24304
July 7, 1994 877 P.2d 1025
Appeal from sentence of death imposed by a three-judge panel, subsequent to a guilty plea
to one count of first-degree murder with use of a deadly weapon. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge; Sixth Judicial District Court, Humboldt,
Lander, and Pershing Counties; Jerry V. Sullivan, Judge; Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
The supreme court, 107 Nev. 998, 823 P.2d 281 (1991), vacated sentence and remanded
for resentencing. On remand, the district court denied defendant's motion to withdraw his
guilty plea, and three-judge panel again sentenced defendant to death, and he appealed.
110 Nev. 609, 610 (1994) Paine v. State
plea, and three-judge panel again sentenced defendant to death, and he appealed. The
supreme court held that: (1) evidence supported finding that murder was aggravated because
it was committed at random and without apparent motive; (2) district court did not abuse its
discretion when it admitted photographs into evidence at sentencing; (3) sentencing scheme
involving three-judge panel was not unconstitutionally arbitrary and capricious; (4) defendant
was not entitled to engage in voir dire of judges sitting on panel; (5) defendant entered plea
knowingly and intelligently; (6) defendant was advised of his Miranda rights before he
confessed to murder; and (7) sentence of death was justly proportional to crime defendant
committed.
Affirmed.
[Rehearing denied August 12, 1994]
Nathaniel J. Reed, Ltd. and Norman J. Reed, Las Vegas, for Appellant.
1. Homicide.
Defendant acted randomly and without apparent motive when he murdered cab driver, though defendant was fearful of being
identified, where murder was not necessary to accomplish robbery. NRS 200.033(9).
2. Homicide.
Statutory definition of robbery, as unlawful taking of personal property of another by means of force or violence or fear of
injury, was consistent with conclusion that murder committed in course of robbery satisfied statutory aggravating factor for random
murder without apparent motive when robbery could be completed without killing victim, where defendant himself could not explain
why he killed victim. NRS 200.033(9), 200.380.
3. Homicide.
Trial court did not abuse its discretion by admitting for sentencing purposes two photographs depicting front seat of taxi cab where
murder occurred.
4. Criminal Law.
Admissibility of photographs is within sound discretion of trial court, whose discretion will not be disturbed in absence of clear
abuse of discretion.
5. Criminal Law.
Photographs depicting scene of crime are admissible during penalty hearings.
6. Homicide.
Three-judge panel for sentencing defendant convicted of murder upon plea of guilty was not unconstitutionally arbitrary and
capricious.
110 Nev. 609, 611 (1994) Paine v. State
Defendant failed to support his argument with credible evidence that three-judge panels return death sentences more often than juries.
U.S. Const. Amend, 14; NRS 175.558.
7. Homicide.
Defendant was not permitted to voir dire judges who served on three-judge panel assigned for sentencing defendant who pleaded
guilty to first-degree murder, where defendant provided no evidence that the three judges sitting on panel failed in any sense to adhere
strictly and honorably to duties of their office and solemn assignment undertaken in sentencing defendant. NRS 175.558.
8. Judges.
If counsel has any cause to assume bias on part of any judge, remedy is to assert timely challenge to that judge.
9. Criminal Law.
Defendant entered his plea of guilty knowingly and intelligently based on evidence in record demonstrating that defendant clearly
understood that death was sentencing option for crime he committed.
10. Criminal Law.
Defendant failed to show why his prior counsel's alleged ineffectiveness in preventing first sentencing panel from hearing evidence
of his attempted escape prejudiced his defense before second sentencing panel to support his claim of ineffective assistance of counsel
during sentencing phase of proceedings, where he presented no mitigating explanation for his crimes before second panel. U.S. Const.
amend. 6.
11. Criminal Law.
Defendant's right to counsel includes right to effective assistance of counsel during sentencing phase of criminal proceedings. U.S.
Const. amend. 6.
12. Criminal Law.
Defendant's confession to murder was not induced in violation of his Miranda rights, though warnings were not reread before
second interview commenced, where defendant's confession to murder occurred during first interview, and he was advised of his
Miranda rights three times before he gave his first statement. U.S. Const. amend. 5.
13. Homicide.
Sentencing panel properly weighed aggravating and mitigating circumstances and determined that sentence of death was justly
proportional to crime defendant committed. NRS 200.030(4).
OPINION
Per Curiam:
This is Frederick Lavelle Paine's second appeal to this court from a sentence of death. In the first appeal, we affirmed the district court's
finding that Paine had acted randomly and without apparent motive when he committed murder, but nevertheless vacated the sentence
because of the appearance that one of the sentencing judges may have been inattentive during the proceedings. Paine v. State, 107 Nev.
998, 823 P.2d 281 (1991) (Paine I). A different three-judge panel thereafter resentenced Paine to death, thus presenting the occasion for the
instant appeal.
110 Nev. 609, 612 (1994) Paine v. State
Paine now raises six assignments of error as a basis for relief: (1) the district court erred in
finding that the murder was committed at random and without apparent motive; (2) the
district court erred when it denied Paine's motion to exclude prejudicial photographs; (3) the
Nevada death sentencing statute is unconstitutional; (4) Paine was improperly denied the
opportunity to withdraw his guilty plea; (5) Paine's second confession was elicited in
violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (6) the sentence of death is
excessive considering the instant offense and Paine's criminal history. We conclude that
Paine's assignments of error are without merit.
FACTS
On January 9, 1990, Paine and his partner, Marvin Doleman, went to a cab stand in
downtown Las Vegas and randomly hired a cab for the purpose of robbing the driver. Upon
arriving at the requested destination, Paine drew a gun and shot the driver three times in the
head. After robbing the driver of $22.00, Paine and his accomplice fled. Fortunately, the
driver survived. Nine days later, the two men decided to randomly rob another cab driver. In
the early morning hours of January 19, 1990, the men flagged a cab and instructed the driver,
Kenneth Marcum, to take them to a pre-arranged location in Las Vegas. Doleman carried the
gun on this occasion in an effort to prevent a shooting incident similar to that which had
occurred on January 9, 1990. When the cab arrived at the appointed location, Doleman
became nervous and signaled to Paine not to proceed with the intended robbery. Because the
robbery was aborted, Doleman dropped the gun and jumped out of the cab when it came to a
stop. Marcum turned to see what was happening, and without saying anything, Paine picked
up the gun and shot Marcum twice. The wounds were fatal. The two men then absconded
with $45.00 and Marcum's wristwatch. Paine later testified that at no time prior to the
incident had he intended to shoot Marcum; murder was simply not a part of the robbery plan.
Paine and Doleman were apprehended at the Continental Hotel later the same day, where
Paine was immediately informed of his Miranda rights. Paine again received a Miranda
caution at the police station and signed a card indicating his understanding of his enumerated
rights. Later the same day, Paine provided the police with a ten-minute tape-recorded
statement in which he confessed to his involvement in the murder. Paine was readvised of his
Miranda rights at the outset of the tape-recorded statement, and he signed a second card
indicating that he understood those rights.
110 Nev. 609, 613 (1994) Paine v. State
Approximately thirty minutes after the first statement was given, Paine was interviewed by
a second police detective. Prior to this interview, Paine again indicated that he was aware of
his constitutional rights, although the Miranda warnings were not repeated at that time.
During the second tape-recorded statement, Paine confessed to his involvement in the January
9, 1990, incident.
Paine was charged with one count of attempted murder, one count of murder with the use
of a deadly weapon, and two counts of robbery with the use of a deadly weapon. Paine
initially entered a plea of not guilty to all four counts. Sometime after a jury sentenced
Doleman to death for his part in the murder, Paine attempted to escape from the Clark County
Detention Center. After being charged with attempted escape, Paine agreed to plead guilty to
the four original charges in exchange for the State's dismissal of the attempted escape charge.
Paine was never informed that evidence of the attempted escape would be used against him
during the penalty phase of the proceedings.
On August 17, 1990, Paine entered guilty pleas to all four of the original counts. Our
review of the district court's canvass reveals that Paine clearly understood he could be
sentenced to death for the murder charge. On October 15, 1990, a penalty hearing
commenced before a three-judge panel. The panel found two aggravating circumstances
beyond a reasonable doubt: (1) the murder was committed while [Paine] was engaged in the
commission of a robbery with a deadly weapon, to-wit, a .25 calibre semi-automatic pistol,
and the defendant killed Kenneth Marcum in the course of said robbery; and (2) the murder
was committed upon one person at random and without apparent motive. The panel also
found, as a single mitigating circumstance, the youth of the defendant (age 19) at the time the
crime was committed.
The panel concluded that the aggravating circumstances outweighed the mitigating
circumstance and sentenced Paine to die by lethal injection. On appeal to this court, Paine
contended that the second aggravating circumstance was unsupported by the record, and that
one of the three sentencing judges was inattentive during the proceedings. For reasons related
to the latter concern, we vacated the sentence and remanded the matter for resentencing.
Paine v. State, 107 Nev. 998, 1001, 823 P.2d 281, 283 (1991).
Following our decision in Paine I, Paine filed a motion to withdraw his guilty plea,
claiming that he did not fully understand its consequences because prior counsel had failed to
inform him that three-judge panels return sentences of death more often than juries.
110 Nev. 609, 614 (1994) Paine v. State
than juries. The district court denied Paine's motion without an evidentiary hearing.
A new three-judge panel commenced Paine's second sentencing hearing on September 23,
1992. Prior to the hearing, Paine objected to three photographs that depicted the inside of the
cab after the murder was committed. The first photograph was a close-up picture of a trip log
and a clipboard that were lying on the seat. The second photograph was a withdrawn view of
the whole front seat area of the cab shot from the driver side doorway, and the third
photograph was similar to the second, but shot from the passenger-side doorway. All three
photographs revealed some blood, prompting Paine to argue that their effect was more
prejudicial than probative. The State agreed to withdraw the passenger-side photograph, and
the court admitted the first two photographs. Paine also submitted a motion in limine to
exclude evidence of the attempted escape, which had been introduced at the first penalty
hearing. Paine argued that he received ineffective assistance of counsel at the time he pleaded
guilty because he was not informed that the escape evidence would be introduced at the
penalty hearing. He thus contended that he received no benefit from his plea negotiations.
The district court agreed that Paine may not have received the benefit of his bargain and
granted the motion in limine.
1

Marvin Etcoff, a psychologist called by Paine, testified that Paine came from a chaotic,
dysfunctional and unstable familial environment, and that Paine's mother was a
manic-depressive with psychotic components. Etcoff also testified that Paine suffered from
Attention Deficit Hyperactivity Disorder (hyperactivity), a generalized anxiety disorder with
depressive features, and an avoidant personality disorder with schizoid and antisocial
features. Finally, he concluded that Paine was an impulsive person with a great deal of inner
anger.
The second sentencing panel found beyond a reasonable doubt that two aggravating
circumstances under NRS 200.033 existed: (1) the murder was committed during the
commission of a robbery; and (2) the murder was committed upon a person at random and
without apparent motive. As mitigating circumstances, the panel found, in addition to the
youth of the defendant, that Paine was raised in a dysfunctional family setting, and that Paine
had openly and consistently confessed his crimes. In considering both the aggravating
circumstances and the mitigating circumstances, the panel found that the former outweighed
the latter, and again sentenced Paine to death. This appeal followed.
__________

1
The court found it wrong, morally wrong to dismiss the charge yet use the evidence against Paine at the
sentencing hearing.
110 Nev. 609, 615 (1994) Paine v. State
DISCUSSION
[Headnote 1]
Paine raises several issues on appeal, most of which we will discuss, and all of which we
reject as meritless. Paine first contests the district court's finding that the murder was
aggravated because it was committed at random and without apparent motive. See NRS
200.033(9). In Paine I, we held:
We have previously concluded that a killing may properly be found to be random and
without apparent motive if the robbery could have been completed without killing the
victim. . . . William Robert Walker, a Las Vegas cab driver who miraculously survived
a similar attack by Paine and Doleman on the evening of January 9, 1990, testified that
he was shot three times in the head without any warning before Paine and Doleman
demanded any money. Furthermore, Paine testified during the penalty hearing that
[t]here was no reason for me to even pull the trigger, you know, in either case.
Therefore, we reject Paine's argument as to this issue and hold that there was sufficient
evidence to conclude that the killing of Marcum was not necessary to complete the
robbery.
Paine I, 107 Nev. at 999-1000, 823 P.2d at 282 (citation and footnote omitted). Despite our
ruling on this issue in Paine I, which is now the law of the case, Paine asks us to reconsider
the panel's finding of this aggravating circumstance because new evidence adduced at the
second penalty hearing indicates that the murder was necessary to complete the robbery, and
because our earlier rationale is contrary to the legislative definition of robbery.
In Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975), we stated: The law of a first
appeal is the law of the case on all subsequent appeals in which the facts are substantially the
same. Accordingly, we need not reconsider an issue which we have previously decided in
this same case. Nevertheless, without attenuating the force and applicability of the law of the
case on this issue, we elect to briefly discuss Paine's contention given the gravity of his
sentence.
Contrary to Paine's first allegation, the new evidence introduced at the second penalty
hearing is not substantially different from that which was introduced at the first penalty
hearing. In sum, Paine argues that the murder was necessary to accomplish the robbery
because Marcum was turning around at the time he was shot and Paine was therefore
fearful of being identified. We reject outright Paine's contention that murder becomes a
necessary element of a robbery whenever the robbery victim is able to identify his
assailant.
110 Nev. 609, 616 (1994) Paine v. State
sary element of a robbery whenever the robbery victim is able to identify his assailant. Our
conclusion in Paine I that Paine acted randomly and without apparent motive when he took
Marcum's life was correct.
2

[Headnote 2]
Paine's second contention with regard to the aggravating circumstance is that the statutory
definition of robbery is inconsistent with our earlier conclusion that murder committed in the
course of robbery may be random and without apparent motive whenever the robbery could
be completed without killing the victim. See Paine I, 107 Nev. at 999, 823 P.2d at 282. NRS
200.380 defines robbery as the unlawful taking of personal property from the person of
another . . . by means of force or violence or fear of injury . . . (emphasis added).
3
Paine
contends that all robberies can be completed without killing the victim, and that our
rationale is therefore flawed and unsupportable in law. Paine is wrong. There are undoubted
numbers of homicides committed in the course of a robbery because the victim resists to the
point where elimination of the victim is necessary to the accomplishment of the robbery. In
any event, the legislature has elected to make a random, motiveless killing an aggravating
circumstance, NRS 200.033(9), and a killing unnecessary to the commission of a robbery
may, as here, reflect such a circumstance. As previously noted, Paine himself could not
explain why he killed Marcum. This issue is simply without merit.
__________

2
Indeed, the testimony of Paine's own expert is supportive of our ruling:
It seems to me that he did not set out on those days to kill someone or shoot someone. He set out to rob
someone and became extremely anxious and nervous, as his personality characteristics dictate, lost
control of himself, and for a reason that I simply don't understand shot these people. He couldn't explain
the reason to me. I can't really understand why he would do something like that especially given his
inability to even explain himself why he did something like that.

3
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of
the robbery. A taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping
with the property. A taking constitutes robbery whenever it appears that, although the taking was fully
completed without the knowledge of the person from whom taken, such knowledge was prevented by the
use of force or fear.
110 Nev. 609, 617 (1994) Paine v. State
[Headnote 3]
Paine also assigns error to the admission of the two photographs depicting the front seat of
the cab. According to Paine, his guilty plea removes the cause of death from issue and the
gruesome and highly inflammatory photographs have little or no probative value.
[Headnotes 4, 5]
The admissibility of photographs is within the sound discretion of the trial court, whose
decision will not be disturbed in the absence of a clear abuse of discretion. See e.g., Redmen
v. State, 108 Nev. 227, 231-32, 828 P.2d 395, 398 (1992), cert. denied,
------
U.S.
------
, 113
S. Ct. 229 (1992). It is well settled that photographs depicting the scene of a crime are
admissible during penalty hearings. Riggins v. State, 107 Nev. 178, 183, 808 P.2d 535,
538-39 (1991), rev'd on other grounds, 504 U.S. 127, 112 S. Ct. 1810 (1992). See also NRS
175.552(3) (authorizing the admission of otherwise inadmissible evidence in penalty
hearings). Having reviewed the photographs at issue, we conclude that the district court did
not abuse its discretion when it ordered them admitted into evidence. The photographs were
relevant to the proceedings because they depicted the scene of the crime, and the small
amount of blood contained therein does not make them unduly prejudicial and inadmissible.
[Headnote 6]
Paine next contends that the sentencing scheme of NRS 175.558 is unconstitutionally
arbitrary and capricious because three-judge panels return death sentences more often than
juries.
4
Paine failed to support his argument with credible evidence and we perceive no
reliable basis for deviating from our previous determinations on this identical issue. See
Redmen v. State, 108 Nev. 227, 235-36, 828 P.2d 395, 401 (1992), cert. denied,
------
U.S.
------
, 113 S. Ct. 229 (1992); Beets v. State, 107 Nev. 957, 967-73, 821 P.2d 1044, 1051-55
(1991) (Steffen, J., concurring), cert. denied,
------
U.S.
------
, 113 S. Ct. 116 (1992); Baal v.
State, 106 Nev. 69, 74, 787 P.2d 391, 395 (1990); Hill v. State, 102 Nev. 377, 3S0
__________

4
NRS 175.558 provides as follows:
When any person is convicted of murder of the first degree upon a plea of guilty or a trial without a jury
and the death penalty is sought, the supreme court shall appoint two district judges from judicial districts
other than the district in which the plea is made, who shall with the district judge before whom the plea is
made, or his successor in office, conduct the required penalty hearing to determine the presence of
aggravating and mitigating circumstances, and give sentence accordingly. A sentence of death may be
given only by unanimous vote of the three judges, but any other sentence may be given by the vote of a
majority.
110 Nev. 609, 618 (1994) Paine v. State
102 Nev. 377, 380, 724 P.2d 734, 736 (1986), cert. denied, 479 U.S. 1101 (1987).
[Headnote 7]
Paine also alleges that use of a three-judge panel in his case was unconstitutional because
he was given no opportunity to voir dire the panel and he was unable to discover how the
panel judges were selected; therefore, according to Paine, he must assume selection of the
panel was arbitrary and capricious.
Aside from the reality noted above, that the three-judge sentencing scheme has already
been determined to be constitutional, the argument is otherwise without merit. NRS 175.558
enjoins this court to appoint two judges from districts other than that of the judge who
presided at the capital defendant's trial to constitute the requisite three-judge panel. Paine's
fear that this court selects judges who are partial to sentences of death is not only
unsupported, it is unsupportable since it does not occur. Indeed, Paine has made no attempt to
support this issue, and we need not consider it.
Moreover, Paine has cited no authority for the proposition that he is entitled to voir dire
the judges who serve on the panel. A judge is required by the Code of Judicial Conduct to
respect and comply with the law and [to] act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary. Canon 2(A). Moreover, NRS
47.250(9), (10) and (16) specify, respectively, as disputable presumptions: [t]hat official
duty has been regularly performed; [t]hat a court or judge, acting as such, whether in this
state or any other state or country, was acting in the lawful exercise of his jurisdiction; and
[t]hat the law has been obeyed.
[Headnote 8]
Paine has made no attempt to provide the slightest evidence or support for the proposition
that the three-judges sitting on the panel failed in any sense to adhere strictly and honorably to
the duties of their office and the solemn assignment undertaken with respect to the sentencing
of Paine. There is no basis for counsel engaging in voir dire of judges who are knowledgeable
with respect to the law and their sworn duties to uphold it. If counsel has any cause to assume
bias on the part of any judge, the remedy is to assert a timely challenge to any such judge. No
such challenge was made with respect to any of the judges comprising Paine's sentencing
panel. This issue is without merit.
Paine also seeks to rely upon the purported unconstitutionality of three-judge panels to
argue that the district court erred when it refused to allow him to withdraw his guilty plea. We
initially note that our vacation of Paine's first death sentence renders Paine's motion to
withdraw his plea antecedent to the imposition of his second sentence under challenge in
the instant appeal.
110 Nev. 609, 619 (1994) Paine v. State
motion to withdraw his plea antecedent to the imposition of his second sentence under
challenge in the instant appeal. See NRS 176.165.
5
We have previously determined the
standards required of district courts and this court when reviewing a defendant's request to
withdraw a plea:
It . . . [is] the duty of the trial court to review the entire record to determine whether the
plea was valid, either by reason of the plea canvass itself or under a totality of the
circumstances approach. As we have held in the past, the trial court should view the
guilty plea as presumptively valid and the burden should be on the defendant to
establish that the plea was not entered knowingly and intelligently. . . . On appeal from
the district court's determination, we will presume that the lower court correctly
assessed the validity of the plea, and we will not reverse the district court's
determination absent a clear showing of an abuse of discretion.
Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (citation omitted).
[Headnote 9]
Paine contends that his plea was not made knowingly and intelligently because he did not
fully understand the assertedly enhanced risk occasioned by placing himself before a
three-judge sentencing panel.
6
Although failure to adequately inform a defendant of the
consequences of his plea does create a manifest injustice, there was no basis for such an
injustice in the instant case because the underlying premise was fallacious. See Meyer v.
State, 95 Nev. 885, 888, 603 P.2d 1066, 1067 (1979) (manifest injustice occurred when
defendant was not informed that the crime to which he plead was not probational). Because
the record demonstrates that Paine clearly understood that death was a sentencing option
for the crime he committed, we are unable to conclude that Paine's plea was not entered
knowingly and intelligently.
__________

5
Except as otherwise provided in this section, a motion to withdraw a plea of guilty or of nolo contendere
may be made only before sentence is imposed or imposition of sentence is suspended. To correct
manifest injustice, the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his plea.

6
Not surprisingly, Paine's prior counsel supported Paine's argument with the following affidavit submitted to
the district court:
I believe I did not fully inform the Defendant concerning the statistical likelihood of a three judge panel
giving a death sentence, i.e., that three judge panels give death sentences almost 100% of the time,
because affiant himself was not fully aware of the statistics concerning three judge panels at the time.
I therefore believe that Defendant may not have been fully informed concerning all facts relevant to his
decision as to whether to plead guilty or go to trial, and that Defendant should be allowed to withdraw his
guilty plea heretofore entered in this case.
110 Nev. 609, 620 (1994) Paine v. State
demonstrates that Paine clearly understood that death was a sentencing option for the crime
he committed, we are unable to conclude that Paine's plea was not entered knowingly and
intelligently.
[Headnotes 10, 11]
The record does not support Paine's contention that prior counsel's ineffectiveness with
regard to the attempted escape evidence invalidates his plea and the entire penalty proceeding.
The United States Supreme Court has recognized that the Sixth Amendment right to counsel
includes the right to the effective assistance of counsel during the sentencing phase of
criminal proceedings. Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v.
Richardson, 397 U.S. 759, 771, n.14 (1970)). The benchmark for measuring any claim of
ineffectiveness is whether counsel's conduct so undermined the proper functioning of the
adversarial process that the [sentencing proceeding] cannot be relied on as having produced a
just result. Id.
In addition to showing that prior counsel committed errors so serious that [he] was not
functioning as the counsel' guaranteed the defendant by the Sixth Amendment, Paine must
show that the deficient performance prejudiced his defense. Id. at 687.
Paine has failed to show why his prior counsel's alleged ineffectiveness in preventing the
first panel from hearing evidence of his attempted escape prejudiced his defense before the
second sentencing panel. Indeed, Paine presented no mitigating explanation for his crimes,
electing instead to rely upon the mercy of the sentencing panel. Our review of the record
provides us with no basis for concluding that Paine's prior counsel was ineffective in
representing his client, particularly in light of the overwhelming evidence of Paine's guilt.
[Headnote 12]
Paine also seeks to persuade us that his confession to Marcum's murder was inadmissible
because it was induced in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Paine's
contention is based upon the fact that he was not readvised of his constitutional rights prior to
the second tape-recorded statement, which transpired over an hour after the first statement
was given. Paine's position is substantially undermined by the record.
The record indicates that Paine was advised of his Miranda rights three times prior to the
first statement: at the Continental Hotel where he was apprehended; when he first arrived at
the police station; and immediately before the first statement was tape recorded. Paine also
signed a waiver of his rights twice: when he first arrived at the police station and immediately
before the first statement was tape recorded.
110 Nev. 609, 621 (1994) Paine v. State
statement was tape recorded. The record also shows that the second interview commenced
approximately one-half hour after Paine's first interview was completed. Although the second
detective did not actually reread the Miranda warnings to Paine, he ascertained from the
officer who took the first statement that Paine was properly Mirandized, and thereafter
asked Paine if he had been previously advised of his constitutional rights, to which Paine
answered in the affirmative. More importantly, however, Paine's confession to the murder
occurred during the first tape-recorded interview, and not during the second interview as
represented in Paine's Opening Brief. Therefore, Paine's confession to first-degree murder
essentially remains unchallenged on appeal.
[Headnote 13]
Paine's last claim of error is that the sentence is excessive in light of his criminal history
and the crime for which he stands convicted. The sentencing panel properly weighed the
aggravating and mitigating circumstances and found that a sentence of death was justly
proportional to the crime Paine committed. See NRS 200.030(4); Ybarra v. State, 100 Nev.
167, 176, 679 P.2d 797, 801 (1984), cert. denied, 470 U.S. 1009 (1985). We have seen no
basis in the record for concluding that the sentencing panel's finding is unjustified by the
evidence concerning the defendant and the crime he committed. Finally, we perceive no error
in the panel's rejection of all other proposed mitigating circumstances.
In our independent review of the record, we conclude that Paine's death sentence was not
imposed under the influence of passion, prejudice, or any arbitrary factor. NRS 177.055(2)(c).
We also conclude that Paine's sentence is not excessive considering both the crime and the
defendant. NRS 177.055(2)(d).
CONCLUSION
For the reasons discussed above, we conclude that Paine's rights have been duly and justly
considered, and that he was sentenced fairly and in accordance with the constitutionally valid
law of this state. We therefore affirm Paine's sentence of death.
____________
110 Nev. 622, 622 (1994) Scott v. State
ALBERT O'NEAL SCOTT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24014
July 7, 1994 877 P.2d 503
Appeal from judgment of conviction pursuant to a jury verdict of one count of being an
ex-felon in possession of a firearm and from sentence as an habitual criminal. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
The supreme court held that: (1) state's success in enhancing defendant's sentence pursuant
to post-verdict motion charging defendant as habitual criminal invalidated defendant's pretrial
waiver of Sixth Amendment right to assistance of counsel; (2) search of vehicle was valid;
and (3) search of defendant's person was valid.
McDonald & Ewing, Las Vegas, for Appellant.
1. Criminal Law.
State's success in enhancing defendant's sentence pursuant to post-verdict motion charging defendant as habitual criminal
invalidated defendant's pre-trial waiver of Sixth Amendment right to assistance of counsel. Post-conviction filing of habitual criminal
charge foreclosed assurance that pretrial waiver of right to counsel was knowing and intelligent. U.S. Const. amend 6; NRS
207.010(5).
Defendant lacked standing to challenge search of vehicle where he was a passenger and did not own vehicle.
For purposes of standing to contest validity of vehicle search, it is possessory or ownership interest in vehicle, not items seized
therefrom, which is relevant.
Defendant who was passenger in vehicle had standing to assert violation of his own Fourth Amendment interests, with respect to
initial stop, independent of owner's privacy. U.S. Const. amend. 4.
5. Arrest.
Suspicion on part of police that vehicle was stolen constituted manifestly reasonable ground for stopping vehicle.
6. Automobiles.
Fact that no citation was issued for improperly affixed, improper license plate did not negate reasonableness of vehicle stop since
officer had no means of determining whether improper license indicated stolen vehicle without questioning occupants of
car, and officer explained that the traffic violations were disregarded when everyone in vehicle was
ultimately arrested for felony offenses.
110 Nev. 622, 623 (1994) Scott v. State
vehicle without questioning occupants of car, and officer explained that the traffic violations were disregarded when everyone in
vehicle was ultimately arrested for felony offenses.
7. Arrest.
Terry v. Ohio, 392 U.S. 1 (1968) allows investigatory stop by police officer who has observed suspicious behavior, and further
allows officer to conduct precautionary frisk of individual stopped, if circumstances indicate reasonable belief that individual may be
armed. If something which might be a weapon is discovered during course of pat-down of suspect's outer clothing, officer may further
protect himself by reaching into pockets or under outer surface of suspect's garments to retrieve weapon.
8. Arrest.
United States v. Robinson, 414 U.S. 218 (1973) permits more complete and intrusive search of person than allowed by Terry v.
Ohio, 392 U.S. 1 (1968), but only when search is performed incident to lawful custodial arrest of individual being searched.
9. Arrest.
Initial stop of defendant was justified under Terry v. Ohio, 392 U.S. 1 (1968) to investigate suspicious situation involving
possibility of stolen vehicle. Subsequent handcuffing and pat-down for weapons was also permissible as a reasonable precaution to
protect officer's safety after investigation revealed presence of loaded weapons in automobile leading to reasonable inference that
occupants might be armed as well.
10. Arrest.
It is reasonable for an officer, as a precautionary measure, to retrieve and separate from a suspect during course of stop and frisk,
either weapons or ammunition or both.
OPINION
Per Curiam:
Appellant Albert O'Neal Scott, an ex-felon, was sitting in the rear seat of a vehicle which was pulled over upon suspicion of being
stolen. The vehicle contained firearms, including a loaded 12-gauge shotgun on the floor of the rear seat, and Scott was carrying 12-gauge
shotgun shells on his person. Scott was subsequently convicted of being an ex-felon in possession of a firearm and was sentenced as an
habitual criminal to sixteen years in prison. Scott raises numerous assignments of error on appeal, one of which is meritorious.
We are persuaded that the State's post-conviction filing of a habitual criminal charge foreclosed assurance on review that Scott's
pre-trial waiver of the right to counsel was knowing and intelligent. We therefore reverse and remand for a new trial in order to provide
Scott the opportunity to secure counsel, now that he is aware that upon conviction, the State may seek to enhance his sentence by having
him declared an habitual criminal. In the event Scott elects to again represent himself, he will be fully aware of the potential consequences
of the failure of his own representation.
110 Nev. 622, 624 (1994) Scott v. State
representation. We also conclude that appellant's Fourth Amendment arguments are without
merit and that the evidence introduced against him below may again be utilized in his new
trial.
FACTS
In the early morning hours of October 8, 1991, Las Vegas Metropolitan Police Department
Officer Darrin Densley observed a white Buick Regal at the intersection of Jones and Smoke
Ranch roads. Densley noticed that the vehicle's license plate was dangling and improperly
secured to the vehicle. Officer Densley followed the vehicle while obtaining a DMV license
check, which revealed that the license was registered to an Oldsmobile, rather than a Buick.
Officer Densley then stopped the vehicle and ordered the occupants to exit. One of the
occupants of the car, who was sitting in the rear right passenger's seat, was Scott.
As the occupants of the vehicle were exiting the car, Officer Finley arrived to assist
Officer Densley. Several other officers were also present for what followed. Officer Finley
testified that once the occupants of the vehicle were lined up, he proceeded to their vehicle
to make sure there were no other occupants and to check for weapons. Immediately upon
opening the front passenger door, Officer Finley saw a loaded .38 caliber revolver on the
floor between the passenger's seat and the door. The officer informed Officer Densley of the
presence of the weapon, whereupon Officer Densley then proceeded to handcuff and pat
down Scott and the other suspects, discovering three 12-gauge shot gun shells in Scott's right
front pants pocket. Officer Finley then returned to the vehicle to determine for the safety of
the officers whether there were any more weapons. On the floor area of the back seat, he
discovered a fully loaded 12-gauge shotgun in a hefty plastic bag, just like a garbage bag,
along with eight more shotgun shells. A .22 semi-automatic pistol and additional .38 caliber
ammunition were also retrieved.
It was ultimately discovered that the vehicle was not stolen, but Officer Densley justified
the search of the vehicle by noting that at the time it was stopped, the officers had reason to
believe that it was stolen, and that [o]ftentimes when it is stolen and it's a felony vehicle
offense then we check the vehicle out for the officer's safety to ascertain if there are any
weapons in the vehicle. Officer Densley also testified that if there is a possibility the
vehicle is stolen or a possible felony vehicle, we are not going to approach the vehicle as a
normal routine traffic stop. We treat it as if there may be possible felony suspects in the
vehicle and we will have them exit the car.
The occupants of the car were initially arrested for possession of stolen property, as two of
the guns found in the vehicle were determined to be stolen.
110 Nev. 622, 625 (1994) Scott v. State
determined to be stolen. However, Scott was ultimately charged and tried for the crime of
possession of a firearm by an ex-felon, a felony in violation of NRS 202.360. Scott had
formerly been convicted of the felonies of murder and attempted murder (in 1975) and selling
the credit card of another (in 1987). The jury only heard evidence of the credit card
conviction, after the district court determined that the 1975 felonies were too remote and too
prejudicial to be admitted where the other, more recent felony conviction was available. The
State was assertedly unaware of the credit card conviction before Scott moved to have it
admitted in lieu of the earlier convictions.
Scott sought and obtained permission to represent himself, both at the preliminary hearing
in justice court, and then again at his arraignment and trial in district court. Scott
unsuccessfully moved to disqualify the district court judge. Scott's motion to suppress the
firearms was also denied. The matter proceeded to trial on February 25, 1992, and the jury
returned a verdict of guilty the next day. The State thereafter filed a motion to amend the
information to charge Scott as an habitual criminal. Scott's opposition to the motion proved
unsuccessful, and he was thereafter found to be an habitual criminal and sentenced to sixteen
years in the Nevada State Prison.
DISCUSSION
Whether the State's success in enhancing Scott's sentence pursuant to a post-verdict motion
charging Scott as an habitual criminal invalidated Scott's waiver of his Sixth Amendment
right to assistance of counsel
[Headnote 1]
Scott protests the enhancement of his sentence resulting from the State amending the
information and charging him as an habitual criminal after he had been found guilty of being
an ex-felon in possession of a firearm. Scott notes that this move by the State substantially
increased his potential penalty
1
and contends that this rendered his pre-trial waiver of the
right to assistance of counsel unintelligent, unknowing, and therefore invalid. We agree.
The United States Supreme Court has held that although a criminal defendant has a
constitutional right to waive the right to counsel and represent himself, such a waiver must be
knowing and intelligent. Faretta v. California, 422 U.S. 806 (1975). In order to assure
compliance with the Faretta standard, this court has required that the district court canvass
a defendant who requests self-representation, and that such a canvass "must include an
attempt to make the defendant aware of 'the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder . . . and all
other facts essential to a broad understanding of the whole matter.'"
__________

1
NRS 202.360, the felon in possession statute, carries a penalty of from one to six years. NRS 207.010, the
habitual criminal statute, carries a penalty of from ten to twenty years.
110 Nev. 622, 626 (1994) Scott v. State
has required that the district court canvass a defendant who requests self-representation, and
that such a canvass must include an attempt to make the defendant aware of the nature of
the charges, the statutory offenses included within them, the range of allowable punishments
thereunder . . . and all other facts essential to a broad understanding of the whole matter.'
Anderson v. State, 98 Nev. 539, 540-41, 654 P.2d 1026, 1027 (1982) (quoting Cohen v. State,
97 Nev. 166, 168, 625 P.2d 1170, 1171 (1981)).
NRS 207.010(5) allows habitual criminal charges to be brought after conviction of the
primary offense. Nevertheless, the State must advise the district court that such charges will
be filed in the event of a conviction in order to enable the court to fully apprise a defendant of
the potential consequences of self-representation. Otherwise, the court will be unable to
inform the defendant of the range of punishment he may actually face and will also be
ill-equipped to provide the defendant with a broad understanding of the whole matter.
This is what occurred in the instant case. At no point during the preliminary hearing or
pre-trial canvasses of the defendant was he informed that he might be facing an additional
charge with a greater penalty after being found guilty of the weapons charge.
2
As the State
itself concedes: [A]t the time of the Faretta canvass, the judge was unaware that a habitual
criminal allegation would be filed and could not have informed the Defendant of the possible
subsequent enhancement. This rendered Scott's waiver of the right to counsel unknowing
and unintelligent, and thus invalid under Faretta.
The State claims that it was not aware of both of Scott's prior felony convictions at the
time that trial commenced. This lack of knowledge is difficult to understand or excuse since
both judgments of conviction were entered in Clark County, Nevada. The district court also
found the State's assertion suspect, noting that the sale of credit card conviction, of which the
State was assertedly unaware, appeared three or four different places [on the defendant's
Scope Printout] and that while an individual district attorney may not have learned about all
of a defendant's prior convictions, the State at least had constructive notice thereof. In any
event, the reason the court was not made aware of the possibility of habitual criminal
enhancement prior to trial is irrelevant, as the effect is the same in any case.
__________

2
Indeed, a review of Scott's canvasses reveals that they did not specifically discuss the nature and potential
penalties associated with the firearm charge, and thus may have been vulnerable to challenge under this court's
prior rulings even if habitual criminal charges had not been pursued by the State.
110 Nev. 622, 627 (1994) Scott v. State
The State also argues that Scott is a very sophisticated criminal who has represented
himself before, and speculates that he would probably have represented himself even if he
had been informed of the habitual criminal charges, and that he must surely have known of
the full implications of going to trial, including the possibility of being sentenced as an
habitual criminal. We are unwilling to substitute the State's speculation on what Scott may
have done if he had been properly canvassed, for the type of actual canvass Scott was entitled
to receive under this court's rulings on the subject. The post-conviction filing of habitual
criminal charges rendered the pre-trial canvasses invalid as a basis for allowing
self-representation.
For reasons previously discussed, Scott's conviction and sentence must be reversed and
vacated, respectively, and the matter remanded for a new trial. If Scott again elects to
represent himself, the district court will be in a position to assure that he is fully canvassed
before self-representation may be allowed.
Fourth Amendment issues
Despite our determination that a new trial is required, we elect to consider Scott's Fourth
Amendment issues as a means of eliminating uncertainty upon retrial. Scott contends that the
firearms and ammunition introduced against him at trial represents the inadmissible fruits of a
Fourth Amendment violation that required their suppression. We disagree.
The search of the vehicle was valid
[Headnote 2]
Scott asserts that the search of the vehicle was invalid under the Fourth Amendment and
that the weapons retrieved from the vehicle should therefore have been excluded. However,
Scott lacks standing to challenge the validity of the vehicular search and this issue may be
disposed of on that basis alone. As one commentator has explained:
In Rakas v. Illinois, [439 U.S. 128, (1978),] the Supreme Court made it clear that
passengers do not have standing to object to the search of a car simply because of their
presence in it. Instead, the question is whether or not the police activity infringed upon
a reasonable expectation of privacy. This privacy analysis is compounded by the Court's
conclusion that cars have a lesser expectation of privacy than houses.
The question most often asked in these cases, then, is who besides the owner of the
car has standing to object to its search.
110 Nev. 622, 628 (1994) Scott v. State
search. It seems that family members would. Although owners will ordinarily have
standing, non-owner passengers will rarely have standing to challenge the search of the
car. . . . On the other hand, courts have found standing in cases where the non-owner
driver or passenger can show lawful possession of the car. The person may have rented
the vehicle, borrowed it, or been given permission to use it on either a short or long
term basis.
1 John Wesley Hall, Jr., Search and Seizure 6:10 (2nd ed. 1991).
[Headnote 3]
Scott has failed to show or even assert that he fits into that rare case in which a non-owner
passenger may have standing to contest the search of a vehicle by showing some possessory
interest in the vehicle. Instead, Scott misapprehends the standing principle and argues that the
State may not assert a lack of standing since the State itself charged him with a possessory
interest in a weapon retrieved from the vehicle. However, for purposes of standing to contest
the validity of a vehicle search, it is the possessory or ownership interest in the vehicle, not
the items seized therefrom, which is relevant.
[Headnote 4]
On the other hand, [o]ccupants of a car have standing when they assert a violation of their
own Fourth Amendment interests independent of the owner's privacy, such as the initial stop.
Defendants are able to object to the search or seizure of their persons. A stop is a seizure.
Wesley, supra at 6:10. Thus, one of Scott's contentions regarding the invalidity of the
search is reviewable herein: namely, that the officer's stop of the vehicle was a mere pretext to
conduct an unreasonable search.
[Headnote 5]
Although this claim of error is reviewable, it must be rejected. Officer Densley testified at
the preliminary hearing and at trial that the stop was made pursuant to a suspicion that the
vehicle was stolen. This constituted a manifestly reasonable ground for stopping the car. See,
e.g., Stuart v. State, 94 Nev. 721, 587 P.2d 33 (1978) (officer who observed missing trunk
lock on vehicle and thus inferred that vehicle might be stolen acted reasonably in stopping
vehicle for investigation).
[Headnote 6]
Scott asserts that this was not the true reason the vehicle was stopped, noting that no
citation issued for the improperly affixed, improper license plate. This does not negate the
reasonableness of the stop since Officer Densley had no means of determining whether the
improper license indicated a stolen vehicle without questioning the occupants of the car.
110 Nev. 622, 629 (1994) Scott v. State
of the stop since Officer Densley had no means of determining whether the improper license
indicated a stolen vehicle without questioning the occupants of the car. Officer Densley
explained that the traffic violations were disregarded when everyone in the vehicle was
ultimately arrested for felony offenses. Scott's position is without merit.
The search of Scott's person was valid
Scott contends that Officer Densley's search of his person, which produced the three
12-gauge shotgun shells, was unreasonable and exceeded the scope of a search allowed by
Terry v. Ohio, 392 U.S. 1 (1968). Scott's argument is primarily based upon the nature of the
objects felt and retrieved by the officer, which were round shotgun shells rather than a
weapon such as a gun or knife. The State counters that the search by which the shells were
found did not constitute a Terry stop and frisk, but rather a search occurring subsequent to
Scott's custodial arrest that was proper as a search incident to arrest under United States v.
Robinson, 414 U.S. 218 (1973).
[Headnote 7]
Terry v. Ohio recognized that a police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of investigating possible criminal
behavior even though there is no probable cause to make an arrest. Terry 392 U.S. at 22.
Furthermore, during the course of such an investigatory stop, the officer is permitted to make
a reasonable search for weapons for the protection of the police officer, where he has reason
to believe that he is dealing with an armed and dangerous individual, regardless of whether he
has probable cause to arrest the individual for a crime. Id. at 27. Thus, Terry allows an
investigatory stop by a police officer who has observed suspicious behavior, and further
allows the officer to conduct a precautionary frisk of the individual stopped, if the
circumstances indicate a reasonable belief that the individual may be armed. If something
which might be a weapon is discovered during the course of the pat-down of the suspect's
outer clothing, the officer may further protect himself by reaching into pockets or under the
outer surface of the suspect's garments to retrieve the weapon. Id. at 29-30.
[Headnote 8]
United States v. Robinson, on the other hand, permits a more complete and intrusive
search of a person than that allowed by Terry, but only when the search is performed incident
to the lawful custodial arrest of the individual being searched. Robinson, 414 U.S. at 224-29.
110 Nev. 622, 630 (1994) Scott v. State
[Headnote 9]
Although neither of the parties' briefs provides full enlightenment concerning the
circumstances surrounding the search of Scott's person, our review of the record reveals a
somewhat hybrid case that appears to be closer to a Terry stop and frisk situation, at least as
perceived by the officer. Specifically, Officer Densley testified as follows at preliminary
hearing:
Q. All right. Let me ask you. At the time that you pa[t] searched these subjects,
were they under arrest?
A. No, they were not under arrest at that time. They were placed in handcuffs after
the officer that came up to the car and found a loaded [.]38 caliber weapon.
. . . .
Q. . . . . I asked you earlier were these suspects in custody at the time that you
conducted this pat search, and I believe that you answered that they weren't. All right.
. . . .
A. Oh, Okay. What I stated is that the subjects were not under arrest. They were in
handcuffs due to the fact that we found a loaded firearm. I did conduct a pa[t] down
search, and I felt some shotgun shells in the pocket and I did remove them.
At trial, Densley testified as follows:
Q. And when Officer Finley arrived he discovered the .38 in the front of the car?
A. That is correct.
Q. And then it was after that that you then began to further question the suspect and
pat him for weapons?
A. Yes.
Q. Would that be normal police procedure when you found a weapon in the car to
do that?
A. Yes.
Q. I believe you stated also it's normal police procedure just to remove the items
you believe are possible weapons?
A. That is correct, yes.
Q. Also it's your testimony you did remove from the defendant from his pocket
12-gauge shotgun shells?
A. That is correct.
Thus, it appears that Scott was placed in handcuffs and pat searched following the retrieval
of the first firearm from the vehicle. Officer Densley only removed those items he believed to
be weapons, apparently including ammunition within that category. The search which
retrieved the shotgun shells was closer to a Terry stop and frisk than a Robinson search
incident to a lawful arrest.
110 Nev. 622, 631 (1994) Scott v. State
arrest. However, the search was justified and reasonable under Terry, and Scott's assertion
that the search went beyond the scope of Terry is without merit.
[Headnote 10]
The initial stop was justified under Terry in order to investigate a suspicious situation. The
handcuffing and pat-down for weapons was also permissible under Terry as a reasonable
precaution to protect the officer's safety after investigation revealed the presence of loaded
weapons in the automobile, thus leading to a reasonable inference that the occupants of the
vehicle might be armed as well. As a result of the justified stop and frisk, the officer
conducting the frisk felt shotgun shells in the suspect's pocket. It is reasonable for an officer,
as a precautionary measure, to retrieve and separate from a suspect during the course of a
Terry stop and frisk, either weapons or ammunition or both. See, e.g., United States v. Ward,
23 F.3d 1303 (8th Cir. 1994) (affirming conviction for being an ex-felon in possession of a
firearm and noting that [t]he nature and scope of the search present no problems under Terry
and its progeny. [The officer] merely frisked Ward's outer clothing until he felt the cylindrical
objects in Ward's pocket. Believing that the objects were shotgun shells, he was justified in
reaching into the pocket to retrieve them[]); State v. Smith, 665 P.2d 995, 998 (Ariz. 1983)
(shotgun shells taken from suspect's pocket during justified Terry frisk were properly
admitted in subsequent murder prosecution); People v. Lewis, 507 N.Y.S.2d 80, 81 (App.
Div. 1986) (ammunition recovered during frisk undertaken because officer had reasonable
basis to believe the defendant might be armed was properly admitted into evidence at trial),
appeal denied, 506 N.E.2d 548 (1987); State v. Moton, 733 S.W.2d 449, 451 (Mo. Ct. App.
1986) (where pat-down search of suspect held reasonable to protect officer's safety, admission
of thirteen .32 caliber bullets recovered by said search was also proper).
We conclude that Scott's remaining issues are rendered moot by our opinion or are
otherwise without merit.
CONCLUSION
For the reasons explained above, we reverse the judgment of conviction entered below,
vacate the sentence imposed, and remand this matter for a new trial in accordance with this
opinion.
____________
110 Nev. 632, 632 (1994) Tighe v. Las Vegas Metro. Police Dep't
JACK TIGHE, Appellant, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT and
STATE INDUSTRIAL INSURANCE SYSTEM, Respondents.
No. 24187
July 7, 1994 877 P.2d 1032
Appeal from district court order reversing appeals officer's decision granting workers'
compensation benefits. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Undercover narcotics officer sought recovery of workers' compensation for career-ending
injuries he suffered in motor vehicle accident. The district court reversed appeals officer's
decision granting benefits. Claimant appealed. The supreme court held that: (1) claimant's
injuries arose out of and in the course of his employment, and (2) district court erred in
reweighing evidence considered by appeals officer and finding there was no substantial
evidence to support appeals officer's decision that claimant was not intoxicated and that his
intoxication was not proximate cause of accident.
Laura Wightman FitzSimmons, Las Vegas, for Appellant.
J. Michael McGroarty, Las Vegas; R. Scott Young, General Counsel, William A. Zeigler,
Associate General Counsel, and Jerome K. Osborn, Associate General Counsel, State
Industrial Insurance System, Carson City, for Respondents.
Supreme court's role in reviewing administrative agency's decision is identical to that of district court. Supreme court reviews
record considered by agency to determine whether agency's decision is supported by substantial evidence.
Decision of administrative agency that lacks support in the form of substantial evidence is arbitrary or capricious, and, thus, an
abuse of discretion that warrants reversal. NRS 233B.135(3).
Supreme court will affirm administrative agency's decision if it is supported by substantial evidence in the record.
4. Evidence.
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.
Neither supreme court nor district court may substitute its judgment for that of agency as to weight of evidence on question of fact.
NRS 233B.135(3).
6. Administrative Law and Procedure; Statutes.
Construction of a statute is a question of law and independent appellate review of agency decision on statutory construction, rather
than more deferential standard of review, is appropriate.
An employee may still be within course of his or her employment, for workers' compensation purposes, when travel to or from
work confers distinct benefit upon employer. NRS 616.270(1).
Substantial evidence supported administrative finding that undercover narcotics officer's injuries as a result of motor vehicle
accident occurring as he was driving home from restaurant where he had met with fellow officers and supervisor to discuss previous
evening's activities and plan undercover narcotics purchase occurred within course of his employment, for workers' compensation
purposes. Undercover officer was on call and driving police vehicle equipped with police radio, he was prepared to respond to any
public emergency he may have encountered, and he made no diversion for personal purposes. NRS 616.270(1).
District court erred in reweighing evidence considered by appeals officer and finding that there was no substantial evidence to
support appeals officer's decision that workers' compensation claimant was not intoxicated and that his intoxication was not a
proximate cause of accident. Claimant's two experts provided compelling, scientific, and substantial evidence to appeals officer that
claimant was not intoxicated at time of accident, that his reflexes in an attempt to avoid truck were excellent, and that claimant's
moderate consumption of beer played no role in accident, and employer failed to refute experts' testimony with substantial evidence of
its own. NRS 616.565(1)(c).
OPINION
Per Curiam:
THE FACTS
On April 20, 1990, appellant Jack Tighe suffered career-ending injuries in an automobile accident. At the time, Tighe, a nineteen-year
veteran of the Las Vegas Metropolitan Police Department (Metro), was an undercover officer assigned to narcotics. The facts of record
indicate that after ending his regular shift at 2:00 a.m., Tighe met with fellow officers and his direct supervisor at a Las Vegas restaurant to
discuss the previous evening's activities, plan an undercover narcotics purchase, and enjoy dinner. It is uncontroverted that Tighe consumed
a moderate amount of beer with his dinner.
Tighe left the restaurant parking lot at 4:30 a.m. and began a direct route home. Since Tighe was on call, he carried a police beeper
and drove an undercover Metro vehicle equipped with a police radio. At the intersection of Industrial and Oquendo, a concrete truck
operating without its lights slowly pulled into Tighe's path from an intersecting road, causing Tighe to strike it
from the rear.
concrete truck operating without its lights slowly pulled into Tighe's path from an intersecting
road, causing Tighe to strike it from the rear. The driver of the truck was cited for failure to
yield the right-of-way.
Tighe filed a workers' compensation claim, which the State Industrial Insurance System
(SIIS) rejected on grounds that Tighe's injuries were unrelated to his employment and that
an award of benefits was precluded by NRS 616.565(1)(c). The denial of Tighe's claim was
later sustained by a hearing officer to whom Tighe had appealed. Tighe thereafter appealed to
appeals officer Michael E. Rowe, who determined, inter alia: (1) Tighe's injuries arose out of
and in the course of his employment; (2) the driver of the cement truck was the sole cause
of the accident; and (3) Tighe's consumption of alcohol neither impaired his ability to operate
the vehicle nor contributed to the accident.
As a result of his findings, the appeals officer reversed the hearing officer's decision and
remanded the matter to SIIS with instructions to honor Tighe's claim for benefits. Thereafter,
SIIS obtained a favorable ruling on judicial review in the district court. The appeals officer's
decision was reversed on grounds that the first finding was legally erroneous and the second
and third findings were not supported by substantial evidence. Convinced that the district
court erred in reversing the award he had secured from the appeals officer, Tighe appealed to
this court.
DISCUSSION
[Headnotes 1-6]
Our role in reviewing an administrative agency's decision is identical to that of the district
court: we review the record considered by the agency to determine whether the agency's
decision is supported by substantial evidence. A decision that lacks support in the form of
substantial evidence is arbitrary or capricious, and thus an abuse of discretion that warrants
reversal. NRS 233B.135(3); Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663
P.2d 355, 357 (1983). We will affirm the agency's decision if it is supported by substantial
evidence in the record. State Indus. Ins. System v. Swinney, 103 Nev. 17, 20, 731 P.2d 359,
361 (1987). Substantial evidence is that which a reasonable mind might accept as adequate
to support a conclusion. State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d
497, 498 (1986). Neither we nor the district court may substitute our judgment for that of the
agency as to the weight of evidence on a question of fact. NRS 233B.135(3). However, the
construction of a statute is a question of law and independent appellate review, rather than a
more deferential standard of review, is appropriate.
review, is appropriate. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993). We
now consider the two issues raised by this appeal.
1. Whether Tighe's injuries arose out of and in the course of his employment
NRS 616.270(1) requires employers to provide compensation to employees for injuries
arising out of and in the course of the employment. In Crank v. Nevada Indus. Comm'n,
100 Nev. 80, 675 P.2d 413 (1984), we recognized the general rule that injuries sustained by
an employee while going to his regular place of work are not deemed to arise out of and in the
course of his employment. Id. at 82, 675 P.2d at 414. We also noted that [a]n exception to
that rule applies where the employee is paid an identifiable amount as compensation for his
expense of travel. Id. (citing 1 Arthur Larson, The Law of Workmen's Compensation
16.20, 15.30 (1982)).
The district court analyzed the circumstances of Tighe's claim in light of the above
exception and found that because Tighe was not compensated for the expenses of his travel,
he was not covered by the industrial insurance act at the time of his accident. By focusing on
the single exception discussed in Crank, the district court failed to recognize other exceptions
to the going and coming rule, two of which are applicable to the instant case.
[Headnotes 7, 8]
First, an employee may still be within the course of his or her employment when the travel
to or from work confers a distinct benefit upon the employer. For example, we concluded in
Evans v. Southwest Gas Corp., 108 Nev. 1002, 842 P.2d 719 (1992), that a service technician
who was on call and driving home in his employer's van was still within the course of his
employment because he was subject to his employer's control and was furthering his
employer's business in taking the van home. Id. at 1006, 842 P.2d at 721-22. Like the
employee in Evans, Tighe was driving home in his employer's vehicle and was subject to his
employer's control at the time of the accident. The police radio and beeper provided a means
for Metro to summon Tighe in a time of need, and Metro benefitted from having one of its
undercover officers driving an undercover vehicle. Indeed, Metro concedes that the instant
facts fall squarely within the facts of Evans, but would distinguish the two cases on the basis
that Evans implicated respondeat superior liability, whereas the instant case involves SIIS
coverage and benefits. Although the two cases may indeed be so distinguished, the exercise is
without relevance. Our reasoning in Evans has direct application here on the relevant point
of course of employment, thus the Evans factors are of compelling application to the
terms of NRS 616.270{1).
reasoning in Evans has direct application here on the relevant point of course of employment,
thus the Evans factors are of compelling application to the terms of NRS 616.270(1).
Second, the unique nature of law enforcement requires us to distinguish it from other types
of traditional employment. As Professor Larson noted:
[I]t has been recognized that policemen are on call in a special sense. That is, while
the usual on-call employee is subject to the possibility of a specific summons
emanating directly from his employer, the policeman may be at any moment called
into duty by events taking place in his presence, whether or not he is technically off
duty. Awards have accordingly been made to policemen injured in the course of an
ordinary going or coming journey.
1 Arthur Larson, Larson's Workmen's Compensation Law 16.17 (1993).
In City of Springfield v. Indus. Comm'n, 614 N.E.2d 478 (Ill. App. Ct. 1993), a police
officer was injured in an automobile accident while returning to work from lunch at home.
Like Tighe, at the time of the accident, the officer was wearing a police beeper and driving an
unmarked department vehicle equipped with a police radio. The Illinois Court of Appeals
held that the injuries were compensable because the officer had the radio on and was
available to respond in the normal course to any request for assistance or emergency he
encountered. Id. at 480. See also Hanstein v. City of Ft. Lauderdale, 569 So.2d 493, 494
(Fla. Dist. Ct. App. 1990) ([b]ecause police officers are generally charged with a duty of law
enforcement while traveling on public thoroughfares, it has long been established that injuries
which such officers sustain while traveling to and from work may be compensated under the
Florida Workers' Compensation law).
Today's ruling is not sufficiently broad and all-inclusive to justify the conclusion that all
law enforcement officers are always excluded from the general rule that injuries sustained
while traveling to or from work do not arise out of and in the course of employment.
However, there is substantial evidence in the administrative record to find that Tighe's
injuries occurred within the course of his employment. Tighe was on call and driving a police
vehicle equipped with a police radio, and he was prepared to respond to any public
emergency he may have encountered. Tighe made no diversion for personal purposes, nor can
we reweigh the evidence to conclude that he significantly deviated from the standard of
conduct we expect of our police officers.
2. Whether NRS 616.565(1)(c) precludes Tighe from receiving SIIS benefits
[Headnote 9]
Having determined that Tighe's injuries arose out of and in the course of his employment,
we now turn to whether he is nevertheless statutorily precluded from receiving SIIS benefits.
NRS 616.565(1)(c) sets forth the rebuttable presumption that if an employee is intoxicated
when he or she sustains an injury, the intoxication is presumed to be the proximate cause of
the injury and the employee is precluded from receiving SIIS benefits.
1
Tighe's two experts
provided compelling, scientific, and substantial evidence to the appeals officer that Tighe was
not intoxicated at the time of the accident, that Tighe's reflexes and attempt to avoid the truck
were excellent, and that Tighe's moderate consumption of beer played no role whatsoever
in the accident. Metro failed to refute the experts' testimony with substantial evidence of its
own. Accordingly, we conclude that the district court erred in reweighing the evidence
considered by the appeals officer and finding that there was no substantial evidence to
support the Appeals Officer's decision that Claimant was not intoxicated and that his
intoxication was not a proximate cause of the accident.
CONCLUSION
For the foregoing reasons, the order entered below is reversed, and this matter is remanded
to the district court with instructions to enter an order sustaining the appeals officer's decision
providing an award of benefits to Tighe.
__________

1
NRS 616.565(1)(c) provides:
1. Compensation is not payable pursuant to the provisions of this chapter for an injury.
. . . .
(c) Proximately caused by the employee's intoxication, whether by alcohol or a controlled substance. If
the employee was intoxicated at the time of his injury, intoxication must be presumed to be a proximate
cause unless rebutted by evidence to the contrary.
____________
110 Nev. 638, 638 (1994) Riley v. State
BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23621
July 7, 1994 878 P.2d 272
Appeal from an order of the district court denying appellant's petition for post-conviction
relief. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Motion for post-conviction relief was filed by defendant convicted of first degree murder
and robbery with use of deadly weapon and sentenced to death. The district court denied
motion. Defendant appealed. The supreme court held that: (1) defense counsel was not
ineffective in failing to adequately investigate, in failing to hire, consult or call ballistics
expert, or in failing to produce and offer available mitigating evidence at penalty phase of
trial; (2) trial counsel's failure to object to allegedly improper statements of prosecutor and
appellate counsel's failure to raise instances of alleged misconduct on direct appeal was not
ineffectiveness of counsel; (3) evidence did not require giving of accomplice instruction; and
(4) failure to object to striking of juror by trial court during voir dire was not ineffectiveness
of counsel.
Affirmed.
[Rehearing denied August 12, 1994]
Cal J. Potter, Las Vegas, for Appellant.
1. Criminal Law.
Indigent defendant possesses constitutional right to reasonably effective assistance of counsel at trial and on appeal. U.S. Const.
amend. 6.
2. Criminal Law.
To state claim of ineffective assistance of counsel sufficient to invalidate judgment of conviction, defendant must demonstrate that
counsel's performance fell below objective standard of reasonableness, and that he was prejudiced as result of counsel's performance.
Prejudice is demonstrated where counsel's errors were so severe that there was reasonable probability that, but for counsel's
unprofessional errors, result of proceeding would have been different. U.S. Const. amend. 6.
3. Criminal Law.
Reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different, is
probability sufficient to undermine confidence in outcome of trial. U.S. Const. amend. 6.
110 Nev. 638, 639 (1994) Riley v. State
4. Criminal Law.
Defendant carries affirmative burden of establishing prejudice in order to make claim for ineffective assistance of counsel. U.S.
Const. amend. 6.
5. Criminal Law.
It was not ineffective assistance for defense counsel to fail to investigate statements allegedly indicating that codefendant
participated in killing of victim, where witness who heard statements never attempted to communicate statements to defense counsel.
6. Criminal Law.
Purely factual findings of inferior tribunal regarding claim of ineffective assistance of counsel are entitled to deference on
subsequent review of that tribunal's decision. U.S. Const. amend. 6.
7. Criminal Law.
Defense counsel's failure to hire, consult or call ballistics expert to substantiate defendant's theory that codefendant, rather than
defendant, shot victim was not ineffective assistance of counsel, where defendant's theory that codefendant shot victim did not appear
credible and reliability of jury's verdict was not in doubt as result of absence of expert testimony, even if counsel's conduct fell below
level of care expected of competent defense attorney. U.S. Const. amend. 6.
8. Criminal Law.
Prejudice in ineffective assistance of counsel claim is shown when reliability of jury's verdict is in doubt. Reliability is in doubt
where defendant can show that, but for counsel's errors, there is reasonable probability that result of trial would have been different.
9. Criminal Law.
It was not ineffective assistance for defense counsel to fail to order psychiatric evaluation of capital murder defendant for purpose
of obtaining mitigating evidence for penalty phase of trial based on information contained in pretrial psychiatric evaluation of
defendant's competency to stand trial, where evaluation did not contain information indicating existence of particular psychological
conditions or disorders that might have shown prior mental disturbances or impaired mental state, but instead only showed existence of
industrial head injuries for which defendant received insurance benefits and that defendant was admitted at age of 16 to hospital for
psychiatric evaluation, and there was no indication that defendant's mental health or physical functioning was affected by his drug use.
10. Criminal Law.
If mental health records indicate that psychological evaluation may produce favorable report sufficient to mitigate sentence of
death, counsel's failure to request such evaluation is both inadequate and prejudicial. U.S. Const. amend. 6.
11. Criminal Law.
That evidence at guilt phase in capital murder trial was overwhelming was not proper inquiry to determine whether defense
counsel was ineffective in failing to seek psychological evaluation for purposes of obtaining mitigating evidence at penalty phase of
capital murder trial. At penalty phase, prejudice inquiry for ineffectiveness claim was whether defendant would have received death
penalty in absence of counsel's unreasonably deficient performance, i.e., whether defendant would have been sentenced to death
had mitigating factors relating to psychological traits and drug abuse been offered.
110 Nev. 638, 640 (1994) Riley v. State
been sentenced to death had mitigating factors relating to psychological traits and drug abuse been offered. U.S. Const. amend. 6.
12. Criminal Law.
Defense counsel's failure to call character witnesses in capital murder trial was not ineffectiveness of counsel, where defendant
refused to assist counsel in preparing or presenting mitigating evidence at penalty phase and instructed potential penalty phase
witnesses who were his family members not to cooperate and not to appear and testify. U.S. Const. amend. 6.
13. Criminal Law.
Prosecutor's comment in closing argument on chart used as demonstrative evidence in capital murder trial was not improper
comment on defendant's failure to call witnesses but mere inquiry as to why witnesses who did testify did not construct chart or
validate it, and thus, defense counsel's failure to object to comment of prosecutor was not ineffectiveness of counsel. U.S. Const.
amend. 6.
14. Criminal Law.
Even if prosecutor's comment on why defense witnesses who testified in capital murder trial did not construct chart used as
demonstrative evidence or validate it was prosecutorial misconduct, and defense counsel's failure to object to comment fell below
objective standard of reasonableness, jury's verdict was not unreliable because of error so as to establish ineffective assistance of
counsel. U.S. Const. amend. 6.
15. Criminal Law.
Prosecutor's statement at beginning of closing argument Okay, let me tell you what happened was not veiled reference to matters
not in evidence or improper attempt to superimpose prosecutor's credibility as government attorney but instead was introduction to
state's version of case, which differed from defendant's; thus, defense counsel's failure to object to prosecutor's statement was not
ineffectiveness of counsel. U.S. Const. amend. 6.
16. Criminal Law.
Defense counsel's decision in capital murder trial not to ask for accomplice instruction reflected reasonable tactical choice and was
entitled to deference on claim of ineffectiveness of counsel, where defense counsel's only theory of case was that codefendant, not
defendant, shot victim, and defense counsel testified that asking for accomplice instruction would have undermined this defense. U.S.
Const. amend. 6.
17. Criminal Law.
Accomplice instruction advises jury that it should view as suspect incriminating testimony given by those who are liable for
prosecution for identical charged offense as accused. U.S. Const. amend. 6.
18. Criminal Law.
Testimony of neither of state's witnesses incriminating defendant in capital murder trial was suspect, and thus, defendant was not
entitled to accomplice instruction advising jury that it should view as suspect incriminating testimony given by those who are liable to
prosecution for identical charged offense as accused, where record was wholly devoid of evidence tending to support theory of joint
criminal liability and no evidence supported conclusion that either witness was liable to prosecution for offense. U.S. Const. amend. 6.
19. Criminal Law.
State's witnesses were not compensated informants requiring instruction addressing credibility of witnesses, and witnesses were
merely percipient witnesses, where there was no evidence that any of the witnesses were paid or had
received deal in exchange for their testimony.
110 Nev. 638, 641 (1994) Riley v. State
merely percipient witnesses, where there was no evidence that any of the witnesses were paid or had received deal in exchange for their
testimony. U.S. Const. amend. 6.
20. Criminal Law.
State's witnesses were not coconspirators, and thus, defendant was not entitled to instruction on conspiracy theory or any other
theory of joint criminal liability in capital murder trial. U.S. Const. amend. 6.
21. Criminal Law.
Even if there were appropriate instruction on addict witnesses available, which competent counsel might normally request,
defendant in capital murder trial failed to produce evidence or arguments to show that jury's verdict of guilty was unreliable because of
defense counsel's failure to offer such instruction so as to establish ineffectiveness of counsel. U.S. Const. amend. 6.
22. Criminal Law.
Trial court dismissed potential juror not because she indicated that she would have difficulty imposing death penalty but because
she contradicted herself numerous times in her short discussion with judge, and thus, defense counsel's failure to object to striking of
potential juror was not ineffectiveness of counsel. U.S. Const. amend. 6.
23. Criminal Law.
Homicide defendant was not denied actual assistance of counsel on his direct appeal from capital murder conviction because
supreme court was biased against him and his attorney for filing class action lawsuit in federal court challenging supreme court's rule
requiring strict adherence to expedited briefing schedule in capital cases. Conclusion that supreme court was biased sprung from pure
speculation and implications that court would not remain objective in deciding death penalty case because it was upset with lawyer for
suing court and there was nothing in record to support claims. U.S. Const. amend. 6.
24. Criminal Law.
Even if defense counsel in capital murder trial filed deficient appellate briefs that constituted performance below objective
standard of reasonableness, supreme court's analysis precluded finding of prejudice resulting from such deficiencies so as to preclude
claim for denial of actual assistance of counsel on direct appeal. U.S. Const. amend. 6.
OPINION
Per Curiam:
INTRODUCTION
Appellant Billy Ray Riley (Riley) was convicted after a jury trial of one count of first degree murder and one count of robbery, both
with use of a deadly weapon. The jury found five aggravating circumstances at the penalty phase, with no mitigating circumstances
sufficient to outweigh them, and sentenced Riley to death for the murder. The judge sentenced Riley, as an habitual criminal, to life without
possibility of parole for the robbery.
Riley appealed the judgment of conviction to this court, on several grounds.1 This court rejected all of Riley's
arguments, and affirmed the sentences, including the sentence of death.
110 Nev. 638, 642 (1994) Riley v. State
several grounds.
1
This court rejected all of Riley's arguments, and affirmed the sentences,
including the sentence of death. See Riley v. State, 107 Nev. 205, 208, 808 P.2d 551, 552
(1991).
At the time Riley was pursuing his direct appeal to this court, he was also a member of a
class action lawsuit, filed in federal district court, naming as defendants this court and each of
the individual justices. See Riley v. Nevada Supreme Court, 763 F. Supp. 446 (D. Nev. 1991).
The suit alleged that the portion of SCR 250 requiring strict adherence to an expedited
briefing schedule in capital cases was unconstitutional, and the plaintiffs in that suit sought to
enjoin this court from enforcing those rules. The federal district court judge issued a
preliminary injunction enjoining the enforcement of the briefing schedule.
2

After the resolution of his direct appeal, Riley filed this petition for post-conviction relief
in district court, alleging ineffective assistance of counsel at both the trial level and on appeal.
Riley also alleged that he was denied actual assistance of counsel because of this court's
bias stemming from the federal suit, and he alleged that his right to a fair and impartial jury
was denied when the district court judge, on his own motion, excused a potential juror. The
district court judge denied Riley's petition after considering Riley's arguments and the
evidence elicited at a post-conviction evidentiary hearing. We find Riley's claims to be
without merit, and affirm the district court order denying his petition for post-conviction
relief.
FACTS
Riley was convicted after a jury trial of the first degree murder and robbery of Albert
Ramrod Bollin (Bollin). On the morning of October 1, 1989, Bollin and Darrell Lee
Jackson (Jackson) went to the home of Leotis Gordon (Gordon). Riley was at Gordon's
home, as were Gordon and Kim Johnson {Johnson), Riley's girlfriend.
__________

1
Riley argued that there was insufficient evidence to support the verdict. He also challenged the district court's
refusal to order a bench trial and the court's refusal to instruct the jury on his theory of the case during the guilt
phase. Riley also challenged instructions given during the penalty phase, and he alleged prosecutorial
misconduct during both the guilt and penalty phases.

2
The relevant portions of SCR 250 have since been revised, and the federal suit has been dismissed. See SCR
250; Riley v. Nevada Supreme Court, No. CV-N-90-45l-ECR (D. Nev. Order Dismissing Cause of Action
October 14, 1993).
In the meantime, Riley's counsel on direct appeal consistently failed to meet the deadlines of the briefing
schedule set forth in the rules and in several orders issued by this court, and this court issued an opinion
discussing counsel's conduct, but declined to impose sanctions. See Riley v. State, 107 Nev. 220, 808 P.2d 560
(1991) (Young and Mowbray, JJ. dissenting).
110 Nev. 638, 643 (1994) Riley v. State
Gordon's home, as were Gordon and Kim Johnson (Johnson), Riley's girlfriend. Bollin lived
in a room at Gordon's house.
Riley met Bollin and Jackson at the door, and asked Bollin if Bollin had any drugs. Bollin,
Jackson and Riley then went into a bedroom. Bollin and Jackson began to count their money.
Jackson testified that Riley became emotional and angry about the treatment he had been
receiving from drug dealers. Riley told the men he was going to start robbing drug dealers
who mistreated him. At this point, Bollin and Jackson gave Riley some rock cocaine, and
Riley smoked it.
Jackson further testified as follows: Bollin took a shower. While Bollin was in the shower
Riley asked Jackson about Bollin's drugs and money. Bollin went to his bedroom after he
finished his shower, and Riley followed him in. Bollin sat on a dresser facing Riley, who sat
on the bed. Jackson entered the room and stood near Bollin toward the middle of the dresser.
Riley was pointing his .410 caliber sawed-off shotgun at Bollin.
Riley asked Bollin who the drugs belonged to and Bollin said, [I]t's none [sic] mine.''
Riley then said, [I]t's mine now.'' After this exchange Bollin said, [N]o, dude. You know
you're going to have to kill me first. Riley then asked Bollin if Bollin was ready to die.
Bollin responded, [A]ll right. Let me finish taking this hit. After Bollin smoked some
cocaine, he put down the pipe, and Riley asked him again if he was ready to die. Bollin said,
Yeah and Riley shot Bollin in the chest.
Johnson testified that she was in the kitchen when she heard Bollin say, [I]f you're going
to kill me, just kill me. She then heard the flick of a cigarette lighter, and shortly thereafter a
gunshot. Johnson immediately walked to the room and saw Riley sitting on the bed, holding
his shotgun. Bollin was upright on the dresser clutching his chest. Johnson then heard Bollin
call out Leo (Gordon). Johnson walked to Gordon's room and Gordon asked her what
happened. Riley and Jackson then came into Gordon's room.
Gordon testified that he was in his room sleeping when he heard the gunshot. Gordon
heard someone say, Leo, run. Gordon asked, What's going on here? He then tried to exit
through his window, but stopped when Riley entered the room and told Gordon to just hold
it. Riley then told Johnson to get shotgun shells, and told Jackson to take Bollin's money and
drugs. Riley was holding the gun, but asked Jackson to hold the gun shortly thereafter.
Gordon asked Riley why he would kill Bollin, because Bollin didn't have money. Gordon
then asked why Riley didn't get L.L.' He's the guy that has [some money]. Riley, Jackson,
Gordon and Johnson then went together to L.L.'s home.
110 Nev. 638, 644 (1994) Riley v. State
Gordon and Johnson then went together to L.L.'s home. L.L. was not there and Riley and the
others took a car belonging to Carolyn Henry (Henry). They also took Henry with them.
Riley drove the car to several stores to buy gas, food and shotgun cartridges, and then
drove toward Tonopah, Nevada. During most of this trip Riley held the gun, but he also
handed it to Johnson and Jackson. The group returned to Las Vegas, and Riley and Johnson
hid the gun under some boards in the desert. Riley and Johnson were later arrested and
Johnson led police to the gun.
Riley was convicted of the first degree murder and robbery of Bollin, both with use of a
deadly weapon. The jury found five aggravating circumstances: that the murder was
committed in an attempt to commit robbery or while committing robbery, and that Riley had
three prior robbery convictions and one prior armed robbery conviction. The jury fixed the
penalty at death for the murder and the judge sentenced Riley, as an habitual criminal, to life
without possibility of parole for the robbery.
After his direct appeal, Riley filed a petition for post-conviction relief. In his petition,
Riley alleged ineffective assistance of counsel, and that he was denied actual assistance of
counsel and a fair and impartial jury. Specifically, Riley alleged six bases for ineffective
assistance of counsel: (1) that trial counsel failed to adequately investigate by (a) failing to
hire, consult or call a ballistics expert to testify about the trajectory of the shotgun blast that
killed the victim, and (b) failing to investigate a hearsay statement allegedly exculpating
Riley; (2) that trial counsel failed to offer adequate and available documentary and
testimonial evidence tending to show mitigating factors at the penalty phase; (3) that trial
counsel failed to object to improper statements of the prosecutor and that appellate counsel
failed to raise these instances of misconduct on direct appeal; (4) that trial counsel failed to
request an accomplice instruction or other instruction addressing the credibility of the state's
witnesses; (5) that trial counsel failed to request a theory of the case instruction; and (6) that
trial counsel failed to object to the improper striking of a juror by the trial court during voir
dire of the jury venire.
Riley's claim that he was denied actual assistance of counsel on appeal was premised on
the argument that the Justices of this court denied his direct appeal because of bias against
Riley and his counsel for filing the class action lawsuit in federal court challenging SCR 250.
Finally, Riley alleged he was denied a fair and impartial jury when the trial judge improperly
and prematurely excused a potential juror who allegedly expressed misgivings about the
death penalty.
A post-conviction evidentiary hearing was held March 23, 1992.
110 Nev. 638, 645 (1994) Riley v. State
1992. Susie Butler (Butler), Riley's mother, testified at the hearing. Butler testified that she
overheard Jackson and two people talking. She allegedly heard one man say, [M]an, I heard
they railroaded Billy Ray [Riley]. Jackson allegedly responded, [Y]es, they did. But I was
the one that got his last breath. Butler claimed that Riley's trial counsel, deputy public
defender Steven J. Dahl (Dahl), never let her discuss this conversation. Butler admitted at the
hearing, however, that she only spoke to Dahl one time, during which time she gave
background information on Riley. She claimed that she told [Dahl] I had some things that I
[wanted] him to know, but I never did get around to telling him because he didn't call me
back.
3

Dahl testified that Butler never tried to tell him about this incident before or during the
trial. Dahl claimed that Riley, after the penalty phase, suggested that Dahl contact Butler
because Butler told Riley about the conversation. Dahl testified that he contacted Butler
twice, but Butler expressed doubt about the people she heard, and she failed to call Dahl
back.
Riley also called Jack Jurasky, M.D. (Jurasky), a psychologist who had analyzed Riley's
competency to stand trial. Jurasky had conducted only this pre-trial evaluation on Riley's
competence to stand trial; he did not conduct a separate evaluation to discover evidence that
could be used in mitigation of the sentence. Jurasky testified at the hearing that Riley grew up
in a violent environment, and that an individual exposed to such an environment will often
react by becoming violent. He also testified that a person on drugs is often not in full control
of his actions. Dahl testified that he had hired two psychiatrists to evaluate Riley. However,
he later indicated that he hired only one psychiatrist, Jurasky.
In addition to the foregoing, Dahl testified that he did not consult, hire or call as a witness
any ballistics experts. Dahl also testified that his strategy at trial was to argue that Jackson
shot Bollin. Dahl based his argument that Jackson shot Bollin on testimony regarding the
measurements taken by his investigator and testimony by Johnson, a percipient witness,
regarding the position of Bollin. In addition, although Dahl did not testify about this at the
evidentiary hearing, a review of the trial transcript shows that Dahl also cross-examined Dr.
Sheldon Giles, a forensic pathologist and Clark County Coroner, regarding the possible
attitude of shotgun pellets as they entered Bollin. During closing arguments at trial, in order
to argue that Jackson, who was standing next to Riley, shot Bollin, Dahl claimed that there
was "only one direction in this case.
__________

3
When asked if she reported the conversation to police, Butler said, No. I contacted [Dahl], and that's when I
told him I would like to talk to him. And he told me he would get back with me, but he didn't. She later
admitted that she never did get back with him. On cross, she admitted she never told the police, Dahl or the
district attorney.
110 Nev. 638, 646 (1994) Riley v. State
was standing next to Riley, shot Bollin, Dahl claimed that there was only one direction in
this case. That direction is front to back horizontal and left to right.
Dahl also testified that he believed this court to have been biased against him and Riley.
Dahl stated that Riley holds a record for the quickest denial of appeal of a death penalty case
in the history of the State of Nevada. Dahl further testified that the state had offered two life
sentences without possibility of parole as a plea bargain. After hearing the above evidence at
the hearing, the district judge entered Findings of Fact, Conclusions of Law and an Order
denying Riley's petition, finding that all of Riley's claims lacked merit. Riley appeals.
DISCUSSION
Riley claims that he was denied reasonably effective assistance of counsel at trial and on
direct appeal, that he was denied actual assistance of counsel because of this court's bias
and that he was denied his right to a fair and impartial jury, all in violation of the Nevada and
United States Constitutions.
[Headnotes 1-4]
An indigent defendant possesses a constitutional right to reasonably effective assistance of
counsel at trial and on appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984) (trial);
Evitts v. Lucey, 469 U.S. 387, 391 (1985) (appeal); Warden v. Lyons, 100 Nev. 430, 432, 683
P.2d 504, 505 (1984), cert. denied, 471 U.S. 1004 (1985). To state a claim of ineffective
assistance of counsel sufficient to invalidate a judgment of conviction, a convicted defendant
must demonstrate that counsel's performance fell below an objective standard of
reasonableness, and that he was prejudiced as a result of counsel's performance. Strickland,
466 U.S. at 687-88, 692. Prejudice is demonstrated where counsel's errors were so severe that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of trial. Id. The defendant carries the
affirmative burden of establishing prejudice. 466 U.S. at 693.
Trial counsel's failure to investigate adequately
[Headnote 5]
Riley challenges Dahl's failure to investigate statements, reported by Butler, that allegedly
indicated that Jackson participated in the killing of Bollin. He argues that it was ineffective
representation for Dahl to have failed to investigate this statement and to present evidence
regarding this statement at trial.
110 Nev. 638, 647 (1994) Riley v. State
and to present evidence regarding this statement at trial. Butler testified that she heard
Jackson talking with two other people, and that an unidentified man stated, [M]an, I heard
they railroaded Billy Ray [Riley]. Jackson then allegedly responded, [Y]es, they did. But I
was the one that got his last breath.
[Headnote 6]
The trial judge found that
[P]etitioner's mother, Susie Butler, has an obvious bias in these proceedings. The Court
finds that her testimony is in conflict with the testimony of the defendant's trial counsel
Steven J. Dahl. The Court finds Susie Butler to be an incredible witness and Steven
Dahl to be a credible witness. Therefore, the Court concludes that Susie Butler never
informed Steven Dahl before the guilt phase or before the penalty phase that she had
overheard Darrell Lee Jackson admit to the commission of the murder.
Although it is true that [t]he question of whether a defendant has received ineffective
assistance of counsel at trial in violation of the Sixth Amendment is a mixed question of law
and fact and . . . thus subject to independent review. State v. Love, 109 Nev. 1136, 1138,
865 P.2d 322, 323 (1993), it is also true that purely factual findings of an inferior tribunal
regarding a claim of ineffective assistance are entitled to deference on subsequent review of
that tribunal's decision. See Strickland, 466 U.S. at 698. A review of Butler's testimony at the
evidentiary hearing reveals that the district court's factual finding is supported by substantial
evidence and is not clearly wrong. Butler was evasive and contradicted herself. In addition,
she admitted that she only spoke to Dahl one time, and that she made no effort to
communicate any information about the alleged conversation to the police, Dahl's co-counsel,
or the district attorney. Moreover, Dahl testified that Riley told Dahl to contact Butler, and
that Butler was unsure of the story and never called him back. Thus, it appears that the district
judge, after weighing credibility, reasonably concluded that Butler never attempted to
communicate the conversation to Dahl. As a result, it was not ineffective for Dahl to have
failed to have investigated it.
4
[Headnote 7]
__________

4
Riley presented a memorandum of supplemental legal authority to this court after this case had been submitted
for decision, wherein he cited State v. Love, 109 Nev. 1136, 865 P.2d 322 (1993). In Love, this court held that
the failure to contact and interview potential alibi witnesses, of whom counsel had been made aware, and the
subsequent failure to call such witnesses at trial, constituted ineffective assistance of counsel. 109 Nev. at 1140,
865 P.2d at 324. Love, however, does not change the result on this issue in the instant case. It is evident from the
record of the evidentiary
110 Nev. 638, 648 (1994) Riley v. State
[Headnote 7]
Riley also argues that Dahl provided ineffective representation at trial by failing to hire,
consult or call a ballistics expert to substantiate Riley's theory that Jackson, not Riley, shot
Bollin. To support this theory Dahl showed the jury a diagram showing the measurements of
the room and the positions of the bed, dresser and victim. Dahl had used the measurements
recorded by police investigators, and he had hired a defense investigator to take
measurements at Gordon's house.
The chart was used as demonstrative evidence only, and was not admitted into evidence.
Using the chart during closing, counsel argued that based upon his measurements, and those
of police investigators, it was highly unlikely that the shot that killed Bollin was fired from
the spot on the bed where Riley sat. Therefore, Dahl argued, it must have been Jackson who
shot Bollin.
Riley argues that an expert would have appeared more credible to the jury and would have
substantiated the claim that the gun could not have been fired from where Riley sat.
Therefore, he argues, Dahl's error in failing to consult, hire and call an expert was so deficient
that the conviction must be reversed.
[Headnote 8]
Prejudice in an ineffective assistance of counsel claim is shown when the reliability of the
jury's verdict is in doubt. Strickland, 466 U.S. at 687. Reliability is in doubt where the
defendant can show that, but for counsel's errors, there is a reasonable probability that the
result of the trial would have been different. See Love, 109 Nev. at 1139, 865 P.2d at 323;
Strickland, 466 U.S. at 694.
In the instant case, Riley's theory that Jackson shot Bollin does not appear credible, and,
given the evidence elicited at trial, the reliability of the jury's verdict does not appear to be in
doubt. The testimony at trial established that Johnson arrived at the door of the bedroom
within seconds of hearing a gunshot and saw Riley on the bed holding the gun and Bollin
clutching his chest. The gun belonged to Riley, and he had been holding it for the several
minutes prior to the shooting. In addition, Jackson's story regarding Riley's motives and
actions (that he was agitated, crying and wanted to rob drug dealers, who he thought had
ripped him off) is partially corroborated by statements made by Johnson regarding what she
heard and saw.
__________
hearing that as a factual matter Dahl was not apprised, prior to trial, of the existence of Jackson's hearsay
statement allegedly inculpating Jackson. As a result, it was not ineffective for Dahl to have failed to investigate a
matter of which he was unaware.
110 Nev. 638, 649 (1994) Riley v. State
Thus, even if counsel's conduct fell below the level of care expected of a competent
defense attorney, Riley has nevertheless failed to show that the jury's verdict is unreliable, and
that he was prejudiced. We do not reach whether the failure to call an expert was deficient,
however, as Riley's argument that expert witness testimony was crucial is highly
speculative. Riley failed to meet his burdento present an argument demonstrating the type
and strength of evidence that might have been presented, and that there exists a reasonable
probability that presentation of the evidence would have resulted in a different outcome at
trial. We must hold that Riley's claim that Dahl was ineffective for failing to hire or consult
an expert on ballistics is without merit, as he has failed to articulate prejudice in a persuasive
manner.
Trial counsel's failure to offer adequate and available documentary and testimonial evidence
at the penalty phase
[Headnote 9]
Riley contends that trial counsel failed to produce and offer available mitigating evidence,
both documentary and testimonial, at the penalty phase of his trial. He argues that this was
not reasonably effective assistance in a capital case.
The only mitigating evidence offered and admitted was a parole board and referral report
dated December 11, 1969 (the report). This report was compiled as part of the records
regarding Riley's parole release for an earlier offense. The report tended to show that Riley
strived for achievement and discipline in a structured environment, notably prison, and Dahl
argued this point. Thus, it was evidence that possibly could have convinced the jury that
prison was an acceptable alternative to the death penalty. The report also included a statement
on Riley's upbringing in a violent atmosphere, and counsel addressed this in the penalty phase
closing argument.
Riley contends, however, that Dahl should have inquired further into Riley's psychological
traits and history after Dahl reviewed a pre-trial psychiatric evaluation (the pre-trial
evaluation) conducted by a Dr. Jurasky. Dahl had hired Jurasky to conduct the pre-trial
evaluation to determine Riley's competence to stand trial. The pre-trial evaluation contained
negative information about Riley's criminal history, but also discussed some of Riley's
positive qualities and described the violent atmosphere of Riley's youth.
5
Riley concedes the
evaluation was limited to [the issue of] competence," but argues that it "should have
prompted further investigation into Riley's overall mentalJemotional state and personal
history."
__________

5
Riley does not claim that Dahl should have introduced the evaluation. Dahl testified that he decided not to
introduce the evaluation because he considered it to be damaging to Riley's interests, inasmuch as it contained
numerous references to Riley's extensive criminal record.
110 Nev. 638, 650 (1994) Riley v. State
issue of] competence, but argues that it should have prompted further investigation into
Riley's overall mental/emotional state and personal history.
6

[Headnotes 10, 11]
If mental health records indicate that a psychological evaluation may produce favorable
reports sufficient to mitigate a sentence of death, counsel's failure to request such an
evaluation is both inadequate and prejudicial. See, e.g., Deutscher v. Whitley, 946 F.2d 1443,
1446 (9th Cir. 1991), vacated, 113 S.Ct. 367 (1992), aff'd sub nom. Deutscher v. Angelone,
16 F.3d 981, 984 (9th Cir, 1994); Evans v. Lewis, 855 F.2d 631, 636-39 (9th Cir. l988).
7

In Deutscher, the court found ineffective assistance where counsel failed to investigate and
offer mental health records showing defendant's history of schizophrenia, pathological
intoxication, and organic brain damage. 946 F.2d at 1446. In addition, the court focused on
counsel's failure to inquire into the defendant's commitments to mental institutions. Id.
In Evans, counsel's failure to investigate defendant's mental condition for the purpose of
presenting evidence in mitigation of a death sentence was ineffective where the defendant had
a prior diagnosis of schizophrenia that could have shown he had an impaired mental state at
the time of the crime. 855 F.2d at 636.
The pre-trial evaluation in the instant case does not contain any information approaching
the type of indications present in Deutscher and Evans, namely the existence of particular
psychological conditions or disorders that may have shown prior mental disturbance or
impaired mental state. The records in the instant case show the existence of industrial head
injuries, for which Riley received insurance benefits, and that Riley was admitted to a
hospital for psychiatric evaluation at the age of 16.
__________

6
Dahl testified at the evidentiary hearing that he enlisted two psychiatrists to examine Riley. However, he did
not explain why he failed to call these psychiatrists at the penalty phase. Dahl later appeared confused about
whether he had employed two psychiatrists or just one. On further questioning, it appeared that Dahl had
retained just Jurasky, and that he only sought Jurasky's assistance to determine Riley's competence to stand trial.
Jurasky did not assist Dahl in analyzing Riley to obtain possible mitigating evidence.

7
In arguing that Riley cannot show prejudice, the state incorrectly focuses on the quantum of proof at the guilt
phase. The state claims that the death penalty may stand because the evidence was overwhelming. Although it
may have been, this is not the proper prejudice inquiry. At the penalty phase, the prejudice inquiry is whether
defendant would have received the death penalty in the absence of counsel's unreasonably deficient performance.
In the instant case, the inquiry becomes whether Riley would have been sentenced to death had mitigating factors
relating to psychological traits and drug abuse been offered.
110 Nev. 638, 651 (1994) Riley v. State
[Headnote 12]
Although the evaluation indicated a history of extensive drug use, there was no indication
in the pre-trial evaluation, conducted to determine psychological fitness to stand trial, that
Riley's mental health or physical functioning was affected by such drug use. As a result, we
hold that it was not ineffective assistance of counsel, without stronger indications, for Dahl to
have failed to order a psychiatric evaluation of Riley based on the information contained in
the pre-trial evaluation.
8

Trial counsel's failure to object to allegedly improper statements of the prosecutor and
appellate counsel's failure to raise these instances of alleged misconduct on direct appeal
[Headnotes 13, 14]
Riley also argues that he was denied reasonably effective assistance of counsel because
Dahl failed to object to improper statements made by the prosecutor. Although this court
considered and rejected, on Riley's direct appeal, a claim of prosecutorial misconduct, Riley
now points to even more egregious instances of prosecutorial misconduct . . . during the
guilt phase.
Riley claims that the state impermissibly shifted the burden of proof at closing when the
prosecutor said
[the] drawing that counsel did with all the measurements and the angle and everything,
are you wondering what, to yourself, why, you know, some witness like his investigator
or some expert witness, even Dr. Green on cross-examination wasn't asked to draw that
in front of you? Well, a witness can be cross-examined. A defense attorney who is
making stuff up in closing argument can make up anything he wants to.
Riley fails to specify how this statement shifted the burden of proof to him. The prosecutor
was commenting on the chart used as demonstrative evidence. However, the prosecutor did
not comment on Riley's failure to call witnesses, he merely asked why the witnesses who did
testify (including the investigator and forensic pathologist) did not construct the chart or
validate it.
__________

8
The district court judge also found that counsel's failure to call character witnesses was not ineffective. He
specifically found that
[T]he defendant refused to assist his trial counsel in preparing or presenting mitigating evidence at the
penalty phase. Further, the defendant instructed potential defense penalty phase witnesses who were his
family members not to cooperate with his counsel and not to appear and testify at the penalty phase.
This finding is supported in the record and, as a result, counsel's failure to present such witnesses was not
ineffective.
110 Nev. 638, 652 (1994) Riley v. State
forensic pathologist) did not construct the chart or validate it. This was not prosecutorial
misconduct. Even if it were, and if failure to object fell below the objective standard of
reasonableness, Riley does not persuasively argue that the jury's verdict was unreliable
because of this error. Accordingly, this claim is without merit.
[Headnote 15]
Riley also challenges another statement as misconduct. The prosecutor began his closing
argument with the statement, Okay, let me tell you what happened. Riley claims that this
was a verbal wink and nod that was unfairly prejudicial, in that it was both a veiled
reference to matters not in evidence, and an improper attempt to superimpose [the
prosecutor's] credibility via [his] status as a government attorney . . . .
This statement is fairly seen as an introduction to the state's version of the case, which
differed from Riley's. Thus, the prosecutor was merely indicating that what was to follow was
his version or events. This is not improper. So long as matters outside the record were not
argued, and so long as the statements following the comment were supported by the
testimony, there is no misconduct.
Riley's only support in Nevada case law involved an egregious case in which the
prosecutor said, [W]e, of course, have access to our information that didn't come out in trial
and can't present . . . , and [W]e have access to things that are not available, so we can't
really get into that about what happened before. See Schrader v. State, 102 Nev. 64, 65, 714
P.2d 1008, 1008 (1986). The state's comment in this case is not even close to that in Schrader
and the other cases cited by Riley. See, e.g., United States v. Garra, 608 F.2d 659, 663-64 (5th
Cir. 1979) (prosecutor repeatedly testified as to witnesses' credibility); United States v.
Morris, 568 F.2d 396, 402 (5th Cir. 1978) (same). Accordingly, we do not perceive
prosecutorial misconduct from this statement by the prosecutor.
Trial counsel's failure to request an accomplice instruction or other instruction addressing
the credibility of the state's witnesses
[Headnote 16]
Riley next alleges that Johnson and Jackson were clearly accomplices of Riley, and that
counsel's failure to request an accomplice instruction at the guilt phase of trial was
ineffective assistance of counsel. Riley further argues that counsel's failure to request any
instruction addressing the credibility of the witnesses as compensated informants,
co-conspirators, and addict witnesses was ineffective.
110 Nev. 638, 653 (1994) Riley v. State
Dahl testified at the evidentiary hearing that his only theory of the case was that Jackson,
not Riley, shot Bollin. He further testified that asking for an accomplice instruction would
have undermined this defense. In this case, the decision not to ask for an accomplice
instruction reflects a reasonable tactical choice and such a valid tactical choice is entitled to
deference. See United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (reviewing court
not to second-guess legitimate tactical decisions, and counsel's conduct falling within wide
range of reasonable professional conduct will not be deemed ineffective), cert. denied 474
U.S. 979 (1985). Accordingly, we conclude that this choice was within the range of
reasonably effective assistance guaranteed Riley by the Nevada and United States
Constitutions.
[Headnotes 17, 18]
Moreover, an accomplice instruction advises the jury that it should view as suspect
incriminating testimony given by those who are liable to prosecution for the identical charged
offense as the accused. See Ramirez-Garza, 108 Nev. 376, 378, 832 P.2d 392, 392-93 (1992).
In this case, the record is wholly devoid of evidence tending to support a theory of joint
criminal liability and no evidence supports the conclusion that Jackson or Johnson was liable
to prosecution for this offense. Thus, neither Johnson's nor Jackson's testimony was suspect,
and, as a result, the factual predicates for invoking the accomplice instruction are absent.
[Headnotes 19-21]
Riley also argues that Dahl should have requested various other instructions addressing the
credibility of Johnson, Jackson and Gordon. Specifically, he claims that instructions were
warranted because the three were compensated informants, co-conspirators, and addict
witnesses. Riley fails to support his claim that the three were compensated informants. They
were merely percipient witnesses, and there is no evidence of record that any of the witnesses
at trial were paid or had received a deal in exchange for their testimony. Riley also fails to
support his claim that the three were co-conspirators. There is no evidence of record to
support a conspiracy theory, or any other theory of joint criminal liability. Finally, Riley
advances no addict witness'' instruction that is currently in use in Nevada or elsewhere. The
trial judge found that he was left to speculate as to what instruction should have been given
concerning witnesses who might have been drug users who appeared and testified . . . at
trial. In addition to the speculative nature of the possible addict instruction, it is noteworthy
that both counsel in closing arguments repeatedly emphasized that the witnesses were either
on drugs, or had recently ingested drugs, namely crack cocaine.
110 Nev. 638, 654 (1994) Riley v. State
drugs, or had recently ingested drugs, namely crack cocaine. Riley emphasized this to
undermine the witnesses' credibility, the state to admit the negative aspects of its witnesses'
backgrounds and factors affecting their ability to perceive and relate the events at issue.
The jury was instructed to use its common sense and to consider the arguments of both
counsel in determining credibility and weight of the evidence. Thus, even if there is an
appropriate instruction available, which competent counsel might normally request, Riley has
failed to produce evidence or arguments to show that the jury's verdict was unreliable because
of the failure to proffer such an instruction. As a result, he has failed to show prejudice
flowing from the failure to request this instruction.
Trial counsel's failure to request a theory of the case instruction
Riley argues that he was denied effective assistance of counsel because his trial counsel
failed to request a theory of the case instruction. This claim must fail, however, because Dahl
did request a theory of the case instruction, which was rejected by the district judge because
it was duplicative and subsumed within other instructions.
Riley's theory of the case was that Jackson, not Riley, shot Bollin. Dahl requested an
instruction that read, If you have a reasonable doubt as to whether the defendant himself
personally shot the victim, you must find the defendant not guilty. The district judge rejected
the instruction, and Riley maintained on appeal that his conviction should be reversed. This
court disagreed. See Riley, 107 Nev. at 214, 808 P.2d at 556-57.
As a result, Riley's premise is faulty. Dahl did request the instruction, and cannot be said to
have been ineffective based on this ground. Furthermore, as this court rejected Riley's
substantive claim, namely that failure to give the instruction required reversal, he cannot
show prejudice.
Trial counsel's failure to object to the improper striking of a juror by the trial court during
voir dire
[Headnote 22]
Riley argues that he was denied effective assistance of counsel because Dahl failed to
object to the improper striking of a potential juror and because Dahl failed to rehabilitate her
after the judge's voir dire questioning indicated she did not have the capacity to serve as a
juror. This argument fails on both the adequacy of performance and prejudice prongs.
Riley argues that the judge excused the juror because she "indicate[d] that the capital
nature of the case would cause [her] to be more emotionally involved . . . ."
110 Nev. 638, 655 (1994) Riley v. State
indicate[d] that the capital nature of the case would cause [her] to be more emotionally
involved . . . . (Citing Adams v. Texas, 448 U.S. 38 (1980).) The district court judge found,
however, that the trial judge excused the potential juror because she appeared entirely
confused. In fact the trial judge never asked the juror specifically about her feelings regarding
the death penalty, because it was clear that she was confused by the most simple legal
concepts.
The entire colloquy with the potential juror, apart from questions designed to elicit
background information of a personal nature, consisted of the following:
Q: Thank you. And do you believe in the presumption of innocence?
A: Yes.
Q: Do you presume Mr. Riley to be innocent at this time?
A: I wouldn't know.
Q: Well, do you believe him to be innocent under the presumption of innocence?
A: Yes.
Q: And is there anything in your background or your upbringing that will prevent
you from bringing back a death penalty under the appropriate case?
A: Pardon me?
Q: The death penalty?
A: No.
Q: Can you do that under the appropriate case?
A: No.
Q: You feel you are prejudiced?
A: No, I am not prejudiced.
THE COURT: Any objection I excuse [the juror?]
[COUNSEL]: None, your Honor.
The potential juror contradicted herself numerous times in this short discussion with the
judge. The judge then excused her sua sponte, without objection. There is nothing in the
record to show that the judge dismissed the potential juror because she indicated she would
have any difficulty imposing the death penalty. In fact, she actually answered no to the
question whether she had anything in her background or upbringing that would prevent her
from imposing the death penalty in the appropriate case. As a result, the district court's
finding that the potential juror was confused as to the nature of the criminal process is
supported by substantial evidence; it was therefore not ineffective for Dahl to have failed to
object to the striking of this confused potential juror.
110 Nev. 638, 656 (1994) Riley v. State
This court's bias against Riley and his counsel for filing a class action federal lawsuit
challenging SCR 250, which requires strict adherence to death penalty briefing schedules
[Headnote 23]
In addition to Riley's ineffective assistance claims, he argues that he was denied actual
assistance of counsel on his direct appeal because this court was biased against him and his
attorney for filing a class action lawsuit in federal court challenging this court's rule requiring
strict adherence to an expedited briefing schedule in capital cases.
Riley cites no case law discussing actual assistance of counsel, including how such a
claim would relate to the alleged bias or prejudice of the court before whom the defendant
and counsel appear. Accordingly, he presents no authority for his claim. Although we would
be warranted in refusing to consider Riley's claim for those reasons, we briefly discuss this
claim.
Riley's claim is, essentially, that his direct appeal was denied because of this court's bias
against him. Riley claims that Justice Young's stinging dissent, which stated that Dahl
should have been sanctioned for his dilatory conduct in failing to meet required and
court-ordered deadlines, see 107 Nev. at 323-26, is evidence of bias against him. Riley also
points out that he holds a record for the quickest denial of appeal of a death penalty case in
the history of the State of Nevada.
Reliance on these factors for the conclusion that this court is biased springs from pure
speculation and implications that this court will not remain objective in deciding a death
penalty case because it is upset with a lawyer for suing the court. Since there is nothing in the
record to support these claims, and since Riley has presented no supplemental materials
supporting these claims, we must assume that they are without support.
[Headnote 24]
Riley also argues, without further analysis, that [c]ounsel spent more time and energy
fighting the court system than he did in preparing Riley's appeal. To the extent that this is an
argument that counsel was therefore without time to represent him effectively on appeal, this
argument must fail. This court engaged in an extensive review of the facts and law pertaining
to all of Riley's claimed assignments of error. Thus, even if counsel had filed deficient
appellate briefs that constituted performance below an objective standard of reasonableness,
this court's analysis (the thoroughness of which is evidenced by a complete discussion of each
of Riley's claimed points of error) precludes a finding of prejudice resulting from such a
deficiency. Accordingly, Riley's claims of bias and ineffective assistance on appeal based on
inadequate appellate briefing are without merit.
110 Nev. 638, 657 (1994) Riley v. State
Whether petitioner was denied his right to a fair and impartial jury under the Nevada and
United States Constitutions
Riley claims that he was denied a fair and impartial jury when the trial judge excused,
without objection, the potential juror who expressed confusion in the voir dire of the jury
venire. This claim was waived when Riley failed to present it on direct appeal. See NRS
177.375 (repealed Jan, 1, 1994). Nevertheless, we have already concluded that there was
nothing objectionable about the dismissal of the confused potential juror; as a result, Riley
was not denied his constitutional right to a fair and impartial jury.
CONCLUSION
Riley was not denied the reasonably effective assistance of counsel or a fair and impartial
jury guaranteed by the Nevada and United States Constitutions. Neither was he denied actual
assistance of counsel through an alleged display of bias by this court. Accordingly, we
affirm the district court's order denying Riley's petition for post-conviction relief.
____________
110 Nev. 657, 657 (1994) Yee v. Weiss
ROBERT YEE and SHIRLEY YEE, Appellants, v. HOWARD WEISS, Individually and
Doing Business as RENO SPARKS R.V. AND AUTO CENTER, INC. and RENO
SPARKS R.V. AND AUTO SERVICE CENTER, INC., a Nevada Corporation,
Respondents.
No. 24340
July 7, 1994 877 P.2d 510
Appeal from a judgment following a bench trial. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Landlords brought action against business tenant and its owner for breach of lease. The
district court entered judgment for tenant and its owner, and landlords appealed. The supreme
court held that: (1) no constructive eviction occurred, but (2) trial court did not clearly err in
determining that tenant's owner did not intend to be personally liable on lease.
Reversed in part, affirmed in part, and remanded.
Steffen, J., joined in the majority opinion and agreed with Springer, J., who separately
concurred.
Richard G. Hill, Reno, for Appellants.
David C. McElhinney, Reno, for Respondents.
110 Nev. 657, 658 (1994) Yee v. Weiss
Tenant was not constructively evicted by landlords' failure to remedy difficulties tenant experienced in finding adequate parking,
despite tenant's verbal complaints to landlords. Tenant provided no proof, other than his own testimony, that his business was affected
by lack of parking, and lease did not specifically require landlords to satisfy each tenant's nonexclusive use of the parking area.
When constructive eviction occurs, tenant must treat landlord's interference as eviction and vacate premises within reasonable
time.
No constructive eviction results if tenant continues in possession, even though tenant is disturbed in beneficial enjoyment of the
premises.
To prove constructive eviction from business premises, tenant must show that landlord's actions or inactions caused premises to be
entirely unfit for use for which they were leased.
5. Estoppel.
Tenant was bound by estoppel certificate, providing that as of date of sale of leased premises there were no existing problems
regarding enforceability of the lease, even though he did not read certificate before he signed it.
District court did not clearly err in determining that tenant did not intend to be made personally liable on lease by means of his
second signature following printed word individual.
OPINION
Per Curiam:
[Headnote 1]
This is an appeal from a decision of the district court finding constructive eviction in a commercial lease. For reasons stated below, we
hold that no constructive eviction occurred in this case.
FACTS
Appellants Robert and Shirley Yee (the Yees) became the owners of a large parcel of commercial real estate in Reno in early 1991.
Respondent Howard Weiss (Weiss), doing business as Reno Sparks R.V. and Auto Service Center, Inc., was a tenant of the Yees at this
commercial property.
Prior to the Yees' ownership of the property, Weiss, as president of Reno Sparks R.V. and Auto Service Center, Inc., entered into a
commercial lease in 1988 with the previous owner of the property, Mattingly Investments, Inc. Weiss signed the lease in his capacity as
president and a second time at the bottom of the page after the handprinted word INDIVIDUAL.
110 Nev. 657, 659 (1994) Yee v. Weiss
The lease, which is the subject of this appeal, encompassed 6,331 square feet of space to
be used as a repair center for cars and R.V.s. The term of the lease was ten years with a rent
of $3,798.60 per month with adjustments for the consumer price index. The lease provided
for the nonexclusive right to use, in common with other parties occupying the buildings or
projects, the parking areas and driveways . . . subject to reasonable rules and regulations as
Landlord may from time to time prescribe. At the time Weiss took possession of the
premises in December 1988, the only other tenant was Gibralter Transmission.
Six months after Weiss took possession, he began to experience parking problems, making
it difficult for his customers to park their R.V.s or maneuver them into the repair bays. Weiss
complained to the landlord, Mattingly Investments, Inc., but the landlord did nothing to
alleviate the problems. However, Weiss testified that the landlord told him that something
would be done in the future if the problems continued.
The Yees became the owners of the property by way of a property exchange in February
1991. Prior to closing, an agent gave each tenant a written estoppel certificate. Paragraph six
of the certificate provided that all conditions of the lease to be performed by the landlord and
necessary to the enforceability of the lease had been satisfied, except as noted by the tenant.
In addition, paragraph seven of the certificate stated that there were no uncured defaults by
the landlord under the lease and the tenant knew of no conditions which, with notice, would
constitute a default, unless otherwise noted. Weiss signed the certificate January 29, 1991.
Following both paragraphs six and seven on his certificate is the typed word none. He did
not make note of the parking problems, though he testified that he verbally informed an agent
representing the Yees. After the Yees took possession, Weiss informed the Yees' Reno agent,
Rick LeMay (LeMay), that if something was not done about the parking situation, he would
be forced to terminate his tenancy.
Over a year later, on April 24, 1992, Weiss sent the Yees a letter informing them that he
intended to vacate the premises. Weiss gave the following reasons for terminating the lease:
(1) the Yees had leased the premises to competing businesses; (2) a wall, which was not in
the original plans (but which existed when he moved in), obstructed his view of his shop; and
(3) parking in the complex was inadequate to the point that his business was substantially
affected. After Weiss vacated the premises, the Yees filed a complaint for damages for breach
of contract, unjust enrichment, fraud, and accrued rent from both before and after Weiss
vacated the premises. The complaint named Weiss both individually and in his capacity as
president of Reno Sparks R.V. and Auto Service Center.
110 Nev. 657, 660 (1994) Yee v. Weiss
individually and in his capacity as president of Reno Sparks R.V. and Auto Service Center.
A two-day bench trial was held. Weiss testified that the parking situation had deteriorated
to the point that his business was failing. However, Weiss testified that he had no business
records to substantiate his claims of a substantial loss in business due to the parking
problems. He also testified that prior to vacating, he had paid less rent than was due on the
lease. Finally, he testified that he had not intended to become a co-tenant on the lease by
signing his name a second time after the handprinted word INDIVIDUAL.
The district court held that Weiss himself was not a co-tenant despite the fact that he had
signed the lease twice, and therefore, he was not individually liable. In addition, the court
concluded that the Yees' failure to remedy the parking situation constituted constructive
eviction under Nevada law. The court held that Weiss had given adequate warning to the
Yees; therefore, the Yees should have known of the parking problems and acted upon them.
The court also held that the Yees could not rely on the estoppel certificate in light of Weiss'
testimony that he had not filled out the certificate and that his signature had been obtained
through misrepresentation.
We now conclude that although the district court correctly held that Weiss was not
individually liable on the lease, the court erred in holding that the Yees constructively evicted
Weiss and that they could not rely on the estoppel certificate signed by Weiss.
DISCUSSION
[Headnotes 2, 3]
Constructive eviction is a well-established concept in this state. We have held that
constructive eviction occurs when, through the actions or inaction of the landlord, the whole
or a substantial part of the premises is rendered unfit for occupancy for the purpose for which
it was leased. Las Vegas Oriental v. Sabella's of Nev., 97 Nev. 311, 313, 630 P.2d 255, 256
(1981) (failure to provide adequate heating and air conditioning to restaurant and lounge area
was constructive eviction when those areas were an integral portion of the business). When
constructive eviction occurs, the tenant must treat the landlord's interference as an eviction
and vacate the premises within a reasonable time. Portal Enterprises, Inc. v. Cahoon, 102
Nev. 107, 109, 715 P.2d 1324, 1326 (1986) (approximately three months considered
reasonable). No constructive eviction results if the tenant continues in possession even though
disturbed in the beneficial enjoyment of the premises. Baley & Selover v. All Amer. Van, 97
Nev. 370, 373, 632 P.2d 723, 724 (1981) (retaining premises for two years after an
inconvenient situation resulted due to other tenants' use of parking lot negated possibility
of constructive eviction).
110 Nev. 657, 661 (1994) Yee v. Weiss
inconvenient situation resulted due to other tenants' use of parking lot negated possibility of
constructive eviction).
In the instant case, the district court held that constructive eviction resulted from the Yees'
failure to implement regulations to maintain proper traffic flow and this failure materially
interfered with Weiss' right to exercise his nonexclusive use of the parking lot. The district
court based its decision on Weiss' testimony concerning the parking situation and his verbal
complaints to the Yees' agent, as well as LeMay's testimony that he had observed the parking
area in a crowded condition on several occasions.
We disagree that there was sufficient evidence to support the district court's conclusions.
We note that Weiss provided the court with no concrete proof that his business was
substantially and adversely affected by the parking situation. The only proof he provided was
his own testimony. In addition, the lease provided for Weiss' nonexclusive use of the parking
area. The lease did not specifically require the Yees to control the parking situation in order to
satisfy each tenant's nonexclusive use of the parking area. We cannot conclude from the
evidence that Weiss was constructively evicted from the premises simply because he found
the parking situation less than convenient.
[Headnote 4]
In order to show constructive eviction of a business, it is necessary to provide more
persuasive evidence than simply verbal complaints. The tenant must show that the landlord's
actions or inactions caused the premises to be entirely unfit for the use for which the tenant
leased them. Las Vegas Oriental, 97 Nev. at 313, 630 P.2d at 256. We cannot conclude from
the evidence presented that such was the case here. Accordingly, we hold that the district
court erred in concluding that the Yees constructively evicted Weiss.
[Headnote 5]
The district court also held that the Yees were not entitled to rely on the estoppel
certificate signed by Weiss in light of Weiss' testimony that he had not filled out the
certificate and that his signature has been obtained by misrepresentation. We disagree.
Paragraph eighteen of the lease states that a tenant will provide, at the request of the
landlord, an estoppel certificate that may be relied upon by any prospective purchaser. Weiss
signed the lease and is therefore bound by this provision. He did not testify that the contents
of the lease were misrepresented to him. However, Weiss testified that he did not read the
estoppel certificate prior to signing it. This certificate, which Weiss signed but failed to read,
provided that there were no existing problems regarding the enforceability of the lease.
110 Nev. 657, 662 (1994) Yee v. Weiss
Courts have consistently held that one is bound by any document one signs in spite of any
ignorance of the document's content, providing there has been no misrepresentation. See, e.g.,
John Call Engineering v. Manti City Corp., 743 P.2d 1205 (Utah 1987); Skagit State Bank v.
Rasmussen, 745 P.2d 37 (Wash. 1987). In addition, the Restatement (Second) of Contracts
211 (1981) provides:
A recipient's fault in not knowing or discovering the facts before making the contract
does not make his reliance unjustified unless it amounts to a failure to act in good faith
and in accordance with reasonable standards of fair dealing.
The comments to 211 note that if the recipient should have discovered the falsity by
making a cursory examination, his reliance is clearly not justified and he is not entitled to
relief; he is expected to use his senses and not rely blindly on the maker's assertions. Id. at
cmt. b.
Weiss testified that he had the estoppel certificate in his possession, but failed to make
even a cursory examination of it. Had the document been lengthy, his failure to examine it
would have been understandable. Yet this document was one page in length with a clear
heading reading Tenants verification of Existing Lease/Estoppel Certificate, thus making
Weiss' failure to perform even a cursory examination unreasonable. We cannot conclude that
an experienced businessperson such as Weiss could be so misled by this document.
Accordingly, we hold that the district court erred in finding that the Yees could not rely on
the estoppel certificate signed by Weiss.
[Headnote 6]
The district court also concluded that Weiss was not individually liable on the lease merely
because he had signed his name a second time following the printed word INDIVIDUAL.
The district court based its conclusion on its finding that Weiss had been unaware of the
significance of this second signature at the time he entered into the lease. We have frequently
held that a district court's findings of fact will not be disturbed unless clearly erroneous. See
Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 796 P.2d 590 (1990). In the instant
case, the district court found that there was insufficient evidence to indicate that Weiss
intended to be personally liable on the lease by means of this second signature. The evidence
presented supports such a finding. Therefore, we conclude that the district court did not err in
holding that Weiss was not personally liable on the lease.
In summary, we hold that the district court erred in concluding that the Yees constructively
evicted Weiss. Weiss was not constructively evicted and, as such, breached his lease.
110 Nev. 657, 663 (1994) Yee v. Weiss
structively evicted and, as such, breached his lease. In light of our conclusions, we need not
address appellant's other assertions of error. We hereby reverse the decision of the district
court and remand for proceedings consistent with this opinion.
Springer, J., with whom Steffen, J., agrees, concurring:
I concur with the Majority Opinion reversing the judgment of the trial court. I would,
however, add a note relating to the decision-making process employed by Judge Breen, as I
believe that the error committed in this case can be directly traced to the district judge's
practice of having the plaintiff and defendant submit written draft judgments favoring their
respective sides and then signing one or the other attorney drafts as the court's judgment.
At oral argument we heard both counsel tell us about Judge Breen's practice in deciding
bench trials. Rather than announcing his decision to the parties and counsel, the judge asks
plaintiffs' counsel to prepare findings, conclusions and judgments that favor plaintiffs' side
and asks defendants to do the same thing in favor of the defendant's side. Under this practice,
1
Judge Breen decides cases by choosing one submitted judgment form or the other and
thereafter signing the one that he likes best as the final factfinding, legal conclusions and
judgment of the court.
__________

1
Judge Breen's practice of accepting two opposing, written draft decisions prepared by counsel for both
plaintiff and defendant and then simply choosing one or the other was explored by the court during oral
argument in this fashion:
The Court:
Counsel, I found interesting this case because in the eighteen years that I practiced law I had never had a
judge ask both counsel to prepare findings of fact and conclusions of law. Is this a common practice
nowadays? Is it common in Washoe County?
Appellant's Counsel:
. . . . I have not encountered it before this case. . . .
. . . .
There was never a decision from the bench. There was never a written decision. There was never any
information about why the judge decided the way he did.
The Court:
Why did he?
. . . .
Counsel:
Well, it's not in the record, but I will tell you that he did express disapproval of an opinion from this
court, but he wouldn't identify what it was. And something like, Let's see what they do with this. He
never gave meI still don't know, to this day, what was the deciding factor in Judge Breen's mind. And
that's very troubling because part of what a judgment's supposed to do, I think, is to tell the people, to tell
people, like my client and myself, No, this is not the way you do it. You do it this way. Instead of just
blindside from above, all of a sudden this decision comes out without any reasoning, without any recital
of why, and, as a result, the parties on appeal and this court'll
110 Nev. 657, 664 (1994) Yee v. Weiss
cases by choosing one submitted judgment form or the other and thereafter signing the one
that he likes best as the final factfinding, legal conclusions and judgment of the court.
It is, of course, common for judges to ask a prevailing party, after the court's decision has
been announced, to draft a proposed set of findings and judgment. This is not what happened
here. Without knowing who won, counsel for plaintiff and defendant were ordered to submit
their respective versions of how a judgment might look should one or the other be fortunate
enough to obtain a favorable decision. The judge's ordering the losing party to prepare a
winning judgment is obviously a waste of that attorney's time and the client's money. I have
never heard of a judge's doing anything like this. I hope we will see no more of it.
Some may think that judicial decision-making by choosing between two contradictory,
prefabricated, attorney-generated documents is acceptable judicial process; but I do not. I find
no appellate decisions which discuss this novel practice, but I suspect that this is because no
judge has been found, as a matter of record, to employ such a practice.
__________
have to pick through the record trying to figure out what in the wide world of sports went on.
. . . .
. . . . And that issue [vital points relating to releases and unpaid rent] was never addressed by the trial
court. We don't have a clue as to why, even if this man was constructively evicted, why doesn't he have to
pay for the time he was there?
. . . .
The Court:
And your opponent didn't put anything in there [in the judgment prevailing counsel prepared for the
judge's signature] about the rent?
Counsel:
No, but he did put some things in about attorney's fees that we also find objectionable.
. . . .
The Court:
Counsel, when the judge asked both counsel to prepare findings of fact and conclusions of law and, I
assume, judgment, did he indicate how he was going to rule?
Respondent's Counsel:
He did not. . . .
. . . .
The Court:
. . . . Have you seen this practice before, Mr. McElhinney?
Counsel:
I have with Judge Breen. Yes sir, I havewhere there's a simultaneous submitting; and I lost at that
procedure just like I won at that procedure.
The Court:
Luck of the draw. . . . Your turn this time, huh?
Oral argument, March 16,1994.
110 Nev. 657, 665 (1994) Yee v. Weiss
record, to employ such a practice. Nonetheless, for myself, I would reverse the judgment in
this case on this ground alone.
____________
110 Nev. 665, 665 (1994) Nye County v. Washoe Medical Center
NYE COUNTY, a Political Subdivision of the State of Nevada, Appellant, v. WASHOE
MEDICAL CENTER, INC., a Non-Profit Corporation, Respondent.
No. 24362
July 7, 1994 877 P.2d 514
Appeal from district court judgment. Fifth Judicial District Court, Nye County; Archie E.
Blake, Judge.
County hospital which provided medical services to allegedly indigent resident of another
county brought action against that county to recover payment. On remand after appeal, 108
Nev. 490, 835 P.2d 780 (1992), the district court entered judgment for hospital, and county of
residence appealed. The supreme court held that: (1) county hospital was entitled to
reimbursement regardless of whether alleged indigent complied with procedures established
by county of residence for obtaining medical assistance, and (2) county of residence, rather
than hospital, had burden of proof on issue of indigency.
Affirmed.
Arthur F. Wehrmeister, District Attorney, and Les W. Bradshaw, Deputy District Attorney,
Nye County, for Appellant.
Terrance Shea, Reno, for Respondent.
County in which indigent patient resided was required to reimburse county which provided medical services to patient for costs of
those services, regardless of whether patient complied with procedures established in county of residence for obtaining medical
assistance in that county. NRS 428.010, 450.400.
County in which allegedly indigent patient resides, rather than hospital for another county which provides medical care, has
burden of proof on issue of patient's indigency, in action by county hospital against county of residence for costs of medical services
provided. NRS 450.400.
OPINION
Per Curiam:
This is an appeal after remand of a case involving appellant Nye County's statutory duty to pay for medical care that an indigent
resident of Nye County received at respondent Washoe Medical Center {"WMC").
indigent resident of Nye County received at respondent Washoe Medical Center (WMC).
We originally remanded the matter for a determination as to whether the patient was in fact
indigent. The evidence adduced below supplied an answer in the affirmative.
On appeal, Nye County contends that despite the finding of indigency, the patient
nevertheless failed to comply with certain prerequisites for county aid, and that not all of the
criteria for indigency were satisfied. We conclude that these contentions are not relevant to
WMC's statutory cause of action against Nye County and affirm the judgment entered by the
district court.
FACTS
The instant appeal followed a remand ordered by this court in Nye County v. Washoe
Medical Center, 108 Nev. 490, 835 P.2d 780 (1992) (hereafter Nye County I). That opinion
recited the facts and the rulings, repeated here for continuity, constituting the basis for the
ongoing dispute between the parties:
Nye County resident Dathan Delapeza was admitted to Nye County General Hospital
with an illness. He was subsequently transferred to Washoe Medical Center (WMC) in
Washoe County for additional treatment over a period of days prior to his discharge.
WMC ultimately sought payment for Delapeza's hospital care from Nye County,
contending that indigency or financial status is irrelevant when a person becomes ill in
one county and is thereafter transported to another county for treatment. The district
court agreed and granted partial summary judgment in favor of WMC concerning the
issue of liability. We conclude that the district court erred and reverse.
When Delapeza became ill in Nye County, he was first taken to Nye County General
Hospital, and thereafter transported to WMC for further treatment. Delapeza was
treated at WMC from October 7, 1987 to October 10, 1987, and from November 3,
1987 to November 5, 1987.
Having concluded that Delapeza was indigent, WMC sent letters dated October 8,
1987 and November 3, 1987 to the Nye County Clerk, advising Nye County that
Delapeza was a patient at WMC, and requesting Nye County to accept responsibility
for the charges incurred on Delapeza's behalf. Nye County, contending that Delapeza
was not eligible for county aid, rejected WMC's request.
WMC filed a complaint against Nye County to recover the cost of Delapeza's
treatment. WMC sought and was granted summary relief on the issue of Nye County's
liability to WMC for the cost of medical services rendered to Delapeza, though
Delapeza's financial status remained at issue.
WMC for the cost of medical services rendered to Delapeza, though Delapeza's
financial status remained at issue. A trial followed on the remaining question of the
reasonableness of WMC's charges. Thereafter, judgment was entered against Nye
County for $9,039.43 plus $3,000 in attorney's fees, thus prompting this appeal.
Id. at 491, 835 P.2d at 780-81.
We concluded, in Nye County I, that the resident county is responsible under NRS 450.400
for medical care provided by the county hospital of another county to indigent patients from
the resident county. Id. at 492, 835 P.2d at 781. However, we rejected the argument that,
irrespective of a patient's financial status, a resident county is automatically responsible for
hospital costs anytime a patient from the resident county has failed to pay. Id. Thus, because
Delapeza's indigency was disputed, we concluded that summary judgment was inappropriate
and remanded the matter to the district court for a determination of Delapeza's financial
status. Id. at 493, 835 P.2d at 782.
Upon remand, a hearing was held on the issue of Delapeza's indigency. Nye County argues
that [e]vidence was presented [at this proceeding] that Delapeza was employed at the time of
his illness and therefore was able to pay Washoe Med. WMC contends, however, that it was
also established that during September, October, and November of 1987, Delapeza had a total
income of only $1,140.34, or an average of $380.11 per month. This amount qualifies
Delapeza as an indigent under NRS 439B.310,
1
a fact conceded by Nye County. Indeed, the
district court's decision indicates that Nye County conceded that the only financial records
obtainable concerning Delapeza indicate that by income standards alone, he is indigent. As
the remand order[ed] a simple finding of indigency, this concession would appear to end
the matter. Nye County nevertheless argued below that because Delapeza failed to comply
with certain of the county's procedural requirements for aid eligibility, the county was not
responsible for his medical bills. The district court reached no conclusion on this newly
advanced proposition, other than the observation that the various statutes are entwin[ed]
and create a law of indigent care which is not as clear as it could be.
__________

1
NRS 439B.310(4) provides that an income of less than $738.00 for a household of three, or less than $438.00
for a household of one, qualifies for indigency. (The parties treat these figures as monthly amounts, though the
statute does not specify the time periods involved.) Evidence presented at trial suggests that Delapeza was
married with one child; in any event, Delapeza's $380.11 per month income would satisfy indigency
requirements even if he were living alone.
The district court noted that Delapeza did not cooperate with Nye County or Washoe
Medical Center concerning the truthful completion of applicable forms, and that a search for
his other possible assets proved fruitless.
2
Ultimately, the court determined that the only
available criteria for determining Delapeza's status was his wages, and that based upon that
criteria alone, Delapeza was indigent. The court also concluded that Delapeza was a resident
of Nye County when he received medical treatment at WMC. Accordingly, judgment was
entered in favor of WMC in the amount of $9,039.43 plus $3,000.00 in attorney's fees. Again
dissatisfied, Nye County appealed.
DISCUSSION
[Headnote 1]
WMC's argument is fairly straightforward. When a county hospital cares for an indigent
resident of another county, NRS 450.400 gives the hospital a cause of action against the
resident county for reimbursement/payment of certain charges, as follows:
1. When the privileges and use of the hospital are extended to a resident of another
county who is reasonably believed to be indigent, as defined in NRS 439B.310 [see
note 1 supra], and who is:
(a) Entitled under the laws of this state to relief, support, care, nursing, medicine or
medical or surgical aid from the other county; or
(b) Injured, maimed or falls sick in the other county, . . . .
. . . .
4. . . . . [T]he governing head has a legal claim against the county for all charges for
occupancy, nursing, care, medicine, and attendance, other than medical or surgical
attendance, necessarily furnished, and may recover those charges in a suit at law.
WMC contends that the referenced statute is dispositive based upon the district court's
findings, the concessions of the parties, and the decision of this court in Nye County I. In
short, Delapeza was an indigent resident of Nye County who received medical treatment at
WMC for which Nye County was responsible since the cost of the treatment was not paid.
Nye County, on the other hand, insists that its duty to provide aid and relief to indigents is
established by NRS 428.010, which provides as follows: 42S.010 Duty or county to provide
aid and relief to indigents; duties of county commissioners. . . .
__________

2
A footnote in Nye County I noted that Delapeza had left the area and WMC was unable to satisfy a default
judgment they had obtained against him.
428.010 Duty of county to provide aid and relief to indigents; duties of county
commissioners. . . .
1. Except as otherwise provided in NRS 422.382, to the extent that money may be
lawfully appropriated by the board of county commissioners for this purpose pursuant
to NRS 428.050, 428.285 and 450.425, every county shall provide care, support and
relief to the poor, indigent, incompetent and those incapacitated by age, disease or
accident, lawfully resident therein, when those persons are not supported or relieved by
their relatives or guardians, by their own means, or by state hospitals, or other state,
federal or private institutions or agencies.
2. Except as otherwise provided in NRS 439B.330, the boards of county
commissioners of the several counties shall establish and approve policies and
standards, prescribe a uniform standard of eligibility, appropriate money for this
purpose and appoint agents who will develop regulations and administer these
programs to provide care, support and relief to the poor, indigent, incompetent and
those incapacitated by age, disease or accident.
NRS 428.015 then requires the county to adopt an ordinance setting forth the standards of
eligibility, and sets forth the minimum standards of indigency allowed, which are the same as
those set forth in NRS 439B.310.
Nye County notes that, pursuant to the requirements of NRS 428.010(2) and 428.015, it
adopted an ordinance establishing standards of eligibility for indigent aid. Nye County further
notes that Delapeza failed to comply with these standards by not applying for assistance and
failing to disclose his assets, both prerequisites for eligibility under the ordinance. Nye
County thus concludes that since Delapeza was ineligible for county aid, WMC is not entitled
to payment.
We disagree with Nye County. There is nothing in the language of either statute to suggest
that NRS 428.010 has a limiting effect on the cause of action created by NRS 450.400.
3
NRS Chapter 428 is for the direct benefit of an indigent who qualifies for aid thereunder.
NRS 450.400, on the other hand, creates a cause of action in a county hospital that
__________

3
Nye County's best support for its argument on this point is perhaps the requirement of NRS 439B.310(3) that
an indigent must meet the limitations imposed by the county upon assets and other resources or potential
resources. However, this condition of statutory indigency does not speak of compliance with the county's
reporting requirements, whereas noncompliance with those requirements is the thrust of Nye County's
arguments. Furthermore, as will be seen hereafter, it was Nye County, not WMC, who had the burden of
demonstrating that these limitations on assets were not satisfied, if Nye County wished to rely upon Delapeza's
lack of indigency as a defense.
action in a county hospital that treats an indigent resident of another county. Although we
recognized in Nye County I that both statutes are part of the same general statutory scheme,
and that NRS 450.400 should not be interpreted in a manner inconsistent with the
surrounding statutes, the two statutes do not have a direct or explicit limiting effect on one
another (especially with regards to the definition of indigency), nor did we recognize any such
direct limiting effect in Nye County I.
4

Thus, in Nye County I, we remanded for the sole purpose of determining whether Delapeza
was indigent. Similarly, in Washoe Medical Center v. Churchill County, 108 Nev. 622, 626,
836 P.2d 624, 626-27 (1992), a case involving the same statutes, we noted quite simply that
[i]f WMC satisfied the notice requirements . . . and [the patient] is found to be indigent,
WMC is entitled to have Churchill County pay [the patient's] medical bill. In the instant
case, the only evidence presented to the lower court supported the finding that Delapeza was
indigent under NRS 439B.310, the statute referenced in NRS 450.400.
[Headnote 2]
Since the evidence available for the court's review at trial was admittedly limited, we must
also address the question of which party bore the burden of proof. Nye County cites to County
of Lander v. Board of Trustees, 81 Nev. 354, 403 P.2d 659 (1965), which discusses this issue,
and maintains that WMC never presented any evidence supporting a presumption of
indigency. However, County of Lander provides that the hospital has the right to make an
initial determination of indigency (id. at 358, 403 P.2d at 661), which the resident county may
then challenge and attempt to rebut in district court. Id. at 360, 403 P.2d at 662. Thus where,
as here, the only available evidence supports a finding of statutory indigency, it is the county's
duty to present further rebutting evidence, and its failure to do so means that the hospital's
initial determination of indigency stands.
A holding that WMC must prevail if the only available evidence indicates that Delapeza
was indigent is also supported by the following statement from Nye County I: The result we
have reached is consistent with the 1991 amendment to NRS 450.400, which specifies that a
hospital is entitled to recover the costs of medical treatment for a resident of another
county 'who is reasonably believed to be indigent, as defined in NRS 439B.310 . . . .'" Nye
County I, 10S Nev. at 493, S35 P.2d at 7S1.
__________

4
We note that Nye County's arguments might have had some merit if NRS 450.400(1) had stopped by requiring
the patient reasonably believed to be indigent to be (a) Entitled under the laws of this state to . . . aid from the
other county[.] Unfortunately for Nye County's position, however, NRS 450.400(1) goes on to provide an
alternative basis for a statutory cause of action in the treating hospital as follows: or (b) [who is] [i]njured,
maimed or falls sick in the other county . . . . This latter alternative provision does not require the patient to be
legally entitled to county aid.
medical treatment for a resident of another county who is reasonably believed to be indigent,
as defined in NRS 439B.310 . . . .' Nye County I, 108 Nev. at 493, 835 P.2d at 781. Since
the only available evidence showed that Delapeza was indigent under NRS 439B.310, there
was sufficient grounds for WMC's assertion, and the district court's finding, that it was
reasonable to believe Delapeza was indigent. In other words, the initial burden on the hospital
is to show grounds for a reasonable belief that the patient is indigent, which must then be
rebutted by the county. The evidence having established grounds for such a reasonable belief,
and Nye County having failed to rebut the same, WMC was entitled to payment.
Nye County nevertheless argues that while the income requirements of NRS 439B.310
may have been established, the other requirements listed therein (such as ineligibility for
medicare or other public assistance, or meeting the limitations on assets imposed by the
county (see supra, note 3)) were not shown. In light of the foregoing explanation concerning
the burden of proof, however, this contention must be rejected. The only evidence presented
on the subject of Delapeza's indigency supported both a reasonable belief and finding of
indigency. Therefore, WMC was statutorily entitled to payment. The duty of rebutting a
reasonable belief of indigency fell upon Nye County, and no such rebutting evidence was
presented.
CONCLUSION
For the reasons stated above, the judgment entered by the district court is affirmed.
____________
110 Nev. 671, 671 (1994) Hubbard v. State
ROY EMERY HUBBARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24549
July 7, 1994 877 P.2d 519
Appeal from a judgment of conviction, pursuant to a guilty plea, of four counts of
lewdness with a minor. Seventh Judicial District Court, Eureka County; Dan L. Papez, Judge.
The supreme court held that: (1) court did not abuse its discretion in denying defendant's
motion to withdraw guilty plea; (2) statute of limitations was tolled; and (3) statute of
limitations defense is waived by plea pursuant to North Carolina v. Alford, 400 U.S. 25
(1970).
Affirmed.
[Rehearing pending]
James J. Jackson, State Public Defender; James P. Logan, Appellate Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; William Schaeffer, District
Attorney, and Hy Forgeron, Special Deputy District Attorney, Eureka County, for
Respondent.
1. Criminal Law.
Absent abuse of discretion, district court's decision regarding validity of guilty plea will not be reversed on appeal.
2. Criminal Law.
Guilty plea will be considered properly accepted if trial court canvassed defendant to determine whether defendant knowingly and
intelligently entered the plea.
3. Criminal Law.
Court did not abuse its discretion in denying defendant's motion to withdraw guilty plea, despite his contention that he had not
been aware that allegations by victims would be considered in presentence report, where defendant was thoroughly canvassed prior to
acceptance of his guilty plea and responded that he understood the charges, the consequences of his plea, and his constitutional rights
and where defendant entered his plea toward the end of trial and was informed that he was waiving any defenses to the charges and that
presentence report to be considered by the court would contain matters relevant to the case.
4. Criminal Law.
Where state-licensed psychologist treating child victim discovered crimes in October of 1991 and defendant was charged with
lewdness in December of 1991, prosecution took place within statute of limitations, even though offenses occurred between 1980 and
1987, if a secret offense was involved. NRS 171.095.
5. Criminal Law.
Crimes were committed in a secret manner, so as to toll statute of limitations on charges of lewdness, where defendant instructed
the child victims to keep quiet about his actions and threatened them on occasion. NRS 171.095.
6. Criminal Law.
Statute of limitations is a nonjurisdictional affirmative offense that must be asserted by the defendant or else it is waived.
7. Criminal Law.
By entering plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), defendant waived statute of limitations.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction made pursuant to an Alford plea of four counts of lewdness with a minor. For reasons
stated below, we affirm the decision of the district court.
FACTS
In February 1992, appellant Roy Emery Hubbard (Hubbard), age 61, was arrested on
several counts of lewdness with a minor, attempted sexual assault and sexual assault. In
March 1993, he was bound over for trial on five criminal counts. Count one alleged that
between 1980 and April 1982 Hubbard committed a lewd and lascivious act upon his
granddaughter who was approximately five to six years old at the time [Granddaughter I].
Count two alleged that between August 1985 and 1987 Hubbard committed a lewd and
lascivious act upon Granddaughter I. Count three alleged that between 1980 and April 1982,
Hubbard subjected Granddaughter I to digital sexual penetration. Count four alleged that
between August 1985 and 1987, Hubbard attempted to subject another granddaughter, who at
the time was approximately seven to eight years old [Granddaughter II], to sexual
penetration. Count five alleged that between 1981 and April 1982, Hubbard committed a
lewd and lascivious act upon Granddaughter II, who was approximately three years old at the
time.
On May 11, 1982, Hubbard was convicted of extortion and kidnapping in the first degree
with the use of a deadly weapon. He was incarcerated from May 1982 to July 25, 1985.
Therefore, the offenses with which he was charged in the instant case took place both before
and after his incarceration on the unrelated charges.
A jury trial was held during which both victims testified. Hubbard also testified on his own
behalf. Following the close of his direct testimony and after conferring with his counsel,
Hubbard decided to enter into a plea agreement. The State agreed to dismiss count three and
amend count four from attempted sexual assault to lewdness with a minor. Hubbard agreed to
plead guilty to four counts of lewdness with a minor. Hubbard stated that he did not want to
enter such a plea, but felt he had to in view of a letter which was plaintiff's exhibit A.
The letter to which Hubbard referred was a letter he had written to his wife. In it, Hubbard
admits to having touched his granddaughters in an inappropriate manner, though he claimed
they initiated the contact against his wishes. In exchange for Hubbard's guilty plea, the State
agreed not to use the letter and to ask the court not to consider it at sentencing.
Prior to accepting his plea, the court questioned Hubbard extensively about his reasons for
entering a plea of guilty. Hubbard's counsel explained to the court that Hubbard, having
admitted to touching the victims, though not to satisfy his own sexual desires, was entering an
Alford plea in order to have the more serious charges dropped.
serious charges dropped. After questioning Hubbard, the court made a finding that Hubbard
offered his plea voluntarily, knowingly, and intelligently; that there was a factual basis for the
plea; that Hubbard understood the nature of the offenses to which he was pleading guilty; that
he understood the range of possible punishment and consequences; and that he understood his
constitutional rights. The court then accepted Hubbard's plea.
On the day of sentencing, Hubbard filed a motion to withdraw his plea of guilty on the
ground that he had not entered his plea knowingly, voluntarily or intelligently. In his
supporting affidavit, Hubbard stated that during trial he had been suddenly confronted with
the letter he had written to his wife and that he had not known the State had possession of the
letter. He stated that he had been unable to make a voluntary decision due to the tremendous
pressure and was unable to think intelligently and to make an informed decision due to [his]
tremendous surprise and confusion. He had not realized that both the pre-sentence report and
the court would consider allegations made by Granddaughter I and Granddaughter II
concerning sexual acts. He claimed the reason for his plea was that while he was not guilty,
he was afraid the statements he had made in the letter would be misinterpreted by the jury.
Before sentencing, the court conducted a hearing on Hubbard's motion. During questioning
by his counsel, Hubbard stated that he had been required to make his decision to plead guilty
within three to five minutes. He claimed that anything he had done to Granddaughter I had
been at her request. Further, he reiterated his statements in his affidavit that he had not been
aware that allegations by the victims would be considered in the presentence report. The court
admitted the letter, which, prior to that time, had not been admitted. Hubbard testified that he
understood the significance of an Alford plea. However, after seeing the presentence report,
he had decided to try to withdraw his plea. As to the time Hubbard had to make his decision,
Hubbard's counsel stated that he recalled Hubbard having an hour and a half. The court noted
that Hubbard had been given between one and one-half hours and two hours to make his
decision.
Following the hearing, the court denied Hubbard's motion and found him guilty of four
counts of lewdness with a minor under the age of fourteen years. The court then imposed four
consecutive ten-year sentences.
Hubbard appeals and makes the following arguments: (1) the district court abused its
discretion in denying his pre-sentence motion to withdraw his Alford plea; and (2)
prosecution of both the pre-1985 acts and the post-1987 acts should have been barred by the
statute of limitations.
by the statute of limitations. We will address both of Hubbard's arguments as well as the issue
as to whether the entering of an Alford plea acts as a waiver of any statute of limitations
defense.
DISCUSSION
As stated above, Hubbard agreed to plead guilty pursuant to North Carolina v. Alford, 400
U.S. 25 (1970), after he learned that the prosecution had obtained and planned to offer the
letter he had written to his wife. He later moved to withdraw his plea, but the court denied his
motion.
Hubbard now claims that he should have been given at least until the following day to
make his decision. In addition, his misconception concerning the court's consideration of the
victims' allegations was enough to allow him to withdraw his plea.
[Headnotes 1, 2]
This court has held that a guilty plea is presumptively valid, and the defendant has the
burden of establishing that the plea was not entered knowingly and intelligently. Bryant v.
State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986). Absent an abuse of discretion, the
district court's decision regarding the validity of a guilty plea will not be reversed on appeal.
Id. A guilty plea will be considered properly accepted if the trial court canvassed the
defendant to determine whether the defendant knowingly and intelligently entered the plea.
Baal v. State, 106 Nev. 69, 72, 787 P.2d 391, 394 (1990).
[Headnote 3]
We conclude that the district court did not abuse its discretion in denying Hubbard's
motion to withdraw his guilty plea. The district court thoroughly canvassed Hubbard prior to
accepting his plea of guilty. Hubbard responded that he understood the charges, the
consequences of the plea, and his constitutional rights. Accordingly, under our case law, the
district court properly accepted Hubbard's plea and did not err in denying his motion to
withdraw it.
Hubbard also argues that under Jezierski v. State, 107 Nev. 395, 812 P.2d 355 (1991), he
should have been able to withdraw his plea in light of his assertion that he had not understood
that the victims' allegations could be considered by the court in sentencing. However, we
conclude that the facts of Jezierski are inapposite to the case at bar. In Jezierski, after the
defendant had pleaded guilty, he learned that dismissed charges could be used against him at
sentencing. This court held that the defendant should have been able to withdraw his plea
because of the misconception and because the State had not yet been prejudiced.
Id. at 396, 812 P.2d at 356. In this case, Hubbard entered his guilty plea toward the end of
trial. He was informed that he was waiving any defenses to the charges and that the State
could argue on any matter except the letter at sentencing. In addition, Hubbard was informed
that the pre-sentence report to be considered by the court would contain matters relevant to
the case. Therefore, we cannot conclude that Hubbard's plea of guilty was made under any
misconception, and thus our holding in Jezierski does not apply.
We next address Hubbard's contention that the prosecution of both the pre-1985 and the
post-1987 actions should have been barred by the statute of limitations. Under NRS
171.085(2), the statute of limitations for lewdness with a minor under the age of fourteen is
three years after the commission of the offense. However, NRS 171.095 provides that the
statute of limitations is tolled in the event the offense was committed in a secret manner. In
such cases, the statute of limitations is three years from the time of discovery. In addition, if
the victim is a child, prosecution must take place before the victim is aged twenty-one. NRS
171.095(1)(b). This last provision was added by amendment in 1985. At the time of the
pre-1985 offenses, the statute required prosecution prior to the time the child victim reached
eighteen years of age.
[Headnotes 4, 5]
In the instant case, both victims were under the age of eighteen at the time of trial. In
addition, the first person to discover the crimes who had a duty to report them was Dr.
Samantha Payne, a state licensed psychologist treating the victims. Dr. Payne discovered the
crimes in October 1991. Hubbard was charged in December 1991. Accordingly, the
prosecution took place well within the statute of limitations for both the pre-1985 and
post-1987 offenses if a secret offense was involved.
Further, evidence was presented showing that these crimes were committed in a secret
manner. There was evidence that Hubbard instructed the children to keep quiet about his
actions and even threatened them on occasion. As we have previously stated, a crime is
committed in a secret manner
when it is committed in a deliberately surreptitious manner that is intended to and does
keep all but those committing the crime unaware that an offense has been committed. . .
. [G]iven the inherently vulnerable nature of a child, we conclude that the crime of
lewdness with a minor can be committed in a secret manner . . . .
Walstrom v. State, 104 Nev. 51, 56, 752 P.2d 225, 228 (1988). Accordingly, evidence was
presented showing that these crimes were committed in a secret manner, thus tolling the
statute of limitations.
were committed in a secret manner, thus tolling the statute of limitations.
[Headnotes 6, 7]
Finally, we address the issue as to whether Hubbard waived the statute of limitations
issues by entering an Alford plea. This is an issue of first impression in this court. Other
courts have held that a voluntary plea of guilty waives all defenses other than the defense that
no offense was charged in the complaint, information, or indictment. See State v. Bailey, 771
P.2d 766, 767 (Wash. Ct. App. 1989). It appears that most jurisdictions consider the statute of
limitations to be non-jurisdictional and therefore waivable. See Conerly v. State, 607 So. 2d
1153 (Miss. 1992) (statute of limitations is non-jurisdictional but is an affirmative defense
that may be waived); Longhibler v. State, 832 S.W.2d 908 (Mo. 1992) (statute of limitations
is non-jurisdictional and can be waived); People v. Dickson, 519 N.Y.S.2d 419 (App. Div.
1987) (defendant must raise statute of limitations at trial or waive the defense; only when
defendant raises the issue will state be required to allege facts that toll statute; defendant
waived defense by entering guilty plea). However, California courts have held that the statute
of limitations in a criminal case is jurisdictional and can never be waived. See People v.
Ognibene, 16 Cal. Rptr. 2d 96 (Ct. App. 1993) (defendant not permitted to waive statute of
limitations on time-barred lesser charges).
We conclude that the statute of limitations is a non-jurisdictional affirmative defense that
must be asserted by the defendant or else it is waived. To make use of the defense, a
defendant must present sufficient facts to demonstrate that the statute of limitations should
not be tolled. In the instant case, Hubbard did not assert this defense either before or during
trial. The record indicates no objections on the part of Hubbard to the State's actions in this
regard. Indeed, when entering his plea, he testified that he understood he was waiving all
defenses. Accordingly, we hold that in entering an Alford plea of guilty, Hubbard waived any
defense of the statute of limitations.
In conclusion, we hold that the district court did not abuse its discretion in accepting
Hubbard's plea of guilty and then denying his motion to withdraw his plea. Further, Hubbard's
acts were clearly secret offenses that tolled the statute of limitations, thus making prosecution
in this case within the time limit. Finally, we hold that in entering an Alford plea of guilty,
Hubbard waived any statute of limitations defense. Accordingly, we hereby affirm Hubbard's
conviction.
____________
110 Nev. 678, 678 (1994) Pathland Development v. Peccole Trust
PATHLAND DEVELOPMENT CORP., a Canadian Corporation, Appellant, v. THE
WILLIAM PECCOLE 1982 TRUST; WILLIAM PECCOLE, TRUSTEE THEREOF,
Respondent.
No. 24564
July 7, 1994 877 P.2d 1036
Appeal from an order of the district court granting respondent's motion for summary
judgment. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Purchaser of real property brought action against vendor, alleging breach of sales
agreement. The district court entered summary judgment in favor of vendor after one
purchaser ordered cancellation of escrow, and other purchaser appealed. The supreme court
held that fact issues as to whether copurchaser of property was agent of other copurchaser
when it cancelled escrow under real estate sales contract, whether joint venture existed
between copurchasers, and whether copurchaser had authority to cancel escrow without
consent of its coventurer if joint venture existed precluded summary judgment.
Dickerson, Dickerson, Lieberman & Consul and Douglass A. Mitchell, Las Vegas, for
Appellant.
Raleigh, Hunt & McGarry, Las Vegas, for Respondent.
1. Judgment.
Fact issues as to whether copurchaser of property was agent of other copurchaser when it cancelled escrow under real estate sales
contract, whether joint venture existed between copurchaser, and whether copurchaser had authority to cancel escrow without consent
of its coventurer if joint venture existed precluded summary judgment in action for breach of the sales contract. NRS 87.090(5)(b).
Absent agency relationship, actions of one tenant in common bind only that tenant's fractional share and not fractional share of
cotenant. NRS 87.090(5)(b).
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment for respondent. For reasons stated below, we hold that summary judgment
was improper and accordingly reverse and remand this case to the district court.
FACTS
In 1992, respondent the William Peccole 1982 Trust, William Peccole, trustee (Peccole)
entered into an agreement with Pacific Land Corporation (Pacific) to sell Pacific sixty-two
acres of land in Clark County. At that time, the land was zoned for commercial use. The
agreement provided that Peccole would assist Pacific in obtaining a zone change to
residential use in order for Pacific to construct homes on the land. The agreement also
provided that Peccole would not act in such a way as to interfere with Pacific's ability to
develop the property with residential housing. Finally, the agreement provided for
cancellation of escrow by the escrow holder if the conditions of the agreement could not be
met and notification had been received from the buyer. The escrow holder was National Title.
On April 24, 1992, with Peccole's consent and notice to National Title, Pacific assigned all
its interests in the agreement to a joint venture between appellant Pathland Development
Corporation (Pathland) and Southwest Homes, Inc. (Southwest). The same person, David
Stoddart, was president of both Pacific and Southwest. On the same day, Pathland and
Southwest agreed to form a joint venture to be known as Vista Durango for the purpose of
developing 520 residential units on the property. According to the joint venture agreement,
until closing, Pathland held an undivided sixty percent interest and Southwest an undivided
forty percent interest in the agreement. James Penturn, Pathland's president, stated in his
affidavit that under the Vista Durango agreement, the interest in the sales agreement was
jointly held by Pathland and Southwest as tenants in common independent of Vista Durango.
Initially, Peccole assisted Pathland and Southwest in their attempt to obtain a zone
reclassification. However, Peccole soon began to refuse to cooperate. Peccole publicly stated
that he was opposed to the Vista Durango project. In addition, Peccole refused to amend the
agreement to extend the time during which Pathland and Southwest could obtain a zone
change. This had the effect of making it impossible for Pathland and Southwest to obtain the
necessary resolution of intent.
Later, when Peccole refused to sell the land to Southwest and Pathland, Southwest filed an
action for breach of contract and specific performance. Pathland ratified the lawsuit and later,
by stipulation, joined as plaintiff.
Meanwhile, approximately one month later on October 1, 1992, Southwest, Pacific and
Peccole instructed National Title to cancel escrow and refund the deposit. Pathland received
no prior notice of the cancellation. On the basis of the cancellation, Peccole moved for
summary judgment.
The district court granted summary judgment for Peccole finding the following: (1) escrow
had been cancelled by plaintiffs (referring to both Pathland and Southwest); (2) Peccole
was entitled to rely on the cancellation; (3) the agreement provided that it terminated upon the
cancellation of escrow; (4) the parties, by the terms of the agreement, had no further liability
to each other; (5) the suit commenced by Southwest and Pathland was based solely on the
agreement; and (6) there was no issue of material fact remaining in dispute.
Pathland appeals, contending that the district court erred in granting summary judgment
when issues of fact remain in dispute. We agree and reverse the decision of the district court.
DISCUSSION
Summary judgment is appropriate when, after a review of the record in the light most
favorable to the non-moving party, there are no issues of material fact in dispute and the
moving party is entitled to judgment as a matter of law. Norwest Financial v. Lawver, 109
Nev. 242, 244, 849 P.2d 324, 325 (1993). On appeal, this court must determine whether the
trial court erred in concluding that summary judgment was proper because of an absence of
genuine issues of material fact. Id. This court reviews orders granting summary judgment de
novo. Walker v. American Bankers Ins., 108 Nev. 533, 836 P.2d 59 (1992).
[Headnote 1]
We note first that the sales agreement provided for cancellation of escrow upon notice
from the buyer. Following the assignment, Pathland was the buyer along with Southwest.
However, escrow was cancelled by Southwest only, with no prior notice to Pathland. The
validity of the cancellation raises the issue of Southwest's authority to act in such a way
without notice to Pathland.
[Headnote 2]
Pathland argues that it held a sixty percent undivided interest in the agreement as a tenant
in common with Southwest. It is a long held premise in this state that absent an agency
relationship, the actions of one tenant in common bind only that tenant's fractional share and
not the fractional share of the cotenant. See Chase v. The Savage Silver Mining Co., 2 Nev. 9,
14 (1866); see also 4A Richard R. Powell & Patrick J. Rohan, Powell on Real Property
606(3) (1993). Therefore, Southwest's actions could only bind Pathland if Southwest stood in
an agency relationship to Pathland. However, the record does not indicate the exact nature of
the relationship between Pathland and Southwest. Hence, the relationship between Pathland
and Southwest is a question for the trier of fact and is not proper for summary judgment.
relationship between Pathland and Southwest is a question for the trier of fact and is not
proper for summary judgment.
Another issue of fact remains as to whether a joint venture relationship existed between
Pathland and Southwest. Peccole argues that under fundamental principles of joint venture
law, Southwest's acts, as a coventurer, are vicariously charged to Pathland.
We have held that the principles of law applying to general partnerships also apply to joint
ventures. Haertel v. Sonshine Carpet Co., 102 Nev. 614, 616, 730 P.2d 428, 429 (1986). NRS
87.090 provides that every partner is an agent of the partnership and all actions of a partner
bind the partnership unless the partner had no authority to act in such a way. However, this
statute also provides that an act of a partner which is not apparently for the carrying on of the
business of the partnership in the usual way does not bind the partnership unless authorized
by the other partners. NRS 87.090(2). Further, the sale of all or substantially all of the
property of a partnership may only be sold with the prior consent of the partners. NRS
87.090(5)(b).
Questions of fact remain as to whether a joint venture existed between Pathland and
Southwest. In addition, it is not clear whether Southwest had the authority to cancel escrow
without the consent of its coventurer Pathland, if indeed a joint venture existed. Cancelling
escrow appears to have had the effect of disposing of all or substantially all joint venture
property, an act which required the prior consent of all coventurers under NRS 87.090(5)(b).
The record does not indicate whether such consent was obtained. Consequently, these are
issues for the trier of fact and are not proper for summary adjudication.
Having noted that issues of fact remain in dispute, thus making summary judgment
improper, we do not address appellant's and respondent's additional arguments. We hereby
reverse the decision of the district court and remand this case for further proceedings.
1

__________

1
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
110 Nev. 682, 682 (1994) Auckenthaler v. Grundmeyer
LORI S. AUCKENTHALER, Appellant, v. STEVEN GRUNDMEYER and JODY WHITE,
Respondents.
No. 24745
July 7, 1994 877 P.2d 1039
Appeal from a district court order granting respondents' motion for summary judgment.
Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Horse rider brought negligence action arising out of injuries she sustained when another
rider's horse kicked her. The district court granted summary judgment for defendants.
Plaintiff horse rider appealed. The supreme court held that district court erred in relying upon
California decisions which applied reckless or intentional standard of care for participants in
recreational activities, rather than the simple negligence standard.
Bradley and Drendel, Ltd. and Joseph S. Bradley, Reno, for Appellant.
Hibbs, Roberts, Lemons, Grundy and Eisenberg and Alice G. Campos, Reno, for
Respondent Grundmeyer.
Laxalt & Nomura and Katherine J. Savage, Reno, for Respondent White.
Summary judgment is appropriate when record on appeal, viewed in light most favorable to nonprevailing party, demonstrates that
no genuine issue of material fact remains in dispute, and that prevailing party is entitled to judgment as a matter of law.
On appeal, supreme court's review of order granting summary judgment is de novo.
3. Courts; Negligence.
District court improperly relied upon California decisions, which applied reckless or intentional standard of care in recreational
activity cases in the shadow of California's recognition of primary implied assumption of risk, as viable affirmative defense, rather than
simple negligence, inasmuch as the reduced standard contravened Nevada precedent which had abolished all forms of implied
assumption of risk.
4. Negligence.
Whether defendant has failed to act reasonably in particular circumstances is not an issue of law but is a matter for jury to decide.
5. Negligence.
On rare occasion, court may withdraw negligence case from jury if it determines that defendant's conduct could not reasonably be
found negligent. Restatement (Second) of Torts 285(d), 285 comment.
OPINION
Per Curiam:
FACTS
Appellant Lori S. Auckenthaler (Auckenthaler) and several other individuals were riding
horses in an area north of Reno, known as Red Rock. The individuals were participating in
the field training of dogs owned by co-respondent Steven Grundmeyer (Grundmeyer).
Field training is an exercise where dogs are led through a prearranged course marked by the
random placement of birds. Co-respondent Jody White (White) was a member of the group
and was riding a horse owned by Grundmeyer named Bum. White and Grundmeyer were
specifically involved in the training expedition and the other riders were at the event as
observers. The ride was purely recreational, and none of the participants obtained any
compensation or commercial gain from the activity.
During the ride, Bum was acting antsy and nervous and had been threatening to kick other
horses that ventured into his proximity. Bum had been recently gelded. Auckenthaler was
injured when the horse she was riding strayed too close to Bum. Bum turned and kicked at
Auckenthaler's horse, striking Auckenthaler in the leg.
Auckenthaler filed a negligence suit against both White and Grundmeyer. She alleged that
White was negligent in continuing to ride a horse that was temperamental and exhibiting
dangerous behavior. Auckenthaler also alleged that Grundmeyer was negligent for supplying
White with a horse Grundmeyer knew was aggressive and anxious.
White and Grundmeyer moved for summary judgment. They alleged that in accordance
with recent California case law, the appropriate legal standard of care governing participants
in recreational activities was not simple negligence, but was instead reckless or intentional
conduct. White and Grundmeyer claimed that Auckenthaler did not present any evidence
satisfying this alternate legal standard.
The district court agreed and summarily dismissed Auckenthaler's complaint. The court
adopted the California standard and reasoned that Auckenthaler ha[d] not alleged or
presented any evidence that defendants intentionally tried to hurt plaintiff or that defendants
engaged in conduct which was so reckless as to be totally outside the range of ordinary
activities involved in the horseback riding and dog training sport.
Auckenthaler appeals from summary judgment and argues that the district court erred by
adopting a reckless or intentional standard of care because such a reduced standard affronts
Nevada's abolition of implied assumption of risk. We agree and accordingly reverse the
district court's judgment.
DISCUSSION
[Headnotes 1, 2]
Summary judgment is appropriate when the record on appeal, viewed in the light most
favorable to the non-prevailing party, demonstrates that no genuine issue of material fact
remains in dispute, and that the prevailing party is entitled to judgment as a matter of law.
Caughlin Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 849 P.2d 310 (1993). On
appeal, this court's review of an order granting summary judgment is de novo. Walker v.
American Bankers Ins., 108 Nev. 533, 836 P.2d 59 (1992).
In granting summary judgment in favor of Grundmeyer and White, the district court
adopted the standard of care for participants in a recreational event that was applied in two
California Supreme Court companion decisions: Knight v. Jewett, 834 P.2d 696 (Cal. 1992),
and Ford v. Gouin, 834 P.2d 724 (Cal. 1992). In Knight, plaintiff was injured while
participating in an informal game of touch football. Defendant jumped up to intercept a pass
and tumbled down on top of plaintiff's hand. Knight, 834 P.2d at 697. Plaintiff sued defendant
for negligence. In affirming summary judgment for defendant, the California high court noted
that an overwhelming majority of the cases, both within and outside California . . . have
concluded that it is improper to hold a sports participant liable to a coparticipant for ordinary
careless conduct committed during the sport. Id. at 710. The court then established the
general proposition that in sporting activities, liability can only be imposed where the
participant intentionally injures another player or engages in conduct that is so reckless as to
be totally outside the range of the ordinary activity involved in the sport. Id. at 711. The
court ultimately held that plaintiff could not prove that defendant had engaged in this type of
conduct.
In Ford, the California Supreme Court extended the reckless or intentional legal standard
of care to participants in a recreational activity. Plaintiff was injured in a water skiing
accident when he struck a tree limb. Plaintiff sued the driver of the boat for negligence,
claiming that he drove the boat too close to the shore of the waterway. The court upheld
summary judgment in favor of defendant, concluding that plaintiff could not prove that he
had been injured by intentional or reckless behavior. Ford, 834 P.2d at 728.
The purpose of this differing standard of care was succinctly articulated by a more recent
California case:
By eliminating liability for unintended accidents, the doctrine ensures that the fervor of
athletic competition will not be chilled by the constant threat of litigation from every
misstep, sharp turn and sudden stop. On a larger scale, participation in amateur athletics
is a socially desirable activity that improves the mental and physical well-being of its
participants.
Stimson v. Carlson, 14 Cal. Rptr. 2d 670, 673 (Ct. App. 1992).
As in Knight and Ford, and pursuing the same policy goals as articulated in Stimson, the
district court in the case at bar ruled that Auckenthaler did not present any evidence
establishing that she was injured as a result of reckless or intentional conduct. The sole issue
on appeal is whether the district court erred by deviating from Nevada's ordinary negligence
rubric and adopting this California standard.
[Headnote 3]
Auckenthaler claims that the district court improperly relied upon Knight and Ford
because both decisions applied the reckless or intentional standard in the shadow of
California's recognition of primary implied assumption of risk as a viable affirmative defense.
She asserts that the reduced standard contravenes Nevada precedent which has abolished all
forms of implied assumption of risk. See Mizushima v. Sunset Ranch, 103 Nev. 259, 264,
737 P.2d 1158, 1161 (1987).
Before analyzing this aspect of Auckenthaler's argument, it is necessary to understand the
different types of the assumption of risk affirmative defense and certain nuances of
corresponding California law. Assumption of risk is divided into two separate categories:
express and implied. Express assumption of risk is essentially a contract where the plaintiff
signs a document and openly agrees to hold the defendant harmless for known and inherent
dangers of a particular activity.
Implied assumption of risk has three different sub-categories. The first, often referred to as
primary implied assumption of risk, occurs when the plaintiff voluntarily accepts known risks
involved in a particular situation, and the defendant has no duty of care with respect to the
plaintiff. The classic example is the spectator at a baseball game who impliedly understands
that the players have no duty to refrain from hitting a ball into the stands. The second variety
of implied assumption of risk is characterized by the plaintiff voluntarily encountering a
known risk created by the defendant's negligence. An example is where the plaintiff continues
to use a defective lawn mower that he knows is defective because the inconvenience of
repair outweighs the added risk of injury.
tive because the inconvenience of repair outweighs the added risk of injury. The third variety
of implied assumption of risk is where the plaintiff unreasonably accepts a known threat of
danger in pursuing a particular course of conduct. This situation would exist if the plaintiff
takes an unnecessary and expedient shortcut to his destination, confronting known hazards
along the way. See Mizushima, 103 Nev. at 262, 737 P.2d at 1160.
It seems undisputed that the facts of the instant case present a situation much like primary
implied assumption of risk. Horseback riding is a recreational or sporting activity that has
inherent dangers. By choosing to participate, the plaintiff impliedly consents to the inherent
risks of the activity and the defendant has no duty or a reduced duty to protect the plaintiff.
If the accident at issue had occurred in California, there is no doubt Auckenthaler would
be barred from recovery. Even though the California legislature has adopted pure comparative
negligence, the state still recognizes the viability of primary implied assumption of risk as an
affirmative defense. See Knight, 834 P.2d at 708. Conversely, the California high court has
held that secondary implied assumption of risk (the latter two subcategories described above)
has been subsumed by the state's comparative negligence framework. See, e.g., Li v. Yellow
Cab Co., 532 P.2d 1226 (1975). Due to this dichotomous precedent, California courts are
struggling to define what constitutes primary and secondary aspects of the affirmative
defense. To a large extent, the Knight and Ford decisions are geared toward defining the
difference between the two legal concepts.
As Auckenthaler correctly argues on appeal, the principles described in Knight and Ford
and utilized by the district court in granting summary judgment are inapplicable in Nevada.
The holding and rationale of those decisions are infected by California's recognition of
primary implied assumption of risk. The reckless or intentional standard of care applied in
California is simply another way of determining that the plaintiff assumed the risk of injury.
In either instance, the plaintiff is summarily barred from recovery. Such a reduced standard
affronts Nevada law because, unlike California, Nevada precedent has abrogated all forms of
implied assumption of risk. Accordingly, we conclude that the district court erred by adopting
California's reckless or intentional standard of care for participants in recreational activities.
This conclusion is supported and, in fact, mandated by our holding and accompanying
rationale in Mizushima. In Mizushima, plaintiff and a friend went to a commercial stable and
rented horses for a horseback riding excursion. Plaintiff was thrown from her mount and
severely injured when the horse she was riding bolted back to the stable toward the end of
the ride.
was riding bolted back to the stable toward the end of the ride. Plaintiff sued the stable for
negligence, claiming that it failed to provide a safe riding environment. At trial, the district
court instructed the jury regarding the affirmative defense of assumption of risk. The jury
returned a defense verdict. Mizushima, 103 Nev. at 262, 737 P.2d at 1159.
We reversed on appeal, holding that implied assumption of risk had been subsumed by
Nevada's comparative negligence statute.
1
Id. at 264, 737 P.2d at 1161. All three forms of
the defense were unduly confusing, and examples of such conduct were best examined
utilizing traditional principles of comparative negligence:
2

In our view, it is equally clear that any variety of an implied assumption of risk is
merely circumlocution for the preclusive form of contributory negligence the statute
sought to eliminate. No matter how the assumption of risk scenario is depicted, it is
translatable into a degree of negligent conduct by the plaintiff. . . .
The defense of assumption of risk is not favored. [Footnote omitted.] It continues to
vex and confuse as a masquerade for contributory negligence. Moreover, it focuses on a
lack of duty in the defendant rather than the more compelling issue of comparative
breach of duty by the parties. In that regard, the doctrine faces backward, emphasizing
escape more than accountability and inertia more than progress. In short, we are unable
to ascertain any productive reason why any species of implied assumption of risk
should survive the beneficent purposes and effect of Nevada's comparative negligence
statute.
Id. at 263-64, 737 P.2d at 1161 (emphasis added).
In a footnote, we expanded upon this rationale and added the following:
We perceive no valid reason for leaving primary implied assumption of risk intact.
In virtually every instance, including the injured spectator, liability can be analyzed in
the context of the conduct of the actor and the injured party, weighed against a standard
of care dictated by the circumstances. Thus, there is no arbitrary bar to recovery and no
sweeping exemption from duty accorded a defendant. The determination of duty is left
to the jury as a factor in the comparative negligence analysis.
Id. at 264, 737 P.2d at 1161 n.7 (emphasis added).
__________

1
Nevada's comparative negligence standard is codified in NRS 41.141.

2
Express assumption of the risk was unaffected by the court's holding. Mizushima, 103 Nev. at 262, 737 P.2d at
1159.
[Headnotes 4, 5]
This language not only abrogated implied assumption of risk as an affirmative defense, but
also established that every future implied assumption of risk type case would be resolved by
applying a traditional negligence standard of care. The negligence standard is sufficiently
flexible to accommodate liability issues underlying all recreational injury cases. There is no
reduction in the defendant's standard of care (e.g., reckless or intentional), nor is there any
fictitious undertaking that the defendant does not owe a duty to the plaintiff. As we noted in
Mizushima, implied assumption of risk cases improperly [focus] on a lack of duty in the
defendant rather than the more compelling issue of comparative breach of duty by the
parties. Id. at 264, 737 P.2d at 1161 (emphasis added). Whether the defendant has failed to
act reasonably in the particular circumstances is not an issue of law, but is a matter for the
jury to decide.
3
See Joynt v. California Hotel & Casino, 108 Nev. 539, 835 P.2d 799 (1992).
Grundmeyer and White try to overcome the foregoing analysis by arguing public policy.
They warn that applying an ordinary negligence standard to the case at issue will translate
into a flood of future litigation between participants in sporting and recreational activities.
They maintain that such an occurrence would have a chilling effect on sports participation
within Nevada. See, e.g., Nabozny v. Barnhill, 334 N.E.2d 258, 260 (Ill. App. Ct. 1975)
(applying reckless standard to soccer game; fear of liability would curtail the proper fervor
with which the game should be played). To combat this policy dilemma, Grundmeyer and
White claim that this court should adopt a reckless or intentional standard of care. This is the
approach followed by a number of states that have examined the issue. See, e.g., Knight, 834
P.2d at 710; Pfister v. Shusta, 627 N.E.2d 1260 (Ill. App. Ct. 1994) (reckless standard applied
to game where participants kicked can in college dormitory); Oswald v. Township High
School Dist. No. 214, 406 N.E.2d 157 (Ill. App. Ct. 1980) (reckless standard applied to gym
class basketball game); Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989) (reckless standard
applied to college hockey game); Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966) (reckless
standard applied to ice skating injury); Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982) (applying
reckless standard of care to church softball game); and Marchetti v. Kalish, 559 N.E.2d 699
(Ohio 1990) (reckless standard applied to game of kick the can). Moreover, the reckless
standard of care is not only followed in California, where the state still clings to some form
of assumption of risk, but is also applied in other states where assumption of risk has
been subsumed by statutory comparative negligence. See, e.g., Kahella v. Bouschelle, 672
P.2d 290, 294 {N.M. Ct.
__________

3
On the rare occasion, the court may withdraw the case from the jury if it determines that defendant's conduct
could not reasonably be found negligent. See Restatement (Second) of Torts 285(d) and 285 comment e
(1965).
lowed in California, where the state still clings to some form of assumption of risk, but is also
applied in other states where assumption of risk has been subsumed by statutory comparative
negligence. See, e.g., Kahella v. Bouschelle, 672 P.2d 290, 294 (N.M. Ct. App. 1983) (public
policy demands that a reduced standard of care governs cases involving recreational sporting
injuries); Connell v. Payne, 814 S.W.2d 486 (Tex. Ct. App. 1991).
We are not persuaded. First, the negligence standard is a more attractive alternative to
resolving these types of cases. The standard is malleable and the jury simply examines each
case to determine whether the defendant acted unreasonably under the circumstances. Within
the factual climate of recreational activities or even sporting events, the question posed is
whether the defendant participated in a reasonable manner and within the rules of the game or
in accordance with the ordinary scope of the activity. See Lestina v. West Bend Mut. Ins. Co.,
501 N.W.2d 28 (Wis. 1993) (finder of fact determines whether defendant is liable for injury
occurring in a sporting event utilizing an ordinary negligence standard of care); see also
LaVine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir. 1977) (negligence standard
applied to snow skiers); Gray v. Houlton, 671 P.2d 443 (Colo. Ct. App. 1983) (negligence
standard applied to snow skiing accident); Babych v. McRae, 567 A.2d 1269 (Conn. Super.
Ct. 1989) (negligence standard applied to hockey game); Duke's GMC, Inc. v. Erskine, 447
N.E.2d 1118 (Ind. Ct. App. 1983) (negligence standard applied to golf injury); and Crawn v.
Campo, 639 A.2d 368 (N.J. Super. Ct. App. Div. 1993) (negligence standard applied to
softball game), leave to appeal granted, 636 A.2d 516 (N.J., Nov. 18, 1993). This approach is
straightforward and avoids the confusion related to tinkering with standards of care and
defining what types of activities qualify for the differing legal treatment. At a practical level,
this court avoids creating a wilderness of confusing and disjunctive precedent in this area of
the law.
Second, adopting a reduced standard of care is merely another way of recognizing implied
assumption of risk through the back door or by way of duty/risk principles. As indicated in
Mizushima, Nevada's comparative negligence statute leaves no room for the continuation of
the vexing defense of assumption of risk. Whether the court reduces the defendant's duty or
concludes that the plaintiff assumed the risk of injury, the result is the same: sweeping denial
of recovery based upon conduct that is best examined under a traditional negligence
framework. See Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1136 (La. 1988).
Finally, claims regarding a potential flood of litigation and the chilling effect upon
participation in recreational activities seem overstated. We have found very few cases
allowing recovery for sports injuries based upon ordinary negligence principles. When
properly applied, the negligence standard strikes the proper balance between vigorous
participation in sports and accommodating litigants injured by unreasonable behavior.
In light of the foregoing, we conclude that the district court erred by adopting California's
reckless or intentional standard of care. The underlying facts of this case, and all forthcoming
similar cases, are to be examined by utilizing simple negligence rubric. Applying the
negligence standard on appeal, it is clear that Auckenthaler presented enough evidence to
overcome summary judgment. Accordingly, we reverse the district court's ruling and remand
for further proceedings consistent with this opinion.
____________
110 Nev. 690, 690 (1994) State v. Miller
THE STATE OF NEVADA, Appellant, v. BARRY DAVID MILLER AND VICKY LYNN
MILLER, Respondents.
No. 21145
July 7, 1994 877 P.2d 1044
Appeal from order granting motion to suppress. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Defendants were charged with drug offenses. The district court entered suppression order,
and the state appealed. The supreme court, Steffen, J., held that police officer did not make
twelve-year-old babysitter the hands and feet of the police or police agent by responding to
babysitter's call concerning what she feared might be presence of illicit drugs in apartment
where she was babysitting and thus, babysitter initiated private search for contraband that
violated neither Federal nor State Constitution.
[Rehearing denied October 25, 1994]
Attorney; Scott W. Edwards, Deputy District Attorney, Washoe County, for Appellant.
Dennis E. Widdis, Reno, for Respondent Vicky Lynn Miller.
Kenneth V. Ward, Reno, for Respondent Barry David Miller.
1. Criminal Law.
Findings of fact in suppression hearing will not be disturbed on appeal if supported by substantial evidence.
2. Criminal Law.
District court's findings of fact in suppression hearing will be reviewed under deferential standard.
Police officer did not make twelve-year-old babysitter the hands and feet of the police or police agent by responding to babysitter's
call to 911 concerning what she feared might be presence of illicit drugs in apartment where she was babysitting and thus, babysitter
initiated private search for contraband that violated neither Federal nor State Constitution. U.S. Const. amend. 4.
OPINION
This appeal challenges a suppression order issued by the district court on grounds that a police search was nonconsensual and
effectuated through a minor babysitter who had been made a police agent through the process of suggestion, and that the warrantless search
was unauthorized. We conclude that the district court erred in its ruling and therefore reverse and remand.
FACTS
In September 1989, twelve-year-old Jennifer was employed by respondents Barry David Miller and Vicky Lynn Miller to periodically
babysit the Millers' two children, a three-year-old daughter and a five- to six-month-old infant son. Jennifer tended the children on a regular
basis every week from Thursday through Sunday, day and evening, including times when Mrs. Miller slept prior to leaving for work on the
graveyard shift. Jennifer's period of employment with the Millers continued through November 3, 1989, the date of the event constituting
the basis for this appeal.
During the course of her employment at the Millers' apartment, Jennifer developed a sense of concern over what she perceived to be the
possession, use and sale of marijuana by the Millers. Specifically, Jennifer testified at a grand jury hearing on November 8, 1989, that she:
(1) first saw what she thought was marijuana on the coffee table in the living room of the Millers' apartment sometime prior to November 3,
1989; (2) periodically observed a whole bunch of people coming over, [who] gave them [Vicky or Barry Miller] a few twenty dollar bills
or something and they wouldn't let us see, so I figured that probably was it [marijuana];" {3) saw in the
apartment a "big Raley's bag" inside of which was "a whole bunch of it [marijuana]" in "twenty or twenty-five"
smaller ziplock bags; and {4) saw Barry Miller smoke it in front of her one time.
thing and they wouldn't let us see, so I figured that probably was it [marijuana]; (3) saw in
the apartment a big Raley's bag inside of which was a whole bunch of it [marijuana] in
twenty or twenty-five smaller ziplock bags; and (4) saw Barry Miller smoke it in front of
her one time. Concerning the latter event, Jennifer testified that I sort of acted like I didn't
see it, but it smelled real bad, sojust, I just . . . tried to ignore it by pretending like playing
with the baby and everything.
Jennifer also indicated that she had seen on television what they did to people who sell
drugs, so she called Secret Witness but they didn't do anything. The child also stated that
she had observed the substance on numerous occasions but that every time I went over there
I wanted to prove myself wrong [and that] they didn't have it [marijuana].
During the evening of November 3, 1989, while the Millers were both at work, Jennifer
dialed 911 for help since she had received no contact from her call to Secret Witness a few
weeks earlier. In talking to the police, she discussed the suspected marijuana and asked for
police assistance. Reno Police Officer Jay Brown told the grand jury that he was dispatched
to the Millers' apartment in response to Jennifer's call to 911, with the understanding that [a]
juvenile had called dispatch and said she had found what she thought was drugs and would
like to talk to a police officer.
After arriving at the Millers' apartment, Officer Brown knocked on the door and was
greeted by a young female (Jennifer) who acknowledged that she was the babysitter who had
called the police. The officer, at his request, was invited into the residence by Jennifer. Upon
entering, Officer Brown asked the child where is what you think is [sic] drugs? and Jennifer
then went in the back bedroom, with the officer following, and obtained an opened grocery
bag, which she handed to the officer. Officer Brown testified that he looked into the already
opened bag and observed a substance inside that smelled like marijuana. The contraband was
packaged in six individual plastic baggies. Brown also noted one larger plastic baggie
containing twenty-four smaller rolled up quantities of what he believed to be marijuana. The
officer seized this evidence together with numerous items of drug paraphernalia also
voluntarily given to him by the babysitter.
1
Officer Brown also testified that as he "was
standing holding the bag, a man [Barry Miller] walked in," and in response to the officer's
inquiry, admitted that the items in the bag belonged to him.
__________

1
The drug paraphernalia consisted of (1) a pipe cleaner with marijuana residue, (2) a measuring scale, (3) a
rolling machine, (4) a roach clip with marijuana residue, (5) scissors commonly used for cutting marijuana buds,
(6) rolling paper listing names with dollar amounts, (7) film canister with marijuana residue, and (8) sheets of
paper listing various names with dollar amounts, possibly used to keep track of sales of the drug.
At the grand jury hearing, a police expert on narcotics testified that the
Officer Brown also testified that as he was standing holding the bag, a man [Barry Miller]
walked in, and in response to the officer's inquiry, admitted that the items in the bag
belonged to him.
At the suppression hearing on May 31, 1990, Officer Brown testified that he was right at
the entrance to the bedroom, where the little girl handed me the bag . . . and about the same
time Mr. Miller walked through the front door. Further questioning elicited an admission
from the officer that he entered the master bedroom just maybe a foot or two, following
Jennifer who continued telling him that the marijuana was in the master bedroom. Although
Officer Brown first denied asking the babysitter to show him the suspected drugs, upon
reading his testimony before the grand jury, he conceded that he did ask the girl where is
what you think is [sic] drugs.
During his suppression hearing testimony, Officer Brown also emphatically denied that he
and Barry Miller arrived at the Millers' apartment at the same time. Brown stated that Mr.
Miller arrived approximately three to five minutes after the officer had entered the apartment.
Although Jennifer did not testify at the suppression hearing, she had earlier stated in her
sworn testimony before the grand jury that right when he [Officer Brown] got there, Barry
walked in the house and they had to arrest him and everything. In response to questions
concerning what could be seen as a discrepancy between the testimony of the officer and the
babysitter, Brown emphasized the accuracy of his testimony, again stating that Mr. Miller
arrived several minutes after Officer Brown, and that Jennifer would be incorrect in terms of
when Mr. Miller arrived. The officer then explained that through her eyes it might have
been simultaneously, yes, I could see how that could possibly happen. She was very upset at
the time. Since the child stated that when Barry Miller walked into the house they had to
arrest him, it seems apparent that the officer must have already seen the contraband or there
would have been no basis for an arrest at that point. Indeed, the officer testified that he
showed the bag to Mr. Miller and asked if it belonged to him. Miller acknowledged that it did
and he was then placed under arrest.
Officer Brown testified that once he realized a felony was involved and a juvenile was
present, he called for his supervisor. The officer indicated that he placed the call after he had
arrested Mr. Miller.
Barry Miller's testimony at the suppression hearing indicated that on the evening of his
arrest, he arrived home and saw a patrol car parked in the parking lot and two officers
walking towards his apartment.
__________
paraphernalia seized by Officer Brown indicates that these people are probably selling the baggies of marijuana
based upon the numbers, and that the pipe, scales, rolling machine, zig zag papers, hemostats and the
remainder would probably be for personal use.
that on the evening of his arrest, he arrived home and saw a patrol car parked in the parking
lot and two officers walking towards his apartment. He stated that as the officers were closing
the door, he started pushing the door open and then the officers let him in. Continuing, Mr.
Miller said the officers asked him if he lived there, and after acknowledging that he did, they
inquired about his name and then asked him to stand over by a chair. Mr. Miller said that he
was asked no more questions until they showed him a paper bag and inquired if it belonged to
him. He also testified that he was never asked if the police could search his room and that he
never gave them permission to do so.
Mrs. Miller testified that Jennifer was instructed specifically to stay out of our room
[master bedroom]'' and that Mrs. Miller kept the door to their bedroom closed whenever she
was away from the apartment. Mrs. Miller also stated that Jennifer did not have a key to the
apartment; that the babysitter was permitted to have one specific friend or her mother visit her
at the apartment while she was babysitting.
The Millers were each charged with felony counts of possession of a controlled substance,
possession of a controlled substance for sale, and one gross misdemeanor count of willfully
endangering a child as the result of abuse. Following the suppression hearing, the district
court granted the motion to suppress, stating that the circumstances amounted to a warrantless
and unauthorized search of a private residence by police.
DISCUSSION
[Headnotes 1, 2]
The overarching issue on appeal is whether the district court erred in granting respondents'
motion to suppress. The resolution of this issue requires an analysis of the relationship
between the babysitter and the police. Preliminarily, we note that findings of fact in a
suppression hearing will not be disturbed on appeal if supported by substantial evidence.
Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983). Moreover, a district court's
findings of fact will be reviewed under a deferential standard. Hayes v. State, 106 Nev. 543,
550 n.1, 797 P.2d 962, 966 (1990). Issues concerning exigent circumstances, consent, and
whether an individual is acting as an agent for the police present mixed questions of fact and
law. Id. Recognizing the sanctity of the home, and the heightened application of the Fourth
Amendment to a person's residence, the district court noted that police authorities had prior
knowledge that there may be drugs in the Millers' home. Moreover, the district court
concluded that
the juvenile was made the hands and feet of the police by the process of suggestion.
The girl had located the drugs, but it took the suggestions of the police, the gentle
persuasion of their movements and presence inside the home for her to bring the
drugs to them from the sanctity of the bedroom into the hands of the government
agents.
took the suggestions of the police, the gentle persuasion of their movements and
presence inside the home for her to bring the drugs to them from the sanctity of the
bedroom into the hands of the government agents. I do not say the motives of police
were suspect. It's just the way things happened.
Describing the suppression issue as a very close case, the district court concluded that the
compelling factor was powerfully expressed by the oft-cited ancient quote from William
Pitt indicating that even the poorest man in his cottage is safe from the prospect of the king's
forces crossing the threshold of his ruined tenement. The quote referenced in full by the
district court is indeed both powerful and cherished in this state and nation where the forces
of government are circumscribed in their power to intrude upon the sanctity of the home.
Nevertheless, in a society awash with crime fueled by the use and sale of illicit drugs, it is
fortunate indeed, that the governmental right to search and seize is permissible when
reasonable. This premise places in context the ruling by the district court that the police,
through suggestion and gentle persuasion and movements, made twelve-year-old Jennifer
the hands and feet of the police. We are constrained by the facts and the law to disagree.
The babysitter had been repeatedly exposed to the possession, sale and use of what she
feared was an illegal substance by the insensitively brash parents of the infant son and
three-year-old daughter Jennifer had been hired to shepherd. Fearful and uncertain, Jennifer
called Secret Witness to help with her dilemma. Unfortunately, Secret Witness proved
unresponsive, and as the suspected drug activity continued, Jennifer eventually called 911 to
ask the police for help.
[Headnote 3]
Officer Brown was dispatched to the Millers' apartment as a result of Jennifer's call for
assistance. It appears clear that the officer could not have obtained a search warrant at this
point, for the caller, who was obviously a young juvenile, may have been wrong in her
inexperienced evaluation of what she had been observing. It is equally clear that the child was
acting out of respect for the law, and that the police had previously experienced no contact
with Jennifer, nor had they sought through some means to promote her cooperation in
uncovering any criminal conduct. Likewise apparent is the fact that Officer Brown could not
have either confirmed or allayed young Jennifer's fears without asking to see what it was that
she was calling about.
2
In short, Officer Brown did not make Jennifer "the hands and feet
of the police" or a police agent by responding to her call concerning what she feared
might be the presence of illicit drugs in the apartment where she was babysitting.
__________

2
Officer Brown testified at the suppression hearing, without contradiction, that Jennifer had indicated in her
911 call that she had found what she thought was possibly drugs.
Officer Brown did not make Jennifer the hands and feet of the police or a police agent by
responding to her call concerning what she feared might be the presence of illicit drugs in the
apartment where she was babysitting. The officer testified that Jennifer promptly told him
that it's in there, after which he followed her to the bedroom where she secured the bag
containing the subject of her concerns. Upon handing Officer Brown the grocery bag, he saw
immediately that it was full of baggies of marijuana.
The United States Supreme Court has held that the Fourth Amendment is wholly
inapplicable to a search or seizure, even an unreasonable one, effected by a private individual
not acting as an agent of the government or with the participation or knowledge of any
government official. United States v. Jacobsen, 466 U.S. 109, 114 (1984). It is clear that the
disjunctive prong of the ruling pertaining to acting as a government agent is satisfied in the
instant case. Jennifer was acting purely out of her concern for what she feared was the
maintenance of illicit drugs by the Millers in the apartment where she was employed to tend
their two small children. The facts of record provide no predicate for finding an agency
relationship between Jennifer and the police.
Apropos to this issue are two rulings by the United States Supreme Court declaring that
evidence secured wholly on the initiative of a private person is admissible, Burdeau v.
McDowell, 256 U.S. 465, 475 (1920), and that
[i]t is no part of the policy underlying the fourth and fourteenth amendments to
discourage citizens from aiding to the utmost of their ability in the apprehension of
criminals. . . . There was not the slightest implication of an attempt on their [police]
part to coerce or dominate her . . . or direct her actions . . . .
Coolidge v. New Hampshire, 403 U.S. 443, 488-89, reh'g denied, 404 U.S. 874 (1971).
Applying the quoted provisions to the instant case, it is uncontroverted that Jennifer not once,
but twice, initiated contact with law enforcement in order to have the police examine what
she thought might possibly be illegal drugs. In responding, the police simply accommodated
the babysitter's desire to have them inspect the object of her concerns.
Moreover, society would receive a sad message indeed, if a child like Jennifer who sought
to act responsibly after being exposed to what appeared to be the possession, sale and use of
drugs at her place of employment, would be rebuffed by the law on grounds that her concerns
were simply transmuted into an unlawful tool of the police whom she had called for
assistance. It was in the highest tradition of good citizenship when Jennifer, despite her
fears,3 had the courage and good sense to summon the police for help in determining
whether her suspicions were well-founded.
despite her fears,
3
had the courage and good sense to summon the police for help in
determining whether her suspicions were well-founded. As observed by the Court in
Coolidge, it is in no sense the policy of the Fourth or Fourteenth Amendments to discourage
citizens from assisting in the apprehension of criminals. Moreover, there is not the slightest
indication in this record that Officer Brown sought to coerce or intimidate Jennifer in order to
override her will and secure her involuntary cooperation. To the contrary, even the district
court ruled that Jennifer became the hands and feet of the police through suggestion and
gentle persuasion.
For the reasons noted, there is no evidentiary basis for concluding that Jennifer became
either a willing or unwilling agent of the police. The babysitter initiated a private search for
the contraband that violated neither the federal nor the Nevada Constitution. Moreover, the
child presented the contraband to Officer Brown who was fully justified in seizing it as
evidence. The district court clearly erred in ruling to the contrary.
The State also contends that even in the absence of a validating private search and seizure,
the contraband should not have been suppressed because Jennifer provided Officer Brown
with a valid, third-party consent to enter and search the Millers' apartment. We need not
address this issue since our resolution of the first issue is dispositive of the State's appeal. We
nevertheless note in passing that both the facts and the law provide a sound basis for agreeing
with the State's position.
Finally, we have concluded that the State's contention with regard to exigent circumstances
as a basis for validating the search of the Millers' apartment is without merit and need not be
addressed.
4

CONCLUSION
For the reasons discussed above, the order granting respondents' motion to suppress is
reversed, and this matter is remanded to the district court for further proceedings.
Rose, C.J., and Springer, J., concur.
__________

3
Officer Brown testified at the suppression hearing that after Jennifer handed him the open bag containing the
marijuana, the little girl started to cry, and I was trying to comfort her, telling her she did the right thing. She
was, she was highly upset . . . . It is not difficult for this court to understand how the child must have felt in
calling the police to come and see whether the parents of the two children she was tending were engaged in
criminal conduct.

4
By our order of July 5, 1990, we directed the State to address the issue of whether this court had jurisdiction to
entertain this appeal based upon considerations of timeliness. We have concluded that notices filed with the
district court and this court were both timely, thus eliminating the question of jurisdiction as an issue.
My colleagues conclude that the search of the Millers' bedroom was not subject to
constitutional protections because it was perfected by a private citizen. The majority relies
upon United States v. Jacobsen, 466 U.S. 109 (1983), to support this proposition. I believe
that this rationale is flawed. I respectfully submit that the principles established by Jacobsen
are simply inapplicable to the instant case.
In Jacobsen, Federal Express employees inadvertently opened a customer's parcel and
found what they suspected was cocaine. The employees resealed the package and summoned
federal authorities. An agent of the Drug Enforcement Administration later reopened the
parcel, without a warrant, at the Federal Express office. The Supreme Court upheld the
validity of this search, reasoning that the Constitution was not violated when a government
agent reenacted a search conducted by private individuals. The decision established the
general principle that the government has the right to conduct independent searches no greater
in scope than that performed by the private actor. Id. at 120.
There is a key distinction between Jacobsen and the instant appeal that is ignored in the
majority opinion. In Jacobsen, the search was reenacted by a government official at the parcel
service's offices. The official was properly invited onto the premises and was free to perform
the same type of search conducted by Federal Express employees. In the case at bar, however,
Officer Brown's reenactment of the search was performed in the Millers' home. Jennifer was
not merely allowing the police to reenact a private search of an unopened paper bag, she was
waiving any privacy interests that the Millers had in their bedroom. This far exceeded
Jennifer's initial discovery and search.
1

__________

1
This distinction was tacitly recognized in Jacobsen. Reacting to concerns expressed by his colleagues, Justice
Stevens, writing for the majority, expressed a limitation to the Court's holding:
We reject Justice White's suggestion that this case is indistinguishable from one in which the police
simply learn from a private party that a container contains contraband, seize it from its owner, and
conduct a warrantless search which, as Justice White properly observes, would be unconstitutional. Here,
the Federal Express employees who were lawfully in possession of the package invited the agent to
examine its contents; the governmental conduct was made possible only because private parties had
compromised the integrity of this container.
Jacobsen, 466 U.S. at 120 n.17.
With these comments, the court identified a distinction where the container is compromised but other
expectations of privacy remain intact. Such is present in the instant case, where Jennifer's search compromised
the integrity of the paper bag but the sanctity and expectation of privacy in the bedroom remained undisturbed.
Surely, any time a private citizen fortuitously discovers evidence of contraband at another's
home, they are not free to invite police in for a romp around the connubial bed. See Wayne R.
LaFave, Search and Seizure 1.8(b), at 188 (2nd ed. 1987). The Fourth Amendment simply
affords more protection to an individual's residence.
The error of the majority's reliance on Jacobsen is aptly illustrated by the Colorado
Supreme Court's decision in People v. Brewer, 690 P.2d 860 (Colo. 1984). In Brewer, a
landlord conducted a private search of a tenant's apartment after the tenant had apparently
abandoned the residence. Within the apartment, the landlord found a shoe box containing
marijuana. She summoned the police and admitted them into the apartment, where they
seized the marijuana that the landlord had privately discovered. In holding that the search was
unlawful, the Brewer court rejected the State's reliance upon Jacobsen. The court agreed that
the landlord's initial search was a private endeavor not subject to constitutional restrictions.
Id. at 862. However, the court properly recognized that allowing the police into the residence
to search for, and retrieve, the marijuana involved a different constitutional question. While
the integrity of the shoe box was compromised by the private search, the expectation of
privacy in the apartment remained intact. The real issue on appeal was whether the landlord
had the authority to consent to a search of the premises. The court ultimately held that the
landlord did not have such authority and invalidated the search. Id. at 862-63; see also State
v. Miggler, 419 N.W.2d 81 (Minn. Ct. App. 1988) (distinguishing Jacobsen on grounds that
police entered home of suspect to reenact search conducted by private individual).
Like Brewer, and without the controlling influence of Jacobsen, the real issue of this
appeal is whether twelve-year-old Jennifer had the authority to consent to a search of her
employers' bedroom. The majority summarily dismisses this issue, stating that Jennifer
provided Officer Brown with a valid, third-party consent to enter and search the Millers'
apartment. Again, I respectfully submit that the majority's conclusion is incorrect.
The government has the burden of establishing the effectiveness of a third party's consent.
Illinois v. Rodriguez, 497 U.S. 177 (1990). It can accomplish this task in three ways. First,
the government can come forward with evidence of both joint access and shared use or
control over the area that was searched. See United States v. Matlock, 415 U.S. 164, 171 n.7
(1974). Such a showing would demonstrate that the third party had actual authority to
consent. Second, it can show that the owner of the property to be searched expressly
authorized the third party to give consent. Finally, the government may establish valid
consent by means of the "apparent authority doctrine."
means of the apparent authority doctrine. There, a search is valid if the officer reasonably
believes that the third party has actual authority to consent. Rodriguez, 497 U.S. at 188.
After examining these three different possibilities of consensual authority, the flaw in the
majority's analysis becomes clear. First, there is nothing in the record indicating that Jennifer
had shared access to, or control over, the Millers' bedroom. To the contrary, the Millers
presented evidence at the suppression hearing that Jennifer was specifically instructed to stay
out of their bedroom. Vicky Miller testified that she regularly shut the bedroom door before
she left for work. In light of these simple facts, and understanding the general restrictions
placed upon a twelve-year-old babysitter, I cannot conclude that Jennifer had the actual
authority to waive the Millers' constitutionally protected right to be free from warrantless
searches of their bedroom. See State v. Rodrigues, 692 P.2d 1156, 1157 (Hawaii 1985)
(babysitter did not have actual authority to consent to a search of resident's bedroom where
she never had access to the subject room); see also People v. Litwin, 355 N.Y.S.2d 646, 649
(N.Y. App. Div. 1974) (babysitter had no authority to consent to search of employer's home).
Second, there is nothing in the record indicating that the Millers authorized Jennifer to
consent to the search. Finally, and most importantly, it was not reasonable for Officer Brown
to believe that a twelve-year-old babysitter had the authority to waive the constitutional
protections of her employer. See, e.g., People v. Jacobs, 729 P.2d 757, 763 (Cal. 1987)
(eleven-year-old girl does not have the actual or apparent authority to consent to search of
parent's home). The record indicates that the officer entered the house and almost
immediately followed young Jennifer into the connubial resting place. Officer Brown had
knowledge that Jennifer was only the babysitter and was not a resident of the house. In
addition, he surely noticed that Jennifer was a young girl. Yet in spite of this information,
Officer Brown never once questioned Jennifer regarding her responsibility or authority over
the household or bedroom. I submit that it was unreasonable for Officer Brown to summarily
determine that Jennifer had the authority to invite him into the most private parts of the
Millers' home. The Constitution prohibits police officers from plowing through ambiguous
situations and later claiming ignorance or reasonableness when an issue arises regarding the
consensual authority of a third party. In fact, the Constitution mandates that officers ask
questions to dispel any concerns they may have about whether the third party has authority to
consent. See United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991).
In its ruling, the district court determined that there was not valid consent to the search of
the Millers' home. The conclusion rested upon factual determinations made by the court
after considering the testimony of Officer Brown and the factual climate of his visit to the
Millers' residence.
rested upon factual determinations made by the court after considering the testimony of
Officer Brown and the factual climate of his visit to the Millers' residence. There is nothing in
the record on appeal indicating that the findings of the district court were clearly erroneous.
United States v. Botero, 589 F.2d 430, 433 (9th Cir. 1978) (findings of fact at a suppression
hearing will not be disturbed on appeal unless clearly erroneous), cert. denied, 441 U.S. 944
(1979).
Unlike the majority, I cannot conclude that the government carried its burden in proving
that the third-party consent of young Jennifer was valid. The Constitution affords the Millers
more protection in their home. Their fundamental right to be free from warrantless searches
of their residence cannot be waived by a twelve-year-old temporary employee. I agree with
the district court's sound rationale and its recognition of this issue as fundamental to our
culture of individual freedoms. I also share the lower court's admiration for the immortal
words of William Pitt concerning the sanctity of the tenement:
The poorest man may in his cottage bid defiance to all the forces of the Crown.
It may be frailits roof may shakethe wind may blow through itthe storm may
enterthe rain may enterbut the King of England cannot enter!
All his forces dare not cross the threshold of the ruined tenement.
2

For the foregoing reasons, I would affirm the district court's ruling.
____________
110 Nev. 701, 701 (1994) Chamberland v. Labarbera
CHARLES CHAMBERLAND, Appellant, v. DEBBIE LABARBERA, Respondent.
No. 24937
July 7, 1994 877 P.2d 523
Appeal from a district court order denying a request for trial de novo following an
arbitration hearing. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
After mandatory arbitration of negligence action based on automobile collision, the district
court denied defendant driver's request for trial de novo. Defendant driver appealed. The
supreme court held that: {1) it had jurisdiction over dispute; {2) district court should have
made specific findings on lack of good faith participation before rejecting defendant
driver's request for trial de novo; and {3) district court's imposition of such severe
sanction was abuse of discretion.
__________

2
William Pitt, the elder, Earl of Chatham, Speech in the House of Lords (1763).
supreme court held that: (1) it had jurisdiction over dispute; (2) district court should have
made specific findings on lack of good faith participation before rejecting defendant driver's
request for trial de novo; and (3) district court's imposition of such severe sanction was abuse
of discretion.
Lyles, Austin & Burnett, and John R. Hawley, Las Vegas, for Appellant.
Richard H. Brattain, Las Vegas, for Respondent.
1. Arbitration.
The supreme court had jurisdiction to examine decision of district court to strike request for trial de novo made by participant in
mandatory arbitration, as motion was timely filed. Nevada Arbitration Rules 19; NRAP 3A(b).
2. Arbitration.
District court should not have cursorily rejected request for trial de novo made by participant in mandatory arbitration of
negligence action based on automobile collision, based on his failure to act in good faith, without offering specific findings on lack of
good faith participation. Nevada Arbitration Rules 22(A).
3. Arbitration.
In the future, any order imposing sanctions for the failure to participate in arbitration proceedings in good faith must be
accompanied by specific written findings by district court describing what type of conduct was at issue and how that conduct rose to
level of failed good faith participation. Nevada Arbitration Rules 22(A).
4. Arbitration.
District court abused its discretion, when it imposed severe sanction, namely, the denial of request for trial de novo after
mandatory arbitration of negligence claim based on automobile collision on driver involved in automobile accident who failed to
conduct discovery before arbitration hearing and failed to attend arbitration hearing. Driver claimed failure to conduct discovery was
tactical decision, and his counsel offered defense at arbitration hearing by cross-examining other driver and disputing her alleged
injuries. Nevada Arbitration Rules 22(A).
OPINION
Per Curiam:
On March 2, 1992, appellant Charles Chamberland (Chamberland) crashed his car into the back of respondent Debbie Labarbera's
(Labarbera) vehicle. Labarbera filed a negligence suit against Chamberland. Her request for damages was less than $25,000.00, and
therefore in accordance with Nevada Arbitration Rule (NAR) 3, the matter was subject to mandatory arbitration.
On April 1, 1993, the case was heard by an arbitrator. The arbitrator found in favor of
Labarbera and awarded her approximately $16,000.00 in damages. Chamberland filed a
request for trial de novo on May 24, 1993. Labarbera moved to strike the request, arguing that
Chamberland waived the right to a jury trial under NAR 22(A) by failing to act in good faith
during the arbitration process. Labarbera asserted that Chamberland's counsel did not conduct
any pre-arbitration discovery, and that Chamberland himself did not show up for the
arbitration hearing. The hearing consisted of Labarbera offering testimony and evidence and
Chamberland's counsel engaging in cross-examination.
On July 12, 1993, the district court struck Chamberland's request for trial de novo.
Unfortunately, the district judge did not offer any rationale or make any particularized
findings regarding Chamberland's alleged lack of good faith participation. The court simply
stated that having reviewed the submitted papers and hearing oral argument and good cause
appearing therefor, IT IS HEREBY ORDERED that plaintiff's Motion to Strike defendant's
Request for Trial De Novo be granted.
Immediately following this order, the discovery commissioner entered final judgment
pursuant to NAR 19. The commissioner noted that in accordance with the rule, [s]aid award
shall have the same force and effect as a final judgment of the court in a civil action, but may
not be appealed. Chamberland appeals the district court's order striking trial de novo and
presents the following arguments: (1) the district court erred by not offering particularized
findings regarding his alleged lack of good faith participation; and (2) the district court
abused its discretion by delivering such a severe sanction under Nevada's Arbitration Rules.
We agree with both contentions and accordingly reverse the district court's ruling.
[Headnote 1]
As a preliminary matter, we note that this court has jurisdiction to examine the decision to
strike Chamberland's request for trial de novo. NAR 19 provides that a litigant must file a
request for a trial de novo within thirty days of an arbitration award in order to preserve any
right of appeal.
1
If such a request is not filed, the arbitration award is entered as a
nonappealable judgment.
__________

1
NAR 19 provides as follows:
Rule 19. Judgment on award. If no party files a written request for trial de novo within thirty (30) days
after service of the award on the parties, the clerk of the court shall, upon notification by the discovery
commissioner, enter the arbitration award as a final judgment of the court. Said award shall have the
same force and effect as a final judgment of the court in a civil action, but may not be appealed.
(Emphasis added.)
arbitration award is entered as a nonappealable judgment. Even though the district court
struck Chamberland's request for a trial de novo, we conclude that the motion was timely
filed in accordance with NAR 19, and the provisions of the rule prohibiting the right to appeal
did not apply. In its decision to strike, the district court ordered that the arbitration award be
entered as a final judgment of the court. We construe this language as the entry of final
judgment. Accordingly, this court has jurisdiction to address the decision to strike, within the
context of Chamberland's appeal from a final judgment of the district court. NRAP 3A(b).
The Nevada Constitution provides a litigant with the right to a jury trial in civil
proceedings.
2
This right may be waived by various means prescribed by law. NAR 22(A)
states that a court may sanction an arbitration participant by refusing trial de novo if the
participant has not acted in good faith:
Rule 22. Sanctions.
(A) The failure of a party or an attorney to either prosecute or defend a case in good
faith during the arbitration proceedings shall constitute a waiver of the right to request a
trial de novo.
[Headnote 2]
Chamberland claims that the district court erred in its application of this rule. His
argument is two-fold. Initially, Chamberland contends that the court erred by cursorily
rejecting his request for trial de novo without offering specific findings of lack of good faith
participation. We agree.
In Young v. Johnny Ribeiro Building, 106 Nev. 88, 787 P.2d 777 (1990), we established
the general proposition that every order of dismissal with prejudice as a discovery sanction
be supported by an express, careful and preferably written explanation of the court's analysis
of the pertinent factors. Id. at 93, 787 P.2d at 780 (emphasis added). We ultimately upheld
the sanction because the district court ruling was supported by a careful 18-page recitation
of findings of fact and conclusions of law. We also noted that while the power to sanction
was traditionally a discretionary function of the district court, a somewhat heightened
standard of review applied to sanctioning orders that terminated the legal proceedings. Id. at
92, 787 P.2d at 779.
Although the procedural and factual climate of Young is different from the case at bar, the
sanction at issue is the same. In the present case, the district court terminated the legal
proceedings due to Chamberland's alleged misconduct.
__________

2
Nev. Const. art 1, 3 provides in pertinent part:
The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be
waived by the parties in all civil cases in the manner to be prescribed by law . . . .
present case, the district court terminated the legal proceedings due to Chamberland's alleged
misconduct. The magnitude of the sanction brings the action under the purview of Young.
Young instructs that the district court must enter specific findings and conclusions when
dismissing a party from a legal proceeding under NRCP 37. This not only facilitates appellate
review, but also impresses upon the district court the severity of such a sanction.
[Headnote 3]
We hereby adopt a similar principle for all future rulings under NAR 22(A). All
forthcoming sanctioning orders under this rule must be accompanied by specific written
findings of fact and conclusions of law by the district court describing what type of conduct
was at issue and how that conduct rose to the level of failed good faith participation. We note
that this rule is particularly appropriate for arbitration cases where the record on appeal is
often scant, making review in this court extremely difficult. See Wichinsky v. Mosa, 109
Nev. 84, 847 P.2d 727 (1993) (describing problems on appeal presented by deficient record in
arbitration appeal).
[Headnote 4]
Aside from this procedural argument, Chamberland also claims that the district court
abused its discretion by ruling that he failed to participate in good faith during arbitration.
Again, we agree.
Although Chamberland did not conduct any discovery before the arbitration hearing, he
claims that this was a tactical decision. The case was a rear-end collision and therefore
liability was not a serious issue. Labarbera provided Chamberland with copies of all relevant
medical records and her damages and expenses were modest. In light of these facts, extended
discovery was unwarranted.
In addition, we cannot conclude that Chamberland's failure to attend the arbitration hearing
warranted such a draconian sanction as terminating his right to further participate in the
litigation process. With liability apparently not at issue, the entire dispute involved the extent
of Labarbera's damages. Chamberland's counsel offered a defense at the arbitration hearing by
cross-examining Labarbera and disputing her alleged injuries.
In sum, we conclude that the district court abused its discretion by imposing such a severe
sanction upon Chamberland. Arbitration matters often involve simple disputes and meager
claims for damages that do not warrant expensive pre-arbitration discovery or sophisticated
trial techniques. Accordingly, we reverse the district court's order striking Chamberland's
request for trial de novo and remand for proceedings consistent with this opinion.
district court's order striking Chamberland's request for trial de novo and remand for
____________
110 Nev. 706, 706 (1994) Starr v. Rousselet
ELIZABETH JEAN STARR, Appellant, v. CHARLES ROUSSELET, Special Administrator
of the Estate of LAURENCE ROUSSELET, Respondent.
No. 21603
July 7, 1994 877 P.2d 525
Appeal from district court order determining entitlement of decedent's estate to funds held
in joint checking account. Second Judicial District Court, Washoe County; Deborah A.
Agosti, Judge.
Action was brought to determine entitlement to funds in joint checking account as between
decedent's estate and decedent's roommate. The district court ruled that funds belonged to
decedent's estate, and roommate appealed. The supreme court, Steffen, J., held that new bank
signature card adding roommate's name to decedent's checking account was inadequate to
establish joint tenancy, absent survivorship language.
Affirmed.
Young, J., and Rose, C. J., dissented.
David C. McElhinney, Reno, for Appellant.
Fred Hill Atcheson and Lawrence Wishart, Reno, for Respondent.
1. Joint Tenancy.
Joint tenancies are not favored in courts of equity.
2. Joint Tenancy.
Absent survivorship language, simple reference to joint account and to joint access or control on bank signature card will not
suffice for purposes of establishing joint tenancy nor may deficiency be remedied by parol evidence for purposes of statute providing
that, when deposit has been made in name of depositor and another person, deposit is property of the persons as joint tenants and
making of deposit in form of joint tenancy vests title to deposit in the survivor. NRS 100.085.
3. Joint Tenancy.
New bank signature card which added depositor's roommate's name to depositor's checking account but which did not contain
survivorship language was inadequate to establish joint tenancy and thus, funds in checking account belonged to depositor's estate
upon his death. NRS 100.085.
OPINION
Appellant, Elizabeth Jean Starr, challenges on appeal the district court's order determining
that funds held jointly by Starr and Laurence Rousselet (Rousselet or the decedent) in a
checking account belonged to Rousselet's estate upon his death. Concluding that the district
court's ruling was correct, we affirm.
FACTS
Rousselet, a widower with three adult children, died on January 14, 1990. His wife had
preceded him in death over five years earlier. After the death of his wife, Rousselet continued
to have contact and a fatherly relationship with his married daughter, Diane Gawart, and his
son Charles, who lived in Reno and who would frequently prepare meals for his father.
Sometime shortly before his death, Rousselet had also been in contact with his son Lawrence,
who lived in Napa, California, regarding the possibility of the father moving to a veterans'
home in that area where the climate was more to his liking. Other evidence of record revealed
that Rousselet maintained a valued relationship and contact with his children, grandchildren,
siblings and friends up until the time of his death.
During the year of his wife's death, in 1984, the lonely widower developed a nonromantic
friendship with Starr, whom he had met while playing keno in a Reno casino. In 1987,
Rousselet and Starr decided to live together and thereby lessen their rental expenses. The
evidence revealed that the relationship between the two was of a platonic nature, and that they
maintained separate bedrooms in each house or apartment where they resided. During this
period, Rousselet dated various women; indeed, Starr admitted that the relationship she had
with Rousselet was not an intimate one.
On December 14, 1989, Rousselet was hospitalized. Six days later, Valley Bank processed
a signature card that added Starr's name to Rousselet's checking account, thereby effectuating
a change in the account from that of an individual to a joint account. At the time, there was a
balance in the account of over $60,000.00. A Valley Bank official testified that under the
joint account, both Rousselet and Starr had access to the funds in the account.
There was testimony adduced at the hearing indicating that Starr's name had been added to
the account for convenience, thus enabling her to write checks for joint expenses.
enabling her to write checks for joint expenses. Starr testified that Rousselet said that she
might have to write a check and admitted that Rousselet had never given her any money out
of the Valley Bank account and that she had never written a check on that account while
Rousselet was alive.
The following additional facts presented at the hearing undoubtedly had more than a little
to do with the district court's conclusion that much of Starr's testimony was not credible.
Rousselet was released from the hospital for a short period of time prior to his death. While in
the hospital, Rousselet was found at one point wandering in the halls in a disoriented state.
His daughter, Diane, who was a certified nurse's aide, travelled from her home in Wyoming
to care for her father for a period of time after his release from the hospital.
Diane testified that after she arrived, her father retrieved two $100 bills from an old bank
pouch in order to help defray her travel expenses. Testimony of an old and close family friend
and members of the family revealed that Rousselet had kept large amounts of cash in his
wallet, in a coffee can in his apartment, and in the bank pouch.
Rousselet was admitted to a Reno veterans' nursing home several days before his demise
on Sunday, January 14, 1990. The following day was a banking holiday. On Tuesday, Starr
went to Valley Bank, closed the joint account and transferred the funds to an individual
account in her name. Starr testified that Rousselet did not want his children to receive
anything, and that in fact he said, I want them to pay for my funeral.
For a brief time after Rousselet's wife died, there was some tension between Rousselet and
his daughter Diane and son Lawrence because Rousselet had ordered his wife's body
cremated, a decision the children found objectionable for religious reasons. However, the
testimony of friends indicated that they were unaware of Rousselet ever speaking ill of his
children or stating that he intended to leave the bulk of his assets to Starr. Rousselet and his
one son formerly owned service stations together in Florida and California, and near the end
of his life, Rousselet offered to give Diane a $6,000.00 down payment on a house as she had
indicated a willingness to move to Reno permanently to care for her father.
On January 18, 1991, the three grown children went to their father's apartment to collect
his possessions. Four officers from the Reno Police Department accompanied them in order
to maintain order. Although the children had keys to Rousselet's apartment, the locks had
been changed after his death. Unable to locate many of Rousselet's effects, Starr was asked if
she knew where the decedent's checkbooks, bank book, and coin collection were located.
were located. She responded in the negative and announced that she had to leave for a
hairdresser's appointment. The police then asked Starr to show them the title to the
automobile. As Starr sought to retrieve the title from the trunk of the vehicle, the police
noticed a large stack of silver dollars in the right corner behind the hatchback. When one of
the officers asked Starr about the coins, she replied that her mother had given them to her.
Noticing that the car contained a large number of documents bearing Rousselet's name, the
police again asked Starr about the ownership of the coins. She then admitted that the coins
belonged to the decedent, but claimed that Rousselet had said that he did not want his kids to
use or sell them. Further scrutiny of the contents of the car revealed a bag of torn and
shredded documents that proved to be what was left of Rousselet's checks and deposit slips.
Starr testified that Rousselet had told her to destroy these old documents after she opened the
new account. The police thereafter searched Starr's room, where they found some of
Rousselet's silver spoons. Diane later discovered the empty bank pouch in Starr's room. Starr
denied having seen the pouch before and testified that she was not aware that Rousselet kept
large amounts of money in his wallet or in a coffee can in the apartment.
The bank book was later discovered under Starr's mattress, but none of the cash that
Rousselet allegedly kept in large amounts in his apartment was ever recovered. As noted
previously, Starr never contributed to the joint account and never wrote a check on that
account while Rousselet was alive. A few years prior to his death, Rousselet had withdrawn
funds to purchase a Hyundai automobile which was registered solely in Starr's name. Starr
testified that Rousselet had bought her a brand new car and told her that anytime, if she
wanted to give him money for it fine, it was up to me. Later, Starr identified an account
book kept by Rousselet which she said also corresponded to her own record, which showed
the $6,000.00 balance she owed to Larry [Rousselet] for the car.
Although there was conflicting testimony provided at the hearing, the district court judge
concluded that if she were to rule according to the facts rather than the law, she would have
found no credible evidence that the decedent intended to create a joint-tenancy account with
the Respondent [Starr]. Continuing, the district judge found that the weight of the evidence
supports the conclusion that the decedent's only purpose in adding the Respondent's [Starr's]
name to the account was to insure that by her access to the account during his period of
hospitalization, his bills would not go unpaid. The judge also stated that she found most, if
not all, of Respondent's [Starr's] testimony to the contrary to be incredible."
trary to be incredible. Citing McKissick v. McKissick, 93 Nev. 139, 147, 560 P.2d 1336,
1370-71 (1977), the district judge nevertheless concluded that despite her view of the
evidence, her decision would necessarily be dictated by the law, rather than oral evidence
concerning the intent of the parties.
On January 17, 1990, the district court appointed Rousselet's son, Charles, as Special
Administrator of his father's estate. The court also issued a restraining order preventing
withdrawal by Starr of any of the funds which she had transferred from the joint account to an
individual account in her name at Valley Bank. The funds in the Valley Bank account
represented the major asset of Rousselet's estate.
Starr sought to quash the restraining order on grounds that the money in the account was
her property. After a two-day hearing, the district court entered its decision, holding that the
funds in the contested account were the property of the decedent's estate. Starr appeals.
DISCUSSION
The single issue for this court to decide is whether the joint account created by a new bank
signature card bearing the signatures of both Rousselet and Starr gave rise to an account held
in joint tenancy with rights of survivorship.
As previously indicated, approximately three weeks prior to his death, and while
hospitalized, Rousselet signed a new bank signature card which, with the addition of Starr's
signature, would give Starr joint access to the funds in the account. Starr took the new card to
Valley Bank and effectuated the conversion from an individual to a joint account. The nature
of the account was identified by an X placed in the box next to the word joint, thus
designating a joint account. In addition, the signature card specified (with respect to any of
six different types of accounts that the card was designed to accommodate): The undersigned
authorize Valley Bank of Nevada to recognize any of the signatures inscribed below in
payment of funds or transactions of any business for this account. There were no other
provisions on the card relevant to the issue before us.
In the McKissick case, we rejected dictum in an earlier case (Edmunds v. Perry, 62 Nev.
41, 140 P.2d 566 (1943)) which suggested that oral evidence could be admitted to remedy any
deficiency in a written instrument purporting to establish ownership in joint tenancy. In
addition, we stated:
Since joint tenancy is a method by which property may pass upon death a written
instrument specifying such intention is essential. Creditors of the decedent and the
rights of others who normally would be the natural objects of his bounty may be
involved.
bounty may be involved. Their claims should not be erased by oral testimony of
intention given by one asserting the rights of a surviving joint tenant. Only a writing
may accomplish that consequence. Indeed, joint tenancies are not favored in courts of
equity. Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918 (1943).
Id. at 147, 560 P.2d at 1370-71.
McKissick also cited NRS 111.065(2)
1
in support of the court's conclusion that a writing
is required in order to create a joint tenancy. Id. at 146, 560 P.2d at 1370. Although it is clear
from our ruling in McKissick that parol evidence is not admissible to prove the existence of a
joint tenancy, it does not follow that parol evidence is inadmissible to disprove questionable
evidence of joint tenancy. In those instances where an instrument falls short of unambiguous
evidence of joint tenancy, the policy declared in McKissick would be served by admitting
parol evidence to prove that a joint tenancy ownership was never intended by the parties.
Nevada statutory law respecting joint tenancies in the form of bank accounts must be
considered in resolving the issue presented by the instant case. NRS 100.085 provides, in
pertinent part:
1. When a deposit has been made in the name of the depositor and one or more
other persons, and in form to be paid or delivered to any one of them, or the survivor or
survivors of them, the deposit is the property of the persons as joint tenants. The money
or property shall be held for the exclusive use of the persons named, and may be paid or
delivered to any of them during the lifetime of all, or to the survivor or survivors after
the death of the depositor, and payment or delivery is a valid and sufficient release and
discharge of the depository.
2. The making of a deposit in the form of a joint tenancy vests title to the deposit in
the survivor or survivors.
NRS 100.085 was adopted in 1977 as an amendment to NRS 663.015, which was
repealed.
2
Prior to its repeal, NRS 663.015
3
was interpreted by this court as providing a
conclusive presumption of joint tenancy.
__________

1
NRS 111.065(2) provides: A joint tenancy in personal property may be created by a written transfer,
agreement or instrument.

2
See 1977 Nev. Stat. ch. 422, 3 at 806.

3
NRS 663.015 provided:
Deposits in names of two or more persons:

1. When a deposit has been made, or is made after July 1, 1971, by any person, in any bank or other
depository transacting business in this state, in the name of such depositor and one, two or more persons,
and in form to be paid to the survivor or survivors of them, such deposit and any addition thereto made
by any of such persons, after the making thereof, shall become the property of such persons as joint
tenants, and
was interpreted by this court as providing a conclusive presumption of joint tenancy. See
Weinstein v. Sodaro, 91 Nev. 638, 541 P.2d 531 (1975). Weinstein, because of the
amendment and repeal of NRS 663.015, has no application to the instant case.
NRS 100.085, the successor statute to NRS 663.015, does not contain the language of the
latter statute which, when the terms of the statute were satisfied, made joint tenancy a
conclusive presumption. We note, however, that the repealed statute based the conclusive
evidence of joint tenancy upon a deposit that was made in the name of the depositor and one
or more persons in form to be paid to the survivor or survivors of them.
Under the current statute, NRS 100.085, survivorship language was retained and the
element of joint access or joint control of the account was added. The district court discerned
ambiguity in the statute, but concluded that the most reasonable interpretation of its terms
required joint tenancy instruments covered by the statute to include expressions of both joint
control and rights of survivorship.
Neither the terms of the statute nor its legislative history, singularly or in combination,
clearly reveal whether the inclusion of survivorship terminology on a bank signature card is
necessary to the creation of ownership in joint tenancy. We agree, however, that the
interpretation reached by the district court is preferable to alternative views, and is more
consistent with traditional notions pertaining to the establishment of joint tenancy accounts.
As the district court observed, survivorship is the hallmark of joint tenancy.
[Headnotes 1-3]
As reaffirmed in McKissick, joint tenancies are not favored in courts of equity. We
therefore conclude, in the interest of certainty, that in the absence of survivorship language, a
simple reference to a joint account and to joint access or control on a bank signature card
will not suffice for purposes of establishing a joint tenancy under NRS 100.085.
4
Nor may
the deficiency be remedied by parol evidence.
__________
such deposits, together with all dividends thereon, shall be held for the exclusive use of such persons and
may be paid to any of them during the lifetime of all or to the survivor or survivors after the death of any
of them. Such payments and receipts or acquittance of the person or persons to whom such payment is
made shall be a valid and sufficient release and discharge to such bank or other depository for all
payments made on account of such deposit.
2. The making of the deposit in such form shall, in the absence of fraud or undue influence, be
conclusive evidence, in any action or proceeding to which either such bank or other depository, or a
surviving depositor, is a party, of the intention of the depositors to vest such deposit and the additions
thereto in such survivor or survivors.

4
The district court judge noted the difference between NRS 100.085 and NRS 678.600; the latter statute refers
to multi-party credit union accounts
remedied by parol evidence. See McKissick, 93 Nev. at 147, 560 P.2d at 1370. The district
court did not err in finding the bank signature card inadequate to establish a joint tenancy.
CONCLUSION
For the reasons discussed above, the judgment of the district court is affirmed.
Springer and Shearing, JJ., concur.
Young, J., with whom Rose, C. J., joins, dissenting:
I respectfully dissent from the majority's opinion. I disagree both with the majority's
interpretation of NRS 100.085 and with what appears to be a new and inequitable parol
evidence rule as to joint tenancies.
The majority concludes that the most reasonable interpretation of NRS 100.085 is that a
joint tenancy does not exist absent right of survivorship language. I disagree. In my opinion,
the wording of the statute does not require such language.
The predecessor to NRS 100.085 was NRS 663.015. The earlier statute required that in
order to create a joint tenancy with a right of survivorship, a deposit had to be made in the
name of the depositor and one or more others and in form to be paid to the survivor or
survivors of them . . . . (Emphasis added.) However, our current statute, NRS 100.085
requires a deposit be made in the name of the depositor and one or more other persons, and
in form to be paid or delivered to any of them, or the survivor or survivors of them . . . .
(Emphasis added.) If such is the case, the deposit is the property of the persons as joint
tenants. (Emphasis added.) The clear meaning of this statute, as opposed to its predecessor,
is that no magic words are necessary to create a joint tenancy with a right of survivorship in
a joint bank account.
In the instant case, the bank signature card stated that the account was "joint."
__________
and was also an amendment contained in Senate Bill 74. NRS 678.600 provides, in pertinent part:
1. A multiple-party account payable to two or more persons, jointly or severally, which does not
expressly provide that there is not a right of survivorship, though there is no mention of survivorship or
joint tenancy, is a survivorship account. The right of survivorship continues between survivors.
(Emphasis supplied.) The absence of the highlighted provision of NRS 678.600 within the provisions of NRS
100.085, despite being part of the same senate bill, strongly suggests that the omission was purposeful.
The statutes pertaining to bank accounts and credit union accounts differ because deposits to the latter are
frequently treated as shares, and at least one party to a multiple-party credit union account must be a member of
the credit union. See NRS 678.160(2) and NRS 678.020.
account was joint. In addition, above the signature lines, it stated that [t]he undersigned
authorize Valley Bank of Nevada to recognize any of the signatures inscribed below in
payment of funds or transactions of any business for this account. Accordingly, I must
conclude that this account complied with the dictates of NRS 100.085, thus making Starr and
Rousselet joint tenants. The majority's decision calls into question the validity of the
expectations of all those holding joint bank accounts in this state. Must banks now question
all those whose names are on joint accounts prior to allowing any withdrawal? Must all
accounts include the words with a right of survivorship in order to create a true joint
tenancy? I fear that is the case in light of the majority's holding. Indeed, if all joint accounts
as existed in this case are not joint, are the holders then tenants in common? If so, then it
appears Ms. Starr must have a right to half the proceeds of this account as a surviving tenant
in common. The majority makes no mention of the propriety of her removing the funds from
the account, only the propriety of her possession of those funds. Is a new form of ownership
being created, that of a joint tenant who may remove funds, but may not keep them? While
the majority may feel that its conclusion is consistent with traditional notions pertaining to
the establishment of joint tenancy accounts, it is certainly not consistent with the clear
wording of NRS 100.085.
In addition to the majority's interpretation of NRS 100.085, I also disagree with the
majority's dictates concerning parol evidence in joint tenancy disputes. The majority correctly
notes that in accordance with our holding in McKissick v. McKissick, 93 Nev. 139, 560 P.2d
1336 (1977), parol evidence is not admissible to prove the existence of a joint tenancy.
However, the majority also goes on to hold that parol evidence is admissible to disprove
questionable evidence of a joint tenancy.
I agree that parol evidence should not be allowed to prove the existence of a joint tenancy.
However, my question as to the majority's holding is whether after a court allows parol
evidence to disprove a joint tenancy, may the alleged joint tenant then present evidence to
refute the admitted parol evidence? It appears manifestly unfair to allow one side to present
parol evidence and then not allow the other side to refute that evidence. And yet, that would
be the result of the majority's holding.
In addition, I question the majority's ruling that parol evidence is admissible to disprove
questionable evidence of joint tenancy. (Emphasis added.) Does this refer only to
questionable written evidence? Further, what is the criteria for determining whether evidence
is questionable and thus refutable by parol evidence?
evidence? I fear the majority's decision serves only to further complicate an already
complicated process.
A far more equitable standard would be to continue to prohibit parol evidence to prove the
existence of a joint tenancy. However, when faced with parol evidence disproving a joint
tenancy, the alleged joint tenant should he allowed to refute that evidence with parol
evidence. I agree with the majority that courts of equity do not favor joint tenancies.
However, I do not believe it is our job to actively discourage joint tenancies as the majority
appears to be doing today. Accordingly, I respectfully dissent.
____________
110 Nev. 715, 715 (1994) SNEA v. Lau
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., a Nevada Corporation, as
Representative of its Members who are Voters and Taxpayers in the State of Nevada;
and ROBERT GAGNIER, as an Individual, Resident, Citizen, Taxpayer and Elector
of the State of Nevada, Petitioners, v. CHERYL LAU, in Her Official Capacity as
SECRETARY OF STATE OF NEVADA, Respondent, and BOB MILLER, Real
Party in Interest.
No. 25386
July 7, 1994 877 P.2d 531
Petition for a writ of mandamus directed to respondent Secretary of State Cheryl Lau,
requiring her to reject any and all present or future applications of real party in interest Bob
Miller to be placed on any ballot as a candidate for governor of the State of Nevada.
Voters petitioned for writ of mandamus to require secretary of state to reject any
applications of governor for reelection. The supreme court, Rose, C. J., held that state
constitutional amendment limiting reelection of governor who had served two years of
another governor's term referred to official years, rather than to calendar years, which thus
rendered governor eligible for relection.
Petition denied.
Norah Ann McCoy, Carson City, for Petitioners.
Benesch & Fermoile, Reno, for Respondent.
110 Nev. 715, 716 (1994) SNEA v. Lau
Real Party in Interest.
State constitutional amendment on term limitations for governor did not clearly indicate what type of year was intended for term
limit, which thus required supreme court to use canons of construction and to give effect to all controlling legal provisions in pari
materia. Const. art. 5, 3.
2. States.
Governor's term consists of four official years running from and to first Monday of January, rather than four calendar years, in
light of state charter provision that governor hold office for four years from installment until qualification of successor and in light of
statute providing that new governor become qualified by taking oath on first Monday of January after election. NRS 223.020(2),
223.030.
3. States.
State constitutional amendment limiting reelection of governor who had served two years of another governor's term referred to
official years running from and to first Monday in January, rather than to calendar years, which thus rendered eligible for reelection
governor who had served one day less than two official years, but four days more than two calendar years, of prior governor's term.
Const. art. 5, 3.
4. States.
Purpose of state constitutional amendment on term limits for governor to limit entrenchment of incumbents did not assist
determination of whether constitutional limit based on number of years referred to calendar years or official years, in light of fact that
particular calendar year may be longer or shorter than official year depending on calendar of year in question. Const. art. 5, 3.
5. Officers and Public Employees.
If constitutional provision on right to hold public office is capable of being understood in two or more senses by reasonably
informed people, then it must be liberally construed against disqualification and in favor of right of voters to exercise their electoral
choice.
OPINION
Petitioners contend that because Bob Miller (Miller) served as acting governor for 734 days, he is ineligible for reelection pursuant to
Article 5, section 3 of the Nevada Constitution.
1
For reasons stated below, we reject this argument.
__________

1
Article 5, section 3 of the Nevada Constitution provides, in relevant part:
[N]or shall any person be elected to the office of Governor more than twice; and no person who has held
the office of Governor, or acted as Governor for more than two years of a term to which some other
person was elected Governor shall be elected to the office of Governor more than once.
110 Nev. 715, 717 (1994) SNEA v. Lau
Richard Bryan (Bryan) began his second term as governor of Nevada on Monday, January
5, 1987. His official term of office would have lasted until the first Monday in January four
years later, when his successor would have been installed. However, Bryan was subsequently
elected to the United States Senate at the 1988 general election, and resigned his position as
governor on Tuesday, January 3, 1989.
Pursuant to Article 5, section 18 of the Nevada Constitution, upon the resignation of the
governor, the lieutenant governor automatically succeeds to the powers and duties of the
office of governor. Thus, Miller became acting governor of Nevada on Tuesday, January 3,
1989. Miller served as acting governor during Bryan's term from January 3, 1989, through
January 6, 1991, a total of 734 days. Miller was elected to the office of governor at the 1990
general election and began serving his present four-year term on Monday, January 7, 1991.
On March 10, 1994, Miller filed his declaration of candidacy for the office of governor in
the 1994 primary election. This declaration certifies that Miller will qualify for the office if
elected thereto.
Petitioners filed this writ of mandamus, asserting a beneficial interest in seeing that all
proceedings relating to the upcoming gubernatorial primary election are executed and
performed in accordance with the laws and constitution of the State of Nevada.
Petitioners argue that the word years as used in Article 5, section 3 of the Nevada
Constitution has the ordinary and well-understood meaning of 365-day calendar years. In
State v. State, Employees Assoc., 102 Nev. 287, 720 P.2d 697 (1986), we held:
When a statute uses words which have a definite and plain meaning, the words will
retain that meaning unless it clearly appears that such meaning was not so intended. If
language is plain and unambiguous, it must be given effect.
Id. at 289-90, 720 P.2d at 699 (citations omitted). Petitioners contend that because it does not
clearly appear that any other meaning is intended, the word years must retain this ordinary
meaning.
The use of the word years in the constitutional phrase years of a term is not so clear
and unambiguous that it can have only the meaning that petitioners ascribe to it.
Many words of common use in our language have two or more meanings. It is not
infrequent that a word having one meaning in its ordinary employment has a materially
different or modified meaning in its legal use.
110 Nev. 715, 718 (1994) SNEA v. Lau
Sawyer v. District Court, 82 Nev. 53, 56, 410 P.2d 748, 750 (1966) (quoting Watkins v.
Mooney, 71 S.W. 622 (Ky. 1903)) (rejecting the lieutenant governor's argument that the word
absence in Article 5, section 18 of the Nevada Constitution was unambiguous and should
be literally interpreted, and concluding instead that the word means effective absence).
The word year as used in statutes and the Nevada Constitution may mean a
calendar-based year (calculated from and to a set date) or an official or political year (running
from and to a floating day within a month).
2
See State ex rel. Stadter v. Patterson, 251 P.2d
123, 131 (Or. 1952). The practice of setting terms for legislative and judicial officers to begin
and end on fixed days of the week created the official year, which is always shorter or
longer than the calendar year. An official year based on a day of the week never equals
petitioners' proposed definition of 365 days, nor does an official term ever equal 1460 (4 x
365) days because the governor's official year begins and ends on a Monday so that it must
be a set number of weeks, either 52 (364 days) or 53 (371 days). Thus, defining the word
year to mean 365 days in every situation fails to recognize the reality of the varying uses of
year in the Nevada Constitution.
[Headnote 1]
The critical issue in the instant case is determining whether the framers of the 1970
amendment to Article 5, section 3 contemplated a calendar year or an official year in
prohibiting a person who has served as acting governor for more than two years from being
elected governor more than once. The amendment does not clearly indicate what type of year
is intended. Thus, it is necessary to use canons of construction, and to give effect to all
controlling legal provision in pari materia. See Walker v. Reynolds Elec. & Eng'r. Co., 86
Nev. 228, 233, 468 P.2d 1, 4 {1970) {holding that two statutes relating to the same
subject matter could be given simultaneous effect without conflict and in pari materia);
see also Colorado Project-Common Cause v. Anderson, 495 P.2d 220, 222-23 {Colo.
__________

2
For example, the Nevada Constitution sometimes speaks of years in terms of a set year from January 1 to
December 31, inclusive. In several sections, it sets a time to perform some acts as a set date in the year before
the year in which another act is set to be performed, referring to set calendar years. Nev. Const. art 19, 1(1);
see also Nev. Const. art, 19, 2(3) and (4).
In contrast, the Nevada Constitution refers to official years in speaking of legislators' and judges' terms. For
example, assembly members' terms of office shall be two years from the day next after their election, which is
set at the first Tuesday after the first Monday in November. Nev. Const. art. 4, 3. Senators' terms are Four
Years from the day next after their election. Nev. Const. art. 4, 4; see also Nev. Const. art. 17, 10 (terms
after 1866). Terms of Supreme Court Justices are Six Years from and including the first Monday of January
next succeeding their election. Nev. Const. art. 6, 3; see also Nev. Const. art. 6, 5 (terms of district judges).
The election is established as the first Tuesday after the first Monday in November.
110 Nev. 715, 719 (1994) SNEA v. Lau
P.2d 1, 4 (1970) (holding that two statutes relating to the same subject matter could be given
simultaneous effect without conflict and in pari materia); see also Colorado Project-Common
Cause v. Anderson, 495 P.2d 220, 222-23 (Colo. 1972) (constitutional provisions should be
read in pari materia with pertinent controlling statutes on the same subject matter).
[Headnote 2]
Neither the 1970 amendment nor the Nevada Constitution makes reference to the type of
years, calendar-based or official, which constitute the governor's term. Article 5, section 2
states only that the governor shall hold office for Four Years from the time of his
installation, and until his successor shall be qualifled. The state charter left the determination
of when the governor would take office to the Legislature, who provided that, [t]he governor
shall be chosen at the general election of 1866, and every 4th year thereafter, and shall hold
his office for the term of 4 years from the time of his installment and until his successor shall
be qualified. NRS 223.020(2). The Legislature established that the governor takes the
official oath on the first Monday of January next succeeding his election, thus becoming
qualified at that time. See NRS 223.030. Reading these provisions together, we conclude that
the governor's term consists of four official years as distinct from calendar years.
[Headnote 3]
Thus, when the 1970 amendment referred to two years of a term, it may reasonably have
referred to the type of years which comprise a term, that is, an official year running from
and to the first Monday in January.
3
See Crockett v. Tuttle, 197 P. 900 (Utah 1921) (stating
that when the Constitution speaks of years in a term of office, it refers to official rather than
calendar years); see also Temple v. Liquor Control Comm'n, 230 N.E.2d 457 (Ohio 1965)
(state law limiting election referred to political year, not calendar year). Miller served as
acting governor one day less than two official years, since he took office on Tuesday,
January 3, 1989, rather than on Monday, January 2, 1989. Therefore, we conclude that Miller
is eligible for reelection under the Nevada Constitution.
[Headnote 4]
In so concluding, we reject petitioners' argument that a study of the amendment's
legislative history confirms the absence of any ambiguity in the two-year limit. Petitioners
assert that because the purpose of the amendment was to limit the power and control of a
single person in the office of governor by limiting the number of terms and years one
person could serve, it is clear that the constitutional provision should be construed to
prohibit Miller from seeking reelection.
__________

3
Petitioners concede that terms of political office may last a little more or a little less than the stated number of
calendar years.
110 Nev. 715, 720 (1994) SNEA v. Lau
control of a single person in the office of governor by limiting the number of terms and years
one person could serve, it is clear that the constitutional provision should be construed to
prohibit Miller from seeking reelection.
We acknowledge the purpose of the amendment, but conclude that this purpose does not
support petitioners' approach to the issuean approach which consists solely of counting
days. The purpose of the amendment was to limit entrenched incumbencies. Interpreting the
phrase years of a term to mean calendar-based rather than official years does not aid in
fighting entrenched incumbencies because sometimes a calendar year is longer than an
official year and sometimes vice versa.
4

Most importantly, we conclude that the people's ability to choose a governor should not be
restricted by an ambiguous provision. Petitioners should prevail only if the phrase years of a
term cannot possibly refer to anything other than calendar years. If a constitutional
provision is capable of being understood in two or more senses by reasonably informed
persons, it must be liberally construed in favor of the right of the voters to exercise their
electorial choice:
The right to hold public office is one of the valuable rights of citizenship. The
exercise of this right should not be declared prohibited or curtailed except by plain
provisions of law. Ambiguities are to be resolved in favor of eligibility to office. . . .
Statutes imposing qualifications should receive a liberal construction in favor of the
right of the people to exercise freedom of choice in the selection of officers.
Furthermore, disqualifications provided by the legislature are construed strictly and will
not be extended to cases not clearly within their scope. . . .
Gilbert v. Breithaupt, 60 Nev. 162, 165-66, 104 P.2d 183, 185 (1940) (citations omitted)
(quoting 46 C.J. Officers 32, at 937 (1928)).
In conclusion, we note that construing the constitution to permit Miller to enter the next
gubernatorial election will not, as petitioners contend, silence the voice of the people.
Rather, such an interpretation enables the citizens of Nevada to speak out, whether it be for or
against Miller.
__________

4
For example, Miller served one day less than two official years of Governor Bryan's term, but four days
more than two calendar years. The term to which Governor Miller was himself elected, consisting of four
official years, is five days shorter than four calendar-based years. The result is that, before the next term
commences, Miller will have served from Tuesday, January 3, 1989, to Monday, January 2, 1995, which is one
day short of six official years and one day short of six calendar years.
110 Nev. 715, 721 (1994) SNEA v. Lau
Accordingly, we deny petitioners' petition for a writ of mandamus.
Steffen, Young, and Shearing, JJ., concur.
The Nevada Constitution provides that no person who acted as Governor for more than
two years of a term to which some other person was elected Governor shall be elected to the
office of Governor more than once. Nev. Const. art. 5, 3.
The Majority justices think that the word years is not clear and unambiguous. The
word years is quite clear to me. For all practical purposes [a year] consists of 365 days,
and in leap years of 366 . . . Ballentine's Law Dictionary 1377 (2d ed. 1948). There is no
leap year involved here; so a year consists of 365 days, and two years consists of 730 days.
To me the constitutional phrase more than two years simply
1
means more than 730 days.
Governor Miller served 734 days of Governor Bryan's term; and 734 days is more than 730
days. Since Governor Miller has already been elected once and has served more than two
years of Governor Bryan's term, he may not run again.
____________
110 Nev. 721, 721 (1994) Casentini v. District Court
ANSEL CASENTINI, an Individual, Petitioner, v. THE NINTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Douglas, and THE
HONORABLE DAVID R. GAMBLE, District Judge, Respondents, and CHO
HUNTON, Real Party in Interest.
No. 25122
July 7, 1994 877 P.2d 535
Petition for writ of prohibition challenging district court order denying motion to quash
service of process. Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
The supreme court held that court could assert jurisdiction over transferee of assets of
debtor, allegedly transferred to avoid judgment.
Petition denied.
__________

1
The Attorney General calls this reasoning simplistic. Op. Att'y Gen. No. 92-14 (December 31, 1992).
Simple is a better word than simplistic.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd., and Michael Pavlakis,
Carson City, for Petitioner.
Roeser & Roeser, Zephyr Cove, for Real Party in Interest.
1. Process.
Because many of facts necessary to determine issue of personal jurisdiction can only be adduced at trial, party opposing motion to
quash service of process is not required to immediately show by preponderance of evidence that jurisdictional requisites are met;
initially, opposing party need only make prima facie showing of jurisdiction.
2. Courts.
General jurisdiction exists when nonresident defendant is held to answer in forum for cause of action unrelated to defendant's
forum activities, and is appropriate when defendant's forum activities are so substantial or continuous and systematic that defendant
must be deemed present in forum.
3. Courts.
Specific jurisdiction exists when cause of action arises from non-resident defendant's contact with forum.
4. Courts.
In order to determine whether specific jurisdiction has been established over non-resident defendant: (1) it must establish that
defendant purposefully made minimum contacts with forum through his conduct, such that he should reasonably anticipate being haled
into court there; (2) cause of action must arise out of or be connected to acts purposefully undertaken in forum state; and (3) it must be
determined that assertion of personal jurisdiction would comport with traditional notions of fair play and substantial justice.
5. Courts.
Creditor suing out-of-state transferee of assets established requirement for jurisdiction, that transferee had made minimum contact
with forum state and that cause of action arose out of transferee's action in forum state. Creditor had made prima facie showing that
transferee had been primary and later sole shareholder of corporation incorporated in forum state, had declared forum state address on
corporate income tax form as being his address, and had engaged in stock transfers involving corporation with transferor, who was a
resident of forum state, including transfers forming basis of present suit.
6. Courts.
Creditor seeking to sue transferee of debtor to recover amounts owed satisfied requirement for jurisdiction, that assertion would
comport with traditional notions of fair play and substantial justice. Interstate judicial system interest in obtaining most efficient
resolution of controversies favored assertion of jurisdiction, as two of three defendants were entities or residents of forum state, forum
state had great interest in adjudicating dispute, plaintiff's interest in seeking convenient and effective relief was furthered by having
suit in forum state, in which he resided, and interest of several states in furthering substantive social policy of preventing the fraudulent
transfers to avoid judgments would be furthered by suit in forum state.
OPINION
Per Curiam:
This petition involves the efforts of judgment creditor Cho Hunton, real party in interest,
to satisfy her judgment against William Casentini. Hunton filed a complaint alleging that
William has been transferring his personal assets and earnings to R&A Inc., a Nevada
corporation (R&A), and his shares of R&A stock to petitioner Ansel Casentini, his father, in
an effort to fraudulently avoid payment of the judgment. The complaint names William,
R&A, and Ansel as defendants. Ansel insists that the Nevada district court has acted without
jurisdiction, and petitions this court for a writ of prohibition directing the district court to
refrain from exercising jurisdiction over him. We conclude that the petition should be denied,
as a prima facie showing of jurisdiction has been demonstrated.
FACTS
Ansel, a resident of California, is a shareholder in R&A and was named as a defendant in
Hunton's lawsuit seeking a recovery of property allegedly transferred to Ansel and R&A by
the judgment debtor, Ansel's son, William.
Hunton's amended complaint alleges that she is the holder of a final judgment of over
$35,000 against William. The complaint avers that Hunton seized $760.00 from William's
restaurant in Genoa, but that she has been unable to further satisfy her judgment due to
various legal maneuverings by William, including a bankruptcy filing which was later
dismissed.
The complaint further alleges that William has transferred, without consideration, personal
earnings and property from the restaurant to defendant R&A and has delivered shares of R&A
stock to his father Ansel, all in a fraudulent attempt to prevent Hunton from successfully
executing on her judgment. Accordingly, the complaint seeks to set aside the transfers and to
enjoin any further transfers; it also seeks damages resulting from the actions of William and
Ansel.
After process was served on Ansel's wife at their residence in San Francisco, Ansel
specially appeared in the district court and moved to quash service on grounds that the district
court lacked personal jurisdiction over him. The district court denied Ansel's motion.
Ansel contends that the district court did not have jurisdiction over him because at all
relevant times, he has been a resident of California who performed no act within the State of
Nevada relating to the property or stock which Hunton seeks to reach as a means of
satisfying her judgment.
relating to the property or stock which Hunton seeks to reach as a means of satisfying her
judgment. Ansel also avers that because of his poor health and advanced age, he has not been
able to travel to Nevada or do business here for many years prior to the time relevant to the
matters alleged in the complaint.
Hunton supports the district court's jurisdiction over Ansel by referring to copies of certain
tax returns attached to her opposition to Ansel's motion to quash. The returns reveal that in
1987, prior to the date of Hunton's judgment, William owned 25% of the stock in R&A and
Ansel owned the remaining shares. Moreover, the address for both Ansel and William was
listed on the returns as a post office box in Minden, Nevada. Hunton also notes that the tax
return for 1988, the year Hunton received her judgment, listed Ansel as the sole stockholder
in R&A, thereby creating the inference that William's stock had been transferred to his father.
Furthermore, Ansel again lists his address on the 1988 tax return as a post office box in
Minden, Nevada.
Also, according to an affidavit signed by Hunton's husband, Ansel attended at least one
day of the Minden trial which resulted in Hunton's judgment against William. Hunton notes
that the affidavit accompanying Ansel's motion to quash was signed by his attorney and that it
did not aver that Ansel was not present during the trial. Hunton asserts that this affidavit
violated Ninth District Court Rule 6(c).
1

DISCUSSION
It is well established that [a] writ of prohibition is the appropriate remedy for a district
court's erroneous refusal to quash service of process. Budget Rent-A-Car v. District Court,
108 Nev. 483, 484, 835 P.2d 17, 18 (1992). This court must therefore make a determination
as to whether the petitioner's contentions have merit.
[Headnote 1]
Because many of the facts necessary to determine the issue of personal jurisdiction can
only be adduced at trial, the party opposing a motion to quash is not required to
immediately show by a preponderance of the evidence that jurisdictional requisites are
met.
__________

1
Ninth District Court Rule 6 provides:
Rule 6. Affidavits on motions
(a) Factual contentions involved in any pretrial or post trial motion must be initially presented and heard
upon affidavits, depositions, answers to interrogatories, and admissions.
(b) Each affidavit shall identify the affiant, the party on whose behalf it is submitted, and the motion or
application to which it pertains, and must be served and filed with the motion, opposition, or reply to
which it relates.
(c) Affidavits must contain only factual, evidentiary matter, conform with the requirements of N.R.C.P.
56(e), and avoid mere general conclusions or arguments. Affidavits substantially defective in these
respects may be stricken, wholly or in part.
personal jurisdiction can only be adduced at trial, the party opposing a motion to quash is not
required to immediately show by a preponderance of the evidence that jurisdictional
requisites are met. Initially, the opposing party need only make a prima facie showing of
jurisdiction. In Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993), we stated:
Once a defendant challenges personal jurisdiction, the plaintiff may proceed to show
jurisdiction by one of two distinct processes. In the more frequently utilized process, a
plaintiff may make a prima facie showing of personal jurisdiction prior to trial and then
prove jurisdiction by a preponderance of the evidence at trial. When a challenge to
personal jurisdiction is made, the plaintiff has the burden of introducing competent
evidence of essential facts which establish a prima facie showing that personal
jurisdiction exists.'' [Citations omitted.]
. . . In determining whether a prima facie showing has been made, the district court
is not acting as a fact finder. It accepts properly supported proffers of evidence by a
plaintiff as true. [Citation omitted.] However, the plaintiff must introduce some
evidence and may not simply rely on the allegations of the complaint to establish
personal jurisdiction.
Id. at 692-93, 857 P.2d at 743-44.
Based upon the foregoing authority, the question of dispositive significance is whether the
evidence proffered by Hunton, such as the tax returns showing Ansel to be a primary, and
later the sole owner, of stock in a Nevada corporation, establishes a prima facie showing of
Ansel has made certain factual assertions tending to negate some of the force of Hunton's
proffered evidence (e.g., that Ansel has always been the sole owner of the stock and that
William was mistakenly listed as an owner of the stock, that the address listed on the stock is
that of the corporation and not of Ansel, etc.). However, this court does not resolve factual
conflict and Ansel's attempt to disengage Hunton's factual connections supporting personal
jurisdiction by resort to contrary or explanatory assertions are therefore not relevant in this
original writ proceeding.
After the plaintiff has made a prima facie case of jurisdiction prior to trial, the plaintiff
must then still prove personal jurisdiction at trial by a preponderance of the evidence. Id. at
693, 857 P.2d at 744. It is at trial, where the plaintiff does not have the luxury of having all
disputed jurisdictional facts resolved in his or her favor (as she does when attempting to
make a prima facie showing), id., that the credibility and veracity of such factual
assertions can be properly assessed.
showing), id., that the credibility and veracity of such factual assertions can be properly
assessed.
Thus, for purposes of our review, this court must accept Hunton's evidence as true and
determine whether the evidence establishes a prima facie showing of personal jurisdiction. In
establishing such a showing, it must first be determined whether the district court's exercise
of jurisdiction is based upon general or specific jurisdiction.
[Headnote 2]
General jurisdiction [exists] where a defendant is held to answer in a forum for causes of
action unrelated to the defendant's forum activities. Trump at 699, 857 P.2d at 748 (citations
omitted). General jurisdiction over the defendant is appropriate where the defendant's forum
activities are so substantial or continuous and systematic that [the defendant] may be
deemed present in the forum.' Id. (citations omitted).
[Headnote 3]
It does not appear that any of Hunton's evidence demonstrates that Ansel's activities in
Nevada have been continuous or systematic. However, Hunton's evidence all tends to show,
to one degree or another, that Ansel was involved in the activities forming the basis of
Hunton's suit, i.e., the alleged scheme to deprive Hunton of the means of satisfying her
judgment by engaging in fraudulent transfers with his son. Accordingly, it appears that
specific jurisdiction, which exists where a cause of action arises from a defendant's contacts
with the forum, is the genre of jurisdiction implicated in this proceeding.
[Headnote 4]
Nevada has construed its long arm statute to be broad enough to reach the outer limits of
federal constitutional due process. Levinson v. District Court, 103 Nev. 404, 406, 742 P.2d
1024, 1025 (1987).
2
Under this standard, the existence of specific jurisdiction in Nevada
courts over out-of-state defendants depends upon the satisfaction of a three-pronged test:
1. It must first be established that the defendant purposefully established minimum
contacts' in the forum State[] by conduct and connection with the forum State . . . such that
he should reasonably anticipate being haled into court there.
__________

2
The long arm statute, NRS 14.065, was amended in 1993 to simply provide as follows:
14.065 Exercise of jurisdiction on any basis consistent with state and federal constitutions. A court of this
state may exercise jurisdiction over a party to a civil action on any basis not inconsistent with the
constitution of this state or the Constitution of the United States.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citing International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945), and World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 295 (1980)). In determining whether an out-of-state defendant can reasonably
anticipate being haled into a foreign forum, due process requires some act by which the
defendant purposefully avail[ed] itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.' Id. at 475 (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
2. It must next be shown that the cause of action arose out of or is connected to the acts
purposefully engaged in by the defendant in the forum state. See, e.g., Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984) (general jurisdiction
based on continuous and systematic contacts must be found where claims do not arise out of
and are not related to the defendant's activities within the forum state); Munley v. District
Court, 104 Nev. 492, 496, 761 P.2d 414, 416 (1988) (where non-resident's contacts are not
significant or substantial, state lacks jurisdiction over a cause of action not directly related to
contacts).
3. Finally, even if the first two requirements are met, it must still be determined whether
the assertion of personal jurisdiction would comport with [traditional notions of] fair play
and substantial justice.' Burger King, 471 U.S. at 476 (quoting International Shoe, 326 U.S.
at 320). In Trump we stated:
Factors relevant to this [reasonableness] inquiry are: (1) the interstate judicial system's
interest in obtaining the most efficient resolution of controversies; (2) the forum state's
interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient
and effective relief; and (4) the interest of the several states in furthering substantive
social policies. World-Wide Volkswagen Corp., 444 U.S. at 292[.]
3

Trump, 109 Nev. at 701, 857 P.2d at 749.
[Headnote 5]
Application of the foregoing analysis to the instant case persuades us that Ansel's petition
must be denied. Hunton's evidence establishes a prima facie showing that Ansel purposefully
availed himself of Nevada's laws by: being the primary, and later the sole shareholder, of a
Nevada corporation; declaring a Nevada address on the corporate income tax form as his
address; and engaging in stock transfers involving the Nevada corporation with his son
William, a Nevada resident, which transfers form the basis of the present suit against him.
__________

3
World-Wide Volkswagen, 444 U.S. at 292, suggests that these factors are to be weighed against the burden on
the defendant, which is always a primary concern.
and engaging in stock transfers involving the Nevada corporation with his son William, a
Nevada resident, which transfers form the basis of the present suit against him. We therefore
conclude that there is at least prima facie evidence that the first two elements of the
jurisdictional test have been met. Ansel could reasonably anticipate being haled into a Nevada
court for actions involving an allegedly fraudulent transfer of a Nevada corporation's stock
between himself and his son William, a Nevada resident.
There is also prima facie evidence of the satisfaction of the third prong of the jurisdictional
test. As noted above, there are four factors to be weighed against a defendant's interests in
determining whether an exercise of jurisdiction is reasonable and consonant with traditional
notions of fair play and substantial justice.
[Headnote 6]
The first factor is the interstate judicial system's interest in obtaining the most efficient
resolution of controversies. Since the plaintiff in the present case and two of the three
defendants (William and the corporation) are Nevada entities or residents, the more efficient
forum for resolving the action is Nevada. The second factor is the forum state's interest in
adjudicating the dispute. Here the dispute arises out of a Nevada resident's efforts to satisfy a
judgment obtained in Nevada courts against another Nevada resident. The plaintiff, Hunton,
contends that her attempts to satisfy her judgment are being frustrated by fraudulent transfers
of stock in a Nevada corporation. It thus appears that Nevada has the greater interest in
adjudicating this dispute. The third factor is the plaintiff's interest in obtaining convenient and
effective relief. The plaintiff is a Nevada resident seeking to enforce a Nevada judgment
against a Nevada resident; these factors also cut in favor of the Nevada court's exercise of
jurisdiction. The final factor is the interest of the several states in furthering substantive social
policies. Nevada has adopted the Uniform Fraudulent Transfers Act (NRS Chapter 112) to
further the substantive social policy of assuring that the efforts of judgment creditors and
others to satisfy their claims will not be defeated by fraudulent transfers like those asserted
here. Nevada has an interest in preventing circumventions of the Act through jurisdictional
maneuvering. It appears, therefore, that Hunton has established a prima facie showing of
Ansel, however, relies on MGM Grand, Inc. v. District Court, 107 Nev. 65, 807 P.2d 201
(1991), for the proposition that sole or majority ownership of stock in a Nevada corporation is
insufficient to support Nevada jurisdiction over a non-resident. In that case, this court
declined to extend the jurisdiction of the Nevada courts over the Walt Disney Company.
case, this court declined to extend the jurisdiction of the Nevada courts over the Walt Disney
Company. The court noted, in that portion of the opinion relevant to Ansel's argument, that
Disney's subsidiaries' contacts with Nevada could not be counted for jurisdictional purposes
because Disney exercises no more control over its subsidiaries than is appropriate for the
sole shareholder of a corporation. Id. at 68-69, 807 P.2d at 203.
The instant case, however, is readily distinguished from MGM Grand, Inc. Here we do not
have a foreign corporation which is the sole owner of the stock of a subsidiary corporation
doing business in Nevada. Ansel is the disputed sole owner of the stock of a Nevada
corporation. More importantly, Hunton's evidence does not merely show that Ansel is or has
been the majority or sole shareholder in a Nevada corporation, but also indicates that Ansel
has allegedly accommodated a fraudulent transfer of shares in the Nevada corporation from
his son, a Nevada judgment debtor, in violation of a Nevada statute, NRS Chapter 112.
William has averred that the tax returns listing him as a shareholder were prepared under a
mistaken belief and that he never owned any of the corporate stock. This, however, creates a
question of fact and is irrelevant to the issue of whether Hunton's evidence, standing alone
and accepted as true, establishes a prima facie showing of minimum contacts sufficient to
support this state's jurisdiction over Ansel.
We conclude that Hunton's evidence establishes a prima facie showing that Ansel's
contacts with Nevada are sufficient for Nevada to exercise personal jurisdiction over him.
However, Hunton must still establish jurisdiction by a preponderance of the evidence at trial,
where Ansel will have the opportunity to have the veracity and credibility of his opposing
claims determined by a trier of fact. Trump at 693, 857 P.2d at 744.
4

__________

4
We note that there are serious factual questions yet to be resolved involving Hunton's evidence and certain of
Ansel's allegations. For example, the tax returns relied upon by Hunton are unsigned, but they do reveal the
name of the person preparing the returns. Although the absence of signatures creates a basis for doubting
authenticity, the lack of discovery characteristic of proceedings cut short by a jurisdictional challenge will often
make it difficult to produce the highest quality evidence in support of one's claims (hence, the need for only a
prima facie showing of jurisdiction, with all of the plaintiffs evidence accepted as true).
Ansel, for his part, makes an equally questionable assertion that he has been unable to obtain the minute book of
his corporation, R&A, from the attorney who prepared it. If produced, the book may cast more light on the
questions of stock ownership and corporate activities implicated in adjudicating both the jurisdictional and
substantive issues involved in this case. All of these factors weigh in favor of allowing the proceedings below to
continue, thus providing a basis for the truthful resolution of these questions through discovery.
CONCLUSION
For the reasons discussed above, the petition is denied.
____________
110 Nev. 730, 730 (1994) Jones v. State
EDWARD LEE JONES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23451
July 7, 1994 877 P.2d 1052
Appeal from judgment of conviction of first-degree murder with use of a deadly weapon
and sentence of death. Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
The supreme court held that reversal of conviction was required, on ineffective assistance
of counsel grounds, after defendant's attorney admitted defendant had killed victim, but under
circumstances amounting only to second-degree murder.
Reversed and remanded for new trial.
Michael Pescetta, Executive Director, Nevada Appellate and Postconviction Project, Las
Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and David Price Schwartz, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Capital murder defendant's claim, that he had not consented to his attorney's concession that he had murdered victim under
circumstances warranting second-degree murder conviction, could be heard on direct appeal even though prosecution claimed that it
was an allegation of ineffective assistance of counsel required to be raised in evidentiary proceeding for post-conviction relief. Finding
that counsel had conceded guilt without defendant's consent would mandate reversal irrespective of any strategic or tactical motives for
concessions that might be disclosed at any evidentiary hearing. U.S. Const. amend. 6.
2. Criminal Law.
To establish ineffective assistance of counsel, appellant must demonstrate that his trial counsel's representation fell below objective
standard of reasonableness, and also that counsel's deficient performance prejudiced defense to such degree that, but for counsel's
ineffectiveness, results of trial would probably have been different. U.S. Const. amend. 6.
3. Criminal Law.
Capital murder defendant was provided with ineffective assistance of counsel, requiring reversal of conviction, when without
permission of defendant counsel made penalty phase argument that defendant was guilty of murder but only
in second degree.
110 Nev. 730, 731 (1994) Jones v. State
defendant counsel made penalty phase argument that defendant was guilty of murder but only in second degree. U.S. Const. amend. 6.
OPINION
Per Curiam:
Appellant Edward Lee Jones was convicted of first-degree murder with use of a deadly
weapon for the stabbing death of his girlfriend, Pamela L. Williams. The jury found the
existence of two aggravating circumstances and sentenced Jones to death. Jones appeals his
conviction and sentence, asserting numerous assignments of error. For the reasons stated
below, we reverse Jones' conviction and remand for a new trial.
FACTS
On September 23, 1991, Jones was charged with murder with use of a deadly weapon for
the stabbing death of Williams. The State filed a notice of intent to seek the death penalty.
The case was tried to a jury in May 1992.
The victim's seven-year-old daughter, Charlene, testified at trial that in August of 1991,
Jones was living with her mother, her three-year-old brother, and Charlene. On the morning
prior to her mother's death, Charlene saw Jones and her mother arguing over an important
card, which might have been a bank card. Williams was trying to scoot away from Jones, who
was trying to talk Williams into going into the bedroom with him. Jones told Charlene to go
into her room, which she did. Charlene fell asleep and later woke to see Jones peeking into
her room. Jones stated he was going to the store to get her some cereal and Charlene went
back to sleep. Charlene woke up later and tried to enter her mother's bedroom, which was
locked. Eventually she succeeded in prying the door open with a kitchen knife. Charlene
discovered her mother lying on the floor and ran to the home of a neighbor for help.
The neighbor, Lisa C. Mongeau, testified that on August 22, 1991, between 1:30 and 2:00
in the afternoon, she was awakened by Charlene, who told her that something was wrong with
her mother. Mongeau entered the victim's mobile home and saw Williams in a pool of blood
on the bedroom floor, eyes open, and wrapped in a blanket. Mongeau called 911 and the
police and paramedics soon arrived.
Metropolitan Police Department homicide detectives Karen Good and Norm Ziola
responded to the emergency call. Good testified that the victim's body was lying on the
bedroom floor wrapped in a bedspread, with the upper part of the body extending into the
bathroom, and the body surrounded by a pool of blood.
110 Nev. 730, 732 (1994) Jones v. State
blood. Good further stated that there was blood smeared on the bed and splattered on the
walls inside the bedroom. Good noted various items of men's clothing near the body,
including shoes, shirt and shorts, all of which had blood on them. The shirt was saturated, and
the shoes had blood on the top and on the soles. Good observed blood splattered in the
bathroom sink, as if someone had washed up there, and saw a stack of dirty laundry in the
bathroom corner, with blood-covered boxer shorts on the top. The victim was clad only in a
shirt. Good also noted a large butcher-type knife next to the body.
An autopsy of the victim's body revealed a total of thirty-seven stab or cutting wounds,
located on the neck, breasts, lower and upper chest, back, arms and hands. The wounds to the
arms and hands were characterized as defensive wounds. The medical examiner, Dr. Giles
Sheldon Green, testified that in his opinion the death was homicidal, the direct result of
multiple stab wounds, specifically those to the right lung. Green could not eliminate the
possibility of strangulation, because the knife wounds to the neck might have overshadowed
signs of prior injury.
Police Officer Herbert Brown testified that at 2:30 on the afternoon of the discovery of the
body, he and two other officers were on assignment at an apartment complex on North Pecos
when they were approached by Rosie Matthews. Ms. Matthews informed the officers that her
two sons wanted to speak to them. The officers followed Ms. Matthews to her apartment
where they encountered her sons, Gary Jones and the appellant, Edward Lee Jones. Gary
explained to the officers that he had violated the terms of his parole by using drugs.
Thereafter, the officers turned their attention to Jones, who told them that he had been in a
fight with his girlfriend and he thought he had hurt her real bad. The officers called to
check on the address Jones had provided them and discovered that a homicide had occurred
there and that Jones was the primary suspect. The officers ceased talking to Jones after
explaining his Miranda rights. Soon thereafter, Detective Ziola arrived and took Jones into
custody.
Brown testified that Jones was not incoherent and did not appear to be under the influence
of drugs. Jones was initially able to verbalize well, and appeared to understand what was
going on. He was described as quiet and reserved, although he later began crying remorsefully
when the officer who checked on the address returned from communicating with Metro.
Officer Brown's testimony was corroborated by that of the other two officers.
After Detective Ziola arrived at the North Pecos address and assumed custody of Jones,
Ziola advised Jones of his rights and asked if he wished to speak with him. Jones responded
affirmatively, and Ziola then drove Gary and Jones to Metro's detective bureau.
110 Nev. 730, 733 (1994) Jones v. State
tively, and Ziola then drove Gary and Jones to Metro's detective bureau. Ziola testified that he
had no trouble communicating with Jones and that Jones did not appear to be under the
influence of any controlled substance. At the bureau, Ziola again informed Jones of his rights,
and Jones signed a written waiver and thereafter agreed to speak to Detective Ziola in a
recorded interview. Ziola described Jones' voluntary statement as follows:
He [Jones] said that he'd been residing at the residence with Pamela Williams and
her two children. That the previous night they had been having an argument over his
use of narcotics and drinking and staying out. He stated he left that night, stayed gone
the whole night. The next morning he came back. The argument started again, escalated
to the point where it became physical. He tried to choke her, knocked her on the
ground. He went in the kitchen, retrieved a knife, stabbed her, changed his clothes,
went to his brother's house and I believe he said he told his brother he had something to
tell him, which he never did. And about 2:00 in the afternoon, he asked his brother to
call his mother, which the brother did. The mother arrived and that's when she
contacted the North Las Vegas Police.
The tape recording of Jones' statement, which presumably corresponded with Ziola's
description of what Jones had to say, was also played to the jury, but was not transcribed or
included in the record on appeal. Ziola, who was experienced in the field, testified that Jones
exhibited no signs during this interview which might indicate he was on crack cocaine, and
that his statements were consistent with what Ziola had already seen and learned at the scene
of the crime.
A sample of Jones' blood taken at the jail tested positive for a cocaine metabolite. The
expert who performed the test stated that the amount of metabolite found in the
bloodwhich was more than ten times the minimum required to test positive for cocaine
usewas average in regard to what they see at the prison, but also stated that there was no
way to tell from the metabolite how much cocaine was ingested. Dr. Green, however, when
asked about the amount of metabolite per milliliter found in Jones' blood, testified that it was
a relatively high amount.
Following the close of the State's case-in-chief, the defense called Jones' brother Gary to
the stand. Gary testified that Williams brought Jones to Gary's apartment on the evening prior
to her murder and that Jones and Gary spent the evening drinking beer and smoking crack
cocaine. Gary testified that Jones left the apartment in the early morning and returned around
8:00 a.m., asking Gary to go and buy some more cocaine with Jones' money.
110 Nev. 730, 734 (1994) Jones v. State
After obtaining some more beer and cocaine, Gary called his mother, asking her to come over
and then to bring the police so he could get some help with his drug problem. His mother
complied. Gary did not recall the police officers saying anything to Jones while they were
there. Gary testified that at the police station, the police officer interviewed Gary first, stating
that he could not at that time get a statement from Jones, as he was messed up. On rebuttal,
Detective Ziola denied making this statement, maintaining that he had interviewed Jones first.
Gary denied remembering Jones ever saying anything to the officers about Williams being
hurt.
Jones also took the stand on his own behalf and testified that he met Williams in
September of 1990 and began living with her and her children thereafter. He stated that he
began using cocaine in November of 1990 and that he spent approximately $8,000 a month
on his habit. Jones claimed that his cocaine use caused difficulties in his relationship with
Williams. The following events, described in some detail, represent additional trial testimony
supplied by Jones.
On the evening prior to Williams' death, Jones and Williams closed the record store which
they operated together at around 8:00 p.m.; he told Williams he was going out to a bar with
her brother. Jones testified that he drank eight or nine double-shots of tequila at the bar, and
that his car broke down on the way home. Jones then walked to Williams' mother's house,
where Williams came to pick him up. Williams took Jones to Gary's house, where he was to
spend the night. Jones had $400.00, which he gave to Gary to go and buy some cocaine, and
the two started drinking beer and smoking cocaine until about 7:00 a.m.
At 7:00 a.m., Jones walked home, a distance he estimated as five or six miles, where he
got into an argument with Williams over his bank card. Williams refused to give Jones the
card for fear he would use it to obtain money to buy more cocaine. Williams eventually gave
Jones the card, and Jones told Charlene to go back to her bedroom, so the two could talk. The
pair talked a while longer and at one point Jones turned away from Williams to take off his
jewelry before leaving the house. When he turned around, he saw that Williams had picked
up a little kitchen knife, and, panicking, he tried to grab it from her, cutting himself. Jones
was angered and threw Williams on the bed, then calmed down and allowed Williams to help
him attend to his finger, which was bleeding profusely. Unable to stop the bleeding, Jones
washed his finger in the sink, and then changed his clothes from the ones he had been
wearing all night. Jones denied that the boxer shorts found at the scene belonged to him,
stating that he wore a different style and size.
110 Nev. 730, 735 (1994) Jones v. State
Jones left Williams sitting on the bed and told Charlene that he was leaving to get
something to eat. He then went back into the bedroom to get the car keys, and Williams told
him to park her car at a friend's place, where she would pick it up later. Jones drove to an
ATM machine, where he took out approximately $500.00, parked the car where instructed,
and walked the short distance back to Gary's apartment.
Gary came and went throughout the morning, sometimes returning with other persons and
with more crack cocaine; at one point Gary attempted to treat his brother's finger. Jones, who
assertedly continued smoking crack throughout the day, admitted telling Gary that he and
Williams had been in a fight, but said he told Gary she was all right. Gary kept asking about
Williams, and Jones began to feel that something was wrong, so he told Gary to call their
mother. When their mother arrived, Jones told her that he and Williams had gotten into an
argument and that he had gotten cut and requested that she go get the police, whom Gary had
seen at the apartment complex. Jones' mother complied. While waiting for the police to
arrive, Jones went in the other room and smoked some more crack, then came into the dining
room to talk to the police. Jones remembered speaking with one of the officers, but he could
not recall which one. Jones testified that he heard on an officer's walkie-talkie that Williams
was dead, and at that point he began to cry. He denied ever telling the officers that he had hurt
Williams.
Jones testified that he and Gary were taken downtown, where he gave a statement. Jones
admitted that the tape recording previously played to the jury was his statement. He also
acknowledged that his testimony at trial differed from the tape recorded confession and also
from later statements he had made to his counsel to the effect that he really did not remember
what happened. He sought to explain the basis for his initial confession by stating:
At the time when I made the statement, I was hearing a lot of things and I was, there
was a lot going on in my mind. And after I heard that she was dead, I didn't feel like I
wanted to live anymore either. Once when Pamela was, we was talking about breaking
up one time, I tried to kill myself, but she helped me. And after I found out she was
gone, I didn't feel like I wanted to live anymore without her. So, I confessed to her [sic].
Jones also testified that his mind had cleared up since the time of his earlier statements,
that he now believed that he did not kill Williams, and that he knew for a fact that she was
not dead when he left her mobile home.
110 Nev. 730, 736 (1994) Jones v. State
The defense also introduced the testimony of a psychiatrist, Dr. Franklin D. Master, who,
testifying on the basis of a single interview with Jones, opined that at the time of the events
surrounding Williams' murder, Jones was suffering from acute encephalopathy, which he
defined as a condition when you've got a chemical affecting . . . the brain substance so that
you don't have normal biochemistry occurring. Dr. Master stated that Jones' condition was
the result of both current and cumulative past substance use. Master also concluded that at the
time of the murder, Jones could not have formulated any intent or premeditated any act.
During closing argument, defense counsel conceded that he thought the evidence shows
beyond a reasonable doubt that the defendant did kill Pamela, but argued that the defendant
was guilty of only second-degree murder, as he was incapable of forming the requisite intent
and premeditation for first-degree murder. The jury returned a verdict of first-degree murder
with use of a deadly weapon.
At the penalty hearing, the State presented various evidence, including a certified
judgment of Jones' conviction for robbery and use of a deadly weapon in commission of a
crime. Defense counsel, at Jones' insistence, did not present any evidence at the penalty
hearing, but Jones took the stand and apologized to the victim's family, telling the jury to do
what you got to do.
The jury determined that there were two aggravating circumstances: that the defendant had
previously been convicted of a felony involving the use or threat of violence to the person of
another (robbery with use of a deadly weapon) and that the murder involved the mutilation of
the victim. The jury further found that there were no mitigating circumstances sufficient to
outweigh the aggravating circumstances and sentenced Jones to death.
This appeal followed.
DISCUSSION
[Headnote 1]
Jones testified that he did not kill Williams and, when canvassed on the subject following
the guilt phase, indicated to the trial court that he did not consent to his counsel's argument
that he was guilty of second-degree murder. Indeed, defense counsel conceded in his final
argument that Jones did not approve of his attorney's concession that the evidence showed
beyond a reasonable doubt that Jones killed Williams. Accordingly, Jones contends that his
testimony was undermined by his own attorney, thereby depriving Jones of his right to
counsel and to due process.
110 Nev. 730, 737 (1994) Jones v. State
The State characterizes this issue primarily as one of ineffective assistance of counsel and
insists that as such, it should be heard in an evidentiary proceeding for post-conviction relief
in the district court. See, e.g., Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981). Jones
responds that his counsel's concessions of guilt without his consent (a fact shown on the
record before us) and in contravention of his own testimony, were improper per se. He thus
contends that reversal is mandated irrespective of any strategic or tactical motives for the
concessions that may be disclosed at an evidentiary hearing. If we accept Jones' argument,
there is no need for a hearing prior to this court's review. See, e.g., Mazzan v. State, 100 Nev.
74, 675 P.2d 409 (1984) (evidentiary hearing regarding defense counsel's motives or strategy
not necessary where Supreme Court determines that no good reason for counsel's actions
could exist). We therefore elect to address this issue on direct appeal.
Other courts have determined that closing argument of the type presented here is improper.
The rationale for this position was addressed by a federal district court in North Carolina in
the context of a habeas petition claiming it was error for defense counsel to concede his
client's guilt during the sentencing phase of trial. In accepting the defendant's premise, the
court first referred to rulings by other courts concerning concessions of guilt during the guilt
phase of trial:
When counsel concedes a client's guilt during the guilt-innocence phase of trial in
spite of the client's earlier plea of not guilty and without the defendant's consent,
counsel provides ineffective assistance of counsel regardless of the weight of evidence
against the defendant or the wisdom of counsel's honest approach strategy. Francis v.
Spraggins, 720 F.2d 1190 (11th Cir. 1983) [, cert. denied, 470 U.S. 1059 (1985)];
Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981) [, cert. denied, 454 U.S. 1091 (1985)],
[State] v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (N.C. 1985) [, cert. denied, 476
U.S. 1123 (1986)]. The gravity of the consequences of a decision to plead guilty or to
admit one's guilt demands that the decision remain in the defendant's hand. An attorney
cannot deprive his or her client of the right to have the issue of guilt or innocence
presented to the jury as an adversarial issue on which the state bears the burden of proof
without committing ineffective assistance of counsel. The adversarial process
protected by the Sixth Amendment requires that the accused have counsel acting in the
role of an advocate' (citation omitted). The right to the effective assistance of counsel is
thus the right of the accused to require the prosecution's case to survive the crucible of
meaningful adversarial testing."
110 Nev. 730, 738 (1994) Jones v. State
meaningful adversarial testing. U.S. v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039,
2045, 80 L.Ed.2d 657 (1984). A lawyer may make a tactical determination of how to
run a trial, but the due process clause does not permit the attorney to enter a guilty plea
or admit facts that amount to a guilty plea without the client's consent.
Brown v. Rice, 693 F. Supp. 381, 396 (W.D. N.C. 1988), rev'd on other grounds, Brown v.
Dixon, 891 F.2d 490 (4th Cir. 1989), cert. denied, 495 U.S. 953 (1990).
1

[Headnotes 2, 3]
The standard for reviewing claims of ineffective assistance of counsel is as follows:
First, appellant must demonstrate that his trial counsel's representation fell below an
objective standard of reasonableness. Second, appellant must show that counsel's
deficient performance prejudiced the defense to such a degree that, but for counsel's
ineffectiveness, the results of the trial would probably have been different.
Davis v. State, 107 Nev. 600, 601-02, 817 P.2d 1169, 1170 (1991) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). We agree with the analysis of the decisions cited in
Brown that defense counsel's statements fell below an objective standard of reasonableness.
Coming as they did from Jones' own counsel, the concessions completely eroded any doubt
that might have been raised in the juror's minds by Jones' protestations of innocence, and in
fact made all of Jones' testimony incredible, since defense counsel essentially asserted that his
own client was being untruthful.
We are unable to conclude with a strong degree of certainty that the second prong of the
Strickland test, which requires a showing of prejudice, has also been met. Nevertheless, in a
capital case involving an error of this magnitude, we are constrained to give the full benefit of
the doubt on this issue to Jones. In addressing this same issue, the Supreme Court of North
Carolina determined that prejudice may be presumed where defense counsel improperly
concedes his client's guilt:
Although this Court still adheres to the application of the Strickland test in claims
of ineffective assistance of counsel, there exist "circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is
unjustified."
__________

1
In Dixon, the Fourth Circuit rejected the lower court's reasoning on the question of whether defense counsel's
concessions during sentencing constituted ineffective assistance of counsel. However, it did not address the
lower court's dicta, quoted above, regarding the propriety of such arguments during the guilt phase of trial other
than to note that the cases cited for this proposition do not apply to concessions during the sentencing phase.
Dixon at 499.
110 Nev. 730, 739 (1994) Jones v. State
Strickland test in claims of ineffective assistance of counsel, there exist circumstances
that are so likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified. [Citations omitted.] The Supreme Court has presumed
prejudice in various Sixth Amendment cases. . . . Likewise, when counsel to the
surprise of his client admits his client's guilt, the harm is so likely and so apparent that
the issue of prejudice need not be addressed.
Harbison, 337 S.E.2d at 507.
We conclude that Jones' conviction must be reversed and his case remanded for a new
trial. We emphasize, however, that our decision is limited to the situation present here, where
counsel undermined his client's testimonial disavowal of guilt during the guilt phase of the
trial.
2

We also conclude that Jones' remaining assignments of error are without merit or are
rendered moot by our decision to remand for a new trial.
3

CONCLUSION
For the reasons explained above, the judgment of conviction and the sentence of death
dependent thereon, are reversed and vacated and the case is remanded to the district court for
a new trial.
____________
110 Nev. 739, 739 (1994) SIIS v. Romero
THE STATE INDUSTRIAL INSURANCE SYSTEM an Agency of the State of Nevada,
Appellant, v. PAUL ROMERO, Respondent.
No. 22232
July 7, 1994 877 P.2d 541
Appeal from an order of the district court affirming a decision of an appeals officer
reinstating State Industrial Insurance System benefits. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
In workers' compensation proceeding, State Industrial Insurance System (SIIS) appealed
decision of appeals officer reinstating claimant's rehabilitation benefits.
__________

2
We do not here address or decide the issue of the propriety or effect of defense counsel's unauthorized
concession of his or her client's guilt during the penalty phase of trial.

3
This is also true for those issues raised by Jones' pre- and post-argument supplemental briefs, which, though
not addressed at oral argument, we have addressed as submitted on the briefs.
110 Nev. 739, 740 (1994) SIIS v. Romero
ing claimant's rehabilitation benefits. The district court affirmed. SIIS appealed. The supreme
court, Shearing, J., held that: (1) any error resulting from district court's alleged application of
incorrect standard of review was harmless, and (2) SIIS lacked authority to terminate
claimant's rehabilitation benefits after commencement of rehabilitation program.
Affirmed.
Steffen and Young, JJ., dissented.
R. Scott Young, General Counsel and William A. Zeigler, Associate Counsel, Carson City,
for Appellant.
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Respondent.
Any error resulting from district court's alleged application of incorrect standard of review in workers' compensation proceeding,
when it stated that State Industrial Insurance System (SIIS) failed to show by preponderance of evidence that appeals officer's decision
was incorrect, was harmless. Applicable standard was more deferential to decision of appeals officer than preponderance of evidence
standard.
Review of administrative decision is limited to determination of whether that decision is based on substantial evidence or contains
errors of law.
Administrative decision will not be disturbed if there is substantial evidence to support it.
Workers' compensation benefits are provided to injured workers solely pursuant to statute.
State Industrial Insurance System (SIIS) lacked authority to terminate workers' compensation claimant's rehabilitation benefits
after commencement of rehabilitation program.
OPINION
This is an appeal from an order of the district court affirming a decision of an appeals officer which reinstated State Industrial
Insurance System (SIIS) rehabilitation benefits.
On April 27, 1989, respondent Paul Romero sustained injuries, while acting within the course and scope of his employment, which
resulted in medical certification that Romero was not able to work in his pre-accident capacity. On July 14, 1989, Romero's treating
physician reported to SIIS that Romero could return to light-duty employment status.
110 Nev. 739, 741 (1994) SIIS v. Romero
treating physician reported to SIIS that Romero could return to light-duty employment status.
In a letter dated August 8, 1989, SIIS informed Romero that he had been transferred from
temporary total disability status to light-duty status, and that he must return to work if his
employer offers suitable work. In a letter also dated August 8, 1989, SIIS informed Romero's
employer of the change in status and inquired whether the employer was able to provide
light-duty work to Romero. In addition, the letter informed the employer that it had thirty
days in which to offer Romero light-duty employment, and that if a suitable position was not
available, Romero would be eligible for vocational rehabilitative training, which could result
in expenditures in excess of $30,000. The employer and its representative deny receiving the
letter concerning Romero's transfer of status. Romero's employer did not offer Romero
light-duty work or otherwise respond within the thirty-day time limit.
On September 6, 1989, Romero entered into a training agreement with SIIS authorizing
vocational training as a photographer, to commence on September 11, 1989, and conclude on
September 11, 1990. In a letter dated September 11, 1989, the employer's representative
inquired whether the employer had been contacted regarding Romero's transfer to light-duty
status, and requested a second medical opinion of Romero's condition. Romero was seen by
another physician, who, in a report dated October 26, 1989, released Romero to unrestricted
employment. Pursuant to that report, SIIS, in a letter dated January 3, 1990, advised Romero
that his rehabilitation benefits were terminated. A hearing officer affirmed this decision.
Romero appealed.
On July 19, 1990, after conducting a hearing, the appeals officer found that Romero's
rehabilitation benefits had been improperly terminated because a valid rehabilitation program
had been established and because Romero's employer had not objected to Romero's
rehabilitation program on a timely basis. The appeals officer ordered restoration of Romero's
rehabilitation benefits, retroactive to the termination date. SIIS sought judicial review. On
March 15, 1991, the district court entered an order affirming the decision of the appeals
officer. This appeal followed.
[Headnotes 1-3]
SIIS contends that the district court erred by affirming the decision of the appeals officer.
Specifically, SIIS contends that the district court applied an incorrect standard of review
because the district court stated in its order that SIIS had failed to show by the
preponderance of the evidence that the appeals officer's decision was incorrect. This error,
however, is harmless, because the applicable standard is more deferential to the appeals
officer decision than the preponderance of the evidence standard.
110 Nev. 739, 742 (1994) SIIS v. Romero
decision than the preponderance of the evidence standard. Review of an administrative
decision is limited to a determination of whether that decision is based on substantial
evidence or contains errors of law. Leeson v. Basic Refractories, 101 Nev. 384, 705 P.2d 137
(1985). An administrative decision will not be disturbed if there is substantial evidence to
support it. State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 607-08, 729 P.2d 497, 498
(1986).
[Headnote 4]
SIIS further contends that the decision of the appeals officer, and the district court's order
affirming that decision, are affected by an error of law because the appeals officer applied
contract law principles in determining to reinstate Romero's benefits. SIIS correctly notes that
benefits are provided to injured workers solely pursuant to statute. MGM Grand Hotel v.
Insley, 102 Nev. 513, 518, 728 P.2d 821, 824 (1986). The regulatory scheme pursuant to
which those benefits are disbursed specifically provides that the employer of an injured
worker waives the right to object to the provision of rehabilitative benefits to an injured
worker if the employer fails to notify SIIS within thirty days whether the employer will offer
the injured worker employment consistent with the worker's physical limitations. NAC
616.084. That regulatory scheme was authorized by statute. See NRS 233B.040. The appeals
officer found that SIIS had given the employer notice of Romero's release to light-duty work,
and that the employer had waived its right to object to Romero's rehabilitation benefits by
failing to do so within thirty days. The employer asserts that it never received such notice.
Nevertheless, the appeals officer's determination is based on substantial evidence and is not
affected by any error of law. See NAC 616.084 (employer must object within thirty days of
date of notice from SIIS of change in status). Accordingly, the district court properly affirmed
the appeals officer's decision.
[Headnote 5]
Finally, SIIS asserts it has the authority to terminate Romero's rehabilitation benefits after
commencement of the rehabilitation program and that it may reopen Romero's claim based on
changed circumstances. SIIS has not, however, demonstrated any authority in the statutes or
regulations permitting it to terminate an ongoing rehabilitation program. Accordingly, we
Rose, C. J., and Springer, J., concur.
Steffen, J., with whom Young, J., joins, dissenting:
There is ample precedent in Nevada decisional law for concluding, as the majority does,
that absent an express statutory provision for relief, employers will not be allowed to
recover for wrongful, unwarranted or mistaken benefits paid to injured workers.
110 Nev. 739, 743 (1994) SIIS v. Romero
cluding, as the majority does, that absent an express statutory provision for relief, employers
will not be allowed to recover for wrongful, unwarranted or mistaken benefits paid to injured
workers. In the instant case, however, I suggest that the law does provide a sound basis for
accepting the position of the State Industrial Insurance System (SIIS) and reversing both the
appeals officer's decision and the district court's endorsement of that decision.
Respondent Paul Romero injured his back on April 27, 1989, while carrying a garage door.
He received a medical examination on May 19, 1989, and on July 14, 1989, Romero's treating
physician, Dr. Getscher, released his patient to return to light duty work, effective July 17,
1989, with a lifting restriction of no more than twenty pounds. On August 22, 1989, Dr.
Getscher again examined Romero and released him to return to light duty but no lifting over
20 lbs. for a period of 2 to 4 weeks. No repetitive stooping.
By letter of August 8, 1989, SIIS informed Romero's employer of the employee's
light-duty work release, and inquired whether the employer could provide Romero work of
that nature. The letter also informed the employer that it had thirty days within which to offer
appropriate light-duty employment to Romero or the injured employee would be eligible for
vocational rehabilitative training that could cost in excess of $30,000.
1

Having received no response from the employer concerning the availability of light duty
work for Romero, on September 6, 1989, SIIS and Romero agreed to a vocational training
program that would commence on September 11, 1989, and conclude on September 11, 1990.
Romero was to be trained to become a commercial photographer.
2
Meanwhile, the
employer's representative sent a letter to SIIS dated September 11, 1989, inquiring whether
the employer had been advised of Romero's transfer to light-duty status and requesting a
second opinion from an orthopedic specialist on the condition of Romero's health.
__________

1
Although Romero's employer and its representative denied ever receiving the letter from SIIS regarding the
employee's availability for light duty work, the appeals officer found that there was a presumption that the
employer had received the letter and that the presumption was not rebutted.

2
A SIIS memo dated December 4, 1989, recommended denial of Romero's commercial photography program
because it was essentially a self-employment plan. The record reflects that the program cost was estimated at
$20,136.68 plus $5,629.00 for photographic equipment and $517.00 for supplies. It appears that those figures
were based upon the program commencing in September of 1989 and concluding in September of 1990. The
cost estimates are therefore of doubtful accuracy since the program did not commence until June of 1992.
110 Nev. 739, 744 (1994) SIIS v. Romero
SIIS had Romero examined by Dr. Hito, who in a report dated October 26, 1989, released
Romero to unrestricted employment. As a result of the report, SIIS informed Romero that his
rehabilitation benefits were terminated. A hearing officer affirmed the termination, and
Romero appealed to the appeals officer who found in favor of Romero and ordered that his
rehabilitation benefits be restored retroactively to the termination date. SIIS unsuccessfully
appealed to the district court.
Although it is uncertain whether the appeals officer reached her conclusion in part based
upon contract law, the majority opinion properly concludes that contract law does not apply
in workers' compensation cases and I agree. It is therefore unnecessary to address that point in
this dissent. The appeals officer primarily based her decision upon her conclusion that the
employer had waived its right to object to the rehabilitation program by reason of its failure to
respond to the System's letter within the required thirty days. I do not agree with this
conclusion and submit that it constitutes an error of law.
In response to an order of this court asking SIIS to advise us why this appeal was not moot,
we were authoritatively informed that although Romero's vocational rehabilitation
maintenance was continued, the rehabilitation program in commercial photography was not
approved until June of 1992, almost two years after the appeals officer issued her decision.
Moreover, the commercial photography program was approved and commenced over two and
one-half years after Romero had been released to perform unrestricted work.
3

SIIS contends that the appeals officer and the district court committed an error of law by
falling to apply the provisions of NAC 616.076(2) and (4). These two provisions of the
Administrative Code state:
2. An injured worker who is released by a treating or examining physician or
chiropractor, without a restriction which would prevent his return to the position he
held before his injury, is not eligible to receive rehabilitative benefits.
. . . .
__________

3
It will be recalled that Dr. Hito issued a report on October 26, 1989 releasing Romero to unrestricted work. On
March 6, 1990, Dr. Butters examined Romero and determined that he had a 2% impairment due to a limited
flexation of the lumbar spine of 70 degrees. Romero complained of constant pain, but Dr. Butters observed that
Romero exhibited no pain behavior and that the MRI and nerve conduction tests proved negative. Romero's
treating physician, Dr. Getscher, in his second report restricted Romero's lifting to twenty pounds for only 2 to
4 weeks. It is uncertain from the record whether Dr. Getscher intended his restriction on repetitive stooping
to only apply to the two to four week period of the weight lifting restriction.
110 Nev. 739, 745 (1994) SIIS v. Romero
4. If there is a question as to whether there will be a residual impairment which will
prevent reemployment, an injured worker may receive rehabilitative services until a
final determination of his impairment is made.
I agree with the position asserted by SIIS that under the terms of the above code
regulations, the mere fact that an injured worker is placed on rehabilitative services does not
translate into a commitment to complete the program. The quoted code provisions provide a
common-sense basis for terminating costly rehabilitation programs when a worker's injuries
are found to have healed or stabilized to a point where the worker is physically able to return
to his pre-injury work position. In my view, to hold otherwise would essentially negate the
effect of the above-quoted provisions and place an unwarranted and unfair strain on
employers and the strength of the System.
In this record, the determination by SIIS and the hearing officer that Romero was able to
return to his pre-injury employment is supported by substantial evidence.
4
Moreover, since
the commercial photography program was not even approved until two years after the appeals
officer's decision, there is no argument that rehabilitation funds would have been wasted or
that Romero was within shouting distance of completing the program.
In this case I am forced to conclude that the appeals officer failed to properly apply the
law, and that permitting Romero to proceed with a costly program that would place him in the
position of becoming a successful entrepreneur after he was physically fit to return to his
pre-injury employment is unfair to both the employer and the System. I therefore respectfully
dissent.
__________

4
Even if Dr. Getscher's second report created an ambiguity with respect to Romero's health and work status, the
contrary evidence later supplied by two other physicians should have, at the very least, caused the appeals officer
to order further examination in light of NAC 616.076(4).
____________
110 Nev. 745, 745 (1994) Cruzado v. State
ABRAHAM J. CRUZADO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22619
July 7, 1994 879 P.2d 1195
Appeal from a judgment of conviction, entered pursuant to a guilty plea, of five counts of
sexual assault. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Pursuant to plea agreement, defendant was convicted in the district court of sexual assault,
and he appealed. The supreme court held that: (1) evidence supported finding that defendant
knowingly and voluntarily waived right to appeal, but (2) restitution requirement was direct
consequence of guilty plea of which defendant had to be informed, and failure to do so
required striking such requirement.
Affirmed as modified.
[Rehearing denied December 30, 1994]
Patricia M. Erickson, Las Vegas, for Appellant.
1. Criminal Law.
Knowing and voluntary waiver of right to appeal made pursuant to plea bargain is valid and enforceable.
2. Criminal Law.
Evidence supported finding that defendant's guilty plea was knowingly and voluntarily entered, even though defendant contended
that he was not informed that he was waiving his right to appeal.
3. Criminal Law.
Before accepting defendant's guilty plea, district court must inform defendant of direct consequences of such plea.
4. Criminal Law.
Restitution requirement is direct consequence of guilty plea of which defendant must be informed.
5. Criminal Law.
Although defendant waived right to appeal under plea agreement, such waiver did not prevent appeal and deletion of trial court's
imposition of restitution requirement inasmuch as defendant was not informed of possibility of such requirement before pleading guilty
and thus requirement was not proper part of judgment of conviction.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, entered pursuant to a guilty plea, of five counts of sexual assault. The district court
sentenced appellant to serve four consecutive terms of life with the possibility of parole and one concurrent term of life with the possibility
of parole in the Nevada State Prison. The district court's judgment of conviction requires appellant to pay $2,950.76 in restitution.
[Headnotes 1, 2]
Appellant contends that his plea agreement unconstitutionally required him to relinquish
his right to appeal. We disagree. A knowing and voluntary waiver of the right to appeal made
pursuant to a plea bargain is valid and enforceable. People v. Vargas, 11 Cal. Rptr. 2d 661
(Ct. App. 1992); United States v. Navarro-Botello, 912 F.2d 318 (9th Cir. 1990), cert. denied,
503 U.S. 942, 112 S. Ct. 1488 (1992). Appellant further contends that his attorney was
ineffective because counsel did not clearly inform appellant that he was waiving his right to
appeal and of the consequences of that waiver. Appellant thus argues that his plea was
involuntary. We conclude, however, that the district court did not err in concluding that
appellant's plea was knowingly and voluntarily entered, and that appellant's counsel was not
ineffective. See Ford v. State, 105 Nev. 850, 854, 784 P.2d 951, 953 (1989) (district court's
findings in post-conviction proceedings will not be overturned if they are supported by
substantial evidence).
[Headnotes 3, 4]
Appellant further contends that the district court erred in awarding restitution. We agree.
Before accepting a defendant's guilty plea, a district court must inform the defendant of the
direct consequences of the guilty plea. See Director, State Prison v. Powell, 101 Nev. 736,
738, 710 P.2d 73, 74 (1985). A restitution requirement is a direct consequence of a guilty plea
of which the defendant must be informed. People v. Walker, 819 P.2d 861, 866 (Cal. 1991);
State v. Phillips, 733 P.2d 1116, 1118 (Ariz. 1987); State v. War Bonnett, 428 N.W.2d 508
(Neb. 1988).
[Headnote 5]
The record reveals that appellant was not informed of a possible restitution requirement
before pleading guilty. Thus, the restitution requirement is not properly a part of appellant's
judgment of conviction. Further, appellant's waiver of the right to appeal does not preclude
this court from striking the restitution requirement. A waiver of the right to appeal does not
prevent an appeal when the sentence imposed is not in accordance with the negotiated
agreement. Navarro-Botello, 912 F.2d at 321. We therefore correct appellant's judgment of
conviction by vacating the requirement that appellant pay $2,950.76 in restitution. With this
modification, we affirm appellant's judgment of conviction.
____________
110 Nev. 748, 748 (1994) State v. Sant
THE STATE OF NEVADA, Appellant/Cross-Respondent, v. RUSSELL DARYL SANT,
No. 24903
July 7, 1994 877 P.2d 545
Appeal by the state from an order of the district court granting respondent's motion to set
aside a jury verdict. Appeal by respondent from a judgment of conviction, entered pursuant to
a jury verdict, of one count of second degree murder. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
The district court granted defendant's motion to set aside verdict finding him guilty of
robbery of victim over 65 years of age, and the state appealed. The supreme court held that
state's notice of appeal filed after announcement of order but before entry of judgment failed
to vest jurisdiction in the supreme court.
State's appeal dismissed.
James Tufteland, Chief Deputy District Attorney, Clark County, for
Appellant/Cross-Respondent.
David M. Schieck, Las Vegas, for Respondent/Cross-Appellant.
1. Criminal Law.
Untimely notice of appeal fails to vest jurisdiction in supreme court.
2. Criminal Law.
State's premature notice of appeal filed after announcement of decision, but before entry of judgment failed to vest jurisdiction in
the supreme court to review trial court's order setting aside robbery verdict.
OPINION
Per Curiam:
This is an appeal by the state from an order of the district court granting respondent Sant's motion to set aside a jury verdict finding
him guilty of one count of robbery of a victim over 65 years of age. This is also an appeal by Sant from a judgment of conviction, entered
pursuant to a jury verdict, of one count of second degree murder.
On June 18, 1993, a jury found Russell Daryl Sant guilty of second degree murder and robbery of a victim over 65 years of age. On
June 29, 1993, Sant filed in the district court a motion to set aside the robbery verdict. On July 19, 1993, the district court orally granted the
motion to set aside the robbery verdict. Also on July 19, 1993, the state filed a notice of appeal from the district court's
oral order granting the motion to set aside the verdict.
110 Nev. 748, 749 (1994) State v. Sant
July 19, 1993, the state filed a notice of appeal from the district court's oral order granting the
motion to set aside the verdict. On July 23, 1993, the district court entered a written order
granting the motion to set aside the jury's verdict with respect to the robbery charge. Also on
July 23, 1993, the district court orally announced that it was going to convict Sant of second
degree murder.
1

[Headnotes 1, 2]
An untimely notice of appeal fails to vest jurisdiction in this court. See Jordon v. Director,
Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985). NRAP 4(b) provides that a notice of
appeal by the state must be filed within thirty days after the entry of the challenged judgment
or order. The district court entered its written order granting the motion to set aside the
robbery verdict on July 23, 1993. The state, however, filed its notice of appeal on July 19,
1993.
NRAP 4(b) (emphasis added) states, in pertinent part:
In a criminal case, the notice of appeal by a defendant shall be filed in the district
court within thirty (30) days after the entry of the judgment or order appealed from. A
notice of appeal filed after the announcement of a decision, sentence or order but
before entry of the judgment or order shall be treated as filed after such entry and on
the day thereof. . . . When an appeal by the state is authorized by statute, the notice of
appeal shall be filed in the district court within thirty (30) days after the entry of the
judgment or order appealed from. A judgment or order is entered within the meaning of
this subdivision when it is signed by the judge and filed with the clerk.
The state contends that because the emphasized language in NRAP 4(b) allowing for the
premature filing of a notice of appeal does not explicitly specify that it applies only to a
notice of appeal filed by the defendant, the only reasonable interpretation is that it must also
apply to a notice of appeal filed by the state. The state argues accordingly that its July 19,
1993, notice of appeal should be treated as filed on July 23, 1993, and was therefore not
premature.
Even a cursory review of the plain language of the rule, however, reveals that the language
the state focuses on refers only to the timeliness of a notice of appeal filed by a defendant.
The reading of NRAP 4(b) urged by the state would render superfluous both the penultimate
sentence, which addresses the timeliness of a notice of appeal by the state, and the words by
the defendant, which qualify notice of appeal in the first sentence.
__________

1
Sant filed a timely notice of appeal.
110 Nev. 748, 750 (1994) State v. Sant
We refuse to adopt such a strained and illogical interpretation of this rule. By separately
elaborating the time constraints under which a defendant and the state must file a notice of
appeal, NRAP 4(b) clearly treats appeals by a defendant differently from appeals by the state.
2
We conclude that the state's premature notice of appeal failed to vest jurisdiction in this
court. Accordingly, we dismiss the state's appeal from the order setting aside the robbery
verdict. Sant's appeal from the murder conviction may proceed.
____________
110 Nev. 750, 750 (1994) Franklin v. State
FRANK KENNETH FRANKLIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25563
July 7, 1994 877 P.2d 1058
Proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
The supreme court held that petitioner who was convicted pursuant to guilty plea had right
to direct appeal and thus, petitioner was prejudiced by trial counsel's failure to inform him of
this right for purposes of petitioner's writ for habeas corpus.
Frank Kenneth Franklin, In Proper Person, Indian Springs, for Appellant.
Criminal Law.
Defendant who was convicted pursuant to guilty plea had right to direct appeal and thus, he was prejudiced by trial counsel's
failure to inform him that he had such a right for purposes of defendant's post-conviction writ of habeas corpus.
__________

2
The state further contends that its untimely filing of its notice of appeal should be considered harmless error.
This contention lacks merit. We have consistently held that the timely filing of a notice of appeal is
jurisdictional. See Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994); Rust v. Clark Cty. School District, 103
Nev. 686, 747 P.2d 1380 (1987); Scherer v. State, 89 Nev. 372, 513 P.2d 1232 (1973).
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. On July 15, 1993, the district court
convicted appellant, pursuant to an Alford plea, of one count of attempted robbery. The
district court sentenced appellant to serve a term of seven and one half years in the Nevada
State Prison. No timely notice of appeal was filed.
On January 27, 1994, appellant filed in the district court a post-conviction petition for a
writ of habeas corpus. The state opposed the petition. On February 15, 1994, the district
court, without appointing counsel or conducting an evidentiary hearing, denied appellant's
petition. This appeal followed.
Our preliminary review of the record on appeal revealed that the district court may have
erred in denying appellant's petition. In his petition, appellant argued, inter alia, that his trial
counsel was ineffective because counsel failed to file a notice of appeal on appellant's behalf
or inform appellant of his right to appeal. In the order denying appellant's post-conviction
petition, the district court concluded that appellant did not demonstrate how the failure to
inform him of his right to an appeal was prejudicial. This issue was the subject of a recent
opinion by this court. Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). In Lozada, this
court concluded that if a petitioner for a post-conviction writ of habeas corpus demonstrates
that he did not knowingly waive his right to an appeal, the district court shall appoint counsel
to represent the petitioner and counsel shall present issues which could have been raised in a
direct appeal.
Accordingly, this court ordered the state to show cause why the order of the district court
should not be vacated and this matter remanded for further proceedings in light of Lozada.
On May 23, 1994, the state filed its response to this court's order. In its response, the state
argues that counsel in the instant case did not err in failing to tell appellant that he had a right
to appeal because appellant had no right to appeal. The state argues that there is no right to a
direct appeal from a guilty plea and cites McGee v. State, 105 Nev. 718, 782 P.2d 1329
(1989), and Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), in support of its argument.
This court's prior precedents do not preclude a direct appeal from a defendant whose
conviction is based on a guilty plea. Instead, we have held that challenges to the validity of a
guilty plea and claims of ineffective assistance of trial and appellate counsel must be first
pursued in post-conviction proceedings in the district court.
the district court. McGee v. State, 105 Nev. 718, 782 P.2d 1329 (1989) (challenge to guilty
plea); Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986) (validity of plea); Gibbons v. State,
97 Nev. 520, 634 P.2d 1214 (1981) (ineffective assistance of counsel). Nevertheless, all other
claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will
be considered waived in subsequent proceedings. These claims could include a challenge to
the constitutional validity of the statute on which the conviction was based; a challenge to the
sentence imposed on constitutional or other grounds; a claim that the state breached the plea
agreement at sentencing; a challenge to the procedures employed that led to the entry of the
plea, if that challenge does not address the voluntariness of the plea; and a claim that the
district court entertained an actual bias or that there were other conditions that rendered the
proceedings unfair. This list is intended to be illustrative, rather than inclusive. The state's
argument that a person who is convicted pursuant to a guilty plea has no right to a direct
appeal lacks merit.
Accordingly, we vacate the order of the district court and remand this matter for further
proceedings consistent with Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994).
____________
110 Nev. 752, 752 (1994) Ford v. Showboat Operating Co.
STACY FORD, fka STACY ATKINSON, Appellant/Cross-Respondent, v. SHOWBOAT
OPERATING COMPANY, dba SHOWBOAT HOTEL & CASINO,
No. 25196
July 7, 1994 877 P.2d 546
Appeal and cross-appeal from summary judgment. Eighth Judicial District Court, Clark
County; Nancy A. Becker, Judge.
Employee sued former employer for intentional infliction of emotional distress and for
sexual harassment resulting in constructive discharge. The district court granted summary
judgment for employer concluding that outrageous conduct was factual question for jury.
Both parties appealed. The supreme court ordered employer to show cause why its
cross-appeals should not be dismissed for lack of jurisdiction because it was not aggrieved
party and held that employer who prevailed in district court on its motion for summary
judgment was not aggrieved by district court's decision, and that supreme court lacked
jurisdiction to entertain employer's cross-appeal.
Cross-appeal dismissed.
Richard Segerblom, Las Vegas, for Appellant/Cross-Respondent.
Smith & Kotchka, Las Vegas, for Respondent/Cross-Appellant.
No statute or court rule allows for appeal from district court's conclusions of law; instead, appeal must be from statutorily
designated order or judgment.
Employer who prevailed in district court on employee's claims for intentional infliction of emotional distress and for sexual
harassment resulting in constructive discharge was not aggrieved by district court's decision, and thus, supreme court lacked
jurisdiction to entertain employer's cross-appeal challenging district court's conclusion of law that whether conduct involved was
outrageous was factual question for jury; overruling Alamo Irrigation Co. v. United States, 81 Nev. 390, 404 P.2d 5 (1965).
Respondent who seeks to alter rights of parties under judgment must file notice of cross-appeal; however, respondent may, without
cross-appealing, advance any argument in support of judgment even if district court rejected or did not consider argument.
Rules of appellate procedure contemplate appeals that stand on their own; rules do not contemplate appeals that are jurisdictionally
dependent for their existence on existence of some other appeal. NRAP 3A(a), (b), 4(a)(1).
OPINION
Per Curiam:
On September 17, 1991, Stacy Ford brought an action against Showboat Operating Company asserting claims for intentional infliction
of emotional distress and for sexual harassment resulting in constructive discharge. Showboat moved the district court for summary
judgment. The district court granted the motion on April 30, 1993.
In its order granting summary judgment, the district court concluded, inter alia, that the conduct at issue in this case was not
outrageous as a matter of law. The district court concluded further that Ford's claim lacked merit because she had not suffered any physical
harm. Thus, the district court rejected Ford's claim of intentional infliction of emotional distress.
On May 13, 1993, Ford moved the district court to amend its judgment. Ford contended that whether Showboat's conduct was
outrageous was a factual question for the jury. On August 18, 1993, the district court granted Ford's motion to amend. In an amended order
granting summary judgment, the district court concluded that outrageous conduct "is an issue for the trier of fact which
would be for the jury if a jury had been requested."
concluded that outrageous conduct is an issue for the trier of fact which would be for the
jury if a jury had been requested.
Ford appealed from the district court's amended order. Showboat also filed a notice of
appeal.
1
Showboat purports on cross-appeal to challenge only the district court's conclusion
of law that whether the conduct involved was outrageous is a factual question for the jury.
[Headnote 1]
On February 7, 1994, this court ordered Showboat to show cause why its cross-appeal
should not be dismissed for lack of jurisdiction. We noted that under NRAP 3A(a) only an
aggrieved party may appeal. Because Showboat prevailed in the district court, Showboat
did not appear to have been aggrieved. Showboat has responded to our order. We now
address the merits of Showboat's response.
2

DISCUSSION
[Headnote 2]
Showboat contends that it properly cross-appealed based on our decision in Alamo
Irrigation Co. v. United States, 81 Nev. 390, 404 P.2d 5 (1965). In Alamo, plaintiffs moved
the district court to correct a thirty-six year old court decree that established certain water
rights to Pahranagat Lake. The United States, a defendant in that action, defended on the
ground that it was immune from suit, and on the basis of laches. The district court denied the
United States relief on these bases, but entered judgment for the United States on the merits
of the issues in the case. Id. at 392-93, 404 P.2d at 6. In its answering brief in the plaintiffs'
appeal, the United States argued that, should the district court be found to have erred on the
merits of the claims, the United States should nonetheless prevail on the theory of
governmental immunity and the doctrine of laches. Id. at 393, 404 P.2d at 6.
This court ruled that the United States could not raise these
__________

1
Showboat's appeal is designated a cross-appeal because Showboat was the defendant below. NRAP 28(h).

2
We incorrectly stated in our order to show cause that Showboat had attempted to appeal from a finding of fact.
We noted that no court rule or statute provides for an appeal from the district court's findings of fact. Showboat
correctly notes in its response to our order to show cause that its appeal is taken from a conclusion of law, rather
than from a finding of fact. This distinction is of little consequence; no statute or court rule allows for an appeal
from the district court's conclusions of law. Instead, an appeal must be from a statutorily designated order or
judgment. Further, we must still determine whether Showboat is an aggrieved party who may appeal from the
district court's order. See NRAP 3A(a).
issues on appeal because the United States had not filed a notice of cross-appeal. Id. at 393,
404 P.2d at 7. In particular, this court stated: Generally, errors affecting a party who does not
appeal will not be reviewed. Id. this court stated further that it had discretion to relax this
rule in unusual cases. Id. at 394, 404 P.2d at 7.
Showboat contends that Alamo indicates that parties may only challenge the district court's
conclusions of law by filing a cross-appeal. Although Showboat's interpretation of our
opinion in Alamo appears to be correct, we conclude that our decision in that case was
erroneous. The opinion in Alamo is at variance with our rules of appellate procedure, with our
caselaw and with federal appellate procedure.
The United States Supreme Court established seventy years ago that a litigant who is not
aggrieved by a judgment need not appeal from the judgment in order to raise arguments in
support of the judgment not necessarily accepted by the district court:
It is true that a party who does not appeal from a final decree of the trial court cannot be
heard in opposition thereto when the case is brought here by the appeal of the adverse
party. In other words, the appellee may not attack the decree with a view either to
enlarging his own rights thereunder or of lessening the rights of his adversary, whether
what he seeks is to correct an error or to supplement the decree with respect to a matter
not dealt with below. But it is likewise settled that the appellee may, without taking a
cross-appeal, urge in support of a decree any matter appearing in the record, although
his argument may involve an attack upon the reasoning of the lower court or an
insistence upon matter overlooked or ignored by it.
United States v. American Ry. Exp. Co., 265 U.S. 425, 435 (1924) (emphasis added; footnote
omitted). The Supreme Court has reaffirmed this rule on several occasions. See, e.g.,
Schweiker v. Hogan, 457 U.S. 569, 585 n.24 (1982); Massachusetts Mut. Life Ins. Co. v.
Ludwig, 426 U.S. 479, 480-81 (1976) (per curiam); Jaffke v. Dunham, 352 U.S. 280, 281
(1957) (per curiam).
[Headnote 3]
Under this rule, a respondent who seeks to alter the rights of the parties under a judgment
must file a notice of cross-appeal. See Trustees of Atlanta v. So. Stress Wire Corp., 724 F.2d
1458, 1459 (11th Cir. 1983). A respondent may, however, without cross-appealing, advance
any argument in support of the judgment even if the district court rejected or did not consider
the argument. In re Robinson, 921 F.2d 252, 253 (10th Cir. 1990); United States v. Hilger,
S67 F.2d 566, 567 {9th Cir. 19S9); So. Stress Wire Corp., 724 F.2d at 1459.
United States v. Hilger, 867 F.2d 566, 567 (9th Cir. 1989); So. Stress Wire Corp., 724 F.2d at
1459. A majority of state courts have adopted the federal approach to cross-appeals. See, e.g.,
Wheeler v. Yuma School Dist. No. One, 750 P.2d 857, 859 (Ariz. Ct. App. 1986), vacated on
other grounds, 750 P.2d 860 (Ariz. 1988); People v. Mannino, 540 N.E.2d 3, 4 (Ill. App. Ct.
1989); Halladay v. Cluff, 739 P.2d 643, 645 (Utah Ct. App. 1987).
Nevada law is in accordance with the federal approach to cross-appeals. NRAP 3A(a)
allows an appeal only by a party who is aggrieved by a judgment. A party who prevails in the
district court and who does not wish to alter any rights of the parties arising from the
judgment is not aggrieved by the judgment. NRAP 3A(b) and other statutes list the orders and
judgments from which an appeal may be taken; no court rule or statute provides for an appeal
from a finding of fact or from a conclusion of law. This court has consistently held that the
right to appeal is statutory; where no statute or court rule provides for an appeal, no right to
appeal exists. State, Taxicab Authority v. Greenspun, 109 Nev. 1022, 1024-25, 862 P.2d 423,
424 (1993); Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209, 678 P.2d 1152, 1153
(1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975).
[Headnote 4]
Further, NRAP 4(a)(1) provides that a notice of appeal must be filed within thirty days
from the date of service of notice of entry of the judgment or order appealed from. That rule
also provides that [i]f a timely notice of appeal is filed by a party, any other party may file
and serve a notice of appeal within fourteen (14) days of the date on which the first notice of
appeal was served . . . . We have expressly held that the timely filing of a notice of appeal is
mandatory and jurisdictional with respect to a cross-appeal.
3
Mahaffey v. Investor's Nat'l
Security, 102 Nev. 462, 725 P.2d 1218 (1986). Thus, the rules contemplate appeals that stand
on their own; our rules do not contemplate appeals that are jurisdictionally dependent for their
existence on the existence of some other appeal.
Moreover, this court has held that we will affirm the order of the district court if it
reached the correct result, albeit for different reasons. Rosenstein v. Steele, 103 Nev. 571,
575, 747 P.2d 230, 233 (1987); see, e.g., Brascia v. Johnson, 105 Nev. 592, 596, 7S1 P.2d
765, 76S {19S9); Burroughs Corp. v.
__________

3
NRAP 4(a) provides for the filing of multiple notices of appeal; nowhere does the rule provide for the filing of
a notice of cross-appeal. A cross-appeal arises as a matter of law when parties with opposing interests file
notices of appeal from a single order or judgment. In such cases, the plaintiff below is designated the appellant
in this court, and the defendant below is designated the cross-appellant in this court for appellate purposes.
NRAP 28(h).
596, 781 P.2d 765, 768 (1989); Burroughs Corp. v. Century Steel, 99 Nev. 464, 467, 664
P.2d 354, 356 (1983). The holding in Alamo that a party must file a notice of cross-appeal in
order to raise issues not accepted by the district court in support of a favorable judgment is
inconsistent with these cases.
4

Showboat also relies on Sierra Creek Ranch v. J.I. Case, 97 Nev. 457, 634 P.2d 458
(1981), in support of its position that a cross-appeal is appropriate in this case. Showboat's
reliance is misplaced. In Sierra Creek Ranch, the respondent contended on appeal that
although the district court correctly awarded judgment in its favor, the district court erred in
refusing to award it attorney's fees and costs. Id. at 459-60, 634 P.2d at 460. The respondent
was aggrieved by the district court's refusal to award fees and costs, and sought to increase its
rights under the judgment. Thus, this court properly refused to consider the arguments
regarding attorney's fees and costs because the respondent had not filed a notice of appeal.
In this case, Showboat was not aggrieved by the district court's decision. To the contrary,
Showboat prevailed in the district court on its motion for summary judgment. We conclude,
therefore, that we lack jurisdiction to entertain Showboat's cross-appeal, and we dismiss the
cross-appeal.
5

____________
110 Nev. 757, 757 (1994) Tomlinson v. State
PRESTON J. TOMLINSON, III, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22767
July 26, 1994 878 P.2d 311
Appeal from a judgment of conviction, pursuant to a jury verdict, on one count of felony
burglary. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
__________

4
We have also consistently held that the timely filing of a notice of appeal is mandatory and jurisdictional.
Healy v. Volkswagenwerk, 103 Nev. 329, 741 P.2d 432 (1987); Holiday Inn v. Barnett, 103 Nev. 60, 732 P.2d
1376 (1987); Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987); Knox v. Dick, 99 Nev.
514, 665 P.2d 267 (1983); Walker v. Scully, 99 Nev. 45, 657 P.2d 94 (1983); Morrell v. Edwards, 98 Nev. 91,
640 P.2d 1322 (1982). The statement in Alamo that this court has discretion to consider issues not properly
before it because of the lack of a notice of appeal is inconsistent with these cases.

5
Our disposition of Showboat's cross-appeal does not affect Ford's appeal. Showboat may argue in its
answering brief in support of the district court's judgment that the challenged conduct in this case was not
outrageous as a matter of law.
The supreme court held that typed transcript of taped confession made by defendant was
properly admitted under exception to best evidence rule.
Affirmed.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy Public Defender, Clark
Criminal Law.
Under best evidence rule, party seeking admission of nonoriginal to prove contents of original need only satisfy one of four
statutory requirements for admission. NRS 52.235, 52.255.
OPINION
Per Curiam:
Appellant Preston J. Tomlinson, III (Tomlinson) was charged with one count of felony burglary. At trial, several eyewitnesses identified
Tomlinson as the culprit. Two police officers testified that Tomlinson had made an oral confession. The State introduced Tomlinson's
written confession and a typed transcript of a taped confession made by Tomlinson. Tomlinson's counsel objected because the Las Vegas
Metropolitan Police Department (Metro) had erased the tape. Tomlinson contends that the district court improperly admitted the transcript
into evidence. For reasons hereafter stated, we conclude that the transcript was properly admitted into evidence.
FACTS
On December 21, 1990, the State filed an information charging Preston J. Tomlinson, III with one count of felony burglary and one
count of grand larceny, which the State later dropped.
At trial, Tasha Russell (Russell) testified that on the morning of September 16, 1990, she watched a man exit Fast N' Fresh Cleaners
and get into a white truck with Abbey printed on the side. Russell then climbed into her car with Marcus Doughty (Doughty), and drove
close enough to the truck to get the license plate number. At that point, she saw the driver, whom she identified as Tomlinson.
Doughty testified that he heard a crash as he drove through Von's parking lot. Doughty further stated that he saw someone try to
hide behind a planter.
try to hide behind a planter. Doughty got out of his car, approached the person, looked
directly at the person, and watched him enter the dry cleaners. Doughty watched the person
tip over what he thought was a cash register. Finally, Doughty watched the person leave the
store and get into a white Toyota pickup with Abbey's Air Conditioning printed on the side
of the truck. At this time, Russell pulled her car around and asked Doughty to get in and help
her follow the truck. Doughty did. He also identified Tomlinson as the driver of the truck.
Clifton Berger, manager of Fast N' Fresh Cleaners, testified that he went to the business at
the request of the police during the early morning hours of September 16, 1990. Mr. Berger
further stated that when he arrived he noticed that the front door had been broken out and the
store was in a state of disarray. Finally, he stated that nothing had been taken from the store.
Richard George (George), a night stocker at Von's, heard someone come into the store and
ask the manager to call the police. George then went outside and saw a man duck under the
handrail and exit Fast N' Fresh through the broken door. He watched the man climb into a
white truck bearing the license plate number 257DNU. At trial he described the man, but
acknowledged that he could not identify the intruder.
The State presented the district court with a certified copy of a Department of Motor
Vehicles' record showing that Larry Luther owned a white Toyota truck license number
257DNU.
Metro Officer Christopher Matthews (Matthews), who also responded to the scene,
testified that his subsequent investigation led him to the business address of Abbey Air
Conditioning. Matthews and his partner, Officer Dennis Flynn, asked Larry Luther, the owner
of Abbey Air Conditioning, to call into the office the employee assigned to the truck
described above.
When Tomlinson arrived at Abbey Air Conditioning, the officers subdued and handcuffed
him. Officer Flynn then read Tomlinson his Miranda rights. Tomlinson told the officers that
he did not want a lawyer and that he wanted to cooperate.
During the interview, Tomlinson expressed concern as to whether he would lose his job.
The officers told Tomlinson that they had no control over that. Officer Flynn brought Mr.
Luther back into the room and allowed Tomlinson to ask about his job. After Mr. Luther left
the room, Tomlinson orally confessed and signed a written confession.
After obtaining the written confession, Officer Flynn asked Tomlinson to make a taped
oral confession. Tomlinson agreed. At trial, Officer Flynn admitted that the tape of
Tomlinson's confession had been reused and therefore was incapable of being examined by
the jury. However, Flynn's secretary had prepared a typed transcript which the State offered
as evidence.
typed transcript which the State offered as evidence. Further, Officer Flynn testified that he
had checked the transcript against the tape to verify the accuracy of the transcript.
Tomlinson's counsel objected because the original was not available for comparison;
however, the district judge admitted the transcript.
The jury found Tomlinson guilty of felony burglary and the district judge sentenced him to
twenty years in Nevada State Prison as an habitual criminal pursuant to NRS 207.010. This
appeal followed.
DISCUSSION
The State of Nevada has codified the common law best evidence rule. See NRS 52.235. In
essence, NRS 52.235 requires that the party trying to prove the contents of a written
document, a recording, or a photograph produce the original. However, NRS 52.255 sets forth
the limited circumstances in which the court can admit other evidence to prove the contents
of the original. NRS 52.255 provides as follows:
The original is not required, and other evidence of the contents of a writing, recording
or photograph is admissible, if:
1. All originals are lost or have been destroyed, unless the loss or destruction
resulted from the fraudulent act of the proponent.
2. No original can be obtained by any available judicial process or procedure.
3. At a time when an original was under the control of the party against whom
offered, he was put on notice, by the pleadings or otherwise, that the contents would be
a subject of proof at the hearing, and he does not produce the original at the hearing.
4. The writing, recording or photograph is not closely related to a controlling issue.
Tomlinson concedes that the State can satisfy three of the four requirements.
1
However,
Tomlinson asserts that [a]pplicability of the NRS 52.255 exception fails however, when it
comes to the fourth requirement. In order for nonoriginal evidence of content to be
admissible, the writing, recording or photograph must not be closely related to a controlling
issue. That is, Tomlinson argues that the proponent of the nonoriginal evidence must satisfy
all four enumerated requirements.
__________

1
Most importantly, Tomlinson concedes that the State can satisfy NRS 52.255(1), as he agrees that Metro did
not fraudulently destroy the tape.
The State contends that the proponent need only satisfy one of the four requirements. The
State relies on three separate arguments to support this proposition. First, the State contends
that the Legislature intended that the proponent need only satisfy one of the four
requirements. Second, the State points to the corresponding federal rule,
2
Federal Rule of
Evidence 1004,
3
which lists the requirements in the disjunctive. Accordingly, the State
contends that the party offering the evidence need only satisfy one of the requirements.
Finally, the State argues that Tomlinson's proposed interpretation is illogical because the first
requirement is inconsistent with the second and third requirements. We agree.
A statute should be construed so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant, and so that one section will not
destroy another unless the provision is the result of obvious mistake or error.
2A Norman J. Singer, Statutes and Statutory Construction 46.06, at 119-20 (5th ed. 1992)
(footnotes omitted); see also Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 670
P.2d 102 (1983) (courts should avoid construing statutes in a way that would render any
provision or clause meaningless); Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983)
(statutes should be construed to validate each provision of the statute). The first and second
requirements are logically inconsistent. If a party demonstrates that all originals have been
lost or destroyed, that party has necessarily proven that no original can be obtained by an
available judicial procedure. Tomlinson's interpretation would render the second requirement
meaningless. To give all the subsections of NRS 52.255 independent meaning, we accept the
State's construction and interpret NRS 52.255 consistent with Federal Rule of Evidence
1004.
__________

2
The Nevada Legislature adopted NRS 52.255 in 1971 and based the statute on a draft of Federal Rule of
Evidence 1004. See NRS 52.255.

3
Federal Rule of Evidence 1004 provides:
The original is not required, and other evidence of the contents of a writing, recording, or photograph is
admissible if
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
or
(3) Original in possession of opponent. At a time when an original was under the control of the party
against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would
be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling
issue.
Fed. R. Evid. 1004.
State's construction and interpret NRS 52.255 consistent with Federal Rule of Evidence 1004.
That is, we read the four requirements as if they were connected by a semi-colon and the
word or. Thus, the district court properly admitted the transcript of the tape pursuant to
NRS 52.255(1).
We have considered Tomlinson's remaining contentions and find them unpersuasive.
Accordingly, we affirm the district court's decision.
____________
110 Nev. 762, 762 (1994) Allison v. Merck and Company
JO ANN ALLISON, Individually, and JO ANN ALLISON, as Natural Parent and Guardian
of THOMAS ALLISON, Appellant, v. MERCK AND COMPANY, INC., a New Jersey
Corporation, and CLARK COUNTY HEALTH DISTRICT, Respondents.
No. 19888
July 26, 1994 878 P.2d 948
Appeal from an order granting summary judgment in favor of respondents. Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
Infant recipient of measles, mumps and rubella (MMR) vaccine and infant's mother
brought action against county health district and manufacturer of vaccine, alleging that
vaccine had caused infant's blindness, deafness and mental retardation. The district court
granted summary judgment in favor of defendants, and plaintiffs appealed. The supreme
court, Springer J., held that: (1) proof that MMR vaccine caused infant's injuries, including
blindness, deafness, mental retardation and spastic contractures, was sufficient circumstantial
evidence to raise genuine issue of material fact and allow issue of product defect to go to jury;
(2) drug manufacturer should, under strict liability jurisprudence, be held liable in tort even
when drug is nonnegligently prepared and marketed, and even when known danger inherent
in drug may be what is called reasonable in Restatement (Second) of Torts comment
addressing unavoidably unsafe products; (3) genuine issue of material fact existed as to
whether MMR vaccine, if not defective or dangerous per se, was unreasonably dangerous as
marketed; and (4) manufacturer could not free itself from any liability in connection with
allegedly inadequate warnings simply by delegating that duty and contracting out that duty to
center for disease control (CDC).
Young and Steffen, JJ., dissented in part.
Goodman & Chesnoff, Las Vegas; Richard R. Shreves, Austin, Texas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas; Preuss, Walker & Shanager, San
Francisco, California; for Respondent Merck and Company, Inc.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for Respondent Clark County
Health District.
1. Drugs and Narcotics; Sales.
County health district was not seller of products and, thus, could not be held liable under warranty or strict liability theory in
connection with injuries suffered by infant as alleged result of measles, mumps and rubella (MMR) vaccine. NRS 104.2313-104.2315;
Restatement (Second) of Torts 402A.
County health district was not liable for injuries suffered by infant as alleged result of measles, mumps and rubella (MMR) vaccine
on failure-to-warn theory. Plaintiffs' own expert testified that, although center for disease control (CDC) warning utilized by district
was inadequate, district met relevant standard of care by using that warning.
3. Products Liability.
Under law of strict liability, responsibility where injury is caused by defective products is properly fixed wherever it will most
effectively reduce hazards to life and health inherent in defective products that reach market. (Per Springer, J., with one Justice
concurring, Chief Justice concurring in results and two Justices concurring in part and dissenting in part.)
Although manufacturers are not insurers of their product, where injury is caused by defective product, responsibility is placed
upon manufacturer and distributor of defective product, rather than on injured consumer. (Per Springer, J., with one Justice concurring,
Chief Justice concurring in results and two Justices concurring in part and dissenting in part.)
Proof that measles, mumps and rubella (MMR) vaccine caused infant's injuries, including blindness, deafness, mental retardation
and spastic contractures, was sufficient circumstantial evidence to raise genuine issue of material fact and allow issue of product defect
to go to jury in action against vaccine manufacturer. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results
and two Justices concurring in part and dissenting in part.)
Vaccine that causes blindness and deafness is defective product. (Per Springer, J., with one Justice concurring, Chief Justice
concurring in results and two Justices concurring in part and dissenting in part.)
Drug manufacturer should, under strict liability jurisprudence, be held liable in tort even when drug is nonnegligently prepared and
marketed, and even when known danger inherent in drug may be what is called reasonable in Restatement (Second) of Torts
comment addressing unavoidably unsafe products. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results
and two Justices concurring in part and dissenting in part.) Restatement (Second) of Torts 402A comment.
Principle supporting products liability cases is expressed in comment of Restatement (Second) of Torts stating that public policy
demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them,
and be treated as a cost of production against which liability insurance can be obtained and that the consumer of such products is
entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.
(Per Springer, J., with one Justice concurring, Chief Justice concurring in results and two Justices concurring in part and dissenting in
part.) Restatement (Second) of Torts 402A comment.
Court would reject any interpretation of comment in Restatement (Second) of Torts addressing unavoidably unsafe products as
justifying release from liability of manufactures and distributors of reasonably dangerous vaccines administered throughout
population and as placing burden of loss on consumer, though it would be in harmony with case law if comment were read to mean
that when drug consumers know of danger and decide to accept risk because of hoped-for benefits, strict tort liability cannot fairly
attach to dispenser of such drug. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results and two Justices
concurring in part and dissenting in part.) Restatement (Second) of Torts 402A comment.
10. Judgment.
Genuine issue of material fact as to whether measles, mumps and rubella (MMR) vaccine, if not defective or dangerous per se, was
unreasonably dangerous as marketed precluded summary judgment in favor of drug manufacturer, even accepting manufacturer's
broadly exculpatory interpretation of comment in Restatement (Second) of Torts addressing unavoidably unsafe products. Vaccinated
infant's mother was not informed of possibility of permanent blindness, deafness and mental retardation. (Per Springer, J., with one
Justice concurring, Chief Justice concurring in results and two Justices concurring in part and dissenting in part.) Restatement
(Second) of Torts 402A comment.
Whether manufacturer of measles, mumps and rubella (MMR) vaccine was tortiously liable to recipient for intentional or negligent
underwarning of its product was question for jury. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results
Mass immunization exception to learned intermediary defense applied in action against manufacturer of measles, mumps and
rubella (MMR) vaccine administered by county health district. Physician's advice to infant's mother that it was time for infant to
receive vaccine was not type of "individualized medical judgment" contemplated by learned intermediary
defense. {Per Springer, J., with one Justice concurring, Chief Justice concurring in results and two Justices
concurring in part and dissenting in part.)
was not type of individualized medical judgment contemplated by learned intermediary defense. (Per Springer, J., with one Justice
13. Judgment.
Genuine issue of material fact as to whether it was negligent for manufacturer of measles, mumps and rubella (MMR) vaccine to
rely on center for disease control (CDC) regarding warnings given to consumers was for jury in products liability suit arising from
injuries suffered by infant as alleged result of vaccine. Information handout prepared by CDC did not warn of possible risks of
blindness, deafness and permanent brain damage. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results and
two Justices concurring in part and dissenting in part.)
Manufacturer of measles, mumps and rubella (MMR) vaccine alleged to have caused infant's blindness, deafness and mental
retardation could not free itself from any liability in connection with allegedly inadequate warnings simply by delegating and
contracting out that duty to center for disease control (CDC). (Per Springer, J., with one Justice concurring, Chief Justice concurring in
results and two Justices concurring in part and dissenting in part.)
Although manufacturer may decide to assign its duty to warn of unsafeness of its product to others, manufacturer cannot be
relieved of ultimate responsibility for assuring that its unsafe product is dispensed with proper warning. (Per Springer, J., with one
Justice concurring, Chief Justice concurring in results and two Justices concurring in part and dissenting in part.)
There was no justification for applying government contractor defense in action against manufacturer of measles, mumps and
rubella (MMR) vaccine alleged to have caused infant's blindness, deafness and mental retardation. (Per Springer, J., with one Justice
Idea regarding government contractor defense to products liability suit against manufacturer who contracted to produce military
product for federal government is that sovereign immunity should be extended to private contractors acting pursuant to and in
conformance with government contract for military equipment; if such contractors can show that government approved reasonably
precise specifications for product, that specifications were followed, and that manufacturer warned government of dangers known to
manufacturer but not to government, then government contractor defense may be successfully interposed. (Per Springer, J., with one
Justice concurring, Chief Justice concurring in results and two Justices concurring in part and dissenting in part.)
18. Judgment.
Even if government contractor defense were applicable to drug cases, genuine issues of material fact as to whether manufacturer of
measles, mumps and rubella (MMR) vaccine alleged to have caused infant's blindness, deafness and mental retardation was acting in
sovereign's stead would preclude summary judgment for manufacturer. Extent to which government may have provided precise designs
and specifications for vaccine was matter up to question.
specifications for vaccine was matter up to question. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results
Mere government consideration of design specifications of drugs alleged to have caused injury or even government approval of
such specifications does not as a matter of law immunize drug manufacturers from liability. (Per Springer, J., with one Justice
Tort claimants' decisions not to pursue claims under National Childhood Vaccine Injury Act did not preclude them from pursuing
their tort claims if they elected to do so. (Per Springer, J., with one Justice concurring, Chief Justice concurring in results and two
Justices concurring in part and dissenting in part.) Public Health Service Act, 2111(a)(5)(A), 2115(b), as amended, 42 U.S.C.
300aa-11(a)(5)(A), 300aa-15(b).
OPINION
[Headnotes 1, 2]
The trial court entered summary judgment against appellant Jo Ann Allison and her son Thomas, who are suing the Merck
pharmaceutical company (Merck) and the Clark County Health District (Health District) because they claim that a
Merck-manufactured measles, mumps and rubella vaccine (the MMR II) administered by the Health District caused then
seventeen-month-old Thomas to contract encephalitis and to suffer from consequent blindness, deafness, mental retardation and spastic
contractures.
1
We conclude that Merck may be liable to Thomas Allison by reason of its strict
liability as manufacturer if Thomas can prove that the vaccine in question is the cause of his
disabilities.
2
In addition, we conclude that Merck may be liable to Thomas and Ms. Allison
for failing to provide a proper warning regarding the vaccine.
__________

1
We affirm the summary judgment in favor of Clark County Health District. The Health District is not a seller
of products. Accordingly, it cannot be liable under either a warranty or a strict liability theory. See NRS
104.2313-2315; Restatement (Second) of Torts 402A (1965). Further, there is no issue of fact remaining with
respect to the Health District's failure to warn because the Allisons' own expert testified that although the CDC
warning utilized by the Health District was inadequate, the Health District met the relevant standard of care by
using that warning. Therefore, the district court's entry of summary judgment on the Allisons' failure-to-warn
causes of action was also appropriate.

2
Ms. Allison made a strict liability claim for relief on her own behalf as well, but it was struck as barred by the
applicable statute of limitations.
regarding the vaccine. Accordingly, we reverse the summary judgment in favor of Merck and
remand to the trial court for a trial on Thomas' strict liability claim and on Thomas' and Ms.
Allison's failure-to-warn claims.
3

STRICT LIABILITY
To establish liability under a strict tort liability theory, Thomas must establish that his
injury was caused by a defect in the product, and that such defect existed when the product
left the hands of the defendant. Shoshone Coca-Cola Co. v. Dolinski, 82 Nev. 439, 443, 420
P.2d 855, 858 (1966). In this case, whether any defect in the vaccine that might have caused
Thomas's disabilities was present when the product left the hands of the defendant[s] is not
a matter of controversy; so, if the Allisons can prove that Thomas's encephalitis was caused
by a defect in the product, then plaintiffs should be able to recover from Merck.
We have already considered the meaning of the word defect in connection with strict
products liability. In Ginnis v. Mapes Hotel Corp., we adopted a definition of defect that is
still useful and applicable to the case at hand: Although the definitions of the term defect
in the context of products liability law use varying language, all of them rest upon the
common premise that those products are defective which are dangerous because they fail to
perform in the manner reasonably to be expected in light of their nature and intended
function.' 86 Nev. 408, 413, 470 P.2d 135, 138 (1970) (quoting Dunham v. Vaughn &
Bushnell Mfg. Co., 247 N.E.2d 401, 403 (Ill. 1969)). If Thomas can establish that the vaccine
caused him to suffer permanent brain damage, then surely the vaccine failed to perform in the
manner reasonably to be expected in light of [its] nature and intended function. The nature
and intended function of this vaccine, of course, is to create an immunity to measles, mumps
and rubella without attendant blindness, deafness, mental retardation and permanent brain
damage.
4

[Headnotes 3, 4]
Under the law of strict liability in this state, responsibility for injuries caused by defective
products is properly fixed wherever it will most effectively reduce the hazards to life and
health inherent in defective products that reach the market.
__________

3
A number of different kinds of legal claims have been asserted by the Allisons against Merck, but the only
theories that we see as having any merit are those of strict tort liability and failure to warn.

4
Indeed, Merck seems to concede that the vaccine was defective, albeit unavoidably so. See discussion infra
at page 769.
in defective products that reach the market. Although manufacturers are not insurers of their
products, where injury is caused by a defective product, responsibility is placed upon the
manufacturer and the distributor of the defective product rather than on the injured consumer.
See Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 448, 686 P.2d 925, 928 (1984); see
also Nat'l Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991).
[Headnote 5]
In Stackiewicz, we allowed a strict liability case to go to the jury on the plaintiff's claim of
an idiopathic steering defect in an automobile which the plaintiff claimed was the cause of
her injuries. We said in Stackiewicz that when machinery malfunctions, it obviously
lacks fitness regardless of the cause of the malfunction.' Id. at 448-49, 686 P.2d at 928
(quoting Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639 (8th Cir. 1972)).
In the case before us, plaintiffs are claiming in effect that the vaccine malfunctioned; and, if
we are to follow Stackiewicz, then a vaccine which causes permanent brain damage
obviously lacks fitness regardless of the cause of the malfunction.
5
If the vaccine is found
by a factfinder to have caused Thomas to develop the disabling encephalitis, then Merck's
sin is the lack of fitness as evidenced by the malfunction itself rather than some specific
dereliction by the manufacturer.' Id. at 449, 686 P.2d at 928 (quoting Lindsay, 460 F.2d at
639).
__________

5
The Dissent suggests this opinion is reminiscent not of strict liability but rather res ipsa loquitur. . . . We are
not exactly sure what is meant by this, given that res ipsa loquitur is a method of proof whereas strict liability is a
theory of recovery. We do note, however, that Stackiewicz does stand for the proposition that plaintiffs may rely
on a res ipsa loquitur type of inference to meet their burden of establishing a defect in strict liability cases; as
stated above, in Stackiewicz, we held that evidence of a steering malfunction was sufficient circumstantial
evidence of a defect or unreasonably dangerous condition to support a judgment based on strict product
liability in favor of the plaintiff. We also would note that the approach this court took in Stackiewicz is not
exceptional. Several courts have held that plaintiffs may rely on circumstantial evidence to establish a product
defect. See e.g., Lindsay v. McDonnell Douglas Aircraft Co., 460 F.2d 631 (8th Cir. 1972), on remand 352 F.
Supp 633, (D.C.), affirmed 485 F.2d 1288 (8th Cir. 1973) (new navy jet caught on fire and crashed into
oceancourt held that the fire was evidence of a malfunction which in turn was evidence of some defect);
Kileen v. General Motors Corp., 421 A.2d 874 (Con. Super. 1980); Lee v. Crookston Coca-Cola Bottling
Company, 188 N.W.2d 426 (Minn. Sup. Ct. 1971); Jagmin v. Simonds, Abrasive Co., 211 N.W.2d 810 (Wis.
1973). In this case, we merely hold that proof that the MMR II vaccine caused Thomas Allison's injuries is
sufficient circumstantial evidence to raise a genuine issue of material fact and allow the issue of product defect
to go to the jury.
Unless we are going to abandon long-standing public policy grounds for holding
manufacturers and distributors of defective products responsible for injuries caused by
manufactured products that prove to be defective, Thomas must be given an opportunity to
prove that a malfunctioning vaccine caused his injuries, just as we allowed Ms. Stackiewicz
to try to prove that her injuries were caused by a defective steering mechanism. The public
policy considerations that support holding the defendants liable in this case (if plaintiffs can
prove that the vaccine caused his injuries) were put well by Professor Prosser in the noted law
review article, The Fall of the Citadel:
The public interest in human safety requires the maximum possible protection for the
user of the product, and those best able to afford it are the suppliers of the chattel. By
placing their goods upon the market, the suppliers represent to the public that they are
suitable and safe for use; and by packaging, advertising and otherwise, they do
everything they can to induce that belief . . . .
50 Minn. L. Rev. 791, 799 (1966). This concept of public interest is the guiding principle
of our present opinion.
[Headnote 6]
If we are going to follow Shoshone Coca-Cola and Stackiewicz, we must send this case
back to the trial court. A vaccine that causes blindness and deafness is a defective product.
Causation is a factor yet to be determined by a factfinder.
6

UNAVOIDABLY UNSAFE?
Merck claims that it is free from strict manufacturer's liability by virtue of the dictum
stated in comment k to section 402A of the Restatement (Second) of Torts.
7
This comment
suggests that a drug manufacturer should not be held liable for "the unfortunate
consequences attending" the use of its drugs if: {1) the manufacturer supplies "the public
with an apparently useful and desirable product, attended by a known but apparently
reasonable risk," {2) the drug is "properly prepared and marketed," and {3) "proper
warning is given."
__________

6
Merck defends on the ground that these kinds of disasters occur only rarely, perhaps only once in a million
times; but this disputed allegation is immaterial, as it was immaterial in Stackiewicz whether there was a low or
high incidence of idiopathic steering disorders in Nissan cars. If we are going to subscribe to the basic rationale
of strict tort liability set out above and to adhere to our ruling in the Stackiewicz case, then we must, again, if
causation can be proved, allow Thomas to recover for the cost of the injury and the overwhelming
misfortune that has befallen him.

7
Comment k, section 402A, Restatement (Second) of Torts (1965) provides as follows:
k. Unavoidably unsafe products. There are some products which, in the present state of human
knowledge, are quite incapable of being made safe for their intended and ordinary use. These are
especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment
of rabies, which not uncommonly leads to
drug manufacturer should not be held liable for the unfortunate consequences attending the
use of its drugs if: (1) the manufacturer supplies the public with an apparently useful and
desirable product, attended by a known but apparently reasonable risk, (2) the drug is
properly prepared and marketed, and (3) proper warning is given.
It is not easy to divine just why the framers of the comment thought that a drug
manufacturer should be excused in cases in which it manufactured a drug that was known
to be dangerous. The whole idea behind strict tort liability is that the manufacturer, not the
consumer, should bear the responsibility for injuries, even when the product is ostensibly
properly prepared and marketed and when the plaintiff is not in a position to prove the origin
of the defect.
8
See Stackiewicz, 100 Nev. at 443, 686 P.2d at 925.
[Headnote 7]
What the question in this case really gets down to is whether an exception should be made
in a case in which a drug manufacturer injures a consumer with a drug that it knows is
dangerous, but not too (unreasonably) dangerous. That is to say, should a drug
manufacturer be allowed to profit with impunity from the distribution of a drug that it
knows is capable of resulting in physical injury, so long as the drug can somehow be
certified as not being unreasonably dangerous?
__________
very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a
dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the
unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied
by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of
many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except
to physicians, or under the prescription of a physician. It is also true in particular of many new or
experimental drugs as to which, because of lack of time and opportunity for sufficient medical
experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such
experience as there is justifies the marketing and use of the drug notwithstanding a medically
recognizable risk. The seller of such products, again with the qualification that they are properly prepared
and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict
liability for unfortunate consequences attending their use, merely because he [she] has undertaken to
supply the public with an apparently useful and desirable product, attended with a known but apparently
reasonable risk.
(Emphasis added.)

8
Properly prepared and marketed means to me simply that the injured consumer is unable to prove that the
manufacturer was guilty of negligence. This should not be able to defeat a strict liability action. Proper
warning is a subject apart and is akin to informed consent. If a consumer uses a dangerous product after having
been fairly and properly warned of its dangers, we are really not talking about strict liability at all. See
discussion of comment k and voluntary use of dangerous drugs below.
bution of a drug that it knows is capable of resulting in physical injury, so long as the drug
can somehow be certified as not being unreasonably dangerous? We answer that question in
the negative and say that a drug manufacturer should, under the strict liability jurisprudence
of this state, be held liable in tort even when the drug is properly prepared and marketed
(that is to say, non-negligently) and even when the known danger inherent in the drug may be
what the comment calls reasonable.
The apparent rationale of comment k in relieving drug manufacturers from liability is that
where the manufacturer is free from fault, that is to say it produces a product that is unsafe
because of a claim by the manufacturer that it is incapable of being made safe, the
manufacturer should not be responsible for injuries resulting from use of the drug. The
comment itself gives as an example of such an unavoidably unsafe drug the Pasteur
treatment of rabies which not uncommonly leads to very serious and damaging
consequences when it is injected. We would note, however, that the reason why serious and
damaging consequences of the Pasteur rabies treatment do not result in tort liability is not
because of the unreasonably dangerous doctrine proposed by comment k, but, rather,
because the victim chooses to be injected with a drug having known damaging
consequences rather than to die from rabies. It is the voluntary choice to take the antirabies
serum that eliminates tort liability and not the serum's being said to be unavoidably or
reasonably dangerous. There is no need to make an exception to the rules of strict liability
such as that suggested by comment k in the rabies example because the rabies victim waives
tort claims by accepting what the victim knows to be the necessary risk involved in the
treatment.
9

[Headnote 8]
Speaking of unavoidable danger or fault-free infliction of harm, or speaking of
reasonable (and therefore acceptable) risk of harm, is very much alien to strict liability theory
and should have no place in the Restatement provisions relating to strict liability.
__________

9
Obviously, the situation in mass immunization projects is quite different from the emergency, voluntarily
accepted treatment of rabies cases. Ms. Allison never had any real choice as to whether her son was to receive
the vaccine in question. Not only was she, let us say, strongly encouraged to make the decision to go ahead
with her child's vaccination, she was faced with the Hobson's choice of either having the vaccine administered or
not having the privilege of sending her son to private or public school. See NRS 392.435; NRS 394.192.
Choosing not to have her son attend school, of course, would have subjected her to criminal penalties unless she
had the means to have her son educated at home. NRS 392.200-.210. Even if the Allisons could be seen to have
been properly warned of the risk inherent in this vaccine, it is hard to conclude that they freely accepted the risk
of the horrible injuries resulting in this case.
liability. Mixing concepts of fault-free (unavoidable) manufacture and reasonable risk
into the context of non-negligent, strict liability is entirely inconsistent with our products
liability cases and with the law established in this state for almost thirty years. The
well-accepted principle supporting our products liability cases is expressed in comment c of
section 402A of the Restatement:
[P]ublic policy demands that the burden of accidental injuries caused by products
intended for consumption be placed upon those who market them, and be treated as a
cost of production against which liability insurance can be obtained; and that the
consumer of such products is entitled to the maximum of protection at the hands of
someone, and the proper persons to afford it are those who market the products.
It could not be said any more clearly than this. Merck, not Thomas Allison, must, if the
Merck product did in fact cause Thomas' overwhelming misfortune, bear the burden of the
accidental [intended] injuries caused by products intended for consumption. Restatement
(Second) of Torts, 402A, cmt. c (1965).
The Dissent and Merck urge that the imposition of liability on Merck for Thomas' injuries
in this case would act as a deterrent to necessary and beneficial research and development of
new drugs. The Dissent and Merck appear to be arguing that if Merck were to be held liable
for statistically infrequent injuries such as the one at bar, society would be the worse because
Merck and other drug manufacturers would be fearful and retarded in the development of new
and greatly needed immunological products. If Merck were to have to pay for what its
vaccine has done to Thomas, this would, Merck says, necessarily inhibit the development and
marketing of immunological products which are helpful to many and unfortunately
devastating to others.
Although, on policy grounds, Merck might talk some legislative body into immunizing it
from liability, it would be certainly inappropriate for the court to make such a radical change
in our well-established products liability law. Further, one would think that if a legislature
were going to give such special benefits to drug manufacturers, most certainly the resultant
legislation, to be just, would have to afford some kind of compensation or relief to the victims
of unavoidably unsafe drugs. If, for example, a legislature provided that automobile
manufacturers would be held to a standard of strict liability for manufacturing defects, even if
injuries caused by a given defect are statistically infrequent and perhaps unavoidable, and at
the same time immunized drug manufacturers from liability for injuries caused by their
vaccines, the legislature would, as mentioned, very probably and properly include in such
discriminatory legislation some kind of no-fault victim compensation plan to set off the
advantage given to drug manufacturers over other kinds of manufacturers.
manufacturers from liability for injuries caused by their vaccines, the legislature would, as
mentioned, very probably and properly include in such discriminatory legislation some kind
of no-fault victim compensation plan to set off the advantage given to drug manufacturers
over other kinds of manufacturers.
10

[Headnote 9]
In summary, this court cannot, under our law, read comment k as giving immunity to
liability in cases such as the present one. It would be in harmony with our cases if comment k
were read to mean that when drug consumers know of a danger and decide to accept the risk
because of hoped-for benefits, strict tort liability cannot fairly attach to the dispenser of such
a drug; however, insofar as comment k might be read as justifying release from liability of
manufacturers and distributors of reasonably dangerous vaccines that are administered
throughout our population and read as placing the burden of loss on the consumer, we must
reject any such interpretation. It must be remembered that these inoculation programs are
nationwide and that those who are required to take the vaccines have little or no choice as to
whether to take them or not. We see no public policy need for changing our law or for
shifting from the drug manufacturers to the consumer/victim the responsibility for all of the
unfortunate consequences suffered by the Allisons of the world. If this kind of reallocation
of resources is to be made, it is properly a legislative rather than a judicial function to do so.
Considerable research and legislative committee activity would be necessary before an
intelligent and informed judgment could be made as to whether we should leave
unfortunate victims of drug injury to their own resources and free drug manufacturers from
tort liability, on the unsubstantiated pretext that such a drastic measure is necessary in order
to encourage drug research and development.
__________

10
In fact, four years after Thomas suffered his injuries, the United States Congress enacted the National
Childhood Vaccine Injury Act of 1986. This Act provides for compensation by the federal government to
individuals who have sustained vaccine-related injuries after the effective date of the Act, and limits vaccine
manufacturers' liability for vaccine-related injuries sustained after the effective date of the Act. 42 U.S.C.
300aa-15(a) (1988); 42 U.S.C. 300aa-11(a)(2)(A) (Supp. 1992). The Act also provides for somewhat more
limited compensation for injured vaccinees who had civil actions pending at the time the Act was passed, if the
injured vaccinees elect to dismiss their pending civil actions. 42 U.S.C. 300aa-15(b) (Supp. 1992). The Act
does not apply to this case as the Allisons did not elect to dismiss their civil action and proceed under the Act, as
was their right. In the absence of federal law preemption or state legislative exculpation of drug manufacturers,
there is no reason to depart from our existing strict liability jurisprudence. (The National Childhood Vaccine
Injury Act is discussed further infra at page 781.)
STRICT TORT LIABILITY MAY BE IMPOSED EVEN IF
MERCK'S INTERPRETATION OF COMMENT K
WERE ACCEPTED
[Headnotes 10, 11]
This court rejects the idea of freeing drug manufacturers from liability for defective drugs
simply because they claim that the drugs are reasonably or unavoidably dangerous. However,
even if, like the dissenting justice, we were to accept Merck's interpretation of comment k in
this case, Thomas and his mother would still be entitled to a trial. A factfinder could find in
this case that the product here, if not defective or dangerous per se, was unreasonably
dangerous as marketed. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273 (5th Cir. 1974).
Reyes noted that [i]n terms of the user's interests, a product is unreasonably dangerous' only
when it is dangerous to an extent beyond that contemplated by the ordinary consumer.'
11
Id. (quoting Restatement (Second) of Torts 402A cmt. i (1965)). Citing to comment k, the
Reyes court thus held that even an unavoidably unsafe vaccine may be defective if
marketed without an adequate warning. Id. at 1274-78. Accordingly, under the Reyes
rationale, even under the broadly exculpatory interpretation of comment k espoused by
Merck, liability cannot be avoided by a drug manufacturer and distributor in the marketing of
a vaccine unless the vaccine is accompanied by proper directions and warning. Id. at 1274
(quoting Restatement (Second) of Torts 402A cmt. k (1965)).
12

__________

11
We find it very difficult to understand what dangerous to an extent beyond that contemplated by the ordinary
consumer means. Does it mean that out of the millions of consumers of this vaccine we must search for the
prototypical, ordinary consumer and ask if that consumer contemplated the vaccine to be dangerous? If the
expression has any intelligible meaning at all, it is certainly a retreat from traditional products liability principles
and a move toward a negligence standard in which the consumer's choice is measured on the basis of what a
reasonable and ordinary consumer would do under the circumstances. The more we look at the hodgepodge
created by the Restatement (Second) of Torts in the area of consumer rights, the more comfortable we feel with
following our precedent and the traditional principles of strict liability.

12
There is also evidence in this case from which a factfinder could conclude that Merck is tortiously liable to
the Allisons, under our state common law, for intentional or negligent underwarning of its product. See, e.g.,
Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 624, 668 P.2d 1075, 1080 (1983) (a failure to warn may be
a product defect); Davidson v. Velsicol Chemical Corp., 108 Nev. 591, 592, 834 P.2d 931, 932 (1992), cert.
denied,
----
U.S.
----
, 113 S. Ct. 1944 (1993). This rule is consistent with comment j to section 402A, which
establishes liability for failure to warn where the seller has knowledge, or by the application of reasonable,
developed human skill and foresight should have knowledge of . . . the danger. Restatement (Second) of Torts
402A cmt. i (1965). Numerous
It would appear that a factfinder in this case could reasonably conclude that the vaccine
given to Thomas Allison was not accompanied by a proper warning.
13
Although Merck does
not admit that this vaccine can cause disastrous central nervous system disorders, it
announces in its MMR II package circular (which is not distributed to vaccinees) that
significant central nervous system reactions such as encephalitis and encephalopathy
occurring within 30 days after vaccination, have been temporally associated with measles
vaccine approximately once for every million doses. (Emphasis added.) In dealing with the
mass consumers of the vaccine, the Health District revised this information when it issued its
Important Information (not a Warning) flyer prepared by the Center for Disease Control
(CDC). The Important Information flyer is a revision of Merck's package circular, and it
contains a much less dissuading statement, namely, that, [a]lthough experts are not sure,
there might be a very remote possibilitya chance in a millionthat takers of the vaccine
may have a more serious reaction, such as inflammation of the brain (encephalitis). The gist
of the faulty warning aspect of liability in this case is that none of the prospective vaccinees
was warned of the actual possibility of permanent brain damage. Rashes, yes; sore throats,
yes; inflammation of the brain, yes; but permanent blindness, deafness, and mental
retardation, no.
14

[Headnote 12]
Further, there is evidence in the record that Merck underestimated the incidence of serious
central nervous system involvement caused by or "temporally associated with" the vaccine.
__________
courts and commentators agree that this theory is properly applied to the makers of prescription drugs. See, e.g.,
Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir. 1969); Woodill v. Parke Davis & Co., 402 N.E.2d 194,
197-99 (Ill. 1980); Moore v. Vanderloo, 386 N.W.2d 108, 116 (Iowa 1986); John A. Kidwell, The Duty to
Warn: A Description of the Model of Decision, 53 Tex. L. Rev. 1375, 1395 (1975); Comment, William R.
Murray, Jr., Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Product Defects, 71
Geo. L.J. 1635, 1638-39 (1983); Note, Kathleen H. Wilson, The Liability of Pharmaceutical Manufacturers for
Unforeseen Adverse Drug Reactions, 48 Fordham L. Rev. 735, 752-53 (1980).

13
Merck denies any responsibility for underwarning this product, claiming that it contractually delegated its
duty to warn to the federal government. This claim is discussed infra at page 777.

14
The Dissent states that this opinion asserts that the faulty warning aspect of liability in this case is that no
prospective vaccinees were warned of the actual possibility of permanent brain damage. This is not accurate.
The crux of this whole section is that the question of the adequacy of the warning given in this case is one for the
trier of fact to determine, not this court. It is up to the jury to determine how vast a warning must be and [a]t
what point the line should be drawn. See Dissenting Opinion at page 791.
ment caused by or temporally associated with the vaccine.
15
Whether the incidence data be
true or not, the information that was ultimately conveyed to Jo Ann Allison could be seen by
a factfinder as being slanted and insufficient; and the only information that was actually made
available to Ms. Allison was that there was a one in one million [not four in one million]
chance that her son may have a more serious reaction to the vaccine such as inflammation
of the brain. At no time was Ms. Allison ever made aware that the vaccine might result in
her son's becoming an invalid. Accordingly, there is certainly an issue of fact as to whether
the warning in this case was proper; and, in fact, there appears to be substantial evidence in
this case from which a jury could find that the vaccine in question was not accompanied by
proper directions and warning,' Reyes 498 F.2d at 1274 (quoting Restatement (Second) of
Torts 402A cmt. k (1965)), especially when that evidence is viewed in the favorable light
required on appeal from summary judgment. Consequently, even if we were to accept
Merck's version of comment k, the Allisons would still be entitled to a trial on the merits.
16

__________

15
There is considerable controversy in this case as to whether encephalitis and disabling brain damage is caused
by (or temporally associated with) use of the vaccine one in one million times or four in one million times, or
more, or less. The incidence of catastrophic sequelae of the vaccine is disputed; still, we cannot see how it would
make the slightest bit of difference to Ms. Allison in accepting the vaccination whether the chances that her son
would be brain damaged were one in one million or four in one million or ten or twenty in a million. She was not
told that the kind of injury suffered by her son was even a possibility. The only information that she might have
had (assuming that she read the two page information sheet furnished to her by the Health District) was this
blurb:
Although experts are not sure, it seem (sic) that about 1 out of a million children who get measles or
mumps vaccines may have a more serious reaction, such as inflammation of the brain (encephalitis).
Whether one out of a million or four out of a million children, or more children have a more serious reaction,
such as inflammation of the brain, is not of any great consequence unless Ms. Allison had been informed that
inflammation of the brain might mean deafness, blindness, mental retardation and permanent brain damage.

16
The Dissent asserts that another reason why summary judgment is appropriate in this case is the applicability
of the so-called learned intermediary defense. The Dissent concludes that the mass immunization exception
to this defense does not apply in this case, even though Thomas received his vaccination at a clinic without a
physician, because [h]ad Mrs. Allison chosen not to go to CCHD for the vaccination, Dr. Potter, in all
probability, would have administered the MMR II vaccine. This is pure speculation. At any rate, we do not
believe that Dr. Potter's advice to Ms. Allison that it was time for Thomas to receive his MMR II vaccine is
the type of individualized medical judgment contemplated by the learned intermediary defense. The fact is the
Health District, not Dr. Potter, administered the MMR II vaccine. Accordingly, the mass immunization
exception does apply to this case.
MERCK'S CLAIMED CONTRACTUAL DELEGATION
OF ITS DUTY TO WARN
Merck claims that since it contracted with the government to provide the necessary
warnings to accompany this vaccine, the government, and not Merck, should be liable for any
faults in the warning process. As stated above, a jury would be justified in finding that the
warnings ultimately given to the consumers were inadequate. Merck wants to be relieved of
any responsibility for these faulty warnings because it contracted-out its duty to warn of the
dangers inherent in this vaccine.
[Headnote 13]
Merck claims in its brief that it did not participate in the preparation of the Important
Information form, but does not deny knowing of its contents. Merck puts the legal question
in this case to be whether it was negligent for Merck to rely on the Center for Disease
Controlthe foremost authority in the world on the subject. A jury could definitely
conclude that the answer to this question is, yes. Almost anyone who reads the Important
Information handout should be able to see immediately that it does not warn of the possible
risks of blindness, deafness and permanent brain damage. As discussed in the preceding
section, a jury could find that the warning given was inadequate and that Merck knew that the
warning that was being promulgated with its vaccine was inadequate. This fact accompanied
by Merck's admitted knowledge of the Center for Disease Control's bias and concern that
manufacturers would overwarn of the risk of the vaccine, (see footnote 16) tells us that a
jury could have properly found that Merck was marketing a substance which it knew was
(albeit, unavoidably) unsafe, and did so knowing that the accompanying written warnings
were inadequate. Thus a jury could reasonably conclude that Merck was negligent in
purveying this dangerous vaccine when it was unaccompanied by an adequate warning.
17

__________

17
One possible explanation why no proper warnings were given to the Allisons or other vaccinees is revealed in
the affidavit of Dr. Dull, which has been offered by Merck. Dr. Dull is a retired Center for Disease Control
physician, who testified that the CDC had a policy of offering to prepare product information sheets for vaccines
because the government feared that otherwise vaccine manufacturers would overwarn potential vaccinees and
thus discourage the use of vaccines. Given the CDC's admitted biases against discourag[ing] the use of
vaccines, a jury could conclude that Merck knew or had reason to know that the CDC was not going to provide
the truth about Merck's product and did not, in fact, give proper warning. If a jury were to conclude that Merck
had such knowledge, Merck should not, in fairness, be allowed to insulate itself from tort liability simply by
saying that it contracted with the CDC to take over all of Merck's responsibility for warning about its
unavoidably unsafe product. If Merck decided to let the
[Headnote 14]
The only question here, as we see it, is whether Merck can free itself from any liability
simply by delegating that duty and by contracting out that duty to a third partyin this case
the Center for Disease Control. There are two lines of cases on the question of whether a
manufacturer can absolve itself of strict liability by delegating its duty of due care to warn of
the dangers of a supposedly unavoidably unsafe drug. In Mazur v. Merck & Co., Inc., cited
by Merck, the Third Circuit Court held that it was permissible for a manufacturer to abdicate
its responsibility and turn it over to the CDC, provided that the manufacturer (Merck) did not
misinform or mislead the CDC. 964 F.2d 1348, 1368 (3d Cir.), cert. denied,
----
U.S.
----
,
113 S.Ct. 463 (1992); see also Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir.
1968).
The other, better view is expressed in Petty v. United States, 740 F.2d 1428 (8th Cir.
1984). Petty is right on point here. Petty involved a manufacturer's failure to warn of risks
associated with the swine flu vaccine. The court held:
We recognize that the government has attempted to statutorily assume [sic] the duty
to warn the vaccinees, however, we do not find that this delegation thereby relieves
the manufacturer from liability for any resulting inadequacy of the warning. The
duty is imposed on the manufacturer and in a mass-immunization context, . . . the
duty extends to the ultimate recipient of the vaccine. Delegation of the duty does not,
in itself, relieve the manufacturer of its obligation, nor should it insulate the
manufacturer from liability for deficiencies in the manner in which the chosen
intermediary effectuates the manufacturers duty. Although on the sidelines,
Merrill-National [drug company] is assumed to have had the knowledge of the
warning issued and to have had the ability to affect the warning.
Id. at 1440; see also In re Jones, 804 F.2d 1133, 1139 (10th Cir. 1986) (attempt to limit
contractually strict liability for product defects void as against public policy).
[Headnote 15]
Since failure to give proper warning, under all legal theories, renders a product
defective, we conclude that although a manufacturer may decide to assign its duty to
warn of the unsafeness of its product to others, a manufacturer cannot be relieved of
ultimate responsibility for assuring that its unsafe product is dispensed with a proper
warning.
__________
CDC go fast and easy on the warnings in order that people would not be reluctant to take the
Merck-manufactured vaccines, Merck, while accepting the financial gain, should not be freed from financial
responsibility for the untoward consequences suffered by the Allisons by reason of Thomas' taking the vaccine,
especially in light of the possibility that Merck fully realized how inadequate the warning really was.
manufacturer may decide to assign its duty to warn of the unsafeness of its product to others,
a manufacturer cannot be relieved of ultimate responsibility for assuring that its unsafe
product is dispensed with a proper warning. Although there is authority to go either way, it
seems to us to be far the better rule that Merck should not be allowed to walk away, on
summary judgment, from its duty to warn users of the dangers of its vaccine, especially when
there is evidence from which a jury could find that the warning actually given was faulty.
GOVERNMENT CONTRACTOR DEFENSE
[Headnotes 16, 17]
Merck also argues that the so-called government contractor defense operates in this case
to relieve it of any liability to the Allisons. This defense is very ill-defined, and we see no
justification for applying it to this case. Generally speaking, the defense has been made
available to a manufacturer who contracts to produce a military product for the federal
government. The idea is that sovereign immunity should be extended to private contractors
acting pursuant to and in conformance with a government contract for military equipment. If
such contractors can show that the government approved reasonably precise specifications for
the product, that the specifications were followed, and that the manufacturer warned the
government of dangers known to the manufacturer but not to the government, then, the
government contractor defense may be successfully interposed. Boyle v. United
Technologies, 487 U.S. 500 (1988). The requirements necessary to this defense do not fit
very nicely into the present case.
Almost all of the cases relating to the government contractor defense are military cases in
which the government has told the manufacturer how to make the product. A good example is
a case involving a helicopter which the government designed so that the door would open
outward. A man drowned when his helicopter went underwater, and the water pressure on the
door prevented his escape. Obviously, the manufacturer should not be held responsible,
because the government designed the door. See id.
[Headnotes 18, 19]
Merck cites to cases which expand the defense and principally to Boruski v. United States,
803 F.2d 1421 (7th Cir. 1986). Merck was a defendant in that case, which involved the swine
flu vaccine. Boruski points out that the common application of the doctrine has been to
military cases, but goes on to quote approvingly from Burgess v. Colorado Serum Co., 772
F.2d 844, 846 (11th Cir. 1985), in which it was said:
Both the history of the defense and its general rationale lead us to the conclusion that it
would be illogical to limit the availability of the defense solely to military' contractors.
If a contractor has acted in the sovereign's stead and can prove the elements of the
defense, then he should not be denied the extension of sovereign immunity that is the
government contract defense.
Boruski, 803 F.2d at 1430. Even if we were inclined to follow Boruski and apply the defense
to drug cases, there is a serious question of fact in this case as to whether Merck was acting in
the sovereign's stead. It would appear that it was not. The extent to which the government
may have provided precise designs and specifications for this vaccine is certainly a matter
that is up to question.
18

In Nielson v. George Diamond Vogel Paint Co., 892 F.2d 1450 (9th Cir. 1990), a civilian
employee of the Army Corps of Engineers painted a dam in Idaho over a period of several
years, using a certain type of paint. Id. at 1451. The employee was diagnosed as suffering
from brain damage as a result of inhaling the toxic paint fumes. Nielson brought suit against
two paint manufacturers, alleging strict liability for manufacturing defect, inadequate
warnings and negligent production. In denying the government contractor defense, the Ninth
Circuit Court stated: We do not read Boyle to establish the broad immunity for all
government procurement contractors urged by the defendants . . . . Id. The Ninth Circuit
Court observed that the underlying premise of the defense was not limited to the military
context, but that contractors are not, in reliance on Boyle, to be broadly immunized from their
own negligence. Id. at 1455. The Ninth Circuit Court further noted that the policy behind the
defense remains rooted in considerations peculiar to the military, id. at 1454-55, and that the
reasons for shielding government contractors from liability are peculiar to the military field,
id. at 1454. Noting Justice Scalia's reasoning in Boyle, the court stated that the defense is
most applicable where there is a need to [avoid] scrutiny of sensitive military decisions, as,
for example, the design of a fighter plane. Id. Of course, no such concerns apply here. See
also In re Hawaii Federal Asbestos Cases, 715 F. Supp. 298, 300 (D. Hawaii 1988) (the
Boyle opinion applies only to military equipment), aff'd, 960 F.2d 806 (9th Cir. 1992).
__________

18
Unlike the Dissent, we do not accept Merck's claim that the fact that the government has considered every
design feature' relating to MMR II is at all dispositive of this issue. Certainly mere government consideration
of design specifications or even government approval of such specifications does not as a matter of law
immunize manufacturers from liability.
We find no case, including Boruski, that would lead us to relieve Merck from liability by
reason of the government contractor defense.
FEDERAL PREEMPTION
[Headnote 20]
As mentioned previously, four years after Thomas suffered his injuries, the United States
Congress enacted the National Childhood Vaccine Injury Act of 1986. This Act provides
for limited compensation by the federal government for injured vaccinees who had civil
actions pending at the time the Act was passed, provided the injured vaccinee was willing to
dismiss the pending litigation. See 42 U.S.C. 300aa-11(5A), 300aa-15(b) (Supp. 1992).
The Act does not require litigants to dismiss their lawsuits; rather, it permits litigants to
elect to forestall pending tort claims and to accept the limited largesse offered by the
government. Id. These tort claimants' decisions not to pursue claims under the National
Childhood Vaccine Injury Act do not preclude them from pursuing their tort claims if they
elect to do so. Certainly the Act contains no express language which would preempt the
Allison's tort actions.
CONCLUSION
Viewing the facts in the light most favorable to the Allisons, Thomas is entitled under
Nevada law to pursue an action against Merck under a strict tort liability theory. Also, it
appears that the Allisons did not receive fair warning as to the vaccine's true danger and that
they never had any real choice as to whether Thomas Allison was to be vaccinated. Comment
k cannot be invoked to exculpate Merck from strict tort liability, and this case can be
distinguished from the kinds of cases represented in the rabies example relied upon in
comment k. It is one thing to proffer a medicine to a prospective user, saying: You have a
pernicious disease. We have a medicine that has serious side effects, even, possibly, blindness
and deafness. You make the choice. It is quite another thing to say: You must have your
son vaccinated or he cannot go to school. Your son might get a rash or, on one out of a
million' odds, might get a brain inflammation.' In the first case, the user's knowing
acceptance of the risks frees the purveyor of liability. In the second case, the traditional public
policy behind strict product liability comes into play. Ms. Allison did not and could not have
bargained for this misfortune. She had no real choice. [T]he burden of accidental injuries
caused by products intended for consumption [must] be placed upon those who market
them. Restatement (Second) of Torts, 402A, cmt. c (1965).
In summary, if we apply the principles of product liability law that have been in effect in
this state since Shoshone Coca-Cola Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966),
Thomas Allison is entitled to try to prove to a factfinder that the vaccine caused his
disabilities and that the vaccine was defective and unsafe, because, under Ginnis v. Mapes
Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970), the vaccine failed to perform in the manner
reasonably to be expected of a vaccine. Further, even if we were, as some courts apparently
have done, to accept the exculpatory, unavoidably unsafe interpretation of comment k, it is
quite clear that there is a jury issue in this case as to whether the vaccine was safe as
marketed, that is to say whether it was marketed with an adequate warning.
We reverse the summary judgment in favor of Merck on Thomas Allison's strict liability
claim and on Thomas' and Ms. Allison's failure-to-warn claims and remand for trial. We
affirm the judgment in all other respects.
Shearing, J., concurs.
Rose, C. J., concurring:
I concur with the results of the majority opinion, but reach my conclusion on the viability
of Allison's claims against Merck on a different basis. I would adopt comment k of the
Restatement (Second) of Torts 402A (1965), but conclude that there remains a triable issue
of fact concerning whether an adequate warning was given.
The dissenting opinion concludes that there is no issue of fact because Merck has
established two viable defenses to the claim of failure to warn: that the government had
contractually assumed the duty to warn and the government contractor defense. Admittedly,
there is authority that relieves a drug manufacturer of the duty to warn by obligating the
purchaser to give the warning. See Walker v. Merck and Company, 648 F. Supp. 931 (M.D.
Ga. 1986), aff'd, 831 F.2d 1069 (11th Cir. 1987); Boruski v. United States, 803 F.2d 1421
(7th Cir. 1986). However, I believe the better view is to hold that the manufacturer of a drug
should not be able to delegate this critical task to a third personespecially when it has
reason to believe that the third party has an incentive or mind-set to underwarn about the
drug's potential dangers. See Petty v. U.S., 740 F.2d 1428 (8th cir. 1984).
Additionally, I reject the assertion that the government contractor defense shields Merck
from liability. The government contractor defense began with construction contractors and
was extended by several courts to provide a defense for military contractors in military
equipment design defect cases. McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448 (9th Cir.
1983), cert.
denied, 464 U.S. 1043 (1984). The defense has been further extended to non-military
contractors in design defect cases. Carley v. Wheeled Coach, 991 F.2d 1117 (3d Cir. 1993);
Boruski v. United States, 803 F.2d 1421 (7th Cir. 1986).
As the dissent points out, most cases applying the government contractor defense have
involved public works projects or military procurement contracts where the government was
involved in either dictating or approving specific plans or designs. The rationale for the
defense is to shield contractors from liability for product design defects where the
government played a fairly significant role in its design. The reason for establishing such a
defense is much less compelling when companies do not design and manufacture a product
pursuant to government specification, as in the instant case. Therefore, I favor rejecting the
defense when drug companies contract with the government. See Chapman v. Westinghouse
Elec. Corp., 911 F.2d 267, 271-72 (9th Cir. 1990) (holding that in the absence of evidence
that the government provided or approved design specifications as to the design or
manufacture of the product, the government contractor defense could not be invoked);
Nielson v. George Diamond Vogel Paint Co., 892 F.2d 1450, 1455 (9th Cir. 1990) (holding
that the defense does not broadly immunize contractors from their own negligence and
applying state tort law in the absence of a significant conflict with federal policy).
Once we conclude that Merck was responsible for providing an adequate warning, we
must review the facts to see if Allison has presented a viable factual issue. I believe she has.
The Important Information sheet reads: Although experts are not sure, it seems that about 1
out of a million children who get measles or mumps vaccines may have a more serious
reaction, such as inflammation of the brain (encephalitis). Allison's experts, however,
presented information and opinions that the incidence of adverse reactions was considerably
higher, at least 4.5 per million doses rather than 1 per million.
Additionally, a review of the entire fact sheet reveals that it is confusing and seems, at one
point, to unreasonably understate the usually severe consequences of encephalitis. The
Important Information sheet states that 1 in 20 children with natural mumps contracts a mild
type of meningitis, and then goes on to state: More rarely, it can cause . . . (encephalitis)
which usually goes away without leaving permanent damage. This statement, when read in
conjunction with the statement that possibly 1 out of a million children will suffer
encephalitis as a result of the vaccine, may mislead the reader into thinking that encephalitis
suffered as a result of the vaccine is temporary and not severea conclusion which this case
proves is incorrect.
Summary judgment is inappropriate when there is the slightest doubt of the material facts.
Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993). I conclude that a
factual issue was presented by Allison with regard to the adequacy of the warning contained
in the Important Information sheet. Therefore, I concur with the remanding of this case for the
trial of Allison's claims against Merck.
Young, J., with whom Steffen, J., agrees, concurring in part and dissenting in part:
While I concur with Justice Springer's opinion as to CCHD, I respectfully dissent from his
opinion as to Merck. This court's decisions must be guided not by emotion but by the law, no
matter how troubling the facts. And yet, today's decision seems to be directed by something
other than our current law.
This case comes before us following an order granting summary judgment for Merck.
Summary judgment is appropriate when the record, viewed in the light most favorable to the
nonmoving party, demonstrates that no genuine issue of material fact remains in dispute, and
that the moving party is entitled to judgment as a matter of law. Caughlin Homeowners Ass'n
v. Caughlin Club, 109 Nev. 264, 849 P.2d 310 (1993). On appeal, this court's review of an
order granting summary judgment is de novo. Walker v. American Bankers Ins., 108 Nev.
533, 836 P.2d 59 (1992).
While I recognize that de novo review is the standard, I am unable to discern any error on
the part of the district court, either factually or legally, such that I would have come to a
different conclusion. Accordingly, I am of the opinion that summary judgment was proper in
this case in light of the lack of any disputed issues of material fact.
Initially, I note that Justice Springer's opinion fails to include a full account of the relevant
facts. Therefore, I will set forth the following facts which I feel are essential for a complete
understanding and disposition of this case.
THE FACTS OF THE CASE
In December 1982, Dr. Del Potter informed Mrs. Allison that it was time to have her
17-month-old son Thomas vaccinated against measles, mumps and rubella. Mrs. Allison had
previously consented to vaccinations for Thomas for polio, diphtheria, tetanus and pertussis.
Dr. Potter prescribed the MMR II vaccination for Thomas and informed Mrs. Allison that
either he or CCHD could administer it.
Dr. Potter was in possession of a detailed package insert from Merck regarding the MMR
II vaccine and its possible side effects.
effects.
1
In addition, Dr. Potter was aware of the statistical incidence of encephalitis from the
MMR II vaccine. However, he testified that he did not warn Mrs.
__________

1
The MMR II package insert contained the following information regarding adverse reactions:
Because of the slightly acidic pH (6.2-6.6) of the vaccine, patients may complain of burning and/or
stinging of short duration at the injection site.
The adverse clinical reactions associated with the use of M-M-R II are those expected to follow
administration of the monovalent vaccines given separately. These may include malaise, sore throat,
headache, fever, and rash; mild local reactions such as erythema, induration, tenderness and regional
lymphadenopathy; parotitis, orchitis, thrombocytopenia, and purpura; allergic reactions such as wheal
and flare at the injection site or urticaria, and arthritis, arthralgia and polyneuritis.
Moderate fever [101-102.9F (38.3-39.4C)] occurs occasionally, and high fever [above 103F (39.4C)]
occurs less commonly. On rare occasions, children developing fever may exhibit febrile convulsions.
Rash occurs infrequently and is usually minimal, but rarely may be generalized.
Clinical experience with live attenuated measles, mumps and rubella virus vaccines given individually
indicates that encephalitis and other nervous system reactions have occurred very rarely. These might
also occur with M-M-R II.
Experience from more than 80 million doses of all live measles vaccines given in the U.S. through 1975
indicates that significant central nervous system reactions such as encephalitis and encephalopathy,
occurring within 30 days after vaccination, have been temporally associated with measles vaccine
approximately once for every million doses. In no case has it been shown that reactions were actually
caused by vaccine. The Center for Disease Control has pointed out that a certain number of cases of
encephalitis may be expected to occur in a large childhood population in a defined period of time even
when no vaccines are administered. However, the data suggests the possibility that some of these cases
may have been caused by measles vaccines. The risk of such serious neurological disorders following live
measles virus vaccine administration remains far less than that for encephalitis and encephalopathy with
natural measles (one per two thousand reported cases).
There have been isolated reports of ocular palsies and Guillain-Barre syndrome occurring after
immunization with vaccines containing live attenuated measles virus. The ocular palsies have occurred
approximately 3-24 days following vaccination. No definite causal relationship has been established
between either of these events and vaccination.
There have been reports of subacute sclerosing panencephalitis (SSPE) in children who did not have a
history of natural measles but did receive measles vaccine. Some of these cases may have resulted from
unrecognized measles in the first year of life or possibly from the measles vaccination. Based on
estimated nationwide measles vaccine distribution, the association of SSPE cases to measles vaccination
is about one case per million vaccine doses distributed. This is far less than the association with natural
measles, 5-10 cases of SSPE per million cases of measles. The results of a retrospective case-controlled
study conducted by the Center for Disease Control suggest that the overall effect of measles vaccine has
been to protect against SSPE by preventing measles with its inherent higher risk of SSPE.
testified that he did not warn Mrs. Allison because he did not wish to alarm her and because
the statistical occurrence of encephalitis was so low as to present a nearly negligible risk. He
instructed Mrs. Allison to contact him should Thomas suffer any untoward symptoms
following vaccination.
On December 28, 1982, Mrs. Allison took Thomas to CCHD to receive his free MMR II
vaccination. Mrs. Allison was given an information sheet entitled Important Information
about Measles, Mumps, and Rubella, and Measles, Mumps, and Rubella Vaccines. The
information sheet stated that l out of 1,000 children with natural measles develops an
inflammation of the brain (encephalitis), which can lead to convulsions, deafness, or mental
retardation, and that 1 in 10,000 children with natural measles dies from the condition. The
information sheet also stated that 1 in 20 children with natural mumps contracts a mild type
of meningitis, and that [m]ore rarely, it can cause . . . (encephalitis) which usually goes away
without leaving permanent damage. The information sheet also contained a paragraph which
provided:
POSSIBLE SIDE EFFECTS FROM THE VACCINES:
About 1 out of 5 children will get a rash or slight fever 1 or 2 weeks after getting
measles vaccine. Occasionally there is a mild swelling of the salivary glands after
mumps vaccination. Although experts are not sure, it seems that about 1 out of a
million children who get measles or mumps vaccines may have a more serious reaction,
such as inflammation of the brain (encephalitis).
Two other pertinent paragraphs of the information sheet provided:
QUESTIONS: If you have any questions about measles, mumps or rubella
vaccinations, please ask us now or call your doctor or health department before you
sign this form.
REACTIONS: If the person who received the vaccination gets sick and visits a doctor,
hospital, or clinic in the 4 weeks after vaccination, please report it to:
CLARK COUNTY HEALTH DISTRICT, 338-1357[.]
Mrs. Allison authorized Thomas' MMR II vaccination by signing the information sheet in
a space provided after the following language: I have read the information provided on this
form. . . . I have had a chance to ask questions which were answered to my satisfaction. I
believe I understand the benefits and risks of measles, mumps and rubella vaccines. . . . In
addition, Mrs. Allison was given the opportunity to ask any questions about the dangers of
the MMR II vaccine.
Three days after receiving the MMR II vaccine, Thomas developed a temperature of 102
degrees. He later developed encephalitis which resulted in severe injuries. Mrs. Allison filed
suit individually and in her capacity as natural parent and guardian of Thomas against Merck,
Clark County and CCHD. Clark County was later dismissed.
Eventually, the district court orally ruled that it would grant summary judgment to both
Merck and CCHD. After Mrs. Allison moved for reconsideration and a hearing was held, the
court entered its order granting summary judgment to both Merck and CCHD. Specifically,
the district court held the following as to Merck: (1) the federal government had assumed,
under its contract with Merck, the duty to provide adequate warnings to vaccine recipients;
(2) Merck was entitled to immunity from suit under the government contractor's defense; and
(3) the MMR II vaccine was an unavoidably unsafe product not subject to strict liability.
EVIDENCE SUPPORTING SUMMARY JUDGMENT
As to the district court's initial order granting summary judgment, I note that the court
found that there was no allegation that the MMR II vaccine was defectively manufactured. In
addition, the court found that the Allisons' expert, Dr. Geraghty, based his conclusions as to
the incidence of encephalitis following receipt of the MMR II vaccine on discussions with
unidentified persons who had done informal calculations. Specifically, the court found that
the only competent statistical evidence provided to the court revealed that the incidence of
serious reactions to MMR II was one in one million.
In addition, plaintiff's co-counsel, David Greenhaw, claimed that he had reviewed
thousands of CDC adverse reaction reports and had discovered that the MMR II vaccine had
been associated with 125 serious reactions over a three and one-half year period. However,
the court found that Greenhaw's affidavit did not state how many such vaccinations had been
administered during that time and thus presented no basis for contesting the accuracy of
Merck's warnings. I can find nothing in the record to refute the district court's findings on this
issue.
I also note that upon reconsideration of the initial order granting summary judgment, the
Allisons presented a new affidavit from Dr. Geraghty as well as a letter from another expert,
Dr. David Benjamin. However, the court found that this additional information, which was
presented to bolster the Allisons' claim that Merck had understated the risk, involved foreign
studies of various vaccines utilizing differing viral strains in the manufacturing process.
Specifically, the court found that the Allisons had offered nothing which indicated that the
figures in the important information sheet were inaccurate.
offered nothing which indicated that the figures in the important information sheet were
inaccurate.
In granting summary judgment for Merck, the district court held that there were no
material issues of disputed fact. In doing so, the court found that the Allisons had failed to
present sufficient evidence to overcome a summary judgment challenge from Merck. I find
nothing in the record to refute such a finding and accordingly would affirm the court's order
of summary judgment.
STRICT LIABILITY
Justice Springer writes that Merck may be liable under our strict liability case law for
defective products. In order to establish strict liability, the plaintiff must first establish that
there was a defect in the product. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 443, 420
P.2d 855, 858 (1966). Therefore, it follows that the Allisons must show that there was a
defect in the MMR II vaccine that Thomas received in order to establish strict liability on the
part of Merck. However, Justice Springer's opinion appears reminiscent not of strict liability,
but rather res ipsa loquitur which provides that certain types of accidents do not occur in the
absence of negligence. He holds that if Thomas can establish that he was injured by the
vaccine, then ipso facto the vaccine is defective, and thus Merck may be held strictly liable.
Therefore, according to Justice Springer, the only issue remaining is causation although he
neglects to elaborate just how that causation may be shown. This is surely not strict liability
in accordance with our guidelines set down in Shoshone Coca-Cola.
Justice Springer goes on to assume without explanation that the vaccine in question was
somehow malfunctioning. While this may have been true, an injury alone is not sufficient
to establish such a defect in the product for purposes of strict liability. Only when a defect in
the vaccine is shown, causing it to be unreasonably dangerous, is Thomas then permitted to
argue that the defect caused his injuries. This was not the case here. If we are to follow
Shoshone Coca-Cola as Justice Springer says, we must not forget this essential step.
COMMENT k
Justice Springer expresses great disapproval of comment k of Section 402A of the
Restatement (Second) of Torts (1965), holding that in this state a drug manufacturer will be
held strictly liable for any injuries caused by the drug even if the drug is properly prepared
and marketed' and even when the known danger inherent in the drug may be what the
comment calls reasonable.' I fear that the result of this holding will be that this state will
never allow a drug company to benefit from the protections of this comment.
this state will never allow a drug company to benefit from the protections of this comment.
While I agree that comment k should not provide blanket protection to all drug manufacturers
of any FDA approved drugs,
2
I am of the opinion that those manufacturers of drugs that are
clearly useful and desirable should be afforded such protection. Accordingly, I believe that a
better way is to apply a balancing test weighing the benefits of the particular drug against the
risks inherent in the use of the drug. See Toner v. Lederle Laboratories, 732 P.2d 297, 308
(Idaho 1987) (The products comment k shields cannot be designed to be more safe at the
time of distribution, but bestow benefits which clearly appear at the time of distribution to
outweigh their concomitant risks.); Castrignano v. E.R. Squibb & Sons, 546 A.2d 775 (R.I.
1988). It is clear that the benefits of the MMR II vaccine far outweigh the risks.
According to Health and Human Services Secretary Donna Shalala, more turkeys,
chickens and household pets are immunized in this country than preschool children. Donna E.
Shalala, Secretary of Health and Human Services, Make Each Week Immunization Week, Chi.
Trib., April 26, 1994, at 20. Due to this recent decrease in immunization, outbreaks of
diseases long thought to be eradicated, such as measles, polio and whooping cough, are
increasing at an alarming rate. Between 1989 and 1991, a measles epidemic left 132 people
dead and 11,000 hospitalized, many of them under the age of two. Id. The only method of
protection from these highly contagious and sometimes fatal childhood diseases is the
widespread use of vaccines. And yet, few pharmaceutical manufacturers are willing to
produce vaccines due to the increasing risk of litigation. I fear a decision such as the court is
making today will only serve to further inhibit the development and production of such
life-saving vaccines.
The record includes a recommendation of the CDC's Immunization Practices Advisory
Committee regarding measles prevention. Recommendation of the Immunization Practices
Advisory Committee (ACIP), Measles Prevention, Morbidity and Mortality Weekly Report,
May 7, 1982, at 217-31. The article states that encephalitis occurred in approximately 1 out of
every 2,000 cases of natural measles, often resulting in permanent brain damage and mental
retardation, and death is said to have resulted in 1 out of every 3,000 measles cases. The
article further states that prior to the introduction of the measles vaccine, 400,000 measles
cases were reported every year. Since licensure of the vaccine in 1963, there has been a
ninety-nine percent reduction in the reported incidence of measles.
__________

2
Some courts have chosen to provide blanket protection for drug manufacturers for any drug which has
received FDA approval. See, e.g., Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991).
there has been a ninety-nine percent reduction in the reported incidence of measles. The
article also states that with 131 million doses of measles vaccine distributed throughout the
United States through 1981, encephalitis and encephalopathy were reported approximately
once per million doses. Finally the article claims that [t]he incidence rate of encephalitis or
encephalopathy following measles vaccine is lower than the observed incidence of
encephalitis of unknown etiology, suggesting that some or most of the reported severe
neurological disorders may be only temporally related to measles vaccination rather than due
to vaccination. Id. at 221.
Given the figures derived by the CDC as of May 1982, there is little question that the
vaccine at issue has produced a major benefit for the majority of this country's population. At
the same time, the incidence of adverse reactions resulting in serious injuries is very rare.
Such information illustrates that this is an unavoidably unsafe and yet not unreasonably
dangerous drug. Accordingly, the MMR II vaccine is extremely beneficial and thus its
manufacturer deserves comment k protection from strict liability.
The purpose of comment k is to provide protection for manufacturers of products that are
unavoidably unsafe. As the comment mentions, vaccines which can be made no safer are the
best examples of such products whose benefits outweigh their risks. Companies whose
vaccines are recognized to be highly beneficial but which can be made no safer should be
given the protection provided by comment k. To do so would not be such an affront to our
system of products liability law as Justice Springer opines, but rather a wise and logical
extension of that law.
Mazur v. Merck & Co., Inc., 964 F.2d 1348, 1353 (3d Cir.), cert. denied,
------
U.S.
------
,
113 S. Ct. 463 (1992), a case cited but distinguished by Justice Springer is factually
remarkably similar to the case at bar. Mazur involved a child who received the very same
MMR II vaccine in the same year as Thomas. The vaccine administered in Mazur was part of
the same contract between CDC and Merck as the vaccine in this case. In addition, that
vaccine was administered at a time when the same Important Information Sheet was being
given to the parents of all children being vaccinated with MMR II as was given to Mrs.
Allison. When the Mazur child suffered subacute sclerosing panencephalitis (SSPE)
following the vaccination, the Mazurs filed an action against Merck alleging negligence and
strict liability for failure to provide an adequate warning.
The Mazur court held that if a product is unavoidably unsafe but not unreasonably
dangerous under comment k, the strict liability principles in Section 402A do not apply. The
court held that under such circumstances, the drug company's duty to warn is analyzed
under Section 3SS.
that under such circumstances, the drug company's duty to warn is analyzed under Section
388. Id. at 1354. Section 388 provides that the supplier of a chattel is liable if it fails to
exercise reasonable care to inform the user of the chattel's dangerous condition or of the facts
which make it likely to be dangerous.
As can be seen in Mazur, the use of comment k and the duty to warn are intrinsically
linked. As I have stated, I believe comment k should apply in this case. However, whether
Merck is provided with protection depends upon whether it fulfilled its duty to sufficiently
warn the Allisons of the potential dangers of the MMR II vaccine.
DUTY TO WARN
Justice Springer asserts that the faulty warning aspect of liability in this case is that no
prospective vaccinees were warned of the actual possibility of permanent brain damage.
While Mrs. Allison was not warned that her son might become an invalid, she was warned by
the CDC information sheet of the possible side effects of the vaccines. However, I question
Justice Springer's assertions. At what point is the line to be drawn? Must a manufacturer who
has properly prepared the product warn of every possible side effect, no matter how
infinitesimal the possibility? How vast must the warnings be? I am of the opinion that a
reasonableness standard should apply, and I conclude that Merck's warnings were reasonable
in this case in light of the state of medical knowledge in 1982.
The Mazur court came to this same conclusion regarding Merck's fulfillment of its duty to
warn. Again, Mazur involved the very same vaccine as the one Thomas received. There, the
United States Court of Appeals for the Third Circuit concluded that based upon the state of
medical knowledge at the time the vaccine was received in 1982, the warnings provided by
Merck were adequate. Mazur, 964 F.2d at 1367. Specifically, the court found that Merck had
adequately informed the CDC of the facts which make the MMR II vaccine dangerous. Id.
As the court found in Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1275 (5th Cir. 1974),
failure to properly warn will render a product unreasonably dangerous under the Restatement.
However, Reyes, the case upon which Justice Springer relies, is factually different from the
instant case. Reyes involved a child who developed polio after receiving a Sabin oral polio
vaccine in 1970. The child's mother had apparently been given no warnings as to the
possibility of her child contracting polio after receiving the vaccine. The Reyes court held that
the vaccine manufacturer had a duty to warn of possible side effects of the drug, a duty it had
failed to fulfill. Id. at 1279. However, the court noted that while the danger of contracting
polio from the vaccine was small, "the risk appear[ed] to be distributed evenly among
that substantial segment of the population that is not naturally immune to polio."
while the danger of contracting polio from the vaccine was small, the risk appear[ed] to be
distributed evenly among that substantial segment of the population that is not naturally
immune to polio. Id. Clearly, there was a far greater risk of harm from the polio vaccine than
from the MMR II vaccine. Therefore, the standard in Reyes is not applicable here, particularly
in light of the warnings Merck provided to the CDC.
In the instant case, Mrs. Allison received warnings of possible side effects from the CDC,
not Merck. Hence, the relevant inquiry is whether Merck provided the CDC with all possible
data and whether Merck acted reasonably in contracting with the CDC to provide warnings to
all vaccine recipients.
CONTRACTUAL DELEGATION OF THE
DUTY TO WARN
Justice Springer states that a manufacturer cannot be relieved of ultimate responsibility for
assuring that its product is dispensed with a proper warning. I agree. However, I believe that a
manufacturer must be judged using a reasonableness standard as to whether it reasonably
relied on the ultimate dispenser of the drug to warn recipients. Accordingly, the issue in this
case is whether Merck reasonably relied upon the CDC to provide adequate warnings to the
recipients of the MMR II vaccine.
Merck points out that the Important Information sheet given to Mrs. Allison was prepared
by the CDC in conjunction with the CDC's Immunization Practices Advisory Committee.
Merck maintains that since the CDC possessed the most comprehensive information on the
subject, having monitored over 131 million measles vaccinations from 1963 to 1981, Merck
can hardly be considered unreasonable in having relied upon the CDC to formulate the
Important Information sheet.
I am inclined to agree with Merck. The contract provision at issue provided in part:
DUTY TO WARN:
A. The Department of Health, Education, and Welfare, Public Health Service, Center
for Disease Control, represents and agrees that it will (1) take all appropriate steps to
assure that all vaccine supplied . . . pursuant to the terms of this contract, shall be
administered to each patient on the basis of an individualized medical judgment by a
physician, or (2) take all appropriate steps to provide to such patient (or the patient's
parent or guardian) meaningful warnings relating to the risks and benefits of
vaccination, in form and language understandable to such patient, parent, or guardian.
It was not merely Merck's decision to have the CDC provide the warning that Mrs. Allison
ultimately received. Retired CDC physician Harold B. Dull stated in his affidavit that the
CDC requires state health departments to use the CDC's Important Information Sheet
whenever federally funded vaccines are administered. The MMR II vaccine that Thomas
received was administered at no charge by CCHD under a program funded by state and
federal grants. Dull stated that this requirement has been in effect since 1976 due to CDC
concerns that vaccine manufacturers would overwarn potential vaccinees and thus discourage
the use of vaccines.
In Boruski v. United States, 803 F.2d 1421, 1429 (7th Cir. 1986), the court held that
because the government had contractually agreed with Merck to take all appropriate steps to
provide vaccinees with meaningful warnings as to the risks associated with swine flu vaccine,
the duty to warn had been assumed by the government and Merck [had] the benefit of this
additional defense. However, this finding was mentioned in dicta. The court had already
ruled that the duty to warn rested with the government pursuant to 317(j)(1)(F) of the Swine
Flu Act. Id.
In a similar case, a federal court in Georgia ruled that the manufacturer of a polio vaccine,
Merck, could fulfill its duty to warn by obligating the purchaser [of the drug] to give
warning.' Walker v. Merck and Company, 648 F. Supp. 931, 935 (M.D. Ga. 1986), aff'd,
831 F.2d 1069 (11th Cir. 1987) (quoting Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276
(5th Cir. 1974)). Reyes borrowed this language from what it termed the leading federal case in
the area, Davis v. Wyeth Laboratories, 399 F.2d 121 (9th Cir. 1968), cert. denied, 419 U.S.
1096 (1974). In Davis, the court ruled that Wyeth Laboratories had failed to adequately warn
of the newly-discovered risks associated with the Sabin oral polio vaccine. The court held
that it is the responsibility of the manufacturer to see that warnings reach the consumer,
either by giving warning itself or obligating the purchaser to give warning. Davis, 399 F.2d
at 131.
The Mazur court also followed this reasoning in affirming summary judgment in favor of
defendant Merck. There, the court held that a manufacturer may be relieved of its duty to
warn provided that it gave the CDC all relevant information and in no way misinformed the
CDC. Mazur, 964 F.2d at 1368. The court concluded as a matter of law that Merck acted
reasonably in relying on the CDC to issue proper warnings, noting that Merck had carefully
researched the CDC before agreeing to sell the MMR II vaccine, as well as monitored the
CDC's performance after it made its decision to rely on the CDC. Id.
In view of the foregoing authorities, which all involved failure to warn claims, it is clear
that a pharmaceutical manufacturer may fulfill its duty to warn the ultimate consumer by
obligating the purchaser of the vaccine to warn. Therefore, Merck could fulfill this duty by
obligating the CDC to give warnings to recipients of the MMR II vaccine.
Merck contends that at the time Thomas was vaccinated, it had apprised the Food and
Drug Administration (FDA) and the CDC of all adverse reaction reports which it had
received associated with the MMR II vaccine. I find nothing in the record to refute this
contention. The CDC monitors the use of vaccines on a nationwide basis and has the most
comprehensive and up-to-date information regarding adverse reactions. Therefore, I must
conclude that Merck did not act unreasonably in relying on the CDC to formulate a proper
warning for all recipients of the MMR II vaccine.
LEARNED INTERMEDIARY DEFENSE
An additional reason why the district court did not err in granting summary judgment to
Merck may be found in the learned intermediary defense. This defense is one that this court
has never addressed. A learned intermediary was defined in Reyes as a medical expert, such
as a prescribing physician, whose task is to weigh the benefits of any medication against
possible dangers and to make an individualized medical judgment bottomed on a knowledge
of both patient and palliative. Reyes, 498 F.2d at 1276. The pharmaceutical company's duty,
in selling prescription drugs, is to warn only the prescribing physician, who acts as a
learned intermediary' between manufacturer and consumer. Id.
One exception to this doctrine is what is referred to as the mass immunization exception.
This exception applies when a vaccine is administered at clinics without a physician. In such
cases, it is the duty of the manufacturer to warn the consumer. Reyes, 498 F.2d at 1276; see
also Davis, 399 F.2d at 131.
In Stanback v. Parke, Davis and Co., 657 F.2d 642 (4th Cir. 1981), the recipient of an
influenza vaccine contracted Guillain-Barre Syndrome as a result of the vaccine. The
physician had not received the manufacturer's package insert with the vaccine, nor did the
package insert warn of the risk of Guillain-Barre Syndrome associated with the vaccine.
However, the physician testified that he was aware of the risk, but that it was not his practice
to warn patients of the risks associated with the influenza vaccine. Consequently, the patient
received no warnings prior to receiving the vaccine. The court concluded that even if the
manufacturer had sufficiently warned the physician, the patient would not have received
the warning.
had sufficiently warned the physician, the patient would not have received the warning. Id. at
645. The court held that the physician's decisions and actionsmade in full knowledge of
the information which an adequate warning would have containedtherefore insulate Parke,
Davis from any liability resulting from its failure to warn. Id.
In the instant case, Dr. Potter advised Mrs. Allison that her son needed to be vaccinated
against measles, mumps and rubella. He then prescribed the MMR II vaccine. He was in
possession of the package insert provided by Merck containing information regarding adverse
reactions. Yet, Dr. Potter failed to provide Mrs. Allison with any information or warnings
regarding the possibility of side effects such as encephalitis. Had Mrs. Allison chosen not to
go to CCHD for the vaccination, Dr. Potter, in all probability, would have administered the
MMR II vaccine. Therefore, I must conclude that Dr. Potter, as the prescribing physician, was
a learned intermediary in this case, one to whom Merck had a duty to warn of possible
adverse reactions of the MMR II vaccine. Merck fulfilled this duty by providing prescribing
physicians with the package insert containing all relevant information regarding adverse
reactions. While Thomas received the vaccination at CCHD, it was Dr. Potter who, without
warning Mrs. Allison, prescribed the vaccination based upon his medical knowledge. Merck
should not be held liable simply because the learned intermediary failed to perform his duty
to warn his patient. Stanback, 657 F.2d at 645.
GOVERNMENT CONTRACTOR DEFENSE
The United States Supreme Court has held that a manufacturer who contracts to produce a
product for the federal government qualifies for the government contractor defense if it shows
(1) the federal government approved reasonably precise specifications for the product; (2) the
product conformed to those specifications; and (3) the manufacturer warned the government
of any dangers of the product known to the manufacturer but not the government. Boyle v.
United Technologies Corp., 487 U.S. 500, 513 (1988). In his opinion, Justice Springer holds
that this defense is inapplicable to non-military contractors. However, I see no reason to
exclude such contractors from this defense.
As Merck points out, the defense appears to have originated in Yearsley v. Ross Constr.
Co., 309 U.S. 18 (1940), where the Supreme Court held that respondent could not be held
liable for taking petitioners' land since respondent had been widening the Missouri River
pursuant to a contract with, and under the direction of, the United States government as
authorized by an act of Congress.
Congress. The United States Court of Appeals for the Ninth Circuit later cited Yearsley as the
grandfather of the defense and stated that while the government contractor defense covered
at first only construction projects, it has been recently applied by several courts to military
equipment design defect cases. McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448 (9th Cir.
1983), cert. denied, 464 U.S. 1043 (1984).
The United States Court of Appeals for the Third Circuit recently held that the government
contractor defense applies outside the military context. Carley v. Wheeled Coach, 991 F.2d
1117 (3d Cir.), cert. denied,
------
U.S.
------
, 114 S. Ct. 191 (1993). Carley involved a
medic who was injured when a government ambulance rolled over. Id. at 1118. Though the
court found a material question of fact as to whether the manufacturer had sufficiently warned
the government of the ambulance's dangers, it stated that the government performs a
discretionary function when it procures a nonmilitary product with an awareness of its
dangers. Therefore, it is clear that the government contractor defense is available to
nonmilitary contractors. Id. at 1123.
Thus, while many if not most of the cases dealing with this defense involve military
contracts, including the United States Supreme Court's decision in Boyle, I conclude that it
also applies outside the military context. As the Boruski court stated, in deeming the defense
applicable in a case involving a government contract for the swine flu vaccine,
[b]oth the history of the defense and its general rationale lead us to the conclusion that
it would be illogical to limit the availability of the defense solely to military'
contractors. If a contractor has acted in the sovereign's stead and can prove the elements
of the defense, then he should not be denied the extension of sovereign immunity that is
the government contract defense.
Boruski, 803 F.2d at 1430 (citing Burgess v. Colorado Serum Co., 772 F.2d 844 (11th Cir.
1985)).
Mrs. Allison argues that if this court deems the government contractor defense applicable,
Merck has failed to show that the government established reasonably precise standards. She
maintains that while the FDA standards relating to the manufacture, testing, and licensure of
the MMR II vaccine may seem impressive to laymen, there is no showing that the standards
are greater than those normally attendant to vaccine development, and that Merck should
not be able to avail [itself] of the protections of the defense merely because they have
complied with the industry standard.
Merck maintains that the reasonably precise specifications requirement was met because
every design feature' relating to MMR II is indisputably considered by a government
officer, and not merely the contractor itself.' This argument was sufficient to satisfy the
court in Boruski, 803 F.2d at 1430. Most cases applying the government contractor defense
have involved public works projects or military procurement contracts where the government
was involved in either dictating or approving specific plans or designs. The rationale for the
defense is to shield contractors from liability for product design defects where the
government played a fairly significant role in the design.
For example, in Boyle, a helicopter escape hatch was designed to open outward. When the
helicopter crashed at sea, the water pressure prevented the hatch from opening and the
co-pilot drowned. Plaintiffs contended the death could have been avoided had the hatch
opened inward. The United States Supreme Court held the manufacturer not liable, since it
had a duty to manufacture and deliver helicopters with the sort of escape-hatch mechanism
shown by the specifications. Boyle, 487 U.S. at 509. Although there is no indication in the
opinion that the Marine Corps thought about the escape-hatch design, the opinion suggests
that by approving the specifications, the Marine Corps considered the design and thus the
defense applied. Boyle, 487 U.S. at 509, 511.
Applying this analysis to the instant case, it is clear that the government considered the
design features of the MMR II vaccine before approving its use on a nationwide basis.
Accordingly, all the requirements for the use of the defense have been satisfied. Boyle, 487
U.S. at 513. In view of the increasing number of nonmilitary contracts entered into by the
United States with nonmilitary contractors, it seems a very antiquated idea to limit the
government contractor's defense to the military. I can see no manifest difference between a
military and a nonmilitary contract. Accordingly, I would affirm the district court's holding
that the government contractor's defense shielded Merck in this case.
CONCLUSION
This is a tragic case. A young boy has been left in a grievous condition while his mother
has been left to suffer her child's pain on a daily basis. Though Thomas and Mrs. Allison are
receiving Social Security, Medicaid and Aid to Dependent Children benefits, their lives
surely cannot be easy.
And yet, however heartbreaking the facts, we cannot forget the law. Our job is to interpret
the law as it applies to each case.
However tragic the case may be, we cannot bend or change the law simply to achieve results.
As Cardozo once wrote, we should strive for certainty in our law that will keep it
consistent with verities and principles as broad as the common law itself, and as deep and
fundamental as the postulates of justice. Benjamin N. Cardozo, The Growth of the Law 17
(1924). I fear that the court's decision today strays from the certainty of our law to an
inconsistent end.
____________
110 Nev. 798, 798 (1994) Washoe County v. Transcontinental Ins.
WASHOE COUNTY, Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY
and COLUMBIA CASUALTY COMPANY, Respondents.
No. 24157
July 26, 1994 878 P.2d 306
Appeal from a district court order granting partial summary judgment to respondents in an
indemnity action after Washoe County paid settlements to molested children and their
parents. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
County brought action against its liability insurers, seeking indemnity for settlements
county reached with children who were molested at county-licensed day-care center. The
district court granted partial summary judgment to insurers, and county appealed. The
supreme court held that county's alleged negligence in licensing and monitoring day-care
center, resulting in multiple acts of child molestation by day-care center employee, was single
occurrence for purposes of liability limits in county's liability insurance policy.
Don Springmeyer, Reno, for Appellant.
Rawlings, Olson & Cannon, Las Vegas, for Respondents.
1. Contracts.
When parties do not dispute the facts, interpretation of contract is question of law.
2. Insurance.
County's alleged negligence in licensing and monitoring day-care center, resulting in multiple acts of child molestation by day-care
center employee, was single occurrence for purposes of liability limits in county's liability insurance policy; each
separate act of molestation was not occurrence, since each instance arose from same proximate cause with
regard to county.
county's liability insurance policy; each separate act of molestation was not occurrence, since each instance arose from same proximate
cause with regard to county.
OPINION
Per Curiam:
This dispute centers around the meaning of the term occurrence in an insurance policy under which Washoe County seeks indemnity
from respondents Transcontinental Insurance Company and Columbia Casualty Company. We reverse the decision of the district court and
remand with instructions to enter partial summary judgment in favor of Washoe County.
FACTS
In late 1985, over forty children and their parents sued Washoe County (the County) for negligently licensing the Papoose Palace Day
Care Center (Papoose). The plaintiffs alleged that the County breached its duty to investigate Papoose's employees and its duty to monitor
Papoose's activities. The victims also sued Papoose and Stephen L. Boatwright (Boatwright), the son of the owner of Papoose and an
employee at the day-care center. Boatwright admitted that he had sexually abused numerous children over a three-year period beginning in
May, 1980, and continuing until his arrest in April, 1983.
1

The County settled with each of the claimants for amounts ranging from $2,000.00 to
$25,000.00, for a total of $406,000.00. When respondents Transcontinental Insurance
Company and Columbia Casualty Company (the Carriers) failed to indemnify the County for
the settlements, the County filed a claim against the Carriers. The Carriers were responsible
for claims in excess of $50,000.00 under the retained limit clause of the insurance policies.
The policies specified: [f]or the purpose of determining the insured's retained limit, all
damages arising out of continuous or repeated exposure to substantially the same general
conditions shall be considered as arising out of one occurrence. The term occurrence was
defined in the policies as an accident, or event, including injurious exposure to conditions,
which results, during the policy period, in personal injury, property damage, or public
officials errors and omissions.
__________

1
Boatwright was convicted of four counts of sexual assault of a child under the age of fourteen and was
sentenced to serve four consecutive terms of life imprisonment with the possibility of parole. See Boatwright v.
Director, 109 Nev. 318, 849 P.2d 274 (1993).
The County moved for partial summary judgment, asking the trial court to construe the
term occurrence in the insurance policies as a matter of law.
2
The County maintained that
its liability arose from one ongoing act of negligencenamely, the County's inadequate
investigation and monitoring of Papoose in conjunction with the licensing processwhich
resulted in the children's repeated exposure to unsafe conditions at Papoose. Thus, the County
argued that all the acts of molestation by Boatwright constituted one occurrence under the
language of the policies. The Carriers filed a counter-motion for summary judgment on all
issues, maintaining that injuries to each child constituted separate occurrences per policy
period since the County was exposed to new liability each time Boatwright molested a
different child. Accordingly, the Carriers argued that the County never exceeded the
$50,000.00 retained limit per injury to each child, attempting to escape any obligation to
indemnify the County.
The district court granted the Carriers' motion for summary judgment, finding that because
the separate acts of molestation by Boatwright caused the children's injuries, the molestation
of each child constituted a separate occurrence. We conclude that the district court erred in its
interpretation of the term occurrence, and reverse and remand to the district court for entry
of summary judgment in favor of the County on this issue.
DISCUSSION
[Headnote 1]
Entry of summary judgment is proper only when there are no issues of fact and the moving
party is entitled to judgment as a matter of law. Insurance Corp. of America v. Rubin, 107
Nev. 610, 818 P.2d 389 (1991). When the parties do not dispute the facts, the interpretation
of a contract is a question of law. Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811,
815, 839 P.2d 599, 602 (1992). The facts of this case are undisputed. Thus, this court will
review the district court's findings de novo as a question of law. Id.
[Headnote 2]
The County argues that the meaning of the term occurrence in the insurance policies must
be viewed from the standpoint of the cause on which its liability was basedthe County's
allegedly inadequate licensing process.
3
The Carriers argue that the calculation of the
number of occurrences must focus on each child who was molested per policy period, and
must maximize coverage for the insured.
__________

2
The County has a remaining claim for breach of the implied covenant of good faith and fair dealing.

3
We note that the County's involvement in the licensing process gave rise to the corresponding duties of
investigating and monitoring the day-care
lation of the number of occurrences must focus on each child who was molested per policy
period, and must maximize coverage for the insured.
4

In Bish v. Guaranty Nat'l Ins., 109 Nev. 133, 135, 848 P.2d 1057, 1058 (1993), we adopted
the causal approach used by the vast majority of jurisdictions in determining whether
certain circumstances constitute one occurrence or multiple occurrences for the purposes of
insurance liability. The causal approach focuses on whether there was one, or more than one,
cause which resulted in all of the injuries or damages. In Bish, we stated: the focus of the
inquiry should not be on the number, magnitude or time of the injuries, but rather on the
cause or causes of the injury. . . . As long as the injuries stem from one proximate cause
there is a single occurrence.' Id. at 135, 848 P.2d at 1058 (quoting Welter v. Singer, 376
N.W.2d 84, 87 (Wis. Ct. App. 1985) (quoting Appalachian Ins. Co. v. Liberty Mut. Ins. Co.,
676 F.2d 56, 61 (3d Cir. 1982)); see also Transport Ins. Co. v. Lee Way Motor Freight, Inc.,
487 F. Supp. 1325, 1329-30 (N.D. Tex. 1980) (where a single event, process or condition
results in injuries, it will be deemed a single occurrence even though the injuries may be
widespread in both time and place and may affect a multitude of individuals).
In the instant case, each of the separate instances of molestation arises from the same
proximate cause vis-a-vis the County: namely, the County's alleged negligence in the process
of licensing Papoose. We conclude that the County's negligence in the licensing process and
in its attendant duties to investigate and monitor Papoose constitutes a single occurrence for
purposes of liability.
The Carriers rely on Insurance Corp. of America v. Rubin, 107 Nev. 610, 818 P.2d 389
(1991), a case involving a doctor who was sued for his failure to diagnose a young patient
with a brain tumor.
__________
center. Without undertaking the duty of licensing day-care centers, the County would have no duty to investigate
or monitor such centers.

4
Though generally courts are in favor of construing policies to maximize coverage in favor of the insured,
respondents' argument regarding maximizing coverage for the insured is unpersuasive in this case. First, the
insured in this case is the County, rather than an individual, unsophisticated consumer in need of the protection
that the general rule affords. Second, even considering the victims in this case as the ones in need of maximum
coverage, pursuant to NRS 41.031 and NRS 41.035(1), the County's sovereign immunity protects it from having
to pay more than $50,000.00 per claim in a personal injury tort case. Thus, the only interpretation of the term
occurrence in this case that would have any effect on the claimants' ability to recover is the conclusion that
each incident of molestation of the same child constituted a separate occurrence. This argument is not put forth
by respondents, nor is it in step with the causal approach we adopt in this case.
brain tumor. Because Dr. Rubin made an independent evaluation upon each visit and different
symptoms were revealed during each visit, we held that under the causal approach, each
diagnosis was a separate occurrence for purposes of the insurance policy limit. Id. at 615,
818 P.2d at 392.
Respondents argue that, like Dr. Rubin, Boatwright made an independent assessment or
decision each time he decided to molest a particular child. This argument, however, is
misplaced, as it is the County's liability, not Boatwright's liability, which is at issue. Thus, the
cause of the molestations needs to be considered with an eye towards the County's
involvement, not towards Boatwright's involvement.
Respondents also rely on Interstate Fire & Casualty Co. v. Portland Archdiocese, 747 F.
Supp. 618 (D. Or. 1990) and State Farm Fire & Casualty Co. v. Elizabeth N., 12 Cal. Rptr. 2d
327 (Ct. App. 1992). Both of these cases dealt with repeated molestations of one child, and
concluded that repeated molestations of a single child constituted a single occurrence under
the liability policy because in each case the child's injuries resulted from continuous and
repeated exposure to the same general conditions.
5
Additionally, these cases concluded that
each time negligent supervision presented an employee with the opportunity to molest a
different child, the entities were exposed to new liability. See Portland Archdiocese, 747 F.
Supp. at 624 (All of the damage caused to one child by Father Laughlin represents only one
occurrence because each time Father Laughlin molested the same child, the Archdiocese was
not exposed to new liability.); Elizabeth N., 12 Cal. Rptr. 2d at 327 ([T]he insured's acts
and omissions were one occurrence under the policy as to each child.); accord Lee v.
Interstate Fire & Cas. Co., 826 F. Supp. 1156 (E.D. Mo. 1992).
The district court relied on Portland Archdiocese and Elizabeth N. in determining that the
repeated molestation of each child constituted separate occurrences. The reasoning of these
cases, however, is wrongly focused on the effects of the molestations rather than on their
cause. Reliance on these cases thus led the district court to focus on the children's injuries, the
effects of the molestation. This focus is seen in the district court's order granting partial
summary judgment, which states:
[W]hen several people are injured, the Courts in applying the cause theory, focus on the
injury aspect of tortious conduct and find coverage for the greatest number of people.
__________

5
The same language contained in the policies in these cases is contained in the policies in the instant case.
It is logically difficult to conclude that injuries to different human beings has an aspect
of unity.
We thus conclude that the district court's analysis is an incorrect application of the cause
test enunciated by this court in Bish v. Guaranty Nat'l Ins., 109 Nev. 133, 135, 848 P.2d 1057,
1058 (1993).
Two cases involving similar sets of relationships to those in the instant case support our
interpretation. The first is Mead Reinsurance v. Granite State Ins. Co., 873 F.2d 1185 (9th
Cir. 1988). Mead Reinsurance involved underlying claims against the City of Richmond for
police misconduct, pursuant to 42 U.S.C. 1983. Eleven of the underlying lawsuits against
the city were premised upon the City's deliberate indifference to the use of excessive force
by its police department, while the twelfth lawsuit alleged police harassment. As in the case
at bar, the policy defined one occurrence as damage arising from repeated exposure to
substantially the same general conditions. Mead Reinsurance, 873 F.2d at 1187. The Ninth
Circuit rejected Granite's argument that there were multiple occurrences because the many
different police actions resulted in multiple injuries to multiple and diverse claimants,
concluding instead that there were two occurrences: one for liability for the harassment claim,
and one for all of the claims for deliberate indifference to use of excessive force. In
explaining this conclusion, the Ninth Circuit held:
Thus, liability under 42 U.S.C. 1983 does not arise from each separate act of police
misconduct, but the underlying municipal policy of condoning a series of similar police
acts. Therefore, the alleged policy of condoning police brutality constitutes a single
occurrence for purposes of establishing the insurer's liability under the per
occurrence clause of the respective policies. This is consistent with the Third Circuit's
reasoning in Appalachian Ins. Co. v. Liberty Mutual Ins. Co., 676 F.2d 56 (3d Cir.
1982).
Id. at 1188. See Appalachian Ins. Co., 676 F.2d at 61 (in a class-action suit challenging
Liberty's discriminatory employment policy against women, the Third Circuit held that
though there were many plaintiffs with multiple injuries incurred over a long period of time,
there was but one occurrence since the injuries for which Liberty was liable all resulted from
one prominent cause: Liberty's adoption of its discriminatory employment policies). Id. at 61.
We find Mead Reinsurance analogous to the instant case. We note that the city of
Richmond was not accused of direct or vicarious responsibility for the actual misconduct of
the several individual policemen in the eleven actions, but was accused of inaction or
inadequate action in overseeing the operations of the police department.
individual policemen in the eleven actions, but was accused of inaction or inadequate action
in overseeing the operations of the police department. Similarly, the County was not accused
of direct or vicarious responsibility for the actual molestations by Boatwright, but was
accused of inaction or inadequate action in the process and attendant duties of licensing the
day-care center. Accordingly, even though the actions of the individual wrongdoers are the
most direct causes of harm for the victims in both Mead Reinsurance and the instant case, the
actions of the individual wrongdoers taken alone are not the basis of liability for the city of
Richmond or the County in the instant case. Instead, liability for both entities is premised on
the entities' negligence in performing a duty, which permitted the intervening conduct of
those who actively caused the victims' harm.
The case of Home Indem. Co. v. City of Mobile, 749 F.2d 659 (11th Cir. 1984), further
illustrates this concept. In Home Indemnity, heavy rain storms on three separate occasions
caused over-flows at various points in the city drainage system, resulting in extensive
property damage to multiple property owners. Id. at 660-61. The insurance company argued
that each separate rainfall and subsequent flood was a separate occurrence which had caused
the property damage, while the city argued that occurrence should be defined by effect, so
that damage to each claimant's property by each incident of flooding was a separate
occurrence for purposes of coverage. The trial court rejected both assertions, finding that
what created liability for the city was not the rainfall and flooding, but the negligence of the
city in constructing and maintaining its drainage system. Id. at 661.
The Eleventh Circuit agreed, holding that because the intervening negligence of the city in
constructing and maintaining its water drainage system was the cause of the events leading to
Mobile's liability, it was therefore the occurrence for purposes of the city's insurance
coverage. Id. at 663.
6
The court noted that interpreting occurrence to refer to flooding
damage sustained by each individual property improperly focused on the various effects of
the events on various individuals seeking to impose liability on the city. Id.
__________

6
We note that the court held that each discrete act or omission, or series of acts or omissions, which caused
water to flood and damage properties instead of draining properly, was a single occurrence. Thus, if on account
of the city's negligence a drain on one street was blocked so that water flooded 10 houses on that street, that
would be one occurrence, while a drainage block on the other side of the city causing flooding and damage to
100 houses would be another occurrence. Id. at 663. Such reasoning would not apply in the instant case, where
the County's alleged negligence was directed towards a single institution, and where its negligence cannot be
separated out into discrete acts or omissions.
We conclude that the rainfall and floods of Home Indemnity are analogous to the acts of
the molester in the case at bar: the natural disasters in Home Indemnity did not cause Mobile's
liability, nor did Boatwright's actions cause the County's liability. Liability in both cases
arises from the entities' failure to adequately perform an ongoing duty: absent such a duty, the
city of Mobile would not be liable for injuries caused by flooding, and the County would not
be liable for injuries caused by a child molester.
In interpreting coverage for such entities under the causal approach, occurrence should
be defined in such a way as to give meaning to the entity's connection to liability. In the case
at bar, the County caused the children's injuries through its failure to act with the requisite
care in the process of licensing Papoose. Therefore, such failure must be considered the
occurrence for purposes of insurance liability. We note that this interpretation is consistent
with another provision of the policy which provides that all damages arising out of
continuous or repeated exposure to substantially the same general conditions shall be
considered as arising out of one occurrence.
Additionally, the County asserts that the district court abused its discretion in admitting the
affidavits of respondents' two expert witnesses in support of the Carrier's motion for summary
judgment. The expert witnesses were attorneys involved in the Elizabeth N. and Portland
Archdiocese cases cited in the Carriers' briefs, whose testimony was offered to prove to the
district court certain facts regarding the case not contained in the published decisions, and to
offer opinions on why the County was incorrect in its interpretation of occurrence.
The County brought a motion to strike both affidavits on the grounds that they were
inadmissible and immaterial. The district court did not rule on the motion to strike, which
indicates that the district court did not consider or rely on the affidavits. However, even if the
district court did consider the affidavits, such action does not impact our analysis.
CONCLUSION
Based on our conclusion that the district court erred in its interpretation of the term
occurrence used in the insurance policies, we reverse the district court's grant of summary
judgment in favor of the Carriers, and remand to the district court for entry of summary
judgment in the County's favor on the meaning of the word occurrence.
____________
110 Nev. 806, 806 (1994) Heglemeier v. State
PAUL ROBERT HEGLEMEIER, JR. Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22748
July 26, 1994 878 P.2d 294
Appeal from judgment of conviction, pursuant to a jury verdict, of one count each of
conspiracy to commit robbery, attempted robbery with use of a deadly weapon, and
first-degree murder with use of a deadly weapon. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
The supreme court, Steffen, J., held that: (1) accomplice testimony was sufficiently
corroborated to be admissible and to support the convictions; (2) the murder victim's death
certificate was admissible under the business records exception to the hearsay rule and as a
record of death made to a public office pursuant to the requirements of law; (3) impermissible
cross-examination of the defendant about whether he possessed or had access to a
nine-millimeter weapon other than the one used in the murder did not rise to the level
warranting a mistrial; (4) the testimony of a rebuttal witness who had been in the courtroom
during the testimony of other prosecution witnesses did not violate the policy of the rule
excluding witnesses from the courtroom before they were called to testify; (5)
cross-examination of alibi witnesses about their failure to inform the police of their
exculpatory information was permissible questioning on matters concerning bias, hostility,
and prejudice; and (6) the prosecutor's improper attempt to ridicule the defendant's motives
for bringing a bible to court with him each day was not prejudicial misconduct.
Affirmed.
[Rehearing pending]
Young and Springer, JJ., dissented.
Schieck & Derke, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Frank M. Ponticello, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence corroborating accomplice testimony need not, of itself, establish guilt; rather, it is sufficient if it tends to connect
defendant to offense. NRS 175.291(1).
2. Criminal Law.
Evidence corroborating accomplice testimony may be gleaned from evidence as a whole, as opposed to isolated fact or
circumstance. NRS 175.291(1).
3. Criminal Law.
Evidence, although not compelling, was sufficient to corroborate accomplice testimony and to render that testimony admissible in
prosecution for conspiracy to commit robbery, attempted robbery with use of deadly weapon, and first-degree murder with use of
deadly weapon. Defendant was connected to crimes by evidence of moderately long-standing association with accomplice, defendant's
presence during purchase and possibly during resale of murder weapon, defendant's familiarity with type of weapon, his proximity to
crime scene during offense, his availability to commit crimes, and his employment record that contradicted his claimed alibi. NRS
175.291(1).
4. Criminal Law.
Murder victim's death certificate was admissible under business records exception to hearsay rule in lieu of testimony by medical
examiner who performed autopsy and thereafter moved to another state. Autopsy was performed as official activity of coroner's office
and represented product of matters observed during autopsy. NRS 51.155.
5. Criminal Law.
Murder victim's death certificate was admissible under hearsay exception for record of death made to public office pursuant to
requirements of law. NRS 51.165.
6. Criminal Law.
Prosecutor's impermissible cross-examination of defendant about whether he possessed or had access to nine-millimeter weapon
other than one used in murder did not rise to level warranting mistrial; prejudice from question was lessened by admonishment to jury,
questions were very brief segment of very lengthy trial, defense counsel objected before defendant answered, and accomplice had
already testified about defendant's access to second weapon.
7. Criminal Law.
Testimony of rebuttal witness who had been in courtroom during testimony of other prosecution witnesses did not violate policy of
rule excluding witnesses from courtroom before they were called to testify where testimony had not been anticipated, where witness
came forward only after hearing testimony of alibi witness whom she had observed taking notes during preliminary hearing and giving
notes to defendant's girlfriend, and where potential for bias was exposed on cross-examination. NRS 50.155.
8. Witnesses.
Cross-examination of alibi witnesses about their failure to inform police of their exculpatory information was permissible
questioning on matters concerning bias, hostility, and prejudice.
9. Criminal Law.
Prosecutor's improper attempt to ridicule defendant's motives for bringing bible to court with him each day was not prejudicial
misconduct; prosecutor did not refer to defendant's religious beliefs, only his motives in bringing bible, and defendant effectively
parried questions and expressed plausible reasons for having bible with him.
10. Criminal Law.
Evidence, although not compelling, was sufficient to corroborate accomplice testimony and to support convictions for conspiracy
to commit robbery, attempted robbery with use of deadly weapon, and first-degree murder with use of deadly weapon. Defendant was
connected to crimes by evidence of moderately long-standing association with accomplice, defendant's presence during purchase and
possibly during resale of murder weapon, defendant's familiarity with type of weapon, his proximity to crime scene during offense, his
availability to commit crimes, and his employment record that contradicted his claimed alibi. NRS 175.291(1).
OPINION
Appellant Paul Robert Heglemeier was tried by a jury and convicted of conspiracy to commit robbery, attempted robbery with use of a
deadly weapon, and murder in the first-degree with use of a deadly weapon. His first-degree murder conviction resulted in a life sentence
with the possibility of parole, enhanced by an identical consecutive sentence for use of a deadly weapon. Heglemeier also received
sentences of six years on the conspiracy count, and seven and one-half years for attempted robbery with an additional consecutive seven
and one-half years for use of a deadly weapon. On appeal, Heglemeier raises a number of issues, the most significant of which challenges
the sufficiency of the evidence to corroborate the testimony of his accomplice. After careful review, we are persuaded that Heglemeier was
fairly tried and convicted on all counts. We therefore affirm.
FACTS
The fact-intensive nature of the primary issue on appeal requires a detailed recital of the facts. Certain of the facts will be addressed or
reemphasized in connection with our discussion of the legal issues appearing later in this opinion.
Shortly after midnight on December 15, 1988, two armed men wearing masks entered the Kopper Keg Lounge in Las Vegas. The
intruders announced their intention to rob the place and ordered three adult male patrons, Mattheas, Wegneg and Earl, and a female
employee, Zornes, to go to the restroom. A second female employee, Conrad, was in the kitchen while the other four occupants of the
lounge were being confronted by the gunmen. Patrons Earl and Mattheas refused to obey the masked intruders. Earl commenced struggling
with one of them and was shot by both gunmen. The man struggling with Earl fired once or twice, causing Earl to fall to the floor, and the
other gunman then fired six to eight shots at the stricken patron.
six to eight shots at the stricken patron. Both intruders then fled.
1
Mattheas ran to the front
door of the lounge and saw a white Camaro leaving the area.
Earl was pronounced dead at the scene. Although the deputy coroner initially observed
three gunshot wounds suffered by the victim, a later autopsy revealed that Earl had sustained
six bullet wounds. The body contained one .38 special bullet and five nine-millimeter bullets
or bullet fragments. Nine nine-millimeter shell casings were found by investigating officers at
the scene of the crime.
Eyewitnesses were unable to identify or describe the gunmen because of their masks.
However, Mattheas opined that the offenders were caucasian because of the way they talked,
and the witnesses agreed that one of the two men was several inches taller than the other.
Patron Wegneg stated that one gunman wore blue jeans and tennis shoes, and that both were
carrying duffle bags.
The crime remained unsolved until June, 1990, when an anonymous informant called the
Federal Bureau of Investigation and identified the perpetrators as Stephen Becker and Paul
Heglemeier. The informant also told the FBI that the vehicle used in the crime was registered
to Heglemeier's girlfriend and that it may have been light blue in color. Armed with the
foregoing information from the FBI, police officers interviewed Becker during his
incarceration for an unrelated crime. Becker denied involvement in the homicide and
disclaimed knowing Heglemeier, a disavowal refuted by a police review of prison records
revealing Heglemeier as one of Becker's documented visitors.
2

Eventually, several inmates informed police that Becker had admitted shooting a man in
the Kopper Keg Lounge in Las Vegas several years earlier. Becker allegedly told a prison
informant that he and Paul Heglemeier had committed the crime and that they had both shot
the victim. Becker reportedly fired his father's .357 magnum revolver while struggling with
the victim, and Heglemeier shot the ill-fated patron with a nine-millimeter pistol. The
informant also advised investigating officers that Becker had indicated that the barrel on the
nine-millimeter weapon was changed and possibly discarded. When Becker was released
from jail on the unrelated offense, he told Heglemeier to change the barrel on Heglemeier's
nine-millimeter gun.
__________

1
The cook, Conrad, heard an argument emanating from the bar. Peering around the corner, she saw what
appeared to her to be a bar fight. Upon hearing gunshots, she sought refuge in hiding.

2
Although Becker initially denied involvement in the homicide, after concluding favorable negotiations with
the State, Becker admitted that he and Heglemeier murdered Earl.
barrel on Heglemeier's nine-millimeter gun. Becker knew that Heglemeier had access to
another nine-millimeter handgun, and, according to Becker, Heglemeier switched barrels in
his presence.
As a result of information obtained from the informants, police secured a search warrant
and seized a .357 magnum revolver found at the home of Becker's father. The revolver was
admitted as evidence in Heglemeier's trial.
Further investigation also disclosed that Heglemeier was incarcerated in the Nevada prison
system in July 1989, and that one of the females who visited him in prison was Elizabeth
Wilmarth. Police were able to confirm that Wilmarth had a nine-millimeter firearm registered
in her name as of February 1988, and that the weapon had been purchased by her from
American Shooters Supply in Las Vegas. Joseph Montoya, an owner of the gun supply shop,
testified that Heglemeier was with Wilmarth when she purchased the weapon and that, to the
best of his knowledge, Heglemeier was also with her when she sold the gun back to the same
dealer. Montoya's recollection concerning the latter occasion was based upon the fact that
Wilmarth came in with somebody, that he remembered her being with Paul [Heglemeier], and
that he always associated Wilmarth with Heglemeier.
Police were directed to the subsequent purchaser of the nine-millimeter weapon previously
owned by Wilmarth and were able to secure and test the firearm. Richard Good, a police
firearms examiner, testified that the nine-millimeter bullets recovered from Earl's body were
not fired from the barrel of the gun Wilmarth resold to American Shooters Supply. Good also
testified that the barrel on the Smith & Wesson handgun was made of stainless steel and
rifled with five lines and grooves, features not available on that particular model as originally
manufactured. However, Good stated that a ballistics test of the nine nine-millimeter casings
found at the crime scene proved that the Wilmarth weapon fired all of the cartridge casings.
Good opined that the match was positive.
According to Good, a .357 caliber handgun could chamber a .38 special bullet, and his
examination of a test bullet fired from the .357 magnum revealed the same class of
characteristics as the .38 caliber bullet removed from Earl's body. Because of the damaged
condition of the bullet retrieved from the body during autopsy, Good was unable to
positively match the bullet with the .357 handgun owned by Becker's father.
Wilmarth lived with Heglemeier from about September 1987 to June of 1988 when the
couple separated. She admitted purchasing a nine-millimeter handgun from American
Shooters Supply in February of 19SS, and Heglemeier admitted being with Wilmarth on
the occasion of the purchase.
February of 1988, and Heglemeier admitted being with Wilmarth on the occasion of the
purchase. Wilmarth testified that she kept the weapon in the bottom drawer of her bedroom
dresser and that she took the gun with her when she left Heglemeier and moved to a
townhouse. Wilmarth also indicated that she was in Paris, France, during the period from
November 30, 1988, until approximately December 20, 1988, when she returned to Las
Vegas. According to Wilmarth, she moved her personal effects, including the nine-millimeter
handgun, into a bedroom at her mother's place before she left for France. In response to
questioning, however, Wilmarth could not recall specifically looking for or seeing the gun.
Wilmarth also testified that she returned to Las Vegas in order to raise funds to move to Paris.
Her resale of the handgun to American Shooters Supply was in furtherance of her quest for
money. Wilmarth denied that Heglemeier accompanied her when she returned the weapon.
Three alibi witnesses testified seeing Heglemeier at various times before, during and after
the shooting at the Kopper Keg Lounge. A female friend, Debra Cohen, testified that she met
Heglemeier at the Shark Club at 10:30 p.m., had several drinks with him over a period of two
or three hours, and then left with him for the Stakeout, where they remained for one or two
hours before Heglemeier took her home. Robert Bluthart testified that he and his brother
visited with Heglemeier at the Shark Club from around 11:30 p.m. on December 14, 1988
until about midnight, when they left. Finally, Eddie Morganer stated that he saw Heglemeier
leaving the Shark Club at approximately 12:30 or 1:00 a.m. on December 15, 1988 and then
saw him later that same morning at the Stakeout.
Heglemeier testified that he left the Shark Club with Cohen at about 12:30 a.m. on
December 15, 1988, and eventually went home at around 3:30 to 4:00 a.m. After arriving
home, Heglemeier allegedly had quite a few messages on his answering machine from
Becker stating that he had been arrested for burglary and wanted Heglemeier to arrange to
bail him out of jail.
Heglemeier theorized that Becker and his brother committed the offenses at the Kopper
Keg Lounge and that Becker sought to implicate Heglemeier for purposes of protecting the
brother, retaliating for a $100 unpaid debt and for dating Becker's girlfriend.
The jury returned a guilty verdict against Heglemeier on one count of first-degree murder
with use of a deadly weapon, attempted robbery with use of a deadly weapon, and conspiracy
to commit robbery. Although the State sought the death penalty, Heglemeier received the
lesser sentences specified above.
DISCUSSION
Heglemeier raises several issues on appeal, the most important of which is the contention
that Becker, Heglemeier's accomplice, should not have been allowed to testify because of
insufficient corroboration of his testimony. Although we conclude to the contrary, the issue is
concededly close, thus provoking our careful scrutiny of the record.
[Headnotes 1, 2]
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.
[Headnote 3]
Corroborating evidence need not, of itself, establish guilt; it is sufficient if it tends to
connect the defendant to the offense. Cheatham v. State, 104 Nev. 500, 504-05, 761 P.2d 419,
422 (1988). The corroborating evidence may be gleaned from the evidence as a whole as
opposed to an isolated fact or circumstance. Id. at 504, 761 P.2d at 422. Moreover, we have
long recognized that the corroborative evidence may be slight in probative effect, yet its
weight is for the jury, and if it tends to connect the accused with the commission of the
offense, it will satisfy the statute. State v. Hilbish, 59 Nev. 469, 479, 97 P.2d 435, 438
(1940).
The corroborative evidence that tends to connect Heglemeier to the crime without resort to
accomplice testimony includes: (1) Heglemeier's moderately long-standing association and
friendship with Becker, a convicted felon; (2) Heglemeier's presence during the purchase of
the nine-millimeter weapon used in the murder and his possible, if not probable, presence
during the resale of the weapon after its use in the homicide; (3) Heglemeier's familiarity
with, and various sources of access to, the nine-millimeter weapon; (4) Heglemeier's
proximity to the crime scene during the relevant time of the offense; (5) Heglemeier's
availability to commit the crime; and (6) an employment record that contradicted
Heglemeier's testimony concerning his work schedule during the month of December 1988
and that reflected no working presence at his place of employment anywhere near the time
and date of the offense.
Turning first to Heglemeier's comparatively lengthy association with Becker, it is clear
that mere association with a known criminal is insufficient of itself to corroborate
accomplice testimony.
tion with Becker, it is clear that mere association with a known criminal is insufficient of
itself to corroborate accomplice testimony. See, e.g., LaPena v. Sheriff, 91 Nev. 692, 695, 541
P.2d 907, 909 (1975) (mere association frequently has been viewed as insufficient to
corroborate an established wrong-doer's accusation). It is, however, a factor to be considered
in the totality of circumstances that tend to connect Heglemeier to the crime. Id. Heglemeier
admitted to a friendly relationship with Becker that had endured for about six years.
Moreover, Wilmarth testified that Heglemeier and Becker spent more than a few times
together at the apartment Heglemeier shared with Wilmarth in 1988. As part of the totality of
the circumstances presented by the trial evidence, the jury undoubtedly considered, as it had a
right to do, the long-term friendship between Heglemeier and Becker as a factor in connecting
Heglemeier and his friend to the commission of the instant offense. Moreover, in describing
the two masked men who murdered Earl, eyewitnesses stated that one of the men was several
inches taller than the other. Heglemeier and Becker are five feet eight inches and five feet
eleven inches tall, respectively.
The evidence clearly established that Heglemeier was present when his girlfriend,
Elizabeth Wilmarth, purchased the nine-millimeter weapon that was used in Earl's murder.
Moreover, Joseph Montoya, part owner of American Shooters Supply, testified that in
addition to seeing Heglemeier with Wilmarth when she purchased the gun, to the best of his
knowledge, Heglemeier was also with her when she resold the gun to the same vendor
thirteen days after the shooting in the Kopper Keg Lounge. Montoya testified that he was
familiar with Heglemeier from having seen him in a number of settings, including shooting at
the firing range and coming to the shop (American Shooters Supply) on several occasions
with Wilmarth. However, Montoya was unable to testify with certainty that Heglemeier was
with Wilmarth when the gun was resold to the gun shop because his belief that Heglemeier
was present on the latter occasion was based upon his recollection that Wilmarth came into
the store with somebody, and Montoya always associated Wilmarth with Heglemeier. The
lack of certainty associated with Montoya's belief was a matter for the jury to weigh, but the
fact of the matter is that Heglemeier was aware of the gun from the very beginning, admitted
to being present with Wilmarth when it was purchased, and also admitted shooting the
weapon in practice. Although both Wilmarth and Heglemeier testified that Heglemeier was
not present when Wilmarth resold the weapon to American Shooters Supply, and despite the
fact that Wilmarth and Heglemeier had ceased living together in June 1988, Wilmarth
admitted that she visited Heglemeier while he was in the county jail after the instant
offense occurred.
visited Heglemeier while he was in the county jail after the instant offense occurred. The
inference to be drawn from her jail visits is that she still maintained at least a friendly
relationship with Heglemeier.
As previously noted, Heglemeier was totally familiar with the nine-millimeter weapon
used in Earl's murder and admitted to having practiced firing the handgun. The evidence also
shows that Heglemeier knew, at least during the time when he and Wilmarth lived together,
where Wilmarth kept the gun. Moreover, Wilmarth's testimony was anything but a model of
certainty concerning her awareness of the location of the gun she had purchased. She
basically expressed uncertainty concerning the location of the weapon or when or where she
last saw it prior to the time she resold it to the gun shop. Her testimony indicating that she
was unable to recall many of the specifics surrounding her nine-millimeter gun tended to
support the probability that Heglemeier did have access to the weapon at the relevant time
period. Wilmarth also testified that she had shown Becker the gun and where it was kept. She
also indicated that although Heglemeier did not visit the townhouse where she stayed after
she and Heglemeier had ended their relationship, Becker had visited her there around
Thanksgiving of 1988 and may have had access to her bedroom, where the gun was located.
Wilmarth stated that when she was in Paris from November 30, 1988 until December 20,
1988, the gun was with her belongings at her mother's house, and that as far as she knew, the
gun had remained in the bottom drawer of her dresser. She speculated that although she did
not let anyone borrow the gun during her stay abroad, her roommate, Laura Connell, may
have taken the gun to target shoot during Wilmarth's absence. Indeed, Wilmarth's mother
testified that certain of Wilmarth's belongings were in a room in her house, some were in her
garage, and some were left in Wilmarth's car. The point to be emphasized here is that
Wilmarth's testimony concerning the whereabouts of the gun during the critical time period
was equivocal, Heglemeier had enjoyed both the access and use of the weapon for a
substantial period of time and knew where Wilmarth kept it, and his friend Becker may also
have had access to the weapon at or around the time of the murder. One thing is clear; the
evidence forcefully demonstrated that Wilmarth's nine-millimeter handgun was not at her
mother's house at the time of the murder on the early morning of December 15, 1988 because
the trial evidence established its use in the homicide. The jury could have drawn the inference
from the facts that Heglemeier had direct access to the gun or obtained it through Becker, and
that Wilmarth's uncertainties were not credible.
Three alibi witnesses testified on behalf of Heglemeier. Cohen and Bluthardt admitted that
they were intoxicated from drinking during the time they had separate contact with
Heglemeier at the Shark Club. Cohen was not even certain that December 14 or 15 was the
exact date when she was with Heglemeier. The third witness, Morganer, admitted that
Heglemeier called him prior to trial to refresh his memory, and that he was certain that
Heglemeier had just completed working his shift at the Shark Club when Morganer saw him
at around 12:00 or 12:30 a.m. on December 15, 1988. However, the record undermines
Morganer's testimony since Heglemeier did not work on the evening of December 14 or the
early morning of December 15 at the Shark Club. Moreover, even if Morganer's testimony
were deemed credible, Heglemeier could have committed the crime at the Kopper Keg and
returned to the Shark Club in time to be seen by Morganer within the general time frame
indicated by Morganer's testimony. Therefore, Morganer's recollection, if accurate, still would
not have constituted a solid alibi for Heglemeier. Although the combined testimony of these
witnesses does not tend to connect Heglemeier to the crime, it is sufficiently suspect and
equivocal to place Heglemeier's alibi in serious doubt. The jury could have found from the
evidence that Heglemeier was sufficiently close and available to the crime scene to have
committed the crime and then returned to the Shark Club in a colorable attempt to create the
basis for an alibi.
Finally, Heglemeier's testimony concerning his work history at the Shark Club during the
month of December 1988 was not credible. Heglemeier testified that he was working an on
call shift at the Shark Club until approximately 11:45 p.m. on the evening of December 14
and that he remained there visiting with friends until the early morning hours of December
15. The prosecutor presented Heglemeier's time card from the Shark Club that covered the
two-week period from December 11, 1988 to December 24, 1988. The card revealed that
Heglemeier worked only four shifts during that period totaling only 19.9 hours, and that he
did not work on either December 14 or December 15, the time frame of the murder at the
Kopper Keg. This evidence directly contradicted Heglemeier's testimony that he worked
eighteen to twenty-one days at the Shark Club during the month of December 1988, and that
he worked a minimum of six hours per shift. Even if the on call shifts were not recorded on
the employee time cards (employees were allegedly not paid for this type of pre-duty time),
there was no evidence presented from any source indicating that Heglemeier was indeed on
call on the night of December 14. Although Heglemeier had no duty to present any evidence
concerning his whereabouts at the date and time of the murder, it is nevertheless significant
that no trial evidence contradicted the State's documentary evidence concerning
Heglemeier's employment.
time of the murder, it is nevertheless significant that no trial evidence contradicted the State's
documentary evidence concerning Heglemeier's employment. Furthermore, Morganer's
testimony indicating with certainty that Heglemeier had just completed working his shift at
the Shark Club on the night of December 14, 1988 was directly contradicted by Heglemeier's
time card.
We conclude from the foregoing that under NRS 175.291(1) and the case authorities cited
above, the district court did not err in admitting the accomplice testimony of Becker. There
was sufficient trial evidence, excluding Becker's testimony, to tend to connect Heglemeier to
the Kopper Keg crimes. In that connection, we disagree with Heglemeier's contention that the
instant case is governed by Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975). In Eckert, the
only evidence of an independent corroborative nature was Eckert's admitted presence and use
of his driver's license in the purchase of two weapons. This was especially insufficient in
view of independent witness testimony placing Eckert in Gallup, New Mexico, at the time of
the homicide occurring in the Las Vegas area. The witness was especially credible since he
was a maintenance man at a Gallup motel where Eckert was staying because the vehicle being
used by the three men had broken down. In contrast, the evidence of record in the instant case
not only connects Heglemeier with the purchase and resale of the nine-millimeter weapon
used in the murder of Earl, but it also demonstrates that Heglemeier was untruthful
concerning his testimony and that he was in a position both physically and geographically to
have been present at the crime scene. Moreover, Heglemeier's association and friendship with
the convicted felon Becker was of a long-standing duration. Although the corroborative
evidence here may not be compelling, it was sufficient to satisfy the demands of Nevada law.
[Headnotes 4, 5]
Heglemeier also challenges on hearsay grounds the admission of Earl's death certificate as
proof of the victim's death by criminal agency. The State utilized the certificate in lieu of
testimony by the medical examiner who performed the autopsy and had thereafter moved to
another state. Although there was no error in the admission of the certificate, it is clear that a
contrary ruling would not benefit Heglemeier as there was ample eyewitness testimony to the
fact that the victim had been felled by numerous gunshot wounds, causing severe bleeding
from the face, back and chest. It was also demonstrated that six bullets were removed from
Earl's lifeless body.
The death certificate was admissible under NRS 51.155
3
and NRS 51.165.
4
Heglemeier
contends that NRS 51.155(3) precludes the State from using the certificate as evidence, but
overlooks use of the disjunctive or appearing between subsections 2 and 3 of the statute.
The certificate is clearly admissible under either subsection 1 or 2 of the statute since the
autopsy was performed as an official activity of the coroner's office and also represented the
product of matters observed during the performance of an autopsy required by law. The
certificate was also properly admissible under NRS 51.165 as a record of death made to a
public office pursuant to the requirements of law.
5

None of the cases cited by Heglemeier on this point are apposite since they antedate the
enactment of our statutory rules of evidence and do not differentiate between the categories of
public records addressed in the statutes.
The death certificate was properly admitted under the statutes cited above, as a routine
record prepared as a nonadversarial matter by a medical examiner in a nonadversarial setting
and pursuant to a duty imposed by law. See United States v. Wilmer, 799 F.2d 495, 501 (9th
Cir. 1986), cert. denied, 481 U.S. 1004 (1987). The district court did not err in admitting the
victim's death certificate.
[Headnote 6]
Heglemeier also contends that the district court erred in not granting his motion for a
mistrial based upon the State's cross-examination of him concerning his access to, or
possession of, another nine-millimeter handgun.
__________

3
NRS 51.155 provides in pertinent part:
Records, reports, statements or data compilations, in any form, of public officials or agencies are not
inadmissible under the hearsay rule if they set forth:
1. The activities of the official or agency;
2. Matters observed pursuant to duty imposed by law; or
3. In civil cases and against the state in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or the method or
circumstances of the investigation indicate lack of trustworthiness.

4
NRS 51.165 provides: Records or data compilations, in any form, of births, fetal deaths, deaths or marriages
are not inadmissible under the hearsay rule if the report thereof was made to a public office pursuant to
requirements of law.

5
The State also contends that the certificate was admissible under NRS 51.315 because the certificate was
reliable and the declarant was unavailable to testify. We elect not to reach this point because the record does not
clearly establish the unavailability of the declarant.
On July 18, 1989, Heglemeier was arrested on an unrelated charge for possession of a
stolen Smith & Wesson model 659 nine-millimeter handgun with a stainless steel finish.
Heglemeier successfully challenged the legality of the search leading to the seizure of the
weapon, and the district court in the instant case granted Heglemeier's motion to suppress
evidence concerning this particular handgun. At trial, the following exchange occurred during
the State's cross-examination of Heglemeier:
Q. You didn't switch any barrels on any nine millimeter weapons?
A. Absolutely not.
Q. You did have possession or access to a separate nine millimeter gun, didn't you?
Given the district court's ruling on the suppression motion, the questions posed by the
prosecutor were clearly improper. The State seeks to excuse the questions by noting that
Becker repeatedly testified that Heglemeier had another nine-millimeter pistol. The argument
fails since the order suppressing reference to the second nine-millimeter firearm issued after
Becker had testified.
Despite the impropriety of the questions, we conclude that the prosecutor's conduct does
not rise to a level requiring reversal. The judge admonished the jury, the questions constituted
a very brief segment of a lengthy trial and defense counsel objected before Heglemeier
responded. Moreover, while the fact that Becker had testified that Heglemeier had access to a
second nine-millimeter weapon that enabled him to switch gun barrels does not excuse the
prosecutor's question, it does lessen the prejudice of the foregoing colloquy. We conclude, for
the reasons stated, that the district court did not commit error in denying Heglemeier's motion
for a mistrial.
[Headnote 7]
Before trial, the district court invoked the rule excluding witnesses from the courtroom
prior to the time they were called to testify.
6
The provision for the exclusion of witnesses is
designed to prevent or minimize the adaptation of testimony to that of other witnesses
and to facilitate the exposure of inconsistencies bearing on the credibility of witnesses.
__________

6
1. Except as otherwise provided in subsection 2, at the request of a party the judge shall order witnesses
excluded so that they cannot hear the testimony of other witnesses, and he may make the order of his own
motion.
2. This section does not authorize exclusion of:
(a) A party who is a natural person;
(b) An officer or employee of a party which is not a natural person designated as its representative by its
attorney; or
(c) A person whose presence is shown by a party to be essential to the presentation of his cause.
to prevent or minimize the adaptation of testimony to that of other witnesses and to facilitate
the exposure of inconsistencies bearing on the credibility of witnesses. In other words, the
policy of the rule is to promote truth and expose a lack of candor or certainty. Heglemeier
insists that the district court erred in permitting a rebuttal witness to testify for the State after
remaining in the courtroom despite the court's order excluding witnesses. We have previously
held that prejudice is presumed when a violation of NRS 50.155 occurs unless the record
demonstrates a lack of prejudice. Givens v. State, 99 Nev. 50, 55, 657 P.2d 97, 100 (1983),
overruled on other grounds, Talancon v. State, 102 Nev. 294, 301, 721 P.2d 764, 768 (1988).
The basis for Heglemeier's complaint was the rebuttal testimony of witness Joanna Rash
who, as a victim advocate employed by the Clark County District Attorney Victim Witness
Center, had attended Heglemeier's preliminary hearing and most of his trial. Her attendance
resulted from her efforts to assist and support Earl's family and friends. She was not
scheduled or anticipated as a witness at Heglemeier's trial. However, at trial she listened to
the testimony of one of Heglemeier's alibi witnesses, Debra Cohen, whom she had previously
observed taking notes at the preliminary hearing. Rash testified that during a recess in the
trial, she observed Cohen give her notes to Wilmarth outside the courtroom, and overheard
Cohen tell Wilmarth that there will be no surprises.
The State notes that it had no idea that Rash would be a trial witness and that her
testimony did not relate to the testimony of other witnesses. Apparently, Rash did not inform
the prosecutor of her information until after Cohen had testified. Moreover, the potential for
bias on the part of Rash was exposed during cross-examination.
Rash's testimony did not violate or have the potential of violating the policy underlying
NRS 50.155 since she did not address any subject treated by other witnesses. She simply
testified of her observations, the relevance of which is apparent. There was no prejudice to
Heglemeier; the district court did not err in allowing Rash to testify as a rebuttal witness for
the State.
[Headnote 8]
Heglemeier contends that the district court erred in allowing the State to question alibi
witnesses about their failure to inform the police about their exculpatory information. We
disagree. It is permissible for the State to cross-examine witnesses on matters concerning
bias, hostility, and prejudice. In concluding that the State may properly cross-examine an alibi
witness concerning his or her failure to contact police before the trial, the court in King v.
State, 74S P.2d 531, 535 {Okla.
v. State, 748 P.2d 531, 535 (Okla. Crim. App. 1988), reasoned that cross-examination should
be allowed in matters which tend to contradict, explain or discredit a witness's testimony or
verify accuracy, memory, veracity or credibility. We agree and conclude that there was no
error in connection with the State's cross-examination of Heglemeier's alibi witnesses.
[Headnote 9]
Heglemeier also maintains that the prosecutor committed prejudicial misconduct when he
questioned Heglemeier's reason for bringing a bible to court with him each day.
7
The points
asserted on appeal are that the prosecutor infringed upon Heglemeier's First Amendment right
to freedom of religion, that the questions were irrelevant, and that the prosecutor sought to
impeach him through his religious beliefs.
We do not approve of the prosecutor's attempt to ridicule Heglemeier's reasons for
bringing his bible to court with him. Undoubtedly the jury was in a position to assess
Heglemeier's possible motives for bringing the bible to court. We nevertheless do not view
the exchange between the prosecutor and Heglemeier as misconduct that prejudiced the
overall fairness of the trial. The prosecutor in fact did not refer to Heglemeier's religious
beliefs, but only his motive for bringing the scriptures to court with him.
__________

7
The following exchange occurred between the prosecutor and Heglemeier:
Q. Do you typically, when you're out on the streets, carry your bible around with you?
A. No, I don't carry it with me, sir, but I keep it in a very safe place at my house.
Q. When you worked at the Shark Club did you take it to work with you?
A. Certainly not.
Q. What's your reason for bringing it to this courtroom?
A. Well
Q. To keep it in a safe place?
A. No, not at all. I bring it to this courtroom because I feel a spiritual need to bring it with me.
Sometimes I look through it and go through certain things that it says and it helps me keep my spirits up
in this problem that
Q. A spiritual need or need to impress the jury?
A. No. There is actually one thing that will be used later in this trial that I don't want to talk about.*
Q. So your reason for bringing the holy bible to your trial was not to impress your jury with the fact that
you're a religious God-fearing believer in the bible?
*The one thing that Heglemeier referred to was a passage from Deuteronomy that he had defense counsel read
in his closing argument, that states: One witness is not enough to convict a man accused of any crime or offense
that he may have committed. A matter must be established by the testimony of two or three witnesses.
but only his motive for bringing the scriptures to court with him. Moreover, Heglemeier
effectively parried the prosecutor's questions and expressed plausible reasons for having the
bible with him in trial.
[Headnote 10]
Heglemeier next contends that there was insufficient admissible evidence to support his
convictions. This court will not reverse a criminal judgment on appeal if there is substantial
evidence to support the jury's verdict. Sterling v. State, 108 Nev. 391, 398, 834 P.2d 400, 404
(1992). The standard of review on appeal is whether the jury, acting reasonably, could be
convinced of the defendant's guilt beyond a reasonable doubt by the properly admissible trial
evidence. As previously noted, the primary issue in this appeal concerned the propriety of
admitting the testimony of accomplice Becker. As the State conceded, without Becker's
testimony, the evidence would not have warranted submitting the case to the jury. Since
Becker's testimony was properly admitted, an evidentiary synthesis resulted that fully satisfied
the heavy burden of proof necessary to support a criminal conviction.
Heglemeier has also sought relief on appeal on the following grounds: (1) that the State
failed to establish the corpus delicti; (2) that Heglemeier was denied due process because the
State proceeded on alternative theories to support a murder conviction; (3) that the lower
court erred in allowing the deputy coroner to make reference to the victim's family; and (4)
that cumulative error deprived Heglemeier of a fair trial. We have carefully reviewed each of
these issues and conclude that they are without merit and need not be addressed.
CONCLUSION
For the reasons discussed above, we have concluded that Heglemeier was fairly tried and
convicted. We therefore affirm the judgments of conviction entered by the district court
pursuant to the verdicts of the jury.
Rose, C. J., and Shearing, J. concur.
Young, J., with whom Springer, J., joins, dissenting:
Respectfully, I dissent from the majority's conclusion that sufficient corroborating
evidence was presented to connect Heglemeier to the crime and allow his conviction based
upon the alleged accomplice Becker's testimony. The majority concedes that this is a close
case. In my opinion, it is too close to give benefit to any doubt. Learned Hand characterized
conspiracy as that darling of the modern prosecutor's nursery. Harrison v. United States, 7
F.2d 259, 263 (1925). However, that darling can never be used as an instrument to
convict in our state without sufficient evidence to connect the defendant to the crime.
can never be used as an instrument to convict in our state without sufficient evidence to
connect the defendant to the crime.
It has long been held that a conviction cannot be sustained merely on the testimony of an
accomplice. In an early English case involving the testimony of one ruffian against his
cohorts, [t]he Court, though it was admitted as an established rule of law that the
uncorroborated testimony of an accomplice is legal evidence, thought it too dangerous to
suffer a conviction to take place under such unsupported testimony. R. v. Smith and Davis
(1784), 1 Leach Cr. L. 479, n.(b) (4th ed. 1815). This same requirement has long been
recognized in Nevada by our earliest statutes and case law, the seminal example being State
of Nevada v. Waterman, 1 Nev. 453, 457 (1865) ([Stat. 1861, 473, sec. 365] forbids the
conviction of any one on the testimony of an accomplice without corroborating testimony.).
Such clear precedent should not now be forgotten in what is manifestly a desire to affirm a
conviction.
With gossamer threads, the majority weaves a fabric of what it terms sufficient, albeit less
than compelling, evidence to connect Heglemeier to the crimes committed, above and beyond
Becker's testimony. Yet this seemingly unimpeachable logic articulated by my colleagues
upon analysis is redolent with presumptions that limit the veracity of its scope.
The majority begins by noting Heglemeier's lengthy association with Becker. While they
acknowledge that mere association is not sufficient to provide corroboration, the opinion
allows association to become a factor to be considered. My colleagues, taking a great leap,
then opine that the jury, by inference, could have found that Heglemeier's friendship and
association with Becker extended to joint criminal activities, including the instant offense.
Guilt by association should never be approved and yet the majority in their opinion apparently
considers association sufficient to connect Heglemeier with the crimes. Mere association does
not indicate that one joins in all the activities of one's associate. I find it very difficult to
accept the premise that a jury, acting reasonably, could have concluded that merely because
Heglemeier was a friend of Becker that Heglemeier was ipso facto connected with Becker's
crimes.
My colleagues go on to elaborate on what they consider to be Heglemeier's connection
with the murder weapon. They note that Wilmarth was not entirely clear as to the location of
the weapon at all times. My colleagues further note that Becker had been in Wilmarth's house
prior to the crimes and may have had access to the location of the gun. Finally, they point
out that the weapon was not in Wilmarth's house at the time of the crime because it was
established to have been used in the crime. Again, the sum of the parts does not equal the
whole.
the parts does not equal the whole. Simply because Wilmarth was not aware of the exact
location of the weapon at all times does not put possession of the weapon in Heglemeier's
hands, nor does it give him access to the weapon. Indeed, access to a weapon does not
indicate possession of the weapon. Furthermore, mere access to the weapon cannot connect a
defendant to a crime. In addition, the majority strains the bounds of logic further by
concluding that since Becker may have had access to the weapon, Heglemeier could have
obtained the weapon from Becker. Such tenuous and speculative evidence should not be
viewed as connecting a defendant to a crime.
My colleagues also attempt to connect Heglemeier to the crime by noting that he was
present when Wilmarth purchased the gun and admitted to practicing shooting the weapon. In
addition, they point to Montoya's testimony that while he was not certain, Heglemeier may
have been with Wilmarth when she sold the gun. However, I find it difficult to give much
weight to Montoya's testimony. He stated that he always associated Heglemeier with
Wilmarth, and therefore it was most likely Heglemeier who was with Wilmarth when she
returned the gun. Since Montoya was unable to positively place Heglemeier at the shop when
the gun was returned, Montoya's testimony failed to connect Heglemeier with the crime. As
in Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975), merely being present when the weapon
is purchased, or for that matter sold, does not sufficiently connect a defendant to the crime.
Id. at 186, 533 P.2d at 471.
My colleagues vault to yet another implausible conclusion by asserting that Wilmarth's
visits to Heglemeier in jail illustrate a continuing relationship between the two and that this
relationship somehow connects Heglemeier to the crime. However, my colleagues do not
mention that at the time of the crime, Heglemeier and Wilmarth apparently had no
relationship. They had separated six months earlier and she testified that they did not see each
other socially after their separation. Consequently, the fact that she visited him while he was
incarcerated does not provide a connection to the crime.
My colleagues next scrutinize Heglemeier's alibi witnesses. The majority concedes that
while the combined testimony of these witnesses does not tend to connect Heglemeier with
the crime, the less than complete credibility of the witnesses' testimony is enough to place
Heglemeier's alibi in serious doubt. Assuming this to be the case, a lack of an alibi at the
time of the crime is certainly not sufficient corroborative evidence to connect Heglemeier
with the crime. It is sheer speculation to conclude that Heglemeier's lack of a solid alibi
thereby proved he was sufficiently close and available to the crime scene to commit the crime
and thereafter return to the club in an attempt to create an alibi.
crime and thereafter return to the club in an attempt to create an alibi. Presumably, numerous
others in the vicinity that night would have had no ironclad alibi and yet that lack does not
connect any of them to the crime. Speculation never has been and never should be sufficient
evidence to connect a defendant to a crime.
As Justice Hugo Black once wrote, Bad men like good men are entitled to be tried and
sentenced in accordance with the law. Green v. United States, 365 U.S. 301, 309-10 (1961)
(Black, J., dissenting). NRS 175.291(1) provides that a person cannot be convicted of a crime
on the basis of an accomplice's testimony unless that testimony is sufficiently corroborated by
other evidence that tends to connect the defendant to the crime. In the instant case, I cannot
conclude that such sufficient evidence exists. For the purpose of resolving the legal issue
presented in this appeal, whether Heglemeier did indeed commit the crimes for which he was
prosecuted is irrelevant. Due process compels that he can only be convicted under the law
with the required evidence. In determining whether Heglemeier received due process, the
purpose of the statute must not be forgotten. In order to convict, an accomplice's testimony
alone is not sufficient. Here, I respectfully submit, there was in reality nothing more.
____________
110 Nev. 824, 824 (1994) Margrave v. Dermody Properties
FRANK MARGRAVE, LUELLA T. MARGRAVE, WILTON MARGRAVE and
MARGARET J. MARGRAVE, Appellants, v. DERMODY PROPERTIES, INC.,
SIERRA PACIFIC POWER COMPANY and THE CITY OF RENO, Respondents.
No. 24379
July 26, 1994 878 P.2d 291
Appeal from an order of the district court granting respondents' motion for summary
judgment. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Landowners brought quiet title action against owners of adjacent property, which suing
landowners had originally conveyed to adjacent landowners' predecessor in interest. The
district court entered summary judgment for adjacent landowners and appeal was taken. The
supreme court held that material issues of fact, precluding summary judgment, existed as to
precise nature of water rights conveyed.
Reversed.
Benesch and Fermoile, Reno, for Appellants.
Lionel Sawyer & Collins and Christopher R. Hooper and Richard W. Horton, Reno, for
Respondent Dermody Properties.
Woodburn & Wedge and Gordon H. DePaoli and Suellen Fulstone, Reno, for Respondent
Sierra Pacific.
Patricia A. Lynch, Reno City Attorney and William E. Isaeff, Chief Deputy City Attorney,
Reno, for Respondent City of Reno.
1. Contracts.
Whether or not document is ambiguous is question of law for court.
2. Contracts.
Contract is ambiguous if it is reasonably susceptible to more than one interpretation.
3. Judgment.
When meaning of contract is ambiguous and resort to extrinsic evidence is required to ascertain intention of parties, summary
judgment is inappropriate in face of contradictory or conflicting evidence.
4. Vendor and Purchaser; Waters and Water Courses.
Reference to Scott Ranch Ditch water and Cochran Ditch water rights, contained in contract for sale of real property and
corresponding deed, were ambiguous; references identified means through which certain water rights were transported, and did not
describe water rights themselves.
5. Evidence.
Extrinsic evidence should have been introduced to determine what water rights were reserved in connection with conveyance of
ranch property; identification in contract and deed were insufficient, as rights were identified in terms of ditches through which water
flowed, rather than rights themselves.
OPINION
Per Curiam:
Appellants (collectively the Margraves) appeal from a district court order granting summary judgment in favor of respondents
(collectively Dermody). In 1957, the Margraves owned a ranch in the vicinity of the Southeast corner of East Plumb Lane and Kietzke Lane
in Reno. Appurtenant to this ranch were two water rights, Claim No. 414 and Claim No. 504, both of which arose under the Orr Ditch
Decree. See United States of America v. Orr Water Ditch Company, et al., Equity Docket No. A-3 in the U.S. District Court for the District
of Nevada (1944). Claim No. 414 water was transported to the Margraves' property via the Cochran Ditch, whereas Claim No.
Ditch, whereas Claim No. 504 water was transported via the Scott Ranch Ditch.
As acknowledged in the briefs of both parties, in 1957, the Nevada State Engineer
approved the Margraves' application to change the place of use of Claim No. 504 water rights
from the Scott Ranch Ditch to the place of use of the Claim No. 414 water rights, the Cochran
Ditch.
1
The Margraves assert that the change was made because the Scott Ranch Ditch had
become closed and unreliable.
In 1961, the Margraves sold 11.9 acres of the ranch to Charles A. Steen (Steen),
appurtenant to which, the Margraves contend, were small portions of Claim Nos. 414 and 504
water rights. Although the recorded deed from the 1961 conveyance did not specify that any
particular water rights would be conveyed, it did state that the property would be conveyed
together with . . . the tenements, hereditaments and appurtenances . . . .
On June 1, 1962, the Margraves entered into a written agreement with Steen (the
Agreement) to sell Steen an additional 67 acres. Appurtenant to 30.6 acres of this parcel were
the Claim No. 504 and Claim No. 414 water rights. The Agreement provided that the property
conveyed was [t]ogether with all and singular the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining . . . . However, the Agreement
further provided that the sale was to be exclusive of any and all water rights other than Scott
Ranch ditch water. Further, the Agreement specifically stated, It is further mutually
understood and agreed that all other water rights appurtenant to said property, consisting of
Cochran Ditch water rights, shall be retained by sellers. The October 11, 1962 deed
conveying the property (the Deed) stated that the land was conveyed with any and all water
and water rights, ditches and ditch rights appurtenant thereto or used in connection
therewith, other than what is known as "Cochran Ditch" water rights, which last-named
water rights are expressly reserved unto parties of the first part and excluded from the
operation of this conveyance.
__________

1
Despite these statements by both parties, in its findings of fact, the district court found that the Margraves
never submitted an application to change the point of diversion or place of use of Claim No. 504 water rights
pursuant to NRS 533.325 and 533.345(1). These statutes require a party wishing to change the place of water
use to submit an application with the state engineer for a permit. Additionally, NRS 533.345(1) requires that the
application contain such information as may be necessary to a full understanding of the proposed change. The
district court's finding that no application was submitted is not supported by any evidence in the record. Indeed,
as cited by Dermody, the Certificate of Appropriation issued by the State Engineer, which changes the place of
use of Claim No. 504 water rights, appears in the record. Therefore, in light of the admission by both parties that
such a transfer occurred and the inclusion in the record of the certificate transferring use, such a finding appears
clearly erroneous. Since we cannot make that determination on the record before us, however, we order the
district court, on remand, to reconsider this finding after reviewing the certificate and hearing argument by the
parties.
any and all water and water rights, ditches and ditch rights appurtenant thereto or used
in connection therewith, other than what is known as Cochran Ditch water rights,
which last-named water rights are expressly reserved unto parties of the first part and
excluded from the operation of this conveyance.
Thereafter, the Margraves continued to pay all the annual assessments on the water rights
to the State Engineer and the Federal Water Master until 1992. The Margraves state that both
agencies listed the Margraves as the owners of the water rights until 1991. Dermody acquired
the property from Steen's successors in interest.
On July 19, 1991, after learning of Dermody's claim to Claim No. 504 water rights, the
Margraves filed a complaint to quiet title to the subject water rights. The complaint alleged
that the Margraves possessed the Claim No. 504 water rights, except for 23.7 acre feet of
Claim No. 504 water rights which were conveyed to Steen in the Deed. The district court
granted summary judgment in favor of Dermody. The district court found as a matter of law
that the Agreement and Deed were unambiguous and that the disputed water rights in Claim
No. 504 were conveyed to Steen, Dermody's predecessors in interest.
[Headnotes 1-3]
Summary judgment is appropriate where no genuine issue of material fact remains for trial
and one party is entitled to judgment as a matter of law. See NRCP 56; Burnett v. C.B.A.
Security Service, 107 Nev. 787, 788, 820 P.2d 750, 751 (1991). Whether or not a document is
ambiguous is a question of law for the court. Wooden v. First Security Bank of Idaho, 822
P.2d 995, 997 (Idaho 1991); Trujillo v. CS Cattle Co., 790 P.2d 502, 506 (N.M. 1990). A
contract is ambiguous if it is reasonably susceptible to more than one interpretation. Agric.
Aviation v. Clark Co. Bd. Comm'rs, 106 Nev. 396, 398, 794 P.2d 710, 712 (1990). Where the
meaning of a contract is ambiguous and resort to extrinsic evidence is required to ascertain
the intention of the parties, summary judgment is inappropriate in the face of contradictory or
conflicting evidence. Mullis v. Nevada National Bank, 98 Nev. 510, 513, 654 P.2d 533, 536
(1982); see also Agric. Aviation, 106 Nev. at 400, 794 P.2d at 713.
[Headnote 4]
The Margraves contend that the district court erred in finding that the Agreement and Deed
were unambiguous since there were certain terms in the instruments which were not
self-explanatory and could only be understood through the use of extrinsic evidence.
and could only be understood through the use of extrinsic evidence. The Margraves are
correct. In granting or reserving water rights, the phrases Scott Ranch Ditch water and
Cochran Ditch water rights in the Agreement and the phrase known as the Cochran Ditch'
water rights in the Deed are ambiguous since they do not set forth the specific water rights to
which they refer. Scott Ranch Ditch and Cochran Ditch are simply the means through which
certain water rights were transported; they are not the water rights themselves. Consequently,
we hold that the district court erred in finding the documents unambiguous.
Dermody asserts that it is a well settled rule that in order for the grantor of property to
reserve water rights which are appurtenant to the property conveyed, the grantor must
specifically express this intent within the deed. If water rights are not expressly reserved, they
accompany the land in the conveyance. See NRS 533.040; Adams v. Chilcott, 597 P.2d 1140,
1145 (Mont. 1979) (appurtenant water rights accompany the land if property is transferred
without an express reservation thereof); Roberts v. Roberts, 584 P.2d 378, 379 (Utah 1978)
(same).
Dermody's argument misses the point. There is no question that water rights must be
specifically reserved. Nor is there any question that the water rights were in fact specifically
reserved. The question created by the ambiguous instruments in this case is which water
rights were actually reserved. The flaw in Dermody's argument is his assumption that Scott
Ranch ditch water consists of Claim 504 water rights and . . . Cochran Ditch water consists of
Claim 414 water rights. The district court apparently shared this assumption.
However, this assumption is not inevitably compelled by the language within the four
corners of the instruments. There is nothing within the instruments necessitating the
conclusion that Claim No. 504 water rights are synonymous with the phrase Scott Ranch
Ditch water or that Claim No. 414 water rights are synonymous with the phrases Cochran
Ditch water rights, or what is known as Cochran Ditch' water rights.
The Margraves' contention is that since there was no mention of water rights in the 1961
deed conveying the initial 11.9 acres to Steen, Steen's agent wished to clarify that Steen
received a portion of Claim No 504 water rights in the 1961 conveyance. Consequently, the
Margraves argue, the 1962 deed expressly conveyed the water rights, including portions of
Claim No. 504, which should have been expressly conveyed in the 1961 deed. Additionally,
the Margraves argue, the phrase in the Deed reserving what is known as Cochran Ditch'
water rights reserved all of the water rights, including Claim No. 414 and most of the Claim
No.
Claim No. 504 water rights, which were not conveyed in the 1961 deed. The Margraves assert
that prior to the 1962 conveyance, the reserved Claim Nos. 504 and 414 water rights were
both transported via the Cochran Ditch because of the unreliability of the Scott Ranch Ditch.
We do not suggest that the Margraves' interpretation of the instruments is correct, nor do
we rule on the merits of this case. We simply conclude that the instruments in this case are
ambiguous and that summary judgment was therefore inappropriate.
[Headnote 5]
The Margraves assert that since the instruments were ambiguous, the district court erred in
failing to admit parole evidence to ascertain the meaning of the instruments and the intent of
the parties. The Margraves sought the admission of affidavits from both Frank Margrave and
from Steen's agent in order to prove the existence of a prior oral agreement on the meaning of
the terms in the documents and the description of which water rights were conveyed or
reserved. The Margraves also sought to introduce the records of the Nevada State Engineer's
office and the Federal Water Master, the two governmental authorities administering Truckee
water rights. They assert that these records depicted the Margraves as the rightful owners of
the portion of Claim 504 at issue and show that the Margraves paid all assessments associated
with ownership of the disputed water rights.
Under the parole evidence rule, extrinsic evidence cannot be introduced to aid the court in
interpreting a contract unless the contract contains ambiguities. See Farmers Ins. Exchange v.
Young, 108 Nev. 328, 333 n.3, 832 P.2d 376, 379 n.3 (1992); Canflield v. Gill, 101 Nev. 170,
171 n.1, 697 P.2d 476, 477 n.1 (1985); Crow-Spieker #23 v. Robinson, 97 Nev. 302, 305,
629 P.2d 1198, 1199 (1981). Since the Agreement and Deed are ambiguous, parole evidence
should have been admitted to aid in their interpretation.
The district court further found as a matter of law that Dermody was a bona fide purchaser
for value because Dermody had no knowledge or notice of any hidden intent to reserve water
rights. This was error. The instant case does not involve a question of any hidden intent to
reserve water rights. As stated, under the Agreement and Deed, water rights were expressly
reserved. The question which must be resolved is whether the disputed water rights in Claim
No. 504 were reserved by the Margraves or conveyed to Dermody's predecessor in interest by
the terms of the Agreement and Deed.
We reverse the district court's order of summary judgment. In light of our disposition of
this case, we need not reach the Margraves' other contentions.
light of our disposition of this case, we need not reach the Margraves' other contentions.
Additionally, Dermody's request for costs and fees is denied. See NRAP 38; NRCP 11.
2

____________
110 Nev. 830, 830 (1994) Williams v. Williams
SHELITA MEGAL WILLIAMS and JACQUELINE SMITH, Appellants, v. LAURA T.
WILLIAMS, Respondent.
No. 24291
July 26, 1994 877 P.2d 1081
Appeal from an order of the district court denying appellants' motion for a trial de novo
following an arbitration decision. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Arbitrator made ruling in automobile injury case. Aggrieved party appealed. The district
court affirmed award and appeal was taken. The supreme court held that: (1) former statute
under which award had been made was subject to provisions governing vacation of awards;
(2) provision limiting vacation, when applied to statute that made arbitration mandatory when
damages were $25,000 or less, unconstitutionally violated aggrieved party's jury trial rights;
and (3) statute, requiring that party requesting trial de novo make an oath that purpose of
request was not for delay but because of injustice in award, did not impose further
requirement that party show injustice committed by arbitrator.
Appellants.
George T. Bochanis, Las Vegas, for Respondent.
McKissick, VanWalraven & Harris, Reno, for Amicus Curiae Defense Trial Lawyers of
Nevada.
1. Arbitration.
Statute that required arbitration of automobile accident claims not exceeding $25,000 expressly incorporated statute setting forth
grounds for vacation of arbitration awards. NRS 38.145; NRS 38.215 (Repealed).
__________

2
The Honorable Cliff Young, Justice, has voluntarily disqualified himself from consideration of this case.
2. Arbitration; Jury.
Statute providing for vacation of an award only for corruption, partiality, exceeding of powers, failure to postpone, and absence of
arbitration agreement violated trial by jury rights of motorist forced to submit to arbitration in asserting or defending claims; narrow
basis for overturning award meant that jury trial was basically unavailable. Const. art. 1, 3; NRS 38.215 (Repealed).
3. Arbitration.
Statute requiring that party requesting trial de novo, after arbitration award, make oath or affirmation that request is not for
purpose of delay but for alleviating injustice done by arbitrators, was satisfied by the making of oath, and did not additionally require
that requester show an injustice committed by arbitrator. NRS 38.235(1), (now NRS 38.109(1)).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellants' motion for a trial de novo following an arbitration decision.
1

On December 3, 1991, respondent Laura Williams, plaintiff below, was injured in an
automobile accident with appellant Shelita Williams, defendant below, who was operating a
vehicle owned by appellant Jacqueline Smith, also defendant below. On May 27, 1992,
respondent sued appellants. On July 13, 1992, respondent moved to compel arbitration
pursuant to NRS 38.215,
2
a statute then in effect which compelled arbitration in motor
vehicle actions where the amount in issue did not exceed $25,000. Arbitration was held on
October 7, 1992, and the arbitrator awarded respondent $21,500.
Appellants moved for a trial de novo, claiming that the award was excessive, that
respondent's medical treatment was questionable and that her wage loss was speculative.
__________

1
This case was originally consolidated with Case No. 24286, which has since been dismissed. See Vorpahl v.
Bell, No. 24286 (Order Dismissing Appeal, July 25, 1994).

2
NRS 38.215 provided, in pertinent part:
38.215. Arbitration required where amount in issue does not exceed $25,000; exception.
1. Except as otherwise provided in subsection 2, all civil actions for damages for personal injury, death,
or property damage arising out of the ownership, maintenance or use of a motor vehicle, where the cause
of action arises in this state and the amount in issue does not exceed $25,000, must be submitted to
arbitration, in accordance with the provisions of NRS 38.015 to 38.205, inclusive.
NRS 38.215 has since been repealed, effective July 1, 1993. See 1993 Nev. Stat. ch. 338, 4 at 1024.
able and that her wage loss was speculative. The district court denied appellants' motion for a
new trial, stating that the appellants were unable to show that the arbitrator committed fraud,
exhibited corruption or rendered his decisions by other undue means under NRS 38.145
3
or
that the arbitrator committed an injustice under NRS 38.235.
4

[Headnote 1]
Appellants contend that the district court erred in denying the motion for a trial de novo.
First, they claim that despite the language in former NRS 38.215 which provided that a
certain class of automobile claims must be submitted to arbitration, in accordance with
provisions of NRS 38.015 to 38.205, inclusive, the application of NRS 38.145 to former
NRS 38.215 was error. Appellants contend that the statutory scheme and purpose behind
NRS 38.145 and former 38.215 do not support such an application. Appellants are incorrect.
The language of former NRS 38.215 was clear: the statute unequivocally incorporates NRS
38.145. Where a statute is clear, this court is not empowered to go beyond the face of a
statute to lend it a construction contrary to its clear meaning. Union Plaza Hotel v. Jackson,
101 Nev. 733, 736, 709 P.2d 1020, 1022 (1985). Thus, the district court did not err in
interpreting former NRS 38.215 to incorporate the requirements of NRS 38.145.
__________

3
NRS 38.145 states, in relevant part:
38.145. Vacating Award.
1. Upon application of a party, the court shall vacate an award where:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the
arbitrators or misconduct substantially prejudicing the rights of any party;
(c) The arbitrators exceeded their powers;
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused
to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the
provisions of NRS 38.075, as to prejudice substantially the rights of a party; or
(e) There was no arbitration agreement and the issue was not adversely determined in the proceedings
under NRS 38.045 and the party did not participate in the arbitration hearing without raising the
objection.

4
NRS 38.235 (renumbered NRS 38.109) states, in pertinent part:
Trial after arbitration; conditions. After an award has been made . . . , either party to the action may
request a trial on any or all issues arising out of the action, subject to all of the following conditions:
1. The party requesting the trial, or his attorney, shall make an oath or affirmation that it is not for the
purpose of delay that the trial is requested, but for the purpose of alleviating an injustice that was done by
the arbitrators in making the award.
[Headnote 2]
Second, appellants argue that if former NRS 38.215 is interpreted to incorporate the
requirements of NRS 38.145, this places an unconstitutional restriction on appellants' right to
obtain a jury trial. See Nev. Const. art. 1, 3. We agree. For a form of alternative dispute
resolution to pass constitutional muster, it must not place too great a restriction on the right to
a jury trial. See Application of Smith, 112 A.2d 625, 629 (Pa. 1955) (right to jury trial must
not be burdened by the imposition of onerous conditions, restrictions or regulations which
would make the right practically unavailable); see also Annotation, Constitutionality of
Arbitration Statutes, 55 A.L.R.2d 432 (1957).
This is particularly true when arbitration is compulsory. More restrictions on the right to
jury trial are allowed following voluntary arbitration decisions than are allowed following
compulsory arbitration decisions. As stated in American Universal Ins. Co. v. DelGreco, 530
A.2d 171, 177 (Conn. 1987):
The simple and ineradicable fact is that voluntary arbitration and compulsory
arbitration are fundamentally different if only because one may, under our system,
consent to almost any restriction upon or deprivation of right, but similar restrictions or
deprivations, if compelled by government, must accord with procedural and substantive
due process.
(Quoting Mount St. Mary's Hospital v. Catherwood, 260 N.E.2d 508, 311 (1970)).
Under NRS 38.145, a party who had been compelled to submit its dispute to arbitration
under former NRS 38.215 could only obtain a jury trial if that party could show that (1) the
award was procured by corruption, fraud, or other undue means; (2) there was evident
partiality or corruption on the part of the arbitrators or misconduct substantially prejudicing
the rights of any party; (3) the arbitrators exceeded their powers; (4) the arbitrators refused to
hear material evidence or postpone the hearing upon sufficient cause or conducted the
hearing, contrary to the provisions of NRS 38.075, so as to prejudice substantially the rights
of the party; or (5) there was no arbitration agreement, the issue was not adversely determined
in the proceedings under NRS 38.045 and the party did not participate in the arbitration
hearing without raising the objection.
While the requirements of NRS 38.145 are not unconstitutional when applied to a
voluntary arbitration statute, applying the same requirements to a compulsory arbitration
statute such as former NRS 38.215 renders the right to a jury trial practically unavailable.
We therefore hold that former NRS 38.215, which incorporated NRS 3S.145, is an
unconstitutional infringement on the right to trial by jury.
porated NRS 38.145, is an unconstitutional infringement on the right to trial by jury.
[Headnote 3]
In denying appellants' request for a new trial, the district court not only found that the
appellants failed to prove any of the elements under NRS 38.145, but also that appellants
were unable to show an injustice committed by the arbitrator on this case under NRS
38.235. Appellants argue that the district court erred in requiring them to make a showing of
injustice. We are compelled to agree.
NRS 38.235(1) requires that the party requesting a trial de novo, or the party's attorney,
make an oath or affirmation that it is not for the purpose of delay that the trial is requested,
but for the purpose of alleviating an injustice that was done by the arbitrators in making the
award. NRS 38.235(1) is plain and unambiguous; it requires only that an oath be made, and
this court will not lend the statute a construction contrary to its clear meaning. See Union
Plaza Hotel, 101 Nev. at 736, 709 P.2d at 1022. In determining whether appellants complied
with NRS 38.235(1), the district court was only free to rule on whether appellants or their
attorney made the required oath or affirmation, not whether appellants made a showing of
injustice. Appellants' attorney in the instant case made the sworn statement under oath that
the request for trial was not for the purpose of delay but to alleviate an injustice. It was
therefore error for the district court to deny appellants' motion for a new trial because
appellants failed to show an injustice.
Moreover, if NRS 38.235 were read to require appellants to make a showing of injustice,
the statute would unduly restrict appellants' right to trial by jury and would thus be
constitutionally infirm. See Dickerson v. Hudson, 302 A.2d 444 (Pa. Super. Ct. 1973).
We reverse the district court's order denying appellants' motion for a trial de novo and
remand for further proceedings consistent with this opinion.
____________
110 Nev. 834, 834 (1994) Matos v. State
ROBERT HENRY MATOS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24807
July 26, 1994 878 P.2d 288
Appeal from a judgment of conviction, entered pursuant to a conditional guilty plea, on
one count of trafficking in a controlled substance.
110 Nev. 834, 835 (1994) Matos v. State
substance. Second Judicial District Court, Washoe County; Mills B. Lane, Judge.
The supreme court held that: (1) defendant was not entitled to reduction of his sentence
pursuant to statute allowing judge to reduce or suspend sentence if defendant rendered
substantial assistance in the identification, arrest or conviction of accomplices, and (2) trial
court's failure to consider merits of defendant's motion for reduction of sentence did not deny
defendant due process.
Affirmed.
Kurt Mausert, Reno, for Appellant.
Attorney, and David Wayment, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant was not entitled to reduction of his sentence pursuant to statute allowing judge to reduce or suspend sentence if
defendant rendered substantial assistance in the identification, arrest or conviction of accomplices where police officers rejected
defendant's offer to assist police in capturing other individuals involved in trafficking illegal drugs because they felt defendant posed a
danger to police. NRS 453.3405(2).
2. Criminal Law.
On appeal, supreme court may imply findings of fact and conclusions of law if record clearly supports lower court's ruling.
Trial court's failure to consider merits of defendant's motion for reduction of sentence pursuant to statute allowing judge to reduce
or suspend sentence if defendant rendered substantial assistance in the identification, arrest or conviction of accomplices did not
deny defendant due process where defendant did not have right to reduced sentence and defendant was given opportunity to file his
reduction request and to present his arguments at corresponding hearing. U.S. Const. amends. 5, 14; NRS 453.3405(2).
OPINION
Per Curiam:
FACTS
On February 18, 1993, an informant contacted the Washoe County Consolidated Narcotics Unit (CNU) and informed officers that
appellant Robert Henry Matos (Matos) was selling methamphetamines out of his Sparks apartment. The informant was concerned that
Matos' child was suffering from exposure to this criminal environment. Later, while wearing a police wire, the informant purchased
two "eight balls" of crystal methamphetamine from Matos.
110 Nev. 834, 836 (1994) Matos v. State
the informant purchased two eight balls of crystal methamphetamine from Matos. Matos
was arrested and charged with various crimes stemming from this illegal transaction.
In an effort to reduce any forthcoming criminal sentence, Matos offered to assist law
enforcement authorities in capturing other individuals involved in trafficking illegal drugs.
NRS 453.3405(2) allows the trial judge to reduce or suspend an accused's sentence if the
accused renders substantial assistance in the identification, arrest or conviction of any
accomplices, coconspirators or principals. CNU refused to accept Matos' assistance,
considering him a danger to law enforcement officers. Undaunted, Matos moved for a
sentence reduction under NRS 453.3405(2).
CNU officers testified that on several occasions, Matos threatened to kill various
individuals involved with that unit and had a contract put out against a former cooperative.
There was also testimony from the informant that Matos had threatened to kill her and her
children if she aided in his prosecution. CNU supervisors decided that Matos presented an
unreasonable risk to detectives. Therefore, they refused his assistance. The district court
denied the sentence reduction, and Matos immediately entered a conditional plea of guilty to
one count of trafficking in a controlled substance. He was fined $100,000.00 and sentenced to
ten years in prison.
On appeal, Matos claims that the district court erred in its interpretation and application of
NRS 453.3405(2). As a related argument, he contends that the denial of the sentence
reduction violated his constitutionally protected right to due process of law. We disagree and
accordingly affirm Matos' conviction.
DISCUSSION
[Headnote 1]
NRS 453.3405(2) allows an accused to file a motion for a sentence reduction in district
court when he has provided law enforcement officials with substantial assistance in
identifying or apprehending drug traffickers. NRS 453.3405(2) reads as follows:
2. The judge, upon an appropriate motion, may reduce or suspend the sentence of
any person convicted of violating any of the provisions of NRS 453.3385, 453.339 or
453.3395 if he finds that the convicted person rendered substantial assistance in the
identification, arrest or conviction of any of his accomplices, accessories,
coconspirators or principals or of any other person involved in trafficking in a
controlled substance in violation of NRS 453.33S5, 453.339 or 453.3395.
110 Nev. 834, 837 (1994) Matos v. State
a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395. The
arresting agency must be given an opportunity to be heard before the motion is granted.
Upon good cause shown, the motion may be heard in camera.
(Emphasis added.)
In rejecting Matos' request for a reduced sentence under this statute, the district court held
that because law enforcement officials had rejected the offer of help, there was no substantial
assistance as a matter of law. Matos contends that the district court erred by failing to
examine the merits of his motion and inappropriately determining that it lacked jurisdiction to
entertain his request because there was no substantial assistance as a matter of law. He argues
that there is no requirement in the language of the statute that the government accept the
accused's offer of help. By upholding the district court's interpretation, Matos maintains that
this court would create dangerous precedent whereby law enforcement officers would have
veto power over all possible sentence reductions. Officers could simply refuse to cooperate
with an accused and thereby prohibit a willing informant from taking advantage of rights
granted to him under the statute. For support, Matos provides extensive analysis of the
legislative history underlying NRS 453.3405(2).
[Headnote 2]
We disagree with these arguments. Matos is unduly confusing a very simple issue. Leaving
aside claims regarding veto power, legislative intent, and the accused's rights under the
statute, the inescapable question on appeal is whether the district court erred by concluding
that Matos did not substantially assist law enforcement officers. No matter how deep Matos
tries to bury the question, the answer remains clear. Matos did not render substantial
assistance to CNU because, under the facts of this appeal, law enforcement officials
legitimately rejected his offer to assist. Matos was a danger to drug agents. Even if the district
court erred in its technical interpretation of the statutory language, this is not fatal to its
decision. On appeal, this court may imply findings of fact and conclusions of law if the record
clearly supports the lower court's ruling. Luciano v. Diercks, 97 Nev. 637, 639, 637 P.2d
1219, 1220 (1981). We hold that the record on appeal clearly supports that Matos could not
have obtained a sentence reduction under NRS 453.3405(2).
[Headnote 3]
Matos' second claim of error fares no better than his first. He argues that the district court
denied his constitutionally protected right of due process by failing to reach the merits of his
motion.
110 Nev. 834, 838 (1994) Matos v. State
Matos supports this claim by citing United States Supreme Court precedent defining the
concept of due process in very general terms. See Rochin v. People of California, 342 U.S.
165, 169 (1952).
This aspect of Matos' argument illustrates a fundamental misconception underlying his
entire arguing posture on appeal. Matos implies throughout his briefing papers, and in some
instances claims, that he had a right to a sentence reduction under NRS 453.3405(2). This
assertion is incorrect. Granting a sentence reduction under NRS 453.3405(2) is a
discretionary function of the district court. Although never addressed in Nevada, federal
courts have consistently held that an accused has no protected due process right to a
discretionary sentence reduction for offering substantial assistance to government officials
in apprehending drug criminals. See, e.g., United States v. Harrison, 918 F.2d 30, 33 (5th Cir.
1990); United States v. La Guardia, 902 F.2d 1010, 1014-15 (1st Cir. 1990) (no due process
right to a departure from federal sentencing guidelines under 18 U.S.C. app. 4, 5K1.1
(1990); statute allows a reduced sentence for rendering substantial assistance to law
enforcement officials).
Without any protected right to a reduced sentence, Matos' constitutional argument is
restrained to contentions that the district court did not provide him with due process in
considering his motion. The record indicates that Matos was given the opportunity to file his
reduction request and to present his arguments at a corresponding hearing. Clearly, Matos
was provided with adequate procedural due process.
Having considered all of Matos' contentions on appeal, and in light of our conclusion that
Matos was not entitled to a sentence reduction under NRS 453.3405(2), we accordingly
affirm his conviction.
____________
110 Nev. 838, 838 (1994) State v. Crockett
THE STATE OF NEVADA, Appellant, v. RICARDO LORENZO CROCKETT, and
ELESTER THOMAS, JR., Respondents.
No. 24826
July 26, 1994 877 P.2d 1077
Appeal from an order of the district court denying the State's petition for a writ of
mandamus in a matter relating to a justice court decision compelling the State to comply with
a plea bargain agreement. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
The state petitioned district court for writ of mandamus ordering justice court to vacate its
order compelling state to comply with plea bargain agreement. The district court denied
petition, and appeal was taken. The supreme court held that state was not required to
specifically perform its plea bargain offer because plea bargain was executory and defendants
had not detrimentally relied on plea bargain offer.
James Tufteland, Chief Deputy District Attorney, and Robert Langford, Deputy District
Attorney, Clark County, for Appellant.
Stewart L. Bell, Las Vegas, for Respondent Crockett.
Steven B. Wolfson, Las Vegas, for Respondent Thomas.
Once defendant enters guilty plea and plea is accepted by court, due process requires that plea bargain be honored.
2. Criminal Law.
General rule that neither defendant nor government is bound by plea offer until it is approved by court is subject to a detrimental
reliance exception and thus, even if plea agreement has not been finalized by court, defendant's detrimental reliance on prosecutorial
promise in plea bargaining can make plea agreement binding.
3. Criminal Law.
State was not required to specifically perform its plea bargain offer where defendants had not yet pleaded guilty or otherwise
prejudiced their position by relying upon prosecution's plea offer during period it was in existence, there was no showing that state
gained some unfair advantage over defendants as result of their reliance on plea bargain offer and prosecutor withdrew plea bargain
offer after uncovering additional information which changed complexion of defendants' culpability for the charged crimes.
OPINION
Per Curiam:
BACKGROUND
Ricardo Lorenzo Crockett (Crockett) and Elester Thomas, Jr. (Thomas) were arrested on March 1, 1993, in Las Vegas, Nevada, and
charged with trafficking in a controlled substance. Respondents allegedly possessed 238.5 grams of cocaine. On March 23, 1993,
respondents appeared in the justice court and a preliminary hearing was set for May 12, 1993. On May 10, 1993, several days before
the scheduled hearing, Thomas, unopposed by Crockett or the State, moved the justice court for a continuance
of the preliminary hearing.
several days before the scheduled hearing, Thomas, unopposed by Crockett or the State,
moved the justice court for a continuance of the preliminary hearing. The justice court
granted that motion and a new preliminary hearing, for both Thomas and Crockett, was set for
June 14, 1993.
Several weeks prior to June 14, 1993, counsel for Crockett negotiated a plea bargain with
the State. Under this arrangement, Crockett agreed to plead guilty to two charges: conspiracy
to possess a controlled substance and battery with substantial harm. Contemporaneous with
these negotiations, the State offered to allow Thomas to plead guilty to a charge of small
trafficking in a controlled substance.
Sometime prior to the preliminary hearing, the State notified respondents that it was
withdrawing its offer to allow them to plead to the substantially reduced charges. This action
was precipitated by discussions which the State had with the United States Attorney's Office
wherein the State was informed that respondents were suspected of being major drug
kingpins who distributed multiple kilograms of cocaine per week in the Las Vegas area.
1
Concerned with the threat and danger respondents posed to the community, and the need to
maximize their incarceration, the State withdrew its offer to allow respondents to plead to
reduced charges.
Shortly thereafter, respondents' counsels moved the justice court for specific performance
of their plea bargain negotiations. Respondents contended that it was unfair for the State to be
able to withdraw a plea bargain when it had already been verbally accepted. Further,
respondents' counsels contended that their clients suffered a loss of confidence in their
attorney's ability to negotiate with the State. After further argument, the justice court
informed counsel that it would require briefs on the matter.
Eventually, on August 5, 1993, the justice court ordered the State to go ahead with the
negotiations offered and accepted by respondents. In so doing, the justice court said:
The State has indicated verbally and in their written motions that since the deal was
not put on the record in Court and accepted by the Court, as other case law has
suggested, that there really is no deal, and stated they were withdrawing their
negotiations because the defendant was not a victim as to the livelihood of the
negotiations until such time.
I guess what I have to decide is whether or not to rule on technicality or fairness.
__________

1
Federal agents had conducted a wiretap investigation of respondents which ultimately resulted in federal drug
charges being lodged against them.
Unlike the civil system, the entire criminal system runs on the word of opposing
counsel. The system requires complete integrity on behalf of the D.A. and all members
of the criminal bar.
If every deal needs to be memorized [sic] in writing and put on the record before a
deal is a deal, then I think our system of criminal justice would come to a screeching
halt, especially in light of the fact that 97 percent of all cases are negotiated.
I think that a plea bargain is an essential component of the administration of the
criminal justice system in America. I don't see how I can rule, Mr. Langford, that until
it is in Court on the record that any D.A. is allowed to withdraw a deal if they so
choose.
I feel the D.A. has the duty to avoid all mistakes and believe in the offer at the time
the offer is made.
A few phone calls to the U.S. Attorney's Office, the Feds, and the detectives at
Metro would have and should have educated everyone regarding the level of the
criminal activity involved in this case by the two defendants, or the alleged criminal
activity.
By attempting to back out now after you have received more information, and I
understand why you're doing it, this information should have been known at the time
you made the deal. It violates the spirit of the negotiations, and it misconstrues all of
the negotiations in the criminal justice cases.
I cannot personally condone this kind of behavior. It causes stress within the system,
between all attorneys and their responses at the time of plea bargain. As far as I'm
concerned, a deal is a deal, and once it's made it should be honored.
In response, the State informed the justice court that it intended to seek a grand jury
indictment against both respondents and that the indictment would mimic the criminal
complaint already on file in Justice Court.
On the next day, Crockett and Thomas unconditionally waived their rights to a preliminary
hearing. The following week, a grand jury indictment was returned against respondents
charging them with trafficking in controlled substances. Concerned with being in violation of
the justice court's order to specifically perform the plea bargain, the State petitioned the
district court for a writ of mandamus ordering the justice court to vacate its order. On
September 8, 1993, the district court denied the State's petition.
LEGAL DISCUSSION
Whether a prosecutor can withdraw from a plea bargain offer when the Court has not yet
accepted a defendant's guilty plea
[Headnote 1]
In Mabry v. Johnson, 467 U.S. 505 (1984), the United States Supreme Court considered
whether a defendant has a constitutional right to have a plea bargain offer enforced after it has
been accepted by a defendant. Resolving that question negatively, a unanimous Court opined:
A plea bargain standing alone is without constitutional significance; in itself it is a mere
executory agreement which, until embodied in the judgment of a court, does not
deprive an accused of liberty or any other constitutionally protected interest. (Footnote
omitted.) It is the ensuing guilty plea that implicates the Constitution.
Id. at 507-08. However, once a defendant enters a guilty plea and the plea is accepted by the
court, due process requires that the plea bargain be honored. Santobello v. New York, 404
U.S. 257 (1971).
While plea agreements are a matter of criminal jurisprudence, most courts have held that
they are also subject to contract principles. See, e.g., United States v. Kingsley, 851 F.2d 16,
21 (1st Cir. 1988) (using contractual analysis to enforce plea agreement and award benefit of
the bargain); United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985) (a plea bargain is
contractual in nature and is measured by contract-law standards), cert. denied, 479 U.S. 835
(1986); United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) (plea bargains are
subject to contract law principles insofar as their application will insure the defendant what is
reasonably due him); United States v. Fields, 766 F.2d 1161, 1168 (7th Cir. 1985) (A plea
bargain is a contract.).
Applying these general contract principles, the First Circuit Court of Appeals held that a
plea agreement is nothing more than an offer until it is approved by the court:
pursuant to general contract principles (citations omitted) we hold that a plea agreement
of this type
2
is no more than an offer by the government: if the defendant pleads guilty
and if that plea is accepted by the court, then the government will perform as stipulated
in the agreement. Until performance took place by [defendant], the government was
free to withdraw its offer.
__________

2
Papaleo had agreed to plead guilty to one count of the indictment in exchange for the dismissal of two other
counts. Papaleo, 853 F.2d at 19.
United States v. Papaleo, 853 F.2d 16, 20 (1st Cir. 1988) (footnote added).
Similarly, other federal and state courts have dealt with the issue at bar and have generally
concluded that neither a defendant nor the government is bound by a plea offer until it is
approved by the court. See, e.g., United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.
1992), cert. denied,
------
U.S.
------
, 113 S. Ct. 1613 (1993). In adopting this view, the
Ninth Circuit Court agreed with the Fifth Circuit's reasoning that:
the realization of whatever expectations the prosecutor and defendant have as a result
of their bargain depends entirely upon the approval of the trial court. Surely neither
party contemplates any benefit from the agreement unless and until the trial judge
approves the bargain and accepts the guilty plea. Neither party is justified in relying
substantially on the bargain until the trial court approves the plea. We are therefore
reluctant to bind them to the agreement until that time. As a general rule, then, we think
that either party would be entitled to modify its position and even withdraw its consent
to the bargain until the plea is tendered and the bargain as it then exists is accepted by
the court.
Id. at 1138 (quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980)), cert. denied,
451 U.S. 984 (1981); accord United States v. Walker, 927 F.2d 389, 390 (8th Cir. 1991);
United States v. Molina-Iguado, 894 F.2d 1452 (5th Cir.), cert. denied, 498 U.S. 831 (1990);
United States v. McGovern, 822 F.2d 739, 744 (8th Cir.), cert. denied, 484 U.S. 956 (1987).
[Headnote 2]
The general rule, however, is subject to a detrimental reliance exception. Even if the
agreement has not been finalized by the court, [a] defendant's detrimental reliance on a
prosecutorial promise in plea bargaining could make a plea agreement binding.' Savage, 978
F.2d at 1138 (quoting McKenzie v. Risley, 801 F.2d 1519, 1527 (9th Cir. 1986)), vacated in
part on other grounds, 842 F.2d 1525 (9th Cir.), cert. denied, 488 U.S. 901 (1988); cf. United
States v. Aguilera, 654 F.2d 352 (5th Cir. 1981) (defendant's failure to rely on the plea
bargain offer was cited as a reason for allowing the prosecution to withdraw it). For example,
if a defendant supplied the prosecution with information or another benefit based on the
negotiated plea bargain, then the prosecution would be bound to honor the agreement.
Savage, 978 F.2d at 1138.
State courts have reached similar results. See, e.g., State v. Superior Court of County of
Pima, 770 P.2d 375 (Ariz. Ct. App. 1988) (prosecutor is entitled to withdraw from plea
bargain if defendant suffers no detriment); Petty v. State, 532 N.E.2d 610 {Ind. 19S9)
{prosecutor had authority to withdraw plea bargain agreement where it had not been
reduced to writing and submitted to the trial court and where defendant's contention that
he relied on plea bargain to his detriment, was not supported by the record); State v.
O'Leary, 517 A.2d 1174 {N.H. 19S6) {prosecution could withdraw from plea agreement
where defendant had not yet pleaded guilty or had not taken any steps which prejudiced
his right to a fair trial); Metheny v.
defendant suffers no detriment); Petty v. State, 532 N.E.2d 610 (Ind. 1989) (prosecutor had
authority to withdraw plea bargain agreement where it had not been reduced to writing and
submitted to the trial court and where defendant's contention that he relied on plea bargain to
his detriment, was not supported by the record); State v. O'Leary, 517 A.2d 1174 (N.H. 1986)
(prosecution could withdraw from plea agreement where defendant had not yet pleaded guilty
or had not taken any steps which prejudiced his right to a fair trial); Metheny v. State, 589
S.W.2d 943 (Tenn. Crim. App. 1979), cert. denied, 445 U.S. 967 (1980) (prosecutor could
withdraw from plea bargain offer where there was no showing of irremedial prejudice to
defendant); see also State v. Bogart, 788 P.2d 14 (Wash. Ct. App. 1990) (the prosecution
could withdraw a plea proposal after learning additional facts implicating defendant, where
defendant had not yet entered guilty plea, and had failed to establish that he detrimentally
relied on bargain in such a way that a fair trial was no longer possible).
Conversely, some states refuse to permit a prosecutor to withdraw from a plea bargain
offer after a defendant has agreed to accept the offer. Ex parte Yarber, 437 So. 2d 1330 (Ala.
1983) (defendant may compel enforcement of a plea bargain agreement, broken by the state,
where defendant had not yet pleaded guilty or otherwise relied on agreement to his
disadvantage); Burns v. State, 455 So. 2d 113 (Ala. Crim. App. 1984) (plea bargain
agreement could not be repudiated by the prosecution with impunity); State v. Brockman, 357
A.2d 376 (Md. 1976) (prosecution could not withdraw from plea bargain offer simply
because it no longer needed defendant's testimony against co-defendant).
Respondents contend that the State's endeavor to dishonor its plea bargain agreement with
respondent is outrageous and fundamentally unfair. Further, they contend, the only way to
effectively promote the viability of plea bargaining, as an institution, is to mandate the
enforcement of their plea agreement. Specific performance of plea agreements, they contend,
is necessary to preserve the integrity of the judicial system and to insure that defendant's
contract and due process rights are protected.
In support of these propositions respondents cite to Citti v. State, 107 Nev. 89, 807 P.2d
724 (1991), where this court said:
When the State enters a plea agreement, it is held to the most meticulous standards
of both promise and performance.' . . . The violation of the terms or the spirit' of the
plea bargain requires reversal.
Id. at 91, 807 P.2d at 726 (quoting Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215,
1216 (1986)). In both Citti and Van Buskirk the defendants were induced to plead guilty by
the prosecution's plea bargain offer; thereafter the prosecution refused to honor its
bargain.
Buskirk the defendants were induced to plead guilty by the prosecution's plea bargain offer;
thereafter the prosecution refused to honor its bargain. Consequently, this court held that the
proper remedy for breach of a plea agreement is specific performance. Citti, 107 Nev. at 94,
807 P.2d at 727; Van Buskirk, 102 Nev. at 243, 720 P.2d at 1216.
[Headnote 3]
However, the factual circumstances involved in the cited authorities are clearly
distinguishable from the case at bar, where respondents have not yet pleaded guilty or
otherwise prejudiced their position by relying upon the prosecution's offer during the period it
was in existence. Further, there has been no showing that the State gained some unfair
advantage over respondents as a result of their reliance on the plea bargain offer. In short,
respondents are in the same position as they were after the initial charges were filedthey are
free to exercise their right to a trial.
Moreover, respondents' claims of fundamental unfairness are unpersuasive. In the instant
case, the prosecutor uncovered additional information, from federal authorities, which
changed the complexion of respondents' culpability for the crimes. Consequently, the
prosecutor withdrew the plea bargain offer, which he considered was too lenient for the
crimes allegedly committed by respondents. Arguably, it would be fundamentally unfair to
the public, considering the threat drugs pose to a community, to allow suspected drug
kingpins to plead to substantially reduced charges.
CONCLUSION
The greater weight of authority supports the State's contention that a prosecutor can
withdraw a plea bargain offer anytime before a defendant pleads guilty, so long as the
defendant has not detrimentally relied on the offer. Inasmuch as the instant plea bargain is
executoryneither party has performed and they have not demonstrated detrimental reliance
on the plea bargain offerwe conclude that the justice court erred in compelling the State to
specifically perform its plea bargain offer. Accordingly, the district court's decision denying
the State's petition for a writ of mandamus is reversed and this case is remanded to the district
court for action consistent with this opinion.
3

__________

3
The Honorable Miriam Shearing, Justice, voluntarily recused herself from participation in the decision of this
appeal.
____________
110 Nev. 846, 846 (1994) Brown v. State
STANLEY WAYNE BROWN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23355
July 26, 1994 877 P.2d 1071
Appeal from an order denying a petition for post-conviction relief. Third Judicial District
Court, Churchill County; Mario G. Recanzone, Judge.
After defendant's sexual assault and attempted sexual assault convictions were affirmed on
appeal, 107 Nev. 164, 807 P.2d 1379 (1991), defendant sought post-conviction relief. The
district court denied relief, and defendant appealed. The supreme court, Young, J., held that:
(1) defense counsel was ineffective during trial phase by failing to cross-examine victim, and
(2) counsel was ineffective at sentencing phase by failing to request that defendant's sentences
run concurrently or to present witnesses to testify in defendant's behalf.
Springer, J., dissented in part. Shearing, J., dissented.
Hager, Atcheson & Mausert, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Kevin Pasquale, District Attorney,
Robert V. Bogan, Deputy District Attorney, Churchill County, for Respondent.
1. Criminal Law.
Defense counsel's failure to cross-examine victim in attempted sexual assault prosecution about prior incidents in which she has
allegedly lied about being sexually assaulted was ineffective assistance, where counsel instead questioned victim during surrebuttal,
mistakenly believing he could address issue of victim's credibility at that time. U.S. Const. amend 6.
2. Criminal Law.
Defense counsel's failure to cross-examine victim concerning prior incidents in which she had allegedly falsely accused others of
sexually assaulting her prejudiced defendant in sexual assault prosecution; there were no other witnesses, nor was there any other
corroborating physical evidence. U.S. Const. amend 6.
3. Criminal Law.
Defense counsel's failure to request that defendant's sentences for sexual assault and attempted sexual assault run concurrently was
ineffective assistance, where counsel was unaware that sentences could run concurrently, and possibility existed that court would have
ordered lesser sentence had counsel properly requested that sentences run concurrently. U.S. Const. amend 6.
4. Criminal Law.
Defense counsel's failure to present any witnesses to testify on defendant's behalf at sentencing hearing was
ineffective assistance in prosecution for sexual assault and attempted sexual assault.
110 Nev. 846, 847 (1994) Brown v. State
defendant's behalf at sentencing hearing was ineffective assistance in prosecution for sexual assault and attempted sexual assault.
Possession of fullest information possible regarding defendant's life and characteristics was essential to selection of proper sentence.
U.S. Const. amend 6.
5. Criminal Law.
Trial court did not abuse its discretion in post-conviction hearing by refusing to admit criminal defense attorney's testimony as
expert on defense counsel's performance, where trial court had sat through entire trial and observed witnesses. NRS 50.275.
OPINION
Appellant Stanley Wayne Brown (Brown) was convicted by a jury of two counts of sexual assault and one count of attempted sexual
assault. By amended judgment, he was sentenced to two consecutive life terms on the sexual assault counts and a ten-year term on the
attempt count. Brown appealed to this court and we issued an order of remand on September 6, 1988, vacating Brown's judgment of
conviction and directing the district court to conduct a hearing pursuant to Miller v. State, 105 Nev. 497, 779 P.2d 87 (1989).
1
After
holding the Miller hearing, the district court reinstated the jury verdict, an option afforded by
our order of remand. We later affirmed the district court's reinstatement of the amended
judgment. Brown v. State, 107 Nev. 164, 807 P.2d 1379 (1991).
Following our decision, Brown filed a petition for post-conviction relief with the district
court, arguing that he had been denied effective assistance of counsel. Specifically, he argued
that his trial counsel had failed to call all available witnesses, failed to cross-examine the
complaining witness, failed to adequately prepare for sentencing, and failed to present
mitigating evidence that was readily available.
The district court held a post-conviction relief hearing on the issue of ineffective assistance
of counsel during which Brown's trial counsel testified. During the hearing, Brown attempted
to present as an expert Fred Atcheson (Atcheson), an attorney with approximately sixteen
years of experience as a criminal defense counsel. Atcheson was to testify regarding
prevailing professional norms for criminal defense attorneys. However, the district court did
not allow Atcheson to testify on the grounds that Atcheson had not been present during
the entire trial and had not observed the witnesses.
__________

1
In Miller, we held that in a sexual assault case, NRS 50.090 does not bar the cross-examination of a
complaining witness about prior false accusations; and if the witness denies making such accusations, counsel
may introduce extrinsic evidence to prove that the witness made fabricated charges in the past. Miller, 105 Nev.
at 501, 779 P.2d at 89.
110 Nev. 846, 848 (1994) Brown v. State
district court did not allow Atcheson to testify on the grounds that Atcheson had not been
present during the entire trial and had not observed the witnesses. The district court later
entered its order denying Brown's petition for post-conviction relief.
Brown now offers the following arguments on appeal: (1) he was denied effective
assistance of counsel at trial because counsel failed to cross-examine the complaining
witness; (2) he was denied effective assistance of counsel at sentencing because counsel
failed to request that Brown's sentences run concurrently and because counsel failed to
present mitigating evidence on behalf of Brown; and (3) the district court erred in refusing to
allow testimony from Atcheson.
We now conclude that Brown was denied effective assistance of counsel at both the trial
phase and the sentencing phase. However, we conclude that the district court did not err when
it excluded testimony from Atcheson. We will address each issue in turn.
Claims of ineffective assistance of counsel are analyzed in accordance with standards set
down by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
and adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert.
denied, 471 U.S. 1004 (1985). The Strickland standards require Brown to show that his
counsel's assistance was deficient in that it fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688. In addition, Brown must show that there is a reasonable
probability that, but for his counsel's errors, the result of the trial would have been different.
Id. at 694.
[Headnote 1]
During trial, Brown's counsel did not cross-examine the victim. Counsel testified at the
post-conviction hearing that his theory of the case was that the victim was lying about the
incidents in order to get attention. Counsel intended to put on witnesses who would testify
that the victim had lied to them about having been sexually assaulted by other people and
about being pregnant and having a child. Since this testimony would or might have informed
the jury of the victim's sexual history, the district court allowed six witnesses to testify only
that the victim was dishonest, but did not allow them to testify regarding the victim's specific
stories. Counsel did not call the victim during his case in chief, but did call her during
surrebuttal in order to question her regarding matters testified to on direct examination during
the prosecution's case in chief. However, counsel's questioning of the victim during
surrebuttal was necessarily limited by the fact that he could not question her on anything not
brought up on rebuttal.
110 Nev. 846, 849 (1994) Brown v. State
Brown now asserts that his counsel's decision not to cross-examine the victim was due to a
misapprehension of proper trial procedure. We agree. The record indicates that counsel's
failure to cross-examine the victim at the proper time had little to do with what the State now
argues was a carefully planned out, thoroughly considered defense, and more to do with
ineptitude.
During the post-conviction hearing, counsel testified that he considered it dangerous to
attack the victim's credibility during cross-examination in that doing so would create
sympathy for her with the jury. He testified that he knew he had to do something with her
as a witness at some point and was prepared to question her, but failed to call her during his
case in chief. Rather, he questioned her during surrebuttal, believing he could thoroughly
address the issue of her credibility at that time.
The first prong of the Strickland test requires a showing that counsel's performance fell
below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Clearly, a lack of
understanding of proper trial procedure resulting in counsel's failure to adequately examine
the complaining witness falls below an objective standard of reasonable effectiveness. In
addition, counsel incorrectly assumed that the district court would allow him to call witnesses
who would testify to the victim's credibility and alleged falsehoods. This court had not yet
decided Miller which would have allowed such testimony.
[Headnote 2]
However, in addition to showing that his counsel's performance was ineffective, Brown
must also show that there is a reasonable probability his counsel's ineffectiveness prejudiced
the outcome of the trial. Strickland, 466 U.S. at 694. In this case, there were no other
witnesses to the crimes nor was there any other corroborating physical evidence. Thus, the
case centered on the victim's word against Brown's. During opening statements and the
post-conviction hearing, counsel stated that his strategy was to attack the victim's credibility.
This was impossible without counsel engaging in any cross-examination. Even the dissent
does not dispute that it was essential to cross-examine the victim in order to attack her
credibility. However much it may infuriate the jury, a properly zealous advocate must do all
he can to defend his client. As one eminent defender wrote, [c]ross examination is the only
scalpel that can enter the hidden recesses of a man's mind and root out a fraudulent resolve. . .
. [It] is still the best means of coping with deception, of dragging the truth out of a reluctant
witness, and assuring the triumph of justice over venality. Louis Nizer, My Life in Court 366
(1961). One is reminded of the biblical story of Susanna and the elders. When Susanna
refused the overtures of the elders, she was falsely accused by them of adultery and
sentenced to death.
110 Nev. 846, 850 (1994) Brown v. State
accused by them of adultery and sentenced to death. It was only upon cross-examination by
Daniel that the elders were shown to be lying. As Daniel proved in exposing and denouncing
the elders who bore false witness against Susanna, cross-examination is one of the most
powerful tools of the defender, one that must never be neglected when it would achieve the
necessary result.
In the instant case, counsel failed to cross-examine the victim at all. In essence, Brown
never had the opportunity to confront his accuser. Without confrontation and
cross-examination, a man accused of a crime is at the mercy . . ., as illustrated in the story of
Susanna, of perjured testimony. Edward Bennett Williams, One Man's Freedom 195 (1962).
Had counsel confronted and cross-examined the victim, he may have infuriated the jury, but
he also may have rooted out any fraudulent resolve within the victim. We can only conclude
that counsel's failure to zealously cross-examine the victim rendered the results of the case
unreliable. Strickland, 466 U.S. at 694.
Accordingly, we hold that the district court erred in denying Brown's post-conviction
petition on the basis that counsel was ineffective during the trial phase.
[Headnote 3]
Brown argues that his counsel was ineffective at the sentencing phase because counsel
failed to request that Brown's sentences run concurrently, a statutory possibility that was
available to Brown. In addition, Brown argues that counsel failed to call any witnesses to
present mitigating testimony or set forth any evidence of mitigating circumstances in a
meaningful way.
In its presentence investigation report, the Department of Parole and Probation
recommended two consecutive life sentences with the possibility of parole for the two sexual
assault counts and a concurrent ten-year sentence for the attempted sexual assault count.
During the sentencing hearing, the State recommended two fifty-year terms for the two sexual
assault counts and a twenty-year term for the attempt count, with all sentences running
consecutively. Brown's counsel agreed with the Department of Parole and Probation's
recommended sentences, stating that it was just and actually a good recommendation.
During the post-conviction hearing, Brown's counsel testified that he was unaware that the
sentences could run concurrently. Indeed, the record also indicates that counsel was not even
aware of what the minimum sentences were for these offenses. Clearly, this lack of
knowledge of sentencing possibilities was ineffective on the part of counsel. It is possible that
the court would have handed down the same sentence even if counsel had requested
concurrent or lesser sentences in view of the fact that the court ultimately adopted the
sentences recommended by the Department of Parole and Probation.
110 Nev. 846, 851 (1994) Brown v. State
ment of Parole and Probation. However, the possibility also exists that the court would have
ordered lesser sentences or that the sentences run concurrently had counsel properly requested
this. Therefore, we cannot conclude that the outcome of the sentencing hearing would have
been the same but for counsel's failings.
[Headnote 4]
In addition to failing to request that Brown's sentences run concurrently, counsel neither
presented any witnesses to testify on Brown's behalf nor did he present any evidence of
mitigating circumstances in an effective manner. In his statements made at the sentencing
hearing, counsel made some mention of Brown having come from a bad environment
which led to his actions. However, counsel did not address any specific aspects of that
environment nor any of the incidents in Brown's past indicated in the record which could
have painted a more sympathetic picture of Brown.
Counsel also failed to call any witnesses on Brown's behalf during the sentencing hearing.
Counsel testified at the post-conviction hearing that he felt there was a possibility that the
judge would hand down a harsher sentence if he had presented a circus by calling
witnesses. Strickland establishes a strong presumption that counsel's decisions were sound
trial strategy. Strickland, 466 U.S. at 689. However, when a judge has sentencing discretion,
as in the instant case, possession of the fullest information possible regarding the defendant's
life and characteristics is essential to the selection of the proper sentence. Wilson v. State,
105 Nev. 110, 115, 771 P.2d 583, 586 (1989) (citing Lockett v. Ohio, 438 U.S. 586, 603
(1978)).
In addition, the district court stated that it could not take into account Brown's
environment without any psychiatric testimony. Brown argues that such statements by the
district court show that it recognized the need for expert testimony about possible mitigating
circumstances in his background.
There is some confusion in the district court's order denying Brown's petition for
post-conviction relief on this issue. The court stated that counsel's decision not to present
evidence concerning the credibility of the complaining witness at petitioner's sentencing was
entirely reasonable; that such evidence, had it been presented, would not have resulted in a
reduction in petitioner's sentence in any respect. However, Brown's petition did not assert
ineffective assistance of counsel on these grounds, but rather that counsel failed to present
witnesses to testify as to Brown's background.
Nevertheless, the fact remains that counsel failed to call any witnesses on Brown's behalf.
In addition, counsel was unaware that he could request that his client's sentences run
concurrently, and thus failed to make such a request.
110 Nev. 846, 852 (1994) Brown v. State
that he could request that his client's sentences run concurrently, and thus failed to make such
a request. These two failures on the part of counsel not only fall below an objective standard
of reasonableness, but they unquestionably prejudiced the outcome of the sentencing hearing.
Accordingly, we hold that the district court erred in denying Brown's petition for
post-conviction relief based on his counsel's failure to call any witnesses on his client's behalf
or to properly request that Brown's sentences run concurrently.
[Headnote 5]
During the post-conviction hearing, Brown attempted to present Atcheson as an expert
witness based on the fact that Atcheson had approximately sixteen years of experience as a
criminal defense attorney. The district court refused to admit Atcheson's testimony as an
expert, stating that Atcheson had not sat through the entire trial and observed the witnesses.
Therefore, Atcheson could not render an informed and relevant opinion as to Brown's
counsel's tactics.
Expert testimony is governed by NRS 50.275 which provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by special knowledge, skill, experience, training or education may testify to matters
within the scope of such knowledge.
We have held that the admission of expert testimony lies within the sound discretion of the
trial court. Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984). Therefore, the trial court must
have abused its discretion in order for us to disturb its holding.
It is not unheard of in this state for an attorney to act as an expert witness at a
post-conviction hearing. See Ford v. State, 105 Nev. 850, 784 P.2d 951 (1989). If the
attorney's expert testimony would assist the trier of fact, then it is admissible. However, under
NRS 48.035, such expert testimony must also be relevant and not a waste of time. If such
testimony would be of no use to the trier of fact, it is within the court's discretion to exclude
it.
In this case, the trial judge was present throughout the entire trial and was able to observe
counsel's performance firsthand. At a post-conviction hearing, the judge is the trier of fact. It
was therefore within his discretion to exclude Atcheson's testimony if he felt it would not
assist his fact finding. There appears to have been no abuse of discretion. Accordingly, we
hold that the district court did not err in excluding Atcheson's expert testimony.
In summary, we conclude that the district court erred in denying Brown's post-conviction
petition. Counsel was ineffective to the extent that there is a reasonable probability that
the result would have been different but for counsel's errors.
110 Nev. 846, 853 (1994) Brown v. State
the extent that there is a reasonable probability that the result would have been different but
for counsel's errors. Accordingly, we reverse the district court's denial of post-conviction
relief and remand for proceedings consistent with this opinion.
Springer, J., concurring in part and dissenting in part:
The Majority concludes that the failure of Brown's trial counsel to cross-examine the
victim constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984). I respectfully disagree. As Justice Shearing properly observes in her dissent,
Brown's counsel had ample reason not to cross-examine the victim. The trial judge's comment
that [i]t is obvious that a full cross-examination of Ms. Rains would only have served to
strengthen her direct testimony and infuriate the jury against [Brown] speaks volumes on
this point. The decision not to cross-examine the victim in this case does not fall below the
deferential standard of competence established in Strickland.
I agree with the Majority, however, that Brown did not receive adequate assistance of
counsel at his sentencing hearing. Brown's counsel testified that he was unaware that Brown's
sentences could, by statute, run concurrently. The record reflects that counsel was not even
aware of the minimum sentences for the offenses of which his client was convicted. It appears
that counsel blindly concurred in the prosecutor's recommendation without first informing
himself of the various options available to his client; this falls below an objective standard of
reasonableness. I would remand this matter for a new sentencing hearing.
The majority of this court concludes that failure to cross-examine the victim was
incompetence of counsel. This court should give deference to the contrary finding of the trial
judge who heard the evidence and was in a position to judge the credibility of witnesses, as
well as the effectiveness of counsel's strategies and tactics. The trial judge summarized the
trial counsel's testimony on this issue as follows:
The testimony of Mr. Irvin demonstrated that he had had a substantial background as a
public defender and district attorney in the State of Nevada; that he or his investigator
interviewed most or all of the witnesses suggested by petitioner, and he did not believe
that, had he called them to testify, their testimony would have been helpful to the
defense; that he decided not to cross-examine the complaining witness, Ms. Denise
Rains, because be believed that (1) cross-examination would have revealed that
petitioner had sexually molested Ms.
110 Nev. 846, 854 (1994) Brown v. State
cross-examination would have revealed that petitioner had sexually molested Ms. Rains
ever since Ms. Rains was eight years old, (2) since Ms. Rains' direct testimony
contradicted her prior video-taped statements and these statements were made available
for review by the jury, it was not necessary to cross-examine Ms. Rains concerning
such statements, and (3) Ms. Rains was a strong witness on direct examination, and to
subject her to a vigorous cross-examination would have further strengthened Ms. Rains'
testimony and created sympathy for her in the minds of the jury . . . .
The trial judge went on to make the following findings:
As is so often the case, the cold record does not tell the entire story of the
proceedings before the Court. This Court personally observed the testimony of the
complaining witness, Ms. Rains. It is obvious that a full cross-examination of Ms.
Rains would only have served to strengthen her direct testimony and infuriate the jury
against the petitioner. Further, a full cross-examination of Ms. Rains may have revealed
prior acts of sexual molestation by the petitioner upon Ms. Rains ever since she was
eight years of age. Given the sensitive nature of the charges against petitioner and under
the particular circumstances of this case, counsel's decision not to cross-examine the
complaining witness was the result of a reasoned tactical choice.
This court is not in a position to reverse the findings of a trial judge that are supported by
substantial evidence.
The majority of this court also decides that counsel provided ineffective assistance at the
sentencing hearing because he failed to call any witnesses or to request that the defendant's
sentences run concurrently. The trial judge apparently concluded that the defendant's present
counsel may have been deliberately trying to build in error. The trial judge stated in his Order
Denying Petition for Post-Conviction Relief:
It is apparent that even before this Court pronounced judgment and imposed sentence
upon petitioner, Mr. Mausert had already involved himself in the case by presenting
Mr. Irvin with a document purporting to substitute Mr. Mausert in place of Mr. Irvin as
petitioner's attorney. Despite this fully executed document, however, Mr. Irvin, at Mr.
Mausert's insistence, continued to represent petitioner through sentencing. This type of
conduct by petitioner's present counsel is highly questionable, and is looked upon with
disfavor by the Court. In any event, the mitigating evidence that petitioner now urges
should have been presented at the time of sentencing would not have led this Court
to reduce petitioner's sentence in any respect.
110 Nev. 846, 855 (1994) Brown v. State
sented at the time of sentencing would not have led this Court to reduce petitioner's
sentence in any respect.
It is particularly inappropriate for this court to make a determination that the sentence
would have been different if counsel had presented witnesses when the very judge who
sentenced the defendant has made a contrary determination after hearing the evidence about
those witnesses. The utmost deference to the trial judge's finding is required.
I would affirm the Order Denying Petition for Post-Conviction Relief.
____________
110 Nev. 855, 855 (1994) Sprenger v. Sprenger
BARBARA J. SPRENGER, Appellant, v. HENRY B. SPRENGER, II, Respondent.
No. 23771
July 26, 1994 878 P.2d 284
Appeal from the district court's division of property and alimony award in a divorce
proceeding. Second Judicial District Court, Washoe County; James A. Stone, District Judge.
The district court distributed marital property and awarded wife $1,500 per month in
alimony until she completed her undergraduate degree or for maximum of two years,
whichever came first, and appeal was taken. The supreme court held that: (1) trial court
abused its discretion; (2) case would be remanded to district court with instructions to both
increase and extend wife's alimony award; and (3) district court did not err in ruling that wife
had sold any share of her claim in husband's coin collection and in awarding remainder of
collection to husband where wife failed to obey district court's order to place collection in
safety deposit box.
Affirmed in part; reversed in part and remanded.
Hamilton & Lynch, Reno, for Appellant.
Anderson, Pearl, Hardesty, Lyle, Murphy & Stone, Reno, for Respondent.
1. Divorce.
Transmutation from separate to community property must be shown by clear and convincing evidence.
2. Divorce.
Appearance of wife's signature as shareholder on certain documents, without more, was not clear and convincing evidence that
there was transmutation of stock in business from husband's separate property to community property.
was transmutation of stock in business from husband's separate property to community property. Absent transmutation, stock which
husband had acquired before marriage was his separate property. NRS 123.130(2).
3. Divorce.
Amount of alimony is within sound discretion of trial court.
4. Divorce.
Trial court must award such alimony as appears just and equitable, having regard to conditions in which the parties will be left by
divorce. NRS 125.150(1)(a).
5. Divorce.
District court's alimony award of $1,500 per month to wife until she completed her undergraduate degree or for maximum of two
years, whichever came first, constituted abuse of discretion and therefore, case would be remanded to district court with instructions to
both increase and extend wife's alimony award such that wife could live in accord with station in life she enjoyed before divorce for
rest of her life or until she remarried or her financial circumstances substantially improved. Wife gave up her career to take care of
children and household duties, parties were married for almost 22 years, wife was 44 years old at time of divorce, wife's current
marketability was not promising, and there were serious doubts regarding extent to which wife would benefit from 25 percent interest,
valued at $837,408, in partnership owned by wife, husband and husband's parents because husband and husband's parents controlled
partnership.
6. Divorce.
Wife was not entitled to greater than 50 percent interest in the community property, in light of appellate court's determination that
district court abused its discretion in awarding wife $1,500 per month in alimony until she completed her undergraduate degree or for
maximum of two years, whichever came first, and subsequent decision to remand case to district court with instructions to both
increase and extend wife's alimony award.
7. Divorce.
District court in divorce action did not err in holding that wife had sold any share of her claim in husband's coin collection and in
awarding remainder of the collection to husband, where wife had failed to obey district court's order to place coin collection in safety
deposit box and had taken and sold some of the coins from the collection.
8. Divorce.
Award of attorney fees in divorce proceedings lies within sound discretion of trial judge. NRS 125.150(3).
9. Divorce.
District court acted within its discretion in divorce action in ordering husband to pay $10,000 of wife's attorney fees in addition to
any sums already paid and thus, district court's award would not be disturbed on appeal. NRS 125.150(3).
OPINION
Per Curiam:
This is an appeal from a modified order of the district court distributing property and awarding alimony upon divorce. Appellant
assigns several bases of error to the district court.
lant assigns several bases of error to the district court. While we conclude that most of
appellant's claims on appeal are without merit, we nonetheless conclude that the district
court's order does not adequately provide for appellant.
Appellant Barbara Sprenger (Barbara) and respondent Henry By Sprenger (By) were
married in 1970 and divorced in 1991. At the time of the marriage, Barbara worked as a
licensed practical nurse. Not long after the marriage and the birth of their first child, Barbara
gave up her career as a nurse in order to look after her first child as well as a second child
who was born two years later. Beginning in 1983, Barbara began taking a series of courses,
and at the time of the divorce had accumulated a total of 90 university credits.
Prior to the marriage, By worked with his father in a lawn care business known as Nevada
Lawn Service, which was incorporated in 1967. At the time of the incorporation, 500 shares
of stock were issued to By and 500 shares were issued to his parents. During the course of the
marriage, in May 1977, assets in the lawn maintenance segment of the corporation's business
were sold to Ron Cox (Cox). That same year, the name of the corporation was changed to
Moana Lane Nursery.
At the time of the divorce, the total value of stock in the Moana Lane Nursery was
between $581,000 and $589,000. Prior to the divorce, By was being paid approximately
$100,000 per year from the business. Barbara's signature appears with her husband as a
witness on a Buy-Sell Agreement with the stockholders. In addition, Barbara's signature
appears as a shareholder on a Stock Transfer Restriction Agreement and on the agreement for
the sale of the interest in the lawn maintenance part of the business to Cox.
In its final order, the district court determined that By's interest in Moana Lane Nursery,
valued at $236,106.15, was By's separate property. However, as requested by Barbara in her
proposal for the distribution of property, the district court awarded her an interest of $118,053
in the nursery for the community investment into the productivity of the corporation.
Barbara claims that the district court erred in finding that the interest in Moana Lane
Nursery was By's separate property and argues that this property should have been distributed
pursuant to NRS 125.150 as a community asset. She claims that the original business which
By acquired before marriage was a lawn care business and that By sold the lawn care business
to Cox. She argues that upon this sale, the original lawn care business ceased to exist, that
the original capital investment was recaptured by the sale, and that Moana Lane Nursery
was acquired and operated in its entirety throughout the marriage.
acquired and operated in its entirety throughout the marriage. We are unpersuaded by this
argument.
By's father, who owned nearly half of the company's stock, testified that the agreement
with Cox stated that all of the personal property owned by the corporation would remain the
property of the corporation, except for certain lawn care maintenance assets, which consisted
mainly of equipment. Additionally, By testified that he never intended to sell Cox any of the
stock in the Nevada Lawn Service.
[Headnote 1]
Barbara also argues that the corporation was somehow transmuted from separate to
community property. She cites the appearance of her signature on the aforementioned
documents as evidence that the property was transmuted and that she was a co-owner of the
business. Transmutation from separate to community property must be shown by clear and
convincing evidence. In re Marriage of Weaver, 273 Cal. Rptr. 696, 701 (Ct. App. 1990); see
also Bank v. Milisich, 52 Nev. 178, 183, 283 P.2d 913, 914 (1930) (community to separate).
[Headnote 2]
The district court found that although Barbara's name is included on a stock transfer
restriction, there was no transmutation of the stock in Moana Lane Nursery from By's
separate property to community property. Evidence was presented showing that stock
certificates were never issued in Barbara's name. Additionally, By testified that he never
intended to make a gift to Barbara of any interest in the property. We hold that the appearance
of Barbara's signature as a shareholder on certain documents, without more, is not clear and
convincing evidence of transmutation. See Schulman v. Schulman, 92 Nev. 707, 716-17 &
n.9, 558 P.2d 525, 531 & n.9 (1976) (wife's name on a stand by' agreement and deed of trust
did not amount to a community property transmutation). There is no question that By
acquired the stock in the business before marriage. Therefore, absent a transmutation of the
property, the stock is his separate property. See NRS 123.130(2). Since the record fails to
show clear and convincing evidence of transmutation, we refuse to disturb the district court's
finding that the stock in Moana Lane Nursery was By's separate property.
[Headnotes 3, 4]
Barbara also argues that the district court's alimony award constituted an abuse of
discretion. The district court awarded Barbara $1,500 per month in alimony until she
completes her undergraduate degree or for a maximum of two years, whichever comes first."
comes first. The amount of alimony is within the sound discretion of the trial court. Rutar v.
Rutar, 108 Nev. 203, 205, 827 P.2d 829, 831 (1992). However, a court must award such
alimony as appears just and equitable, having regard to the conditions in which the parties
will be left by the divorce. See NRS 125.150(1)(a).
This court has articulated seven relevant factors in determining the appropriate alimony
award in a divorce case: (1) the wife's career prior to marriage; (2) the length of the marriage;
(3) the husband's education during the marriage; (4) the wife's market-ability; (5) the wife's
ability to support herself; (6) whether the wife stayed home with the children; and (7) the
wife's award, besides child support and alimony. Fondi v. Fondi, 106 Nev. 856, 862-64, 802
P.2d 1264, 1267-69 (1990).
In the instant case, Barbara was a licensed practical nurse prior to her marriage, but
consequently gave up her career in order to take care of the children and household duties.
She no longer wishes to practice nursing, and even if she did, would likely need additional
coursework as she has not practiced nursing for many years.
Further, the parties were married for almost 22 years and Barbara was 44 years old at the
time of the divorce. Barbara's current marketability is not promising and although she has
completed 90 university credits toward her undergraduate degree, such a degree will not
guarantee her a career, much less a salary allowing her and her family to live in the manner to
which they have become accustomed. By, on the other hand, while never having completed
college, has developed the business acumen which has provided him with a thriving business
and substantial assets.
The only factor appearing to favor Barbara is the district court's award of other assets. The
most substantial asset awarded Barbara was a 25 percent interest, valued at $837,408, in a
partnership known as the Sprenger Property, owned by Barbara, By and By's parents. While
at first blush the awarded interest in this partnership appears substantial, the record raises
serious doubts regarding the extent to which Barbara will actually benefit from the award.
It is undisputed that Barbara possesses a minority, noncontrolling interest in the Sprenger
Property and that the partnership is controlled by By and his parents. Barbara has no
management control over the partnership and under the existing partnership agreement has no
right to receive income from the partnership. By and his parents might decide to distribute
some or all of the partnership earnings in one year and none the next. Then again, they may
decide to continually reinvest partnership income.
they may decide to continually reinvest partnership income. In short, Barbara is at the mercy
of By and his parents with respect to whether or not she will receive any income from this
partnership. She should not be required to depend on By and his parents' largesse for her
living.
[Headnote 5]
Considering the relevant factors cited above, the district court's award of alimony in the
instant case is clearly an abuse of discretion. See Rutar v. Rutar, 108 Nev. 203, 827 P.2d 829
(1992); Johnson v. Steel Incorporated, 94 Nev. 483, 581 P.2d 860 (1978). We therefore
remand this case to the district court with instructions to both increase and extend Barbara's
alimony award such that Barbara is able to live as nearly as fairly possible to the station in
life she enjoyed before the divorce for the rest of her life or until she remarries or her
financial circumstances substantially improve. See Heim v. Heim, 104 Nev. 605, 612-13, 763
P.2d 678, 683 (1988).
Barbara next argues that the district court's equal distribution of community property was
not just and equitable pursuant to NRS 125.150(1)(b).
1
Relying primarily on McNabney v.
McNabney, 105 Nev. 652, 782 P.2d 1291 (1989), she asserts that she should have been
awarded a greater than fifty percent interest in the community property.
[Headnote 6]
In McNabney, this court stated that there are numerous examples in which equal division
is not equitable, and that the preeminent example is that of the wife and mother in a
long-term marriage who has given up career opportunities to devote herself to her family.
105 Nev. at 660, 782 P.2d at 1296. We stated that very frequently justice and equity will
require a divorce court to adjust community property in an unequal manner in these cases.
Id. In light of our holding regarding the alimony award, we reject Barbara's contention that
she is entitled to a greater than fifty percent interest in the community property.
Barbara also argues that the district court erred in awarding By the remaining portion of a
coin collection as his sole and separate property. Prior to and during the course of the
marriage, By acquired a sizable collection of valuable coins, which at the time of trial had
an estimated value of $75,000.
__________

1
At the time of the final order, NRS 125.150(1)(b) required that the court make such disposition of the
community properties
as appears just and equitable, having regard to the respective merits of the parties and to the condition in
which they will be left by the divorce, and to the party through whom the property was acquired, and to
the burdens, if any, imposed upon it, for the benefit of the children.
The legislature has since amended NRS 125.150, effective October 1993. See 1993 Nev. Stat. ch. 135, 1 at
240.
acquired a sizable collection of valuable coins, which at the time of trial had an estimated
value of $75,000.
[Headnote 7]
During the November 1991 divorce proceedings, the district court discovered that Barbara
had failed to obey its order to place the collection in a safety deposit box. Upon conducting an
inventory of the coins and listening to the claims of the parties, the district court determined
that Barbara had taken and sold some of the coins from the collection. The district court
therefore held that Barbara had sold any share of her claim in the coin collection and awarded
the remainder of the collection to By. We hold that the district court did not err in its award.
[Headnotes 8, 9]
Finally, Barbara contends that the district court's award of attorney's fees was insufficient.
Pursuant to NRS 125.150(3), the district court ordered By to pay $10,000 of Barbara's
attorney's fees in addition to any sums already paid. The award of attorney's fees in divorce
proceedings lies within the sound discretion of the trial judge. Schwartz v. Schwartz, 107
Nev. 378, 386, 812 P.2d 1268, 1273 (1991). The district court acted within its discretion in its
award of attorney's fees and we will not disturb the award on appeal.
We remand this case to the district court to increase and extend Barbara's alimony award
in a manner consistent with this opinion.
2

I concur in the result only.
____________
110 Nev. 861, 861 (1994) Didomenico v. State
FRANK JOSEPH DIDOMENICO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25830
July 26, 1994 877 P.2d 1069
Proper person appeal from a judgment of conviction pursuant to a no contest plea. Second
Judicial District Court, Washoe County; Mills Lane, Judge.
Defendant was convicted in the district court pursuant to his plea of no contest, of two
counts of possession of stolen property and one count of burglary, and he appealed.
__________

2
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
and one count of burglary, and he appealed. The district court denied defendant's motion for
appointment of counsel on appeal. The supreme court held that indigent defendant had
statutory and constitutional right to appointment of counsel on appeal.
Order denying motion for appointment of counsel vacated.
Frank Joseph Didomenico, In Proper Person, Carson City, for Appellant.
Attorney, Washoe County, for Respondent.
Criminal Law.
Indigent defendant had statutory and constitutional right to appointed counsel on appeal from conviction though conviction was
based on plea of no contest. District court had no discretion regarding whether to appoint counsel. U.S. Const. amend. 14; NRS
178.397.
OPINION
Per Curiam:
On June 1, 1994, the district court convicted appellant, pursuant to a no contest plea, of two counts of possession of stolen property
and one count of burglary in three different cases.
1
The district court sentenced appellant to serve three
consecutive ten year terms in the Nevada State Prison.
On June 9, 1994, the same day that appellant filed his proper person notice of appeal,
appellant informed the district court that he wished to be represented by counsel for his direct
appeal from the judgments of conviction. Appellant also informed the district court that he is
indigent. On June 13, 1994, the district court denied appellant's request for counsel and stated
the following:
The Court has been shown no reason for appointment of counsel in the instant case.
There is simply nothing to litigate. The Appellant pled Guilty. He was sentenced within
the limitations set forth by statute and clearly indicated on the record that he was guilty
(even though he believes others to be equally or more culpable) and that his plea was
entered, at least in part, to avoid being sentenced as a habitual criminal.
Since there is nothing to litigate, no useful purpose will be served by appointing
counsel.
__________

1
Although appellant stated in his notice of appeal that he wished to appeal from all three judgments of
conviction, only one judgment of conviction appears in the record on appeal.
served by appointing counsel. Appellant's Motion for Appointment of an Attorney is
hereby DENIED.
On June 29, 1994, appellant filed a motion for reconsideration of the district court's order
denying his motion for appointment of counsel. On July 5, 1994, the district court entered its
order denying appellant's motion for reconsideration. The district court stated, in part, the
following:
It is the Court's view that the record is clear. [Appellant] is a recidivist criminal. The
penalty he received after being thoroughly canvassed and being advised of the elements
of the various offenses was consistent with the applicable statute. Virtually all
appealable issues were waived by [appellant's] plea of No Contest. There is no
assertion that the prosecution violated any plea bargain or that the plea was invalid.
There is nothing to litigate. There is nothing to appeal. [Appellant] pled guilty in
open court with a clear history of being very familiar with the criminal justice process.
He was sentenced according to statute and that sentence was based upon his record as
well as the offenses he committed. There is no reason to appoint counsel. An
appointment of counsel in the instant case would be, in this Court's opinion, tragic and
monumental proof that little or no consideration is being given the fact that limited
public resources are, in some instances, being uselessly wasted. This Court has said in
the past, and reiterates again, a person is entitled to and should pursue legitimate claims
in the appellate or post conviction arena, but to appoint counsel where there is no
arguable legitimacy to an [appellant's] argument is legalistic paper shuffling at its
worst.
We disagree with the district court. Appellant is entitled to appointed counsel for this appeal.
NRS 178.397 provides that [e]very defendant accused of a gross misdemeanor or felony
who is financially unable to obtain counsel is entitled to have counsel assigned to represent
him at every stage of the proceedings from his initial appearance before a magistrate or the
court through appeal, unless he waives such appointment. NRS 178.397 does not grant the
district court any discretion in appointing counsel to represent an indigent defendant on
appeal.
In addition to the statutory right to appeal, the United States Supreme Court has concluded
that an indigent defendant has a Fourteenth Amendment right to appointed counsel on the
defendant's first appeal of right from a judgment of conviction. Douglas v. California, 372
U.S. 353 {1963).
v. California, 372 U.S. 353 (1963). In Douglas, the United States Supreme Court rejected a
procedure employed by the California courts of reviewing the record to determine if there
were any arguable issues for appeal before appointing counsel:
In spite of California's forward treatment of indigents, under its present practice the
type of an appeal a person is afforded in the District Court of Appeal hinges upon
whether or not he can pay for the assistance of counsel. If he can the appellate court
passes on the merits of his case only after having the full benefit of written briefs and
oral argument by counsel. If he cannot the appellate court is forced to prejudge the
merits before it can even determine whether counsel should be provided. At this stage
in the proceedings only the barren record speaks for the indigent, and, unless the printed
pages show that an injustice has been committed, he is forced to go without a champion
on appeal. Any real chance he may have had of showing that his appeal has hidden
merit is deprived him when the court decides on an ex parte examination of the record
that the assistance of counsel is not required.
Id. at 355-56. The United States Supreme Court concluded that where the merits of the one
and only appeal an indigent has as of right are decided without benefit of counsel, we think
an unconstitutional line has been drawn between rich and poor. Id. at 357 (emphasis in
original).
An indigent's right to appointed counsel on a direct appeal from a judgment of conviction
was reaffirmed in Evitts v. Lucey, 469 U.S. 387 (1985), where the United States Supreme
Court concluded that not only does a defendant have a right to appointed counsel on the
defendant's first appeal of right, but the defendant enjoys a due process right to the effective
assistance of counsel on that appeal.
NRS 177.015 grants a criminal defendant the right to an appeal from a judgment of
conviction. This court has recently concluded that trial counsel has an obligation to inform a
defendant of the right to appeal and to perfect that appeal if the defendant wishes to challenge
the judgment of conviction. Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). Further, this
court has recently reaffirmed that a defendant enjoys a right to direct appeal even if the
judgment of conviction is based upon a guilty plea. Franklin v. State, 110 Nev. 750, 877 P.2d
1058 (1994). In accordance with NRS 178.397, Douglas v. California and Evitts v. Lucey,
appellant is entitled to appointed counsel for this appeal. We vacate the order of the district
court denying appellant's motion for appointment of counsel and we remand this matter to
the district court for the limited purpose of appointing counsel.
ment of counsel and we remand this matter to the district court for the limited purpose of
appointing counsel.
____________
110 Nev. 865, 865 (1994) Jenkins v. State
KEVIN NEIL JENKINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24602
July 26, 1994 877 P.2d 1063
Appeal from a judgment of conviction, pursuant to a jury verdict, of six counts of statutory
sexual seduction. Fourth Judicial District Court, Elko County; Jack B. Ames, Judge.
The supreme court, Steffen, J., held that reasonable mistake of fact as to age of victim was
not a defense.
Affirmed.
Springer, J., and Rose, C. J., dissented.
Torvinen & Torvinen, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, and Marshall S. Smith, District
Attorney, Elko County, for Respondent.
Rape.
Reasonable mistake of fact as to age of victim is not a defense to crime of statutory sexual seduction. NRS 200.364, 200.368.
OPINION
Appellant Kevin Neil Jenkins was convicted of six counts of statutory sexual seduction. On appeal, Jenkins contends that a reasonable
mistake of fact as to the age of the victim should be a defense to this crime and that the trial court erred in declining to so instruct the jury.
We conclude that this and other issues raised by Jenkins are without merit and affirm the judgment against him.
The facts are uncontested. At trial, one of the victims, Sherry, testified that during an evening in October of 1990, when she was
fourteen years of age, she was contacted by Olissa, a fifteen-year-old friend, and invited to go out drinking. Sherry was later picked up by
Olissa and an individual with whom she was not acquainted, but whom she later came to know as Jenkins' father.
acquainted, but whom she later came to know as Jenkins' father. The two girls were taken to a
mobile home in Elko where Sherry was introduced to Jenkins (who, according to his
counsel's statement at oral argument, was twenty-eight years old at the time). Todd Dawes
was also present at the trailer.
Sherry testified that Jenkins invited her into his room, where they had consensual sexual
relations. Sherry further testified that over the next three to four weeks, she frequently and of
her own volition visited Jenkins at the mobile home where the following occurred:
approximately twenty to twenty-five acts of sexual intercourse, approximately four to five
acts of fellatio, and approximately two to three acts of cunnilingus.
Sherry also testified that she told Jenkins her birth certificate stated that she was fourteen,
but that because she was adopted, she might have been sixteen or seventeen. During
cross-examination, Sherry acknowledged that she had earlier testified, at the preliminary
examination, that she had represented to Jenkins that she was sixteen and that she may have
told him that early on in their relationship. Sherry later clarified, when called as a defense
witness, that she had no birth certificate as she was not born in a hospital, but that a birth date
had been given her on her adoption certificate. This legal birth date was used by Sherry for
medical records and the like, and she testified that there was no belief in her mind that she
might be as much as a year or so older than the adoption documents indicated.
The second victim, Olissa, also testified against Jenkins, confirming that she and Sherry
went to Jenkins' mobile home in October of 1990, at which time she was fifteen years old.
Olissa testified that, from the beginning, she had sexual intercourse with both Jenkins and
Dawes, and that in addition to sexual intercourse, she and Jenkins engaged in acts of fellatio
and cunnilingus. Olissa testified that at some point a couple weeks into these events, she
told Jenkins that she was fifteen.
Following a jury trial, Jenkins was convicted of six felony counts of statutory seduction of
a minor.
Prior to trial, Jenkins requested a ruling by the court upon defendant's proffered
Instructions B, C and D, which provided as follows:
[B] In every crime or public offense there must exist a union or joint operation of act
and intention, or criminal negligence.
[C] An act committed or an omission made in ignorance or by reason of a mistake of
fact which disproves any criminal intent is not a crime.
Thus a person is not guilty of a crime if he commits an act or omits to act under an
honest and reasonable belief in the existence of certain facts and circumstances
which, if true, would make such act or omission lawful.
or omits to act under an honest and reasonable belief in the existence of certain facts
and circumstances which, if true, would make such act or omission lawful.
[D] In the offense of statutory sexual seduction, general criminal intent must exist at
the time of the commission of the act of sexual intercourse, cunnilingus, or fellatio.
There is no general criminal intent if the defendant had a reasonable and good faith
belief that the person alleged to have been sexually seduced, as alleged, was sixteen
years of age or older at the time such person engaged in the act of sexual intercourse,
cunnilingus, or fellatio at issue.
Therefore, a reasonable and good faith belief of such age is a defense to statutory
sexual seduction. If after consideration of all of the evidence, you have a reasonable
doubt that the defendant had general criminal intent at the time of the acts of sexual
intercourse, cunnilingus, or fellatio alleged in the separate Counts of the Criminal
Information, you must find him not guilty of such crimes.
The court rejected the quoted instructions, agreeing with the State's argument that statutory
seduction was a general intent, rather than a specific intent crime, and that the State needed
only to prove that Jenkins intended to have sex with the two girls, who were minors, and did
so; not that he intended to have sex with a minor. Accordingly, the court refused the proffered
instructions relative to the defense of mistake of fact. Jenkins, who declined to testify at trial,
states that he would have testified on his own behalf if the trial court had accepted his
proposed instructions to the jury.
During the jury's deliberations, the court received a written communication from the jury
foreman which, in part, posed the following question:
Does the defendant have to be aware [that] the girls were under age 16[?] Does it
matter if the girls lied about their age?
The court replied, by way of a supplemental oral jury instruction, as follows:
The second question that the jury has written down and proposed to the Court has two
parts. Does the defendant have to be aware that the girls were under . . . age 16? The
answer to that question is no. Does it matter if the girls lied about their age? It does
not matter concerning the elements of Counts I through VI [the sexual seduction
counts], as outlined in the Instruction Number 8. But it may be considered in
determining credibility of witnesses.
Jenkins now challenges the district court's refusal to give his proposed instructions, together
with the court's answer to the jury's query.
Jenkins proposes that a reasonable mistake of fact, relative to a complaining witness's age
should be, in the appropriate circumstances, a defense to the offense of Statutory Sexual
Seduction. Citing W.E. Shirley, Annotation, Mistake or Lack of Information as to Victim's
Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966 & Supp. 1993), Jenkins
acknowledges that the weight of authority in the United States is against him on this issue.
Nevertheless, Jenkins contends that accepting the State's construction of the statute creates
a strict liability offense, and that this court has been reluctant to interpret criminal statutes so
as to create strict liability absent an expression of specific legislative intent to that effect.
Jenkins asserts that the following statutory provisions are relevant to this issue:
NRS 193.190 To constitute crime there must be unity of act and intent. In
every crime or public offense there must exist a union, or joint operation of act and
intention, or criminal negligence.
NRS 194.010 Persons capable of committing crimes. All persons are liable to
punishment except those belonging to the following classes:
. . . .
(5) Persons who committed the act or made the omission charged under an
ignorance or mistake of fact, which disproves any criminal intent, where a specific
intent is required to constitute the offense.
(Emphasis added.)
Given the emphasized language of NRS 194.010(5), in order to prevail on this issue,
Jenkins must demonstrate that specific intent is an element of his crime. Jenkins essentially
acknowledged this on appeal, and conceded at oral argument that his proposed instructions
were perhaps inartfully drafted in referring to mistake of fact as a defense to general intent
crimes.
The statutes under which Jenkins was convicted, NRS 200.364 and 200.368, provide, in
pertinent part, as follows:
NRS 200.364 Definitions. As used in NRS 200.364 to 200.3774, inclusive, unless
the context otherwise requires:
. . . .
3. Statutory sexual seduction means:
(a) Ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio committed
by a person 18 years of age or older with a person under the age of 16 years; or
(b) Any other sexual penetration committed by a person 1S years of age or older
with a person under the age of 16 years with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of either of the persons.
18 years of age or older with a person under the age of 16 years with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of either of
the persons.
NRS 200.368 Statutory sexual seduction: Penalties. A person who commits
statutory sexual seduction shall be punished:
1. If he is 21 years of age or older, by imprisonment in the state prison for not less
than 1 year nor more than 10 years, and may be further punished by a fine of not more
than $10,000.
2. If he is under the age of 21 years, for a gross misdemeanor.
These statutes leave no room for concluding that a specific intent to commit any of the
proscribed acts with a minor under the age of sixteen is an element of the crime of statutory
sexual seduction. Jenkins, however, underscores the serious penalties imposed under these
statutes and argues, as noted previously, that we have demonstrated a reluctance to interpret
statutes involving such serious penalties as imposing strict criminal liability, at least without
clear indication of such a legislative intent.
In support of his premise, Jenkins directs us to Robey v. State, 96 Nev. 459, 611 P.2d 209
(1980). In Robey, we had occasion to interpret a statute prohibiting the wilful
misappropriation of funds by a public official and expressly disagreed with the lower court's
instruction regarding the meaning of the term wilfully. The erroneous instruction provided
that:
[T]he word wilfully, when applied to the intent with which an act is done or omitted
and as used in my instructions, implies simply a purpose or willingness to commit the
act or to make the omission in question. The word does not require in its meaning any
intent to violate law, or to acquire any advantage.
Id. at 460, 611 P.2d at 210. In rejecting this instruction, we reasoned:
With the instruction used by the district court, it would be possible for the jury to find
that a public officer wilfully omitted to pay over public funds by an omission without
any conscious awareness of a wrongful act. Such inadvertence could possibly result in a
felony conviction, a $5,000 fine, and a ten year prison sentence. This is contrary to the
general conditions of penal liability requiring not only the doing of some act by the
person to be held liable, but also the existence of a guilty mind during the commission
of the act.
. . . .
[I]n order to establish misappropriation of public funds the state must prove the
conscious commission of a wrong. Since this is an element of the offense the court
must adequately instruct the jury, and the failure to do otherwise constitutes reversible
error.
Id. at 461-62, 611 P.2d at 210-11.
Robey is readily distinguished from the instant case because the statutes at issue here do
not contain the term wilful or any other language indicating that it is necessary to intend to
have sex with a minor under the age of sixteen. Moreover, in the context of statutes aimed at
the protection of infants, such as child abuse statutes, the term wilfully has been defined to
refer to general intent: as an intent to do the act, rather than any intent to violate the law or
injure another. See Childers v. State, 100 Nev. 280, 282-83, 680 P.2d 598, 599 (1984)
(upholding an instruction almost identical to that given in Robey in the context of a child
abuse statute).
Jenkins also relies upon Zamarripa v. District Court, 103 Nev. 638, 747 P.2d 1386 (1987),
as support for his upstream contention. In Zamarripa, we interpreted a statute prohibiting
driving with a revoked driver's license to require at least constructive knowledge that one's
driver's license had been revoked as a necessary element of the crime, even though such a
requirement was not specified in the statute. Although Zamarripa did state that the
imposition of strict criminal liability should occur only where there is a clear legislative intent
to do so, that opinion also recognized other statutes which indicated a legislative intent that
an accused have at least constructive notice of the revocation of his license. No basis for such
an analysis is available to us here. Also, it should be noted that the defendant's conviction was
upheld in Zamarripa although he claimed to have received no actual notice that his license
had been revoked.
The State commends the reasoning of the Idaho Supreme Court in State v. Stiffler, 788
P.2d 220 (Idaho 1990), which rejected arguments similar to those made by Jenkins under a
statutory scheme similar to that in Nevada. The Stiffler court reasoned that the purpose of the
statutory rape statute must be analyzed, together with its design, in order to determine
whether the defense of mistake applied. As noted above, there is nothing in the design or
wording of Nevada's statute to indicate that the defendant must know of the age of his victim.
Stiffler also concluded that statutory rape was a general intent crime designed to afford
protection to minors. Requiring proof that the perpetrator was aware of the victim's age would
emasculate the salutary purposes of the statute.
We conclude that there is nothing in the statutory sexual seduction statute which
indicates that it is a specific intent crime.
seduction statute which indicates that it is a specific intent crime. Accordingly, mistake of
fact is not a defense under NRS 194.010(5). Nor are the Zamarripa or Robey opinions
contrary authority on this issue, since they are distinguishable for the reasons explained
above. Armed as we are, with unambiguous statutory authority that refutes Jenkins'
importunings, we reject mistake of fact as a defense to statutory sexual seduction.
We have considered Jenkins' other assignments of error and conclude that they are totally
without merit and need not be addressed.
CONCLUSION
For the reasons stated above, we affirm the judgment of conviction on all counts entered
by the district court.
Springer, J., with whom Rose, C. J., agrees, dissenting:
Jenkins, an adult, was convicted of having sexual relations with two persons under the age
of sixteen, Sherry and Olissa. He stands convicted of six counts of statutory sexual seduction
and has been sentenced to sixteen years in prison. All agree that Jenkins had every reason to
believe that the victims in this case were over fourteen and that Jenkins actually believed
that they were over fourteen. All agree that the sexual acts involved in this case were
consensual.
I dissent on two grounds. The first is that I do not believe that the evidence supports a
jury's conclusion, beyond a reasonable doubt, that Sherry was fourteen years old at the time
the sexual acts were being performed. Before Jenkins had sexual relations with Sherry, Sherry
told Jenkins that she was sixteen or seventeen but that she was not sure because she was
adopted and had no official record of the date of her birth. Ordinarily a birth certificate will
be conclusive evidence of one's age; but, since there is no official certificate of Sherry's date
of birth, other evidentiary sources should have been sought out by the prosecution in order to
establish age. At trial, the State relied on the date of birth set forth in Sherry's adoption
records. The only testimonial evidence on this point indicates that the birth date on Sherry's
adoption records was made up for her by the state, and that Sherry herself did not know her
real age. Certainly hospital records or anecdotal accounts of friends and relatives could have
been brought in which would tend to prove Sherry's true agethe one fact that was crucial to
Jenkins' being branded as a sex criminal and sent off to prison. In my judgment, the estimate
of age that appears in the records of adoption does not provide the kind of reliable evidence
that must be forthcoming in order to support a felony conviction.
conviction. I would reverse Jenkins' conviction on Counts IV, V, and VI on this ground.
The second reason that I dissent is that I think that this court should adopt the position
taken by the Model Penal Code and should recognize reasonable mistake as a defense in
statutory sexual seduction cases. See Model Penal Code 213.6(1) (1980).
During oral argument in this case all kinds of hypothetical situations were presented to the
prosecutor to see if he would yield on his all-or-none position, that is to say that there are no
instances in which an adult who has sexual relations with someone under sixteen years of age
would not be guilty of the crime. What about sexual relations with a very mature-looking
fifteen year old on the day before her sixteenth birthday, when the young woman had been
working in a brothel for two years and possessed a false but very authentic-looking birth
certificate which she fraudulently presented to her brothel customers as proof that she was
indeed of age? Would her many customers all be subject to felony convictions for statutory
sexual seduction if the prosecutor learned of her deceit? The answer of the prosecutor to these
type of questions was an unequivocal yes, they would all be guilty of felonies, and that is
the answer that this court now givesno exceptions; all are guilty.
Jenkins did not intend to have sexual relations with a person under the age of sixteen.
Further there is no indication that he acted indifferently or negligently. He appears to have
acted reasonably after making a reasonable judgment that the young women in question were
of age, and this judgment in the case of Sherry was shored up by Sherry's firm representations
that she was in fact of age. If there is a culpable party here, in the sense of moral wrongdoing,
at least under the present societal norms, it is not Jenkins, but, rather, Sherry who did wrong
by misrepresenting her age to Jenkins.
It is my view that in providing for this crime, the legislature did not intend to dispense
with the requirement of criminal intent or the mental element of criminality. NRS
193.190 (requiring unity of intent and action). I think of the case of Morissette v. United
States, 342 U.S. 246 (1942), in which a defendant was convicted of violating a federal theft
statute for taking bomb casings from governmental land. The defense was that the defendant
believed that the casings were abandoned. The trial court convicted him on the ground that
the statute merely required the intent to do the act, namely to take the casings from federal
land, and that was all that was necessary to comprise the crime. Given this approach, even the
defendant's making a mistake that the casings had been abandoned by the government would
not negate the intent to remove the casings and would not be a defense to the crime.
be a defense to the crime. The United States Supreme Court reversed the conviction
reasoning that the mere intent to take the casings was not enough to create criminal liability.
For the required intent to be criminal, it had to include an objective that would properly
render the defendant subject to blame as a criminal. Morissette could not be blamed for
taking bomb casings in the reasonable belief that they had been abandoned. Morissette did
not steal in the traditional sense because he did not have the intention to deprive another of
property. In the present case Jenkins had no criminal intent. He did not intend to have sexual
relations with a female under the age of sixteen. I think it is only fair and just to assume that
persons should be subject to criminal liability only if they intentionally violate a morally
coherent and significant legal prohibition. This certainly cannot be said of Jenkins in this
case.
The California Supreme Court recognized the defense of reasonable mistake for this kind
of offense in People v. Hernandez, 393 P.2d 673 (Cal. 1964). The Majority is correct,
however, in saying that the weight of authority is against allowing a reasonable mistake
defense; and I must admit that many state supreme courts chant ritualistic platitudes about
protecting young females and about these kinds of defendants' acting at their peril. Many
other courts, however, have refused to retain this archaic rationale. State v. Guest, 583 P.2d
836 (Alaska 1978); People v. Plewka, 327 N.E.2d 457 (Ill. App. Ct. 1975); Powe v. State,
389 N.W.2d 215 (Minn. Ct. App. 1986); Perez v. State, 803 P.2d 249 (N.M. 1990); State v.
Elton, 680 P.2d 727 (Utah 1984); see also Model Penal Code 213.6, cmt. 2 (noting that at
least sixteen states allow the defense by statute); Larry W. Myers, Reasonable Mistake of
Age: A Needed Defense to Statutory Rape, 64 Mich. L. Rev. 105 (1965). Good sense and
good morals would demand that a person who has done nothing wrong not have to serve
sixteen years in prison. The jurors in this case expressed their moral concern when they asked
the court for special instructions on whether the defendant [had] to be aware [that] the girls
were under 16 and whether it matter[ed] if the girls lied about their age. I now express the
very same concern. This result is counter-intuitive and contrary to moral common sense. I
dissent.
____________
In re Petition for a Writ of Prohibition or in the Alternative for a Writ of Mandamus.
The Honorable JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON
JUDICIAL DISCIPLINE, Respondent.
No. 24598
July 26, 1994 878 P.2d 913
Original proceeding; motion to preclude further involvement of Attorney General; motion
for an order to show cause, an investigation, and a protective order; motion for appointment
of a master to conduct factual investigation.
Judge against whom proceedings were pending before the Commission on Judicial
Discipline, petitioned supreme court for writ of prohibition to interpret rules of Commission,
and moved to preclude involvement of Attorney General in matter. The supreme court,
Addeliar D. Guy, District Judge, held that: (1) Attorney General's staff may not act as counsel
to Commission or as prosecution before Commission in matters regarding judicial
misconduct, and (2) supreme court had authority to appoint special master to inquire into
source of breaches of confidentiality regarding charges against judge.
Motions granted in part; judgment reserved in part.
Shearing, J., dissented.
Frankie Sue Del Papa, Attorney General, Brooke Nielsen, Assistant Attorney General,
Carson City; Donald J. Campbell, Las Vegas, Nevada, for Respondent.
1. Judges.
Commission on Judicial Discipline is part of judicial branch of government, subject to such rules as supreme court promulgates,
and subject to appellate review by supreme court. Const. art. 6, 21.
2. Attorney General.
Attorney General is constitutional officer in executive branch, whose duties are established by legislature. Const. art. 5, 19.
3. Attorney General; Judges.
Constitution vests power and duty to deal with all matters relating to judges charged with violating Code of Judicial Conduct with
Commission on Judicial Discipline, rather than Attorney General. Const. art. 6, 21(1).
Attorney General may not represent Commission on Judicial Discipline in judicial discipline matters, nor may Attorney General
prosecute judge or justice before Commission; as one department cannot exercise power of other two under State Constitution,
specifically, member of executive branch is not constitutionally permitted to act in judicial capacity. Const. art. 3, 1; art. 5, 19; art.
6, 21(1).
Executive branch, through Attorney General's office, was impermissibly engaged in judicial discipline process, constitutionally
carried out only by Commission on Judicial Discipline itself, even if extent of involvement was merely to advise Commission, where
Special Deputy Attorney General engaged in extensive investigation of allegations against judge on behalf of Commission, was
involved in Commission function of screening complaints, and made determination that many incidents alleged in complaint against
judge did not warrant further action by Commission. Const. art. 3, 1; art. 5, 19; art. 6, 21(1).
If Commission on Judicial Discipline or its members were sued for actions taken in judicial capacity, Attorney General could
defend Commission under statute which commands Attorney General to act as counsel upon request of Commission, as long as suit did
not involve Commission's constitutional mandate to hear and decide misconduct complaints against judges. Const. art. 3, 1; art. 5,
19; art. 6, 21(1); NRS 1.450(2), 41.0338, 41.0339.
7. Judges.
Commission on Judicial Discipline is not administrative agency able to combine investigative, prosecutorial and judging
functions, but is rather a court of judicial performance, created by State Constitution as part of judicial branch. Const. art. 3, 1; art. 5,
19; art. 6, 21(1).
Statute which commands Attorney General to act as counsel upon request of Commission on Judicial Discipline, does not permit
Attorney General to represent Commission in matters relating to specific cases of judicial misconduct or permit Commission's legal
advisor to be prosecutor of judicial discipline complaints, as legislature, in absence of express constitutional authority, is powerless to
add to constitutional office duties foreign to that office; or take away duties belonging to it. Const. art. 3, 1; art. 5, 19; art. 6,
21(1); NRS 1.450(2).
Where statute is susceptible to both constitutional and unconstitutional interpretation, supreme court is obliged to construe statute
so that it does not violate Constitution.
Statute which commands Attorney General to act as counsel upon request of Commission on Judicial Discipline is constitutional
insofar as it permits Commission to request official legal opinions of Attorney General in matters unrelated to judicial discipline, but
statute cannot authorize Attorney General to act as counsel to Commission in, or prosecutor in, judicial discipline proceedings or
matters. Const. art. 3, 1; art. 5, 19; art. 6, 21(1); NRS 1.450(2).
11. Judges.
Commission on Judicial Discipline rules adopted by supreme court as to judicial disciplinary process, pursuant to State
Constitution, require confidentiality of charges against judge at least until after probable cause hearing,
finding of probable cause, and filing of formal statement of charges as public document.
require confidentiality of charges against judge at least until after probable cause hearing, finding of probable cause, and filing of
formal statement of charges as public document. Const. art. 6, 21(5)(a); Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline, Rule 5(1).
Attorney General is official legal representative of judges and justices in state, and cannot engage in prosecution of same before
Commission on Judicial Discipline.
Attorney General is constitutionally authorized to pursue criminal investigations and prosecutions of judges or justices. Const. art.
5, 22; NRS 228.175(2), (4).
Given adversarial system, fairness requires that adjudicative functions be kept separate from prosecutive functions.
Supervisory control or probation exercised over judge by Attorney General in conjunction with Commission on Judicial
Discipline, requiring judge to report to Attorney General's office, while Attorney General's staff or district attorneys over whom
Attorney General has control are appearing before same judge, is clear conflict of interest on part of Attorney General, and may
compromise appearance of impartial judiciary.
16. Constitutional Law; Judges.
Commission on Judicial Discipline may employ independent counsel, but does not have due process right to employ counsel of its
choice where such choice creates clear conflict of interest and violates separation of powers provisions of State Constitution. Const. art.
3, 1; art. 5, 19; art. 6, 21; Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline, Rule 41.
17. Reference.
Supreme court has authority to appoint fact-finding master to inquire into source of violations of State Constitution provisions
requiring confidentiality of charges before Commission on Judicial Discipline until finding of probable cause and filing as public
record of formal statement of charges, as well as the impact of violations on judge's due process rights. Const. art. 6, 21(5)(a);
Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline, Rule 5(1).
OPINION
By the Court, Guy, D. J.:
On May 20, 1994, the court heard oral argument on a number of motions filed by both parties. Today, we address Petitioner
Whitehead's motion to preclude further illegal involvement in [this] case by attorney general and associates in order to promote the
administration of justice and guarantee due process of law in this and related proceedings and Petitioner Whitehead's motion for order to
show cause, an investigation, and a protective order," and "motion for appointment of a master to conduct factual
investigation."
ive order, and motion for appointment of a master to conduct factual investigation.
We are compelled to conclude that Petitioner's motions are meritorious. We accordingly
order that Attorney General Frankie Sue Del Papa, Assistant Attorney General Brooke
Nielsen and Special Deputy Attorney General Donald J. Campbell be removed as counsel for
the Nevada Commission on Judicial Discipline (Commission) in these writ proceedings
and in all disciplinary proceedings now pending against Petitioner Whitehead before the
Commission.
1
For reasons hereinafter specified, the Office of the Attorney General is
precluded from acting as legal advisor or prosecutor in the present matter or in any matter
relating to the constitutional duties of the Commission to hear and decide judicial discipline
complaints.
In granting Petitioner Whitehead's motion for the appointment of a master to conduct a
factual investigation, we grant the motion in part by adjudicating the clear need for the
appointment of a special master, but we defer our decision as to the scope of the investigation
and the identity of the investigator for resolution in the near future.
2

__________

1
Although the Attorney General and the Commission have continued to assert that Special Deputy Attorney
General Don Campbell was not and is not acting on behalf of, or in concert with, the Attorney General's office,
we put that contention to rest in Whitehead II, noting in general the contacts among Assistant Attorney General
Brooke Nielsen, Mr. Campbell, and the Commission, and noting in particular, the fact that Mr. Campbell was
placed under contract to the Attorney General to serve at the pleasure of the Attorney General and was
required to report regularly to the Attorney General concerning the status of the above-named case. Whitehead
v. Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994). Furthermore, the Attorney General and Mr.
Campbell have both signed the bulk of pleadings filed in this matter on behalf of the Commission. Mr. Campbell
appeared at oral argument and argued on behalf of the Commission along with Assistant Attorney General
Nielsen.

2
This interlocutory opinion represents one more incremental measure leading to the eventual resolution of what
has become a proceeding transmuted from a comparatively simple writ proceeding to a proceeding far more
expansive and complex than otherwise warranted. Petitioner simply invoked this court's exclusive jurisdiction in
interpreting, for the first time, the meaning of several of the current permanent rules of the Commission. It is
now clear, that in order to provide absolute clarity in the final disposition of this matter issued by this court, and
to provide an unmistakable justification for this court's actions, it will be necessary to show, as the evidence will
demonstrate, that the Commission has been functioning on an ad hoc basis in the imposition of discipline, and
that adherence to Commission rules, in an even-handed, non-discriminatory methodology is essential to the
independence of the Nevada judiciary. It is this court's intention to finalize these proceedings as soon as humanly
possible, consistent with the demands of judicial responsibility and due process.
REMOVAL OF THE ATTORNEY GENERAL, THE ASSISTANT
ATTORNEY GENERAL AND SPECIAL DEPUTY
ATTORNEY GENERAL CAMPBELL AS
COUNSEL FOR THE COMMISSION
Petitioner Whitehead urges three grounds for requiring the Attorney General's removal as
legal counsel and prosecutor for the Commission. The first ground is that the Attorney
General, as an elected, Constitutional officer of the Executive Department of Nevada's
government, is not permitted by the separation of powers clause of our State Constitution to
represent the Commission in the exercise of its disciplinary functions or to exercise powers
relating to judicial discipline proceedings that are constitutionally vested in the Discipline
Commission. The second ground is that, generally, and under the specific facts of this case,
the Attorney General has a number of disqualifying conflicts in representing the Commission.
These conflicts include the conflicts relating to giving the Attorney General access to
confidential documents and proceedings of the Commission, the conflict arising out of the
fact that the Attorney General is official counsel for the judges and justices of the state, and,
most importantly, the conflict arising out of the Attorney General's acting as legal advisor to
the Commission (which is Petitioner Whitehead's judge and jury) and at the same time
prosecuting Whitehead before the tribunal to which the Attorney General has been giving
legal advice and counsel. Of equal concern and importance is the problem and potential
problem of the Attorney General, and district attorneys over whom the Attorney General has
the power of supervision,
3
prosecuting criminal and civil cases before judges who are under
investigation and prosecution by the Attorney General in Commission proceedings, and the
potential for holding such judges actual or imagined hostages without any awareness by
opposing counsel. As to the third ground which Petitioner Whitehead asserts for seeking the
removal of the Attorney General as the Commission's lawyer and prosecutor, we conclude
that the Attorney General must be removed as counsel and prosecutor for the Commission in
this case. Our conclusion is based on the stated constitutional grounds and on the mentioned
conflict of interest created by the Attorney General's office, particularly, the Attorney
General's acting as both legal advisor to the Commission and as the prosecutor who has been
prosecuting Petitioner Whitehead before the Commission.
__________

3
NRS 228.120(2) states that the attorney general may:
Exercise supervisory powers over all district attorneys of the state in all matters pertaining to the duties of
their offices, and from time to time require of them reports as to the condition of public business
entrusted to their charge.
prosecuting Petitioner Whitehead before the Commission. It is unnecessary to reach the claim
relating to the Attorney General's misconduct in arriving at our decision on this motion.
First Ground: Constitutional Disqualification
4

Article 3, section 1 of the Nevada Constitution provides as follows:
The powers of the Government of the State of Nevada shall be divided into three
separate departments,the Legislative,the Executive and the Judicial; and no
persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any functions, appertaining to either of the others, except in
the cases herein expressly directed or permitted.
This court has consistently affirmed that [t]he division of powers is probably the most
important single principle of government declaring and guaranteeing the liberties of the
people. Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967). This principle is
also of Federal Constitutional dimension and has occupied a position of unquestioned
importance since the early days of the Republic. As James Madison noted in The Federalist
No. 47, [w]ere the power of judging joined . . . to the executive power, the judge might
behave with all the violence of the oppressor' (quoting Montesquieu). Merging the
adjudicative power of the Commission with the executive power, as evidenced in the case
before us raises this very specter.
[Headnotes 1-4]
Article 6 (the Judicial Article), section 21 of the Nevada Constitution creates the
Commission on Judicial Discipline. The Commission is a part of the judicial branch of
government, vested with the constitutional power to censure, retire or remove a judge or
justice, subject to such rules as this court might promulgate, and subject to appellate
review by this court.
__________

4
In Whitehead I, Judge Guy wrote that he would order the Attorney General, her associates and Special
Deputy Attorneys General to have no further contact with this case or any other matter appearing before the
Commission. Judge Guy further observed as follows:
It is certain that to permit the executive department, to wit, the Attorney General, whether upon request or
otherwise, to be counsel or in any way participate in the possible disciplinary action procedure of a
justice or district judge before whom the Attorney General must appear for judicial decisions, could
cause investigations, brought about for political reasons or because of decisions that were unfavorable.
Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 128, 166, 869 P.2d 795, 818-19 (1994) (Guy, D. J.,
concurring).
Our present opinion reflects the previously expressed judgment of Judge Guy, on this issue.
judge or justice, subject to such rules as this court might promulgate, and subject to appellate
review by this court. Nev. Const. art. 6, 21(1). The Attorney General, on the other hand, is
a constitutional officer in the executive branch of government whose various duties are
established by the legislature. See Ryan v. District Court, 88 Nev. 638, 642, 503 P.2d 842,
844 (1972); see generally Nev. Const. art. 5, 19. In matters of judicial discipline, it is the
Commission, not the Attorney General, which the constitution vests with the power and duty
to deal with all matters relating to erring judges who are charged with violating the Code of
Judicial Conduct. The Commission is constitutionally empowered to designate for each
hearing an attorney or attorneys at law to act as counsel to conduct the proceeding, (id. at
art. 6, 21(9)(a)). Nowhere in the constitution is the Commission required or empowered to
employ the Attorney General, a member of a separate and co-equal branch of government, to
act as its counsel.
5
It is not constitutionally permissible for the Attorney General to
investigate or prosecute a judge or justice on behalf of the Commission. The Attorney
General may not represent the Commission in judicial discipline matters, nor may the
Attorney General prosecute a judge or justice before the Commission, because one
department cannot exercise the power of the other two without violating article 3, section 1
of the Nevada Constitution. Galloway, 83 Nev. at 19, 422 P.2d at 242.
6
[Headnote 5]
__________

5
In Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992), the Commission
in fact hired independent counsel to prosecute the judge.

6
Our present holding relative to separation of powers is consistent with our prior rulings in this area. For
example, in Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976), this court held that the section of Nevada's
Ethics in Government law excluding members of the judiciary from regulation under that law was mandated by
the separation of powers clause of the Nevada Constitution. Id. at 265, 549 P.2d at 336. Similarly, in Galloway
v. Truesdell, this court held that it was an impermissible violation of separation of powers to require district
court judges to determine which ministers were qualified to administer legally valid marriage ceremonies. Id. at
31, 422 P.2d at 249. In In Re Platz, this court held that state bar disciplinary proceedings did not violate
separation of powers because this court retained the ultimate decision as to any penalty to be imposed. 60 Nev.
296, 302-303, 108 P.2d 858, 861 (1940); see also Desert Chrysler-Plymouth v. Chrysler Corp., 95 Nev. 640,
600 P.2d 1189 (1979) (statute requiring district courts to determine good cause for issuing automobile
dealership licenses violates separation of powers); State v. Douglass, 33 Nev. 82, 110 P. 177 (1910) (legislature
may not combine the offices of Clerk of the Supreme Court and Secretary of State). This line of cases is
bolstered by a persuasive opinion of the Attorney General which concludes that, because a Highway Patrol
Trooper is a member of the executive branch of government, it would be constitutionally
[Headnote 5]
Although the Commission disputes that the Attorney General's office engaged in
exercising any Commission functions, the record clearly reflects that Special Deputy Attorney
General Don Campbell engaged in a very extensive investigation of the allegations against
Petitioner on behalf of the Commission. Mr. Campbell's affidavit also indicates that he was
involved in carrying out the Commission function of screening complaints and that in doing
so made the determination that many of the incidents alleged in one of the complaints against
Petitioner did not warrant further action by the Commission. Whether Special Deputy
Attorney General Campbell was acting for the Commission in making these Commission
decisions or was merely advising the Commission to take these actions, the executive branch,
through the Attorney General's office, has been actively engaged in the judicial discipline
processa process that can be carried out properly and constitutionally only by the
Commission on Judicial Discipline itself. Nev. Const. art. 6, 21(7).
The State of Minnesota has recognized that it is not proper for the Attorney General to act
as the Attorney General has acted in this case. See Rules of Board on Judicial Standards,
Minn. Rules of Court, Rule 1(d)(10) at 693 (West Supp. 1994) (Authorizing the Executive
Secretary of the Board on Judicial Standards to [e]mploy, with the approval of the board,
special counsel, private investigators, or other experts as necessary to investigate and process
matters before the board or the Supreme Court. The use of the attorney general's staff for this
purpose shall not be allowed.) (Emphasis added.) The source of and basis for the Minnesota
rule is the ABA's Standards Relating to Judicial Discipline and Disability Retirement. See
Judicial Conduct Organizations Governing Provisions (Kathleen Sampson, ed., 1984).
Standard 2.8 states that the use of members of the attorney general's staff to perform
commission functions is not recommended. . . . Their use may also interfere with the
independence of the judiciary. Id. at 15; see infra note 5 (emphasis added).
[Headnotes 6, 7]
We are, of course, well aware of NRS 1.450(2) which commands the Attorney General to
act as counsel upon request of the Commission. If the Commission or its members were to
be sued for, say, some alleged tortious activity, there would be no bar to the Attorney
General's defending such a lawsuit, as long as it did not involve the Commission's
constitutional mandate to hear and decide misconduct complaints against judges.
__________
invalid for an employee of the patrol to simultaneously serve as a member of the state legislative or judicial
departments. Op. Att'y Gen. No. 168 (May 22, 1974). A member of the executive branch is simply not
constitutionally permitted to act in a judicial capacity.
it did not involve the Commission's constitutional mandate to hear and decide misconduct
complaints against judges.
7

[Headnote 8]
If we were to read NRS 1.450(2) as permitting the Attorney General to represent the
Commission in matters relating to specific cases of judicial discipline or, worse, as permitting
the Commission's legal advisor also to be the prosecutor of judicial discipline complaints,
such a reading would run contrary to the constitution. State v. Douglass, 33 Nev. 82, 92, 110
P. 177, 180 (1910) (the Legislature, in the absence of express constitutional authority, is as
powerless to add to a constitutional office duties foreign to that office, as it is to take away
duties that naturally belong to it). The statute may properly permit the Commission to seek
the legal advice of the Attorney General, much as another state entity might;
8
however, the
statute cannot permit the invasion of the judicial department by the executive department of
government. This would occur if the Attorney General were permitted to sit in from day to
day in the Commission's meetings, during which the principal Commission business is to deal
with matters relating to judicial discipline. To allow this would be to allow the Attorney
General to become almost an ex facto member of the Commission. It must be remembered
that the Attorney General and her extensive staff must, in the performance of their
constitutional duties, appear before the judges and justices of this state on a daily basis. If
those same lawyers are privy to confidential and damaging information about judges, then, at
the very least, the appearance of an impartial tribunal is lost. See conflict of interest section,
infra, pp. 9-13; compare ARJD 2(9) (Prosecuting officer means an attorney designated by
the commission to file and prosecute the Formal Statement of Charges.) (Emphasis added.)
We must necessarily disapprove of the practice of having a member of the Attorney
General's staff routinely participate in Commission meetings and deliberations.
__________

7
Contrary to respondent's assertions, the Judicial Discipline Commission is not just another administrative
agency which can combine investigative, prosecutorial and judging functions. As this court held in Whitehead I,
the Commission is a court of judicial performance, created by the Nevada Constitution as a part of the judicial
branch of government. Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 128, 160 n.24, 869 P.2d 795, 815
n.24 (1994); c.f., Laman v. Nevada R. E. Adv. Commission, 95 Nev. 50, 589 P.2d 166 (1979).

8
NRS 41.0338-41.0339 would allow the Commission members to seek the representation of the Attorney
General if they were sued for actions taken in their official capacity.
Commission meetings and deliberations.
9
The policy rationale behind requiring the
Commission to use independent counsel to perform both advisory and prosecutorial functions
for the Commission in judicial discipline proceedings is obvious: it ensures that disciplinary
proceedings are not pursued for personal, partisan, or political gain, and it ensures that one
branch of government does not usurp the vital functions of another or place itself in the
position of holding the others hostage.
[Headnotes 9, 10]
Where a statute is susceptible to both a constitutional and an unconstitutional
interpretation, this court is obliged to construe the statute so that it does not violate the
constitution. Sheriff v. Wu, 101 Nev. 687, 708 P.2d 305 (1985). NRS 1.450(2) is
constitutional insofar as it permits the Commission to request official legal opinions of the
Attorney General in matters unrelated to judicial discipline. NRS 1.450(2) cannot be
constitutionally read to authorize the Attorney General to act as counsel to the Commission or
to act as prosecutor in judicial discipline proceedings.
Second Ground: The Attorney General's Conflict of Interest
Amici (Ad Hoc Committee for the Preservation of an Independent Judiciary) argue that the
involvement of the Attorney General in the disciplinary process creates hopeless conflicts of
interest and roles and that such involvement creates an untoward and undesirable opportunity
for undue influence upon the judiciary. We examine this argument carefully.
[Headnote 11]
First we look at the potential for abuse inherent in any involvement by the Attorney
General in the disciplinary process. As we held in Whitehead I, the Commission is part of the
Judicial Department. See Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 128, 159, 869
P.2d 795, 814 (1994). The rules this court has adopted pursuant to its constitutional mandate
provide a clear requirement of confidentiality at least until after a probable cause hearing, a
finding of probable cause, and the filing of a formal statement of charges. ARJD 5(1). It is not
difficult to see the possibilities that exist if the Attorney General is allowed to participate in
the Commission's disciplinary activities. If the Attorney General has free access to the
confidential information in possession of the Commission, the temptation is clearly present
for putting adverse, confidential information about a judge to improper and even political
use.
__________

9
The proposed ABA Model Rules suggest that independent counsel be retained to act as legal counsel to the
commission to avoid these very conflicts.
present for putting adverse, confidential information about a judge to improper and even
political use. Anonymous leaks or threats of leaks could very well provide those with
improper access to confidential information about judges considerable leverage over sitting
judges, who, in our elective system, are always faced with the possibility of a contested
election. Although we are not suggesting the existence of such implications in the present
case, there is certainly a potential for an Attorney General who has adverse information
relating to a judge to use this information to damage the career of any judicial officer that is
seen as a political threat to the Attorney General or to his or her political allies or political
agenda.
The Attorney General's office, as now constituted, has close to one hundred attorneys who
appear in many courts of this state. It is not difficult to see how the independence of judges
might be compromised if a judge before whom a deputy attorney general was appearing felt
threatened by the Attorney General's possession of confidential information, whether true or
not, that might be harmful to the judge if released to the public.
[Headnotes 12, 13]
The threat just described is only one of the possible conflicts presented by allowing the
Attorney General to participate in the judicial discipline process. Another conflict is
presented by the fact that the Attorney General is the official legal representative of the judges
and justices in this state and cannot, by the nature of that office engage in the prosecution of
the very judges that the Attorney General represents as counsel.
10
It is not the foregoing
conflicts, however, that give us the most pause. The most dangerous conflict lies in the
Attorney General's acting as both legal counsellor to the Commission and as prosecutor of
judicial discipline complaints.
Special Deputy Attorney General Campbell has been acting in the role of investigator and
prosecutor in this case. The Attorney General apparently sees nothing untoward or unusual
about Special Deputy Attorney General Campbell's acting in such capacities in this case, as
the Attorney General freely tells us that her office has investigated and processed literally
dozens of [other] judicial misconduct complaints over the years. Petition for Rehearing at 7.
Such engagement by the Attorney General in the investigation and prosecution of judges is
not only a violation of the separation of powers doctrine of our Constitution, it is a conflict of
interest for the Attorney General to be prosecuting before the Commission the very judges
that she represents as counsel, and before whom she appears in the course of prosecuting
criminal and civil cases.
__________

10
Of course the Attorney General is constitutionally authorized to pursue criminal investigations and
prosecutions of judges or justices. Nev. Const. art. 5, 22; NRS 228.175(2) and (4).
before the Commission the very judges that she represents as counsel, and before whom she
appears in the course of prosecuting criminal and civil cases. Again, of equally great concern
is the conflict created by the Attorney General's acting as either prosecutor or legal advisor to
the judicial tribunal.
[Headnote 14]
It cannot be denied that the Attorney General has been acting as legal advisor to the
Commission while investigations and prosecutorial activities were being conducted by that
office against Petitioner Whitehead. Ordinarily, a client's regular consultation with his or her
attorney, by the nature of the relationship, tends to instill feelings of trust and confidence and,
frequently, friendship as between the client and the attorney. Most readers of this opinion
should not have to be further convinced that it is simply not fair to require an accused judge
or justice to appear before a tribunal where the judge's prosecutor is also acting as legal
counsel to the tribunal. In our adversarial system we have always been scrupulous about
keeping adjudicative functions separate from the prosecutive function, and fairness requires
that we continue to do so.
The proposed changes to the American Bar Association's Model Rules for Judicial
Disciplinary Enforcement deal quite extensively with this problem. The Report and
Recommendation to the ABA House of Delegates strongly recommends the separation of
conflicting functions. Thus [a] commission member who participates in the investigation
should not participate in the adjudicative process and vice versa. Similarly, the proposed
Model Rules also envision separate counsel for the Commission: One attorney (disciplinary
counsel) would assist the Commission in performing its investigative and prosecutorial
functions, another (commission counsel) would provide the Commission with legal
research, drafting, and advice. The report observes that the roles of prosecutor and advisor
are inconsistent and ought not be embodied in a single person, because such a separation of
functions is crucial to the perception of fairness. The report also notes that [a] system that
relies on other government agencies to investigate complaints or present evidence, or both,
loses efficiency and endangers confidentiality, concluding that [d]isciplinary counsel
should not use law enforcement officials or staff to investigate complaints or present cases . .
. . Their use could compromise the confidentiality of investigations and could pose separation
of powers problems.
11

__________

11
The ABA Standards Relating to Judicial Discipline and Disability Retirement currently in force also note
these same concerns. For example, Standard 2.1, entitled Need for Independence, provides that [t]he
commission
[Headnote 15]
The conflicts envisioned by the ABA have manifested themselves all too clearly in the
manner in which cases are currently being handled by the Commission. As noted in
Whitehead II, the Attorney General and the Commission have had at least one judge under
some kind of supervisory control or probation, which requires the judge to report to the
Attorney General's office under penalty of more severe disciplinary action in the event the
probation fails. This supervision is going on while the Attorney General's staff is
presumably still trying cases before the supervised judge. 110 Nev. at 418-419, 873 P.2d at
969-971. This is a clear conflict of interest. Obviously, the Attorney General or the district
attorneys over whom she has supervisory control, appear in an adversarial setting before the
very judges she is investigating or is supervising under probation. Again, given the current
rules of confidentiality surrounding judicial discipline matters prior to a finding of probable
cause, it is inevitable that some members of the Attorney General's and district attorneys'
staffs will appear before judges while in possession of damaging and confidential information
about those judges. This may compromise the appearance of an impartial tribunal.
12

[Headnote 16]
The Commission has asserted that if this court does not allow the Attorney General to act
as Commission counsel, the Commission will be unable to fulfill its constitutional function.
This rather extravagant assertion may be rejected out-of-hand because the rules clearly
contemplate that the Commission may employ independent counsel. ARJD 41; Nevada
Const. art. 6, 21(9)(a). We also reject the Commission's argument that this court will violate
the Commission's right to counsel of its choice and thereby deny the Commission due process
of law if it determines that the Attorney General may not act as she has in this proceeding.
__________
should be independent of and free from interference from the executive or legislative branches and, although
operating within the judicial branch, should report only to the supreme court. American Bar Association,
Standards Relating to Judicial Discipline and Disability Retirement 9 (February, 1978). Similarly, the
commentary to Standard Rule 2.8 states that the use of law enforcement officers such as members of the
attorney general's staff to perform commission functions is not recommended . . . [as] [t]heir use may also
interfere with the independence of the judiciary. Id. at 15.

12
The Attorney General appears in this case to have initially recognized this conflict when she requested the
Board of Examiners to provide the funds to hire Don Campbell as a Special Deputy Attorney General, stating
that the hiring was necessary in part because the Attorney General's office had a potential conflict of interest in
this case. (Contract between Attorney General and Don Campbell.) See Petitioner's Motion to Preclude Further
Involvement, Exhibit 2.
that the Attorney General may not act as she has in this proceeding. Even if we were to
assume that a public body has some identifiable legal right to counsel of its choice, such a
right would not include the Commission's right to be represented by counsel with the clear
conflict of interest problems that are discussed in this Opinion; and, certainly such a right
could not be sufficient to overcome the separation of powers clause of the Nevada
Constitution. See Kabase v. District Court, 96 Nev. 471, 611 P.2d 194 (1980).
The separation of powers clause of the Nevada Constitution prohibits the Attorney General
from acting as prosecutor of judges in judicial discipline cases and from acting as the
Commission's counsel in disciplinary matters. We have, of course, already held that the
Attorney General may issue official opinions to the Commission and that the Attorney
General may supply[] the Commission with abstract advice on an occasional basis . . . .
Whitehead I, 110 Nev. at 133 n.5, 869 P.2d at 798 n.5. However, this certainly does not mean
that the Attorney General can advise the Commission in matters relating to judicial discipline
nor that the Attorney General can act as prosecutor, prosecuting judicial discipline complaints
before the Commission. What is painfully clear, as mentioned previously, is that the Attorney
General may not be allowed to act as either advisor or prosecutor.
13

__________

13
The Dissent garners suggestions that the Majority in this limited Opinion somehow is, or will prevent, the
Commission from carrying out its constitutional mandate. There is no intent and none should be inferred that this
limited Opinion subjugates or prevents the Commission from fulfilling its duties. This limited Opinion only
prevents the Attorney General, the Attorney General's regular deputies and the Special Deputy Attorney General,
in this matter, from any further representation of the Commission in these proceedings, or in any proceedings
before the Commission. It does not prevent the Commission from engaging its own independent counsel as
provided in article 6, section 21, subsection 9(a) of the Constitution and by the rules of this court. On the
contrary, this limited Opinion directs the Commission to engage independent counsel for this and any other
matters before the Commission.
In Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992), independent counsel
was appointed for the Commission as the Attorney General either recognized the conflict or the constitutional
prohibition. Likewise, in these proceedings, the Attorney General initially recognized the conflict and requested
special counsel to represent the Commission. Had the Attorney General not appointed the special counsel or
Special Deputy Attorney General, inter alia, responsible to the Attorney General for his retention and payment,
then this limited Opinion may not have been necessary except in future proceedings.
The Dissent infers that this Opinion nullifies NRS 1.450(2). If that is the effect of preventing the Attorney
General from proceeding as the attorney for the Commission, then, so be it. This will not be the first time, nor
the last,
Ground Three: Attorney Misconduct
Petitioner Whitehead maintains as a third and independent ground for asking that the
Attorney General be removed from this case the Attorney General's intemperate and
accusatory public statements relating to these proceedings. Because of the foregoing
conclusions regarding disqualification based upon constitutional and conflict of interest
grounds, it is unnecessary to presently rule on Petitioner Whitehead's allegations of ethical
misconduct on the part of the Attorney General or the effect that this conduct might have on
Petitioner Whitehead's ability to receive fair treatment, which is the essence of due process.
INVESTIGATION OF BREACHES OF CONFIDENTIALITY
AND VIOLATIONS OF OTHER RULES OF THIS COURT
Petitioner Whitehead claims not only that he has been severely prejudiced by the unlawful
public disclosure of charges which the Nevada Constitution requires to be kept confidential,
he claims that the integrity of the whole judicial discipline process is endangered by what
appear to be almost routine leaks of judicial disciplinary proceedings.
Now is not the time to go into extended discussion of the confidentiality provisions
mandated by the Nevada Constitution in judicial discipline matters, but a few words may be
said.
14
The argument of some is, of course, that judges are no different from any other public
official and that if any allegations of misconduct are made by anyone, such charges should
immediately be open to the public. The counterargument (and the one adopted by the framers
of the Nevada Constitution) is that the judiciary depends to a large degree for its effectiveness
on the trust and confidence that the people place in that institution's ability to render,
day-to-day, fair and impartial decisions. By its very nature, the judiciary deals with disputes
that often leave litigants or counsel with negative or agitated feelings. As a result, many
complaints may
__________
that this court and other courts have stricken portions or all of legislative acts as being unconstitutional.
The Dissent raises the presumption that this Opinion rests its arguments on the assumption that the Attorney
General will be unable to resist the temptation to engage in misconduct with respect to judges. This court has so
often reversed judgments and criminal convictions, not upon any actual misconduct, but upon the perception or
assumption that misconduct could occur, either intentionally or unintentionally. Given the history of overzealous
or over-aggressive prosecutors in these United States, there can be no doubt that misconduct does and has
occurred either intentionally or unintentionally.

14
The supreme court shall make appropriate rules for: (a) The confidentiality of all proceedings before the
commission, except a decision to censure, retire or remove a justice or judge. Nev. Const. art. 6, 21(5)(a); see
ARJD 5 and 6.
be generated and sent to the Commission about judges that are entirely without merit. If all of
these unfounded complaints were available to the public and the media, without any inquiry
into their substance, public esteem for the judiciary as a whole would suffer, thus making it
more difficult for the one branch of government that should be a safe haven for the impartial
and fair resolution of disputes, to inspire public confidence in the integrity of judicial
proceedings.
To a great extent, the willingness of litigantsgreat and smallto respect and obey the
judgments issued by our courts depends upon a deserved public perception that the judiciary
does, in fact, dispense justice. Premature exposure of meritless complaints against judges
would make it appear that our judges were guilty of rampant misconduct and would threaten
the independent function of the judiciary. See Kamasinski v. Judicial Review Council, 797 F.
Supp. 1083 (D. Conn. 1992).
Whichever side of this argument one might want to espouse, the fact remains that, at
present, all complaints against judges must, as commanded by the Nevada Constitution and
by the rules of this court enacted in accordance with the direct command of the Constitution,
remain confidential until there has been a finding of probable cause and a formal statement of
charges has been filed as a public document. Despite the voices of those who minify the
seriousness of breaches of confidentiality, we are unable to arrogate to ourselves a superior
wisdom or authority than the people of this State who mandated the confidentiality of judicial
discipline proceedings in our fundamental law, the Nevada Constitution.
The Commission is entrusted with the constitutional responsibility of safeguarding the
confidentiality of Commission proceedings until, under the current Commission rules, there
has been a finding of probable cause. One would therefore assume that the Commission
would be greatly concerned about the breaches of confidentiality in this case and in others
that are documented in this record. One would further assume or at least hope that as soon as
the Commission learned of these constitutional violations it would have taken immediate
steps to uncover the source of the breaches and of the leaks that have punctuated these
proceedings and expanded them into a vastly more complex and multidimensional dispute.
To our dismay, the Commission and the Attorney General have not only evinced no concern
about the breaches of confidentiality, but they have taken affirmative steps to oppose any
inquiry into the source of the leaks.
15

__________

15
The Commission and the Attorney General's office have steadfastly opposed any investigation into the leaks,
arguing at various times that Petitioner leaked the confidential information, that this court lacked the
[Headnote 17]
It is most apparent that someone must get to the bottom of these flagrant constitutional
infractions. At this stage of the proceedings we are not prepared, as a court, to launch a full
investigation into these matters. Although it is clear that we have the authority to appoint a
fact-finding master to delve into the source of the violations,
16
we are not ready at this time
to define the scope of activities to be conducted in this regard. We do, however, conclude that
an investigation into the breaches of confidentiality is warranted. A master will have to be
appointed having the power to issue subpoenas and other compulsory process. In due time the
court will issue an order naming the court master or other investigator and defining the scope
of the powers and duties that will be necessary to carry out the required investigation.
For the reasons discussed above,
IT IS HEREBY ORDERED:
1. The Attorney General and her staff, and Special Deputy Attorney General Donald J.
Campbell shall be, and the same hereby are removed as counsel to the Commission in the
instant proceeding, and the Attorney General and her staff shall hereafter take no part or
assume any role in disciplinary matters brought before the Commission.
17

2. A special master shall hereafter be appointed by the court and shall be specially
empowered by further and specific order of this court to conduct such investigations as shall
be necessary to determine the sources of the unlawful breaches of confidentiality that have
occurred in these proceedings and the extent to which they may have impacted Petitioner's
due process rights.
18

Steffen and Springer, JJ., and Zenoff, Sr. J.
19
concur.
__________
authority to enforce these constitutional provisions, and that the First Amendment prevents this court from
requiring the Commission to enforce its own confidentiality rules.

16
See, e.g., Young v. Board of County Comm'rs, 91 Nev. 52, 530 P.2d 1203 (1975).

17
The Commission is herein authorized to obtain a Nevada attorney. There are a multitude of Nevada attorneys
who are well-qualified to act as counsel to the Commission to replace the Attorney General, her staff, and any
special deputy attorney general, to continue in this matter and in any other matter presently before the
Commission and/or to be brought before the Commission.

18
Judicial Discipline. Nev. Const. art. 6, 4.

19
to sit in the place of The Honorable Robert E. Rose, Chief Justice. Nev. Const. art. 6, 19, SCR 10.
I have signed the four-judge Majority Opinion in this case because I am convinced that the
Attorney General must be removed from any participation in judicial discipline prosecution
of Judge Jerry Carr Whitehead. I write this Concurring Opinion for two reasons: one is to
answer some of the contentions raised by Justice Shearing in her Dissent, the other is that I
wish to discuss the misconduct of Attorney General Del Papa, which I see as a ground for
removing her from this case, in addition to, and entirely separate from, the grounds of
constitutional incapacity and conflict of interest relied upon by the Majority Opinion.
Inasmuch as the Attorney General's conflicts of interest and constitutional incapacity
provide ample and sufficient grounds for the action taken by the Majority, I had initially
agreed that it was unnecessary to voice my view that the Attorney General's misconduct
constitutes a discrete and independent ground warranting her removal from this matter. In
light of the position now advanced by the Dissent, that constitutional incapacity and conflict
of interest provide insufficient cause to support the Majority's decision, I now feel compelled
to address the additional cause found in the Attorney General's disqualifying misconduct.
THE SHEARING DISSENT
Article 6, section 21(1) of the Nevada Constitution provides:
A justice of the supreme court or a district judge may, in addition to the provision of
article 7 for impeachment, be censured, retired or removed by the commission on
judicial discipline. A justice or judge may appeal from the action of the commission to
the supreme court, which may reverse such action or take any alternative action
provided in this subsection.
(Emphasis added.)
Despite this clear and unambiguous language contained in the Judicial Article of the
Nevada Constitution, the Dissent insists: (1) that the Nevada Constitution does not vest the
Commission with the authority to exercise the judicial power of this state; (2) that the
decisions of the Commission are not final; and (3) that this court alone has the power to
enforce the Commission's orders.
From these three conclusions, it is apparent that my dissenting colleague perceives the
Nevada Commission on Judicial Discipline as an impuissant tribunal possessed of mere
advisory or recommendatory powers. Restrained by article 6, section 21(1) of the Nevada
Constitution and persuasive, prior precedent of this court interpreting that provision, neither I,
nor my colleagues in the Majority, are willing or able to ascribe to the view that the
Commission has been relegated to the impotent and ineffectual advisory status perceived
by the Dissent.
the Majority, are willing or able to ascribe to the view that the Commission has been
relegated to the impotent and ineffectual advisory status perceived by the Dissent. Therefore,
for the reasons which follow, I emphatically and respectfully reject the views expressed in the
Dissent.
First, the Dissent declares:
The decisions of the Commission are not final, but are subject to review by the
Supreme Court, which alone has the judicial power to enforce the Commission's orders.
This view of the Commission's authority, however, is directly repelled by this court's holding
in Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992), a
holding which the Attorney General, on behalf of the Commission, has repeatedlyalbeit
inaccurately and incompletelycited to this court in the instant proceeding.
Specifically, in Goldman, this court explained at length:
The relevant constitutional provision defining this court's jurisdictional role in an
appeal challenging commission action specifies as follows:
A justice of the supreme court or a district judge may, in addition to the provision of
article 7 for impeachment, be censured, retired or removed by the commission on
judicial discipline. A justice or judge may appeal from the action of the commission
to the supreme court, which may reverse such action or take any alternative action
provided in this subsection.
Nev. Const. art. 6, 21(1). Absent the prosecution of an appeal to this court by an
aggrieved judge, this provision unambiguously vests the commission with final
authority to order the censure, removal or retirement of a judicial officer. A
commission decision to censure, remove or retire is not merely advisory or
recommendatory in nature; it is of independent force and effect absent perfection of an
appeal to this court.[
1
]
This broad constitutional authority distinguishes Nevada's commission from similar
commissions in other jurisdictions. The California Commission on Judicial
Performance, for example, is constitutionally empowered only to make
"recommendations" concerning the imposition of disciplinary sanctions.
__________

1
Of course, as the Majority Opinions in Whitehead I and II have emphasized, this section of the Goldman
opinion only addressed the standards of review applicable to appeals from Commission decisions to censure,
retire or remove. The quoted passage does not speak to this court's authority to intervene in commission
proceedings by way of extraordinary writ. See ARJD 40(7); Nev. Const. art. 6, 4 (Nevada's all writs
provision).
for example, is constitutionally empowered only to make recommendations
concerning the imposition of disciplinary sanctions. See Cal. Const. art. 6, 18(c).
Formal approval of further action by the California Supreme Court is necessary before
any disciplinary sanctions may be imposed. Id.
In declaring the standard of review to be applied under this recommendation
system, the California Supreme Court has observed:
Were a recommendation of independent force and effect absent further action by this
court, our review of the evidentiary basis for that recommendation might properly be
limited to a determination whether the Commission's findings of fact were supported
by substantial evidence. Under such a standard of review we would not be free to
disregard the Commission's findings merely because the circumstances involved
might also be reasonably reconciled with contrary findings of fact.
Geiler, 515 P.2d at 4. In Geiler, however, the court further noted that the California
Constitution expressly entrusts that state's high court with the sole responsibility and
authority to render the ultimate, dispositive decision to censure or remove . . . . Id. In
exercising that authority, the California court independently evaluates the record
evidence and renders its own findings of fact and conclusions of law. Judicial
disciplinary procedures in many other jurisdictions are patterned after California's
pioneering judicial disciplinary procedures and similarly require review and final
approval of commission recommendations by a higher tribunal.
Thus, the express authority vested in this court under article 6, section 21 of the
Nevada Constitution contrasts sharply with the ultimate and dispositive constitutional
authority conferred upon courts of review in these recommendation jurisdictions. It
is readily apparent that by deviating from the California model, the drafters of article
6, section 21 of the Nevada Constitution rejected California's recommendation
system in favor of procedures intended to vest a far greater degree of authority in
Nevada's commission. See, e.g., Matter of Samford, 352 So. 2d 1126, 1129 (Ala. 1978)
(where adoption of constitutional amendment replaced old recommendation system
of judicial discipline with new system merely authorizing appeal, Alabama court's
scope of review was restricted by such amendment to a determination of whether the
record shows clear and convincing evidence to support the order of the Court of the
Judiciary).
We conclude, therefore, that the Nevada Constitution does not contemplate this
court's de novo or independent review of factual determinations of the commission on
appeal. To the contrary, the constitution confines the scope of appellate review of the
commission's factual findings to a determination of whether the evidence in the record
as a whole provides clear and convincing support for the commission's findings. The
commission's factual findings may not be disregarded on appeal merely because the
circumstances involved might also be reasonably reconciled with contrary findings of
fact. See Samford, 352 So. 2d at 1129; cf. Geiler, 515 P.2d at 4.
This court, of course, is not bound by the commission's conclusions of law. Cf. In re
Jones, 728 P.2d 311, 313 (Colo. 1986). Moreover, where an appeal from the
commission's order of censure, removal or retirement is taken, this court is expressly
empowered to reverse such action or take any alternative action provided in this
subsection. Nev. Const. art. 6, 21(1). Thus, on appeal, we are specifically enjoined
by the constitution to exercise our independent judgment regarding the appropriate
sanction warranted by factual findings properly adduced by the commission.
See Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 265-268, 830 P.2d
107, 116-118 (1992) (footnotes omitted; emphasis added).
2

Thus, in interpreting article 6, section 21(1) of the Nevada Constitution, this court held in
Goldman: (1) that the constitution unambiguously vests the Commission with final
authority to order the censure, removal or retirement of a judicial officer; and (2) that a
commission decision to censure, remove or retire is not merely advisory or recommendatory
in nature; it is of independent force and effect absent perfection of an appeal to this court.
Contrary to the Dissent's assertion that the conclusions of the Majority in Whitehead I are
bereft of any supporting legal precedent, the Majority Opinion in Whitehead I did indeed
cite this precise holding in Goldman as authority for the position that the Commission
must be "regarded as being a constitutionally established 'court of judicial performance
and qualifications,' whose functions are judicial in nature and essentially of the same
fact-finding and law-applying nature that the state constitution assigns to the District
Courts of this State."
__________

2
In a footnote in Goldman, this court further observed that the intent to vest far greater authority in Nevada's
Commission than is vested in states with recommendation systems is also evidenced by:
the care taken by the drafters to insure fairness, competence, non-partisanship and geographic diversity in
the commission's makeup. The commission, for example, must be composed of two justices or judges
appointed by the supreme court, two attorneys appointed by the state bar, and three lay members
appointed by the Governor. See Nev. Const. art. 6, 21(2). Moreover, an appointing authority may not
appoint more than one resident of any county, nor more than two members of the same political party.
See Nev. Const. art. 6, 21(4).
Goldman, 108 Nev. at 267 n.16, 830 P.2d at 117 n.16.
Majority in Whitehead I are bereft of any supporting legal precedent, the Majority Opinion in
Whitehead I did indeed cite this precise holding in Goldman as authority for the position that
the Commission must be regarded as being a constitutionally established court of judicial
performance and qualifications,' whose functions are judicial in nature and essentially of the
same fact-finding and law-applying nature that the state constitution assigns to the District
Courts of this State. See Whitehead I, 110 Nev. 123, 160 n.25, 869 P.2d 795, 815 n.25
(1994). Specifically, the Whitehead I Majority explained:
[The court in Goldman] assigned a higher status to the Commission and accorded
greater deference to its final decisions than other courts have done, in accord with our
view that the Commission is not to be regarded merely as an administrative agency but
as a true Court of Judicial Performance and Qualifications. Our deference to the
Commission is in significant contrast to the California Supreme Court action in the case
Geiler v. Comm'n on Judicial Qualifications, 515 P.2d 1 (Cal. 1973). Still, the fact that
we held in Goldman that the Commission, like the District Courts, is free from our de
novo or independent review of factual findings only emphasizes how important it is in
Nevada's system that the Commission, like our District Courts shall apply with fidelity
the substantive legal principles articulated by other constituted authority. It also
underscores that in Nevada it is highly important that the established substantive rules
or principles be applied only in compliance with the procedural requirements delineated
by constituted authority. Moreover, in Nevada, as with our District Courts, when
counsel may have led the Commission to stray from its jurisdiction as defined in the
rules by other constituted authority, it is important that such deviations be subject to
review by interlocutory writ, as are those of the District Courts.
Id.
Notwithstanding this court's meticulously crafted prior precedent interpreting the
unambiguous language of article 6, section 21(1), the Dissent seems to be saying that the
Judicial Discipline Commission is a mere fact-finding agency, akin to the Board of Medical
Examiners or the Real Estate Commission. Citing to Bergman v. Kearney, 241 F. 884, 898
(D. Nev. 1917), the Dissent observes that [j]udicial power, in the constitutional sense, is
something more than authority to hear and determine; it includes the power to decide finally
and conclusively, and also power to carry its determination into effect. Neither I, nor the
other justices in the Majority, quarrel with this definition in Kearney of "judicial power."
other justices in the Majority, quarrel with this definition in Kearney of judicial power. The
Dissent, however, can cite to no constitutional provision, statute, or case authority which
interprets article 6, section 21 of the Nevada Constitution so as to support the further
conclusion in the Dissent that the Commission on Judicial Discipline should be viewed as
merely an administrative agency or commission which is not vested with the authority to
exercise the judicial power of this state. To the contrary, the relevant constitutional provision
and case law unambiguously establish that the Commission is indeed empowered to decide
finally and conclusively matters related to judicial disability and misconduct, and to carry
its determinations into effect.
For example, as the Majority Opinion in Whitehead I explained:
[The Commission] was created in 1976 by an amendment to the . . . Judicial
Department article of our constitution that inserts into article 6 a new section 21,
which not only creates the Commission but also grants this court certain powers over it.
In very broad terms, section 21(1) recognizes that the Supreme Court, theretofore also
created by the Judicial Department article, is to have appellate jurisdiction over the
Commission, as it does over Nevada's District Courts . . . .
Whitehead I, 110 Nev. at 131, 869 P.2d at 797. Significantly, the 1976 constitutional
amendment establishing the Commission amended this state's Judicial Article, the very
Judicial Article cited by the Dissent as declaring where the judicial power of this state resides.
Thus, while it is true that article 6, section 1 of the Nevada Constitution vests the judicial
power of this state in a court system comprised of the supreme court, the district courts and
the justice's courts, the Dissent overlooks the fact that the 1976 amendment changed our
Judicial Article so as to vest judicial power in the Commission as well.
As amended, the Nevada Constitution's Judicial Article, now provides that a judge or
justice may be censured, retired or removed by the Commission. Nev. Const. art. 6, 21(1)
(emphasis added). This adjudicative function includes, but is much more than, mere
fact-finding. It simply cannot be seriously contended that the power to censure, retire or
remove, vested in the Commission by an amendment to Nevada's Judicial Article, does not
now encompass the power to decide finally and conclusively questions related to censure,
retirement and removal of a judge or justice, and to carry determinations respecting those
matters into effect.
matters into effect.
3
Thus it is not merely that the Nevada Supreme Court has the
constitutional power to fashion rules for the Commission that makes the Commission a true
Court of the Judiciary within the judicial branch of government. The Nevada Constitution and
the citizens of this state accomplished that task.
Furthermore, as this court has previously stated, the separation of powers requires the
judiciary and not another branch of government to administer judicial affairs. See Dunphy v.
Sheehan, 92 Nev. 259, 266, 549 P.2d 332, 336-37 (1976) (promulgation of Code of Judicial
Ethics is essential to the due administration of justice and within the inherent power of the
judicial department of this state). Thus, the creation of the Judicial Discipline Commission
within the judicial branch of government is mandated by the separation of powers clause.
The Dissent observes that several state agencies exercise functions which may be
described as quasi-judicial in nature. None of those agencies, however, have the kind of direct
control over the judiciary itself which is vested in the Judicial Discipline Commission, a court
constitutionally created as part of the judicial branch of government. This power to control
the judiciary has been constitutionally placed within the judicial branch of government,
specifically in the Commission, and it may not be directed by the executive branch without
offending the doctrine of separation of powers.
The principle that a duty constitutionally entrusted to the judiciary cannot be exercised by
one of the other branches of government is basic, black-letter law, appearing in standard legal
reference works:
__________

3
With respect to the Commission's power to carry its determinations into effect, the following passage from
Goldman appears particularly relevant:
[T]he Nevada Constitution specifically empowers the commission to remove a judge from office for
willful misconduct, willful or persistent failure to perform the duties of his office or habitual
intemperance . . . . See Nev. Const. art. 6, 21(6)(a). Further, the commission is authorized to retire a
judge for advanced age or for a disabling mental or physical condition that is likely to be permanent in
nature. See Nev. Const. art. 6, 21(6)(b). The power to adjudicate and order the removal or retirement of
a judge must necessarily imply the power to declare the office vacant. See generally, Galloway v.
Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). To the extent that the commission's exercise of this implied
authority may have conflicted with any express ministerial duty imposed upon the governor by the
legislature, the commission's power was clearly preeminent. See Goldman v. Bryan, 106 Nev. 30, 37, 787
P.2d 372, 377 (1990) (citing Robison v. District Court, 73 Nev. 169, 175, 313 P.2d 436, 440 (1957). To
hold otherwise would elevate form over substance.
Goldman, 108 Nev. at 303, 830 P.2d at 141.
Although executive or administrative officers or bodies may exercise powers of a
judicial or quasi-judicial nature incidental to the exercise of their administrative
functions, they may not exercise judicial authority, or interfere with the exercise thereof
by the courts.
. . . . [I]t is a well established and universally recognized rule of constitutional law
that executive or administrative officers, boards, or commissions may not, by reason of
their executive or administrative powers, exercise judicial authority, or control or
interfere with the courts in the exercise by the latter of judicial functions.
16 C.J.S. Constitutional Law 219 (1984). While the quoted section of the Corpus Juris
Secundum goes on to explain that [executive officers] may investigate and determine facts
as an incident to the performance of their administrative functions, judicial discipline is not
among the administrative functions of any executive office, but is the province of the
Commission, constitutionally created as part of the judicial branch of government.
[T]he power of the judiciary, stemming from the doctrine of separation of powers, must
prevail to control its own members. Any decision by the Attorney General's office not
to present [matters involving a judge's misconduct] to a grand jury involves a
discretionary determination by the executive branch and cannot bind or affect the
judicial branch in matters concerning the governance of the judiciary.
Matter of Yaccarino, 502 A.2d 3, 9 (N.J. 1985).
4

The Dissent further declares: The relationship of the Supreme Court to the Nevada
Commission on Judicial Discipline is virtually the same as its relationship to the State Bar
Disciplinary Boards and Hearing Panels except that the powers over the Bar are not expressly
granted in the Constitution, but are deemed inherent powers. The Dissent's analogy is
flawed.
The disciplinary boards and hearing panels of the state bar conduct individual attorney
disciplinary proceedings and
__________

4
The Dissent correctly observes, not every exercise of a function judicial in nature constitutes an exercise of
judicial power. Nonetheless, it is evident that the Commission is empowered by the Constitution to exercise the
inherent power of the judiciary to control the conduct of its own members. See, e.g., In re DeSaulnier, 279
N.E.2d 296 (Mass. 1971); see also Nev. Const. art. 4, 1; Nev. Const. art. 5, 1; Nev. Const. art. 6, 21;
Goldman v. Bryan, 104 Nev. 644, 654 n.7, 764 P.2d 1296, 1302 n.7 (1988); Goldberg v. District Court, 93 Nev.
614, 572 P.2d 521 (1977); Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976); Lindauer v. Allen, 85 Nev.
430, 456 P.2d 851 (1969); State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969); St. Ex Rel. Watson v.
Merialdo, 70 Nev. 322, 268 P.2d 922 (1954).
conduct individual attorney disciplinary proceedings and tender findings and
recommendations to this court respecting the imposition of public discipline including the
sanctions of suspension and disbarment. If the 1976 amendments to the Nevada Constitution
had created a Commission similar to the recommendatory judicial disciplinary systems
presently in place in California and other states cited in the Dissenting Opinion, then the
comparison with the state bar disciplinary function might have some force. Indeed, the
recommendatory systems of judicial discipline in California and many other states have much
in common with the procedures that govern attorney discipline in Nevada. For example,
pursuant to SCR 105(3)(b), a decision of a hearing panel recommending suspension or
disbarment is automatically appealed to the supreme court. Moreover, SCR 102(1) and (2)
specifically provide that only the supreme court may order the disbarment or suspension of an
attorney. Thus, like a judge facing discipline in a state with a recommendatory system of
judicial discipline like California's, an attorney facing discipline under Nevada's attorney
discipline system can only be suspended or disbarred from the practice of law by the state's
supreme court.
The inescapable fact remains, however, that the 1976 amendments to the Nevada
Constitution did not create such a recommendatory system of judicial discipline in this state.
Thus, the Dissent's attempt to analogize attorney and judicial discipline procedures is not only
insupportable, but somewhat unsettling inasmuch as it sets forth an analysis that appears
oblivious to the fundamental structure of both Nevada's attorney and judicial disciplinary
procedures.
What the Dissent fails to appreciate is that Petitioner Whitehead is entitled to a judicial
discipline proceeding free from the serious conflicts and constitutional improprieties created
by the Attorney General's association with the case precisely because the Nevada
Commission on Judicial Discipline possesses the broad constitutional power to issue a final
decision. Citing to the Commentary to Rule 4 of the 1993 proposed draft of the ABA Model
Rules for Judicial Disciplinary Enforcement, the Dissent declares: [A]lthough the separation
of investigatory and prosecutorial functions is desirable, such separation is not
constitutionally mandated.' The Dissent, however, overlooks the reason why such internal
separation of judicial discipline functions of most state commissions is not constitutionally
mandated. As the Report of the ABA Subcommittee recommending the proposed Model
Rules also observes, systems of judicial discipline which combine all
functionsinvestigation, prosecution, hearing and decision makingin a single process have
survived due process challenges because in this type of system the highest court has the
ultimate authority to review de novo and impose sanctions."
court has the ultimate authority to review de novo and impose sanctions. See Majority
Report of Joint Subcommittee on Judicial Discipline on Model Rules for Judicial
Disciplinary Enforcement at 3 (August 1994).
As noted above, and as the Attorney General herself has repeatedly emphasized in the
instant case, this court decided in Goldman that the Nevada Constitution does not
contemplate this court's de novo or independent review of factual determinations of the
commission on appeal. Thus, the analysis set forth in the Dissent fails to appreciate the
substantial due process implications arising from the critical distinctions between a
recommendatory system of judicial discipline, and the system established under the Judicial
Article of the Nevada Constitution. Under Nevada's system, where the state's highest court is
foreclosed from conducting de novo or independent review of factual findings of the
Commission, increased vigilance and careful scrutiny of the procedures employed by the
Commission are essential to assure that an accused judge is accorded the fundamental
fairness to which he or she is entitled under the Due Process Clause of the Constitution.
The Dissent's analysis also apparently overlooks other crucial distinctions between the
state bar's disciplinary panels and the Judicial Discipline Commission. The state bar is
emphatically not, as the Dissent points out, an independent body created . . . by the people of
the State of Nevada as a part of the judicial branch of government; it does not draw its power
from constitutional enabling provisions. Rather, the state bar is under the exclusive
jurisdiction and control of the supreme court. Compare Nev. Const. art. 6, 21
(constitutional referendum creating Judicial Discipline Commission) with NRS 7.275 (statute
continuing state bar as a public corporation under the exclusive jurisdiction and control of the
supreme court) and SCR 99 and 103 (Supreme Court Rule creating state bar disciplinary
boards and hearing panels within the exclusive disciplinary jurisdiction of the supreme
court).
More importantly, the disciplinary panels of the state bar do not possess the same final,
independent authority over attorneys that the Commission possesses over judges. The state
bar disciplinary panels have no authority to suspend or disbar attorneys; they merely
recommend such discipline to this court, which retains the ultimate power to impose any
appropriate sanction. By contrast, and as emphasized above, in the absence of an appeal by
the aggrieved judge, the Nevada Judicial Discipline Commission has final, independent
authority to censure, remove or retire a judge. Compare Goldman, 108 Nev. at 266, 830 P.2d
at 117 (Commission decision to censure, remove or retire is not merely advisory or
recommendatory but is of independent force and effect absent perfection of an appeal;
constitution does not contemplate this court's de novo or independent review of factual
findings of Commission on appeal) with In re Kenick, 100 Nev. 273
advisory or recommendatory but is of independent force and effect absent perfection of an
appeal; constitution does not contemplate this court's de novo or independent review of
factual findings of Commission on appeal) with In re Kenick, 100 Nev. 273, 680 P.2d 972
(1984) (Supreme Court Rules cannot be construed to limit supreme court's power to suspend
or disbar; court is not bound by the findings and recommendations of the disciplinary board
and must examine the record anew and exercise its independent judgment).
The Dissent relies on California and North Carolina precedent for the proposition that
case law indicates that several states have sanctioned the use of state Attorneys General for
various functions in judicial discipline cases (Dissent page 7). See Wenger v. Commission
on Judicial Performance, 630 P.2d 954, 956 n.3 (Cal. 1981); Spruance v. Commission on
Judicial Qualifications, 532 P.2d 1209, 1212-13 n.5 (Cal. 1975); In re Hardy, 240 S.E.2d 367
(N.C. 1978); In re Stuhl, 233 S.E.2d 562 (N.C. 1977). The Dissent's reliance on the cited
cases is misplaced because: (1) the separation of powers issue was simply not raised or
addressed; (2) the attorneys general involved in these cases were not performing the kinds of
multiple roles seen in this case; and (3) unlike Nevada, the systems of judicial discipline
applicable in these jurisdictions are recommendation systems in which the state's highest
court has the ultimate authority to review commission decisions de novo and impose
sanctions.
More specifically, the Dissent cites Wenger and Spruance as examples of instances where
attorneys general acted in multiple capacities during judicial discipline proceedings, assuming
the roles of examiners, investigators, prosecutors and counsel to the commissions on appeal
or in proceedings attacking the legal correctness of the commissions' actions. In Wenger and
Spruance, however, it is clear that it is the California Supreme Court, and not the California
Commission, which makes the final decision to censure, retire or remove the accused judge,
although this power is contingent upon the recommendation of the Commission. In Nevada,
by contrast, the Commission may itself order the censure, removal or retirement of a judge
(ARJD 30(2)); the judge may then appeal this final decision to this court. Consequently, even
though an attorney general may be utilized in California as the Dissent contends, the conflicts
of interest created by an attorney general's acting in multiple roles are far more significant in
Nevada where, unlike California, the attorney general has been serving as an investigator, a
prosecutor, and as counsel for the very tribunal empowered to issue a final decision
respecting judicial misconduct. As the Spruance opinion notes, the California Commission
appears before the California Supreme Court, the final arbiter of all judicial discipline, in an
adversarial role, and the examinerswhich may be attorneys generalappear "merely as
counsel to [the] respondent" Commission.
Supreme Court, the final arbiter of all judicial discipline, in an adversarial role, and the
examinerswhich may be attorneys generalappear merely as counsel to [the] respondent
Commission. Further, although the Wenger and Spruance opinions show that an examiner,
who may be an attorney general, may act as a presenter of evidence before the Commission,
and as counsel for the Commission before the California Supreme Court, the opinions do not
provide specific support for the proposition that deputy attorneys general may act in these two
roles at the same time.
A similar analysis applies to the two North Carolina cases cited in the Dissent. See In re
Hardy, 240 S.E.2d 367 (N.C. 1978); In re Stuhl, 233 S.E.2d 562 (N.C. 1977). In Hardy, a
deputy attorney general was utilized to present charges to a judicial discipline commission. In
Stuhl, a deputy attorney general represented the judicial discipline commission in an
adversary proceeding. However, a careful reading of these cases reveals that North Carolina
follows the same scheme to which California adheres, namely, the judicial discipline
commission in the cited cases merely recommends discipline, and the actual order to
discipline is entered by the state supreme court. Thus, the cases are not applicable to the
instant case for the same reasons discussed above.
The Dissent also protests that no actual conflicts of interest have been established or
identified as a result of the Attorney General's staff having acted as investigator, prosecutor,
legal counsel to the Commission, and appellate advocate for the Commission in this matter.
The Dissent perceives no evidence contradicting the averments of Special Deputy Attorney
General Campbell and Assistant Attorney General Nielsen that Campbell was not in any way
connected with or beholden to the Attorney General's office. Much more than a mere
fanciful scenario, however, supports the Majority's conclusions. For example, a cursory
review of the Commission's minutes, Campbell's billings, and the affidavits, statements, and
exhibits discloses that Campbell was deputized as a member of the Attorney General's staff,
is contractually bound to serve at the pleasure of the Attorney General and is contractually
bound to report regularly to the Attorney General concerning the status of [this] case. See
Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 391-394, 873 P.2d 946, 953-955
(1994).
The Dissent also brands as mere speculation the Majority's concern that the Attorney
General's office could present cases before the very judges her office is investigating or
supervising.
5

__________

5
United States v. Hastings, 681 F.2d 706, 710-11 (1982), cert. denied, 459 U.S. 1203 (1983), cited in the
Dissent, is inapposite. The judge in Hastings
The case of Judge D
------
, however, outlined in the Majority Opinion in Whitehead II,
presents precisely such a scenario. Judge D
------
was placed under the supervision of the
Attorney General's office which had the power to conduct on-going follow-up examinations
including contacting witnesses. Id., 110 Nev. at 419, 873 P.2d at 970-971. This ad hoc
probationary scheme obviously creates at a minimum the appearance of impropriety, if not an
inference of actual bias.
The Pennsylvania Supreme Court was faced with a similar situation. See In Interest of
McFall, 617 A.2d 707 (Pa. 1992). McFall involved appeals by some twenty-nine criminal
defendants who charged that they had been denied their right to a fair and impartial tribunal
because the judge who presided over their trials was assisting in an FBI investigation. Id. at
711. The FBI had previously caught the judge accepting a monetary gift from a potential
litigant and had obtained the judge's cooperation in its investigation by promising to tell any
other investigating or prosecuting body of the judge's full cooperation. Id. The Pennsylvania
Supreme Court affirmed the intermediate appellate court's order granting all twenty-nine
criminal defendants a new trial because the defendants' rights to an impartial tribunal [had]
been trampled upon and because the court concluded that the appearance of impropriety
compels us to affirm the grant of new proceedings in view of the blatant potential conflict of
interest of the trial judge. Id. at 712. The court went on to note [o]ne could reasonably
conclude that, under the circumstances, [the judge]'s cooperation with the United States
Attorney's office cast her in the role of a confederate of the prosecutors in the appellees'
cases. Id. at 713.
Although the Dissent perceives this type of potential conflict of interest to be a mere
specter, it should be noted that there are two motions in criminal cases currently pending
before this court in which the appellants seek to discover whether Judge D
------
or any other
judge who is or has been subject to informal probation under the supervision of the Attorney
General's office presided over any portion of their criminal trials. Obviously if these
appellants were prosecuted by the Attorney General's office before judges like Judge D
------
who were simultaneously being supervised by the Attorney General's officethis court
would have to consider whether those appellants, like the appellants in the McFall case, were
denied a fair and impartial tribunal.
__________
sought judicial immunity from a federal criminal prosecution. The Majority Opinion obviously does not
immunize judges from judicial disciplineit merely concludes that the Attorney General may not act as legal
advisor or prosecutor in judicial discipline matters. Moreover, the Majority Opinion expressly states that the
Attorney General is constitutionally authorized to pursue criminal investigations and prosecutions of judges or
justices.
the McFall case, were denied a fair and impartial tribunal. The instant Majority Opinion seeks
to avoid having this court placed in the unenviable position that the Pennsylvania Supreme
Court found itself, i.e., having to order new proceedings in dozens of criminal cases because
of the appearance that the judge who presided over those cases might be beholden to the
prosecution.
Finally, the Dissent raises First Amendment concerns as a kind of all-purpose panacea
against the Majority's desire to appoint a special master to investigate the cause of leaks of
confidential information in derogation of Petitioner's constitutional rights. Although this
expression of concern with the First Amendment might be an effective strategy for swaying
public opinion, it has no legitimate legal basis.
Put quite simply, the First Amendment does not stand for the proposition that one who is
under a duty not to reveal confidential information may breach this duty with impunity. See,
e.g., Landmark Communication, Inc. v. Virginia, 435 U.S. 829, 837 n.9 (1978) (statute
imposing criminal liability for breach of confidential judicial discipline proceedings might
well be constitutional under the First Amendment if it is applicable only to direct participants
in a judicial discipline inquiry); United States v. Richey, 924 F.2d 857 (9th Cir. 1991)
(government may properly limit speech when compelling government interests out-weigh free
expression interests of speaker); Kamasinski v. Judicial Review Council, 797 F. Supp. 1083
(D. Conn. 1992) (state's interest in prohibiting disclosure prior to determination of probable
cause is sufficiently compelling to survive the strictest First Amendment scrutiny).
6

Moreover, a duty of confidentiality can be lawfully imposed and enforced where a breach
of confidentiality is in derogation of the constitutional rights of the party meant to be
protected thereby. As the United States Supreme Court stated in Sheppard v. Maxwell, 384
U.S. 333, 363 (1966):
The courts must take such steps by rule and regulation that will protect their processes
from prejudicial outside interferences. Neither prosecutors, counsel for defense, the
accused, witnesses, court staff nor enforcement officers coming under the jurisdiction
of the court should be permitted to frustrate its function.
__________

6
See also Kamasinski v. Judicial Review Council, 843 F. Supp. 811 (D. Conn. 1994); Vassiliades v.
Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. Ct. App. 1985) ([a] defendant is not released from an
obligation of confidence merely because the information learned constitutes a matter of legitimate public
interest.); Cherne Indus., Inc. v. Grounds & Assoc., 278 N.W.2d 81, 94 (Minn. 1979) (a former employee's
use of confidential information or trade secrets of his employer in violation of a contractual or fiduciary duty is
not protected by the First Amendment).
ted to frustrate its function. Collaboration between counsel and the press as to
information affecting the fairness of a criminal trial is not only subject to regulation,
but is highly censurable and worthy of disciplinary measures. [
7
]
(Emphasis added.)
If collaboration between counsel and the press is subject to regulation . . . highly
censurable and worthy of disciplinary measures how much more would collaboration
between a sitting judge and the press be worthy of such censure? Whitehead I ruled that the
Judicial Discipline Commission constitutes a Court of Judicial Performance and
Qualifications (despite the Dissent's objection to this ruling, it is obvious, given the
Commission's authority to issue a final order censuring, removing or retiring a judge, that the
Commission members are very real judges over petitioner). I need not belabor the obvious
point that a judge, by virtue of his or her office, is prohibited from exercising certain First
Amendment rights otherwise enjoyed by the general citizenry, namely, the right to comment
on a pending case, even though that case may clearly implicate matters of great public
concern. See Nevada Code of Judicial Conduct, Canon 3B, 9. Judges are certainly not
entitled to divulge confidential information learned in the course of their official duties; and
they may be subject to disqualification, at the very least, for making public statements
indicative of bias against a litigant.
In this regard, it must be remembered that the tone and effect of the news coverage of this
matter has clearly been indicative of hostility towards Petitioner on the part of whomever
made the leaks to the press. If such party is a member of the Judicial Discipline Commission
who will sit in judgment over Petitioner, it cannot be expected that Petitioner will be given a
fair hearing. Accordingly, the appointment of a master is necessary to protect Petitioner's
constitutional rights to an impartial tribunal.
ATTORNEY GENERAL DEL PAPA'S DISQUALIFYING
MISCONDUCT IN THIS CASE
Even if the Dissent were correct in saying that there are no constitutional or
conflict-of-interest bars to the Attorney General's continuing to act in the role of legal
advisor and prosecutor in this case, I believe that there is another independent basis for
disqualification of Attorney General Del Papa in the Whitehead case.
__________

7
It should be noted that the decision of the United States Supreme Court in Gentile v. State Bar of Nevada, 501
U.S. 1030, 111 S. Ct. 2720 (1991), is not contrary authority to our decision on this issue. The Gentile decision
involved attorney speech which was censured, not because it implicated the breach of a duty of confidentiality,
but because it was substantially likely to prejudice materially an adjudicative proceeding. Moreover, a majority
of the Supreme Court in Gentile specifically held that the proscription of speech there involved did satisfy the
First Amendment. The rule was held unconstitutional as applied on vagueness grounds only.
eral's continuing to act in the role of legal advisor and prosecutor in this case, I believe that
there is another independent basis for disqualification of Attorney General Del Papa in the
Whitehead case. Attorney General Del Papa should not be permitted to act as counsel in any
capacity in this case, because she has displayed such animus, such a publicly-proclaimed
antipathy toward the defendant judge in this case that she has rendered herself and her
office unsuitable and incapacitated to serve as a prosecutorial advocate in the judicial
discipline case involving Judge Whitehead. The Attorney General appears to have forgotten
that her primary duty is not to convict, but to see that justice is done and that cases must
be tried in the courtroom rather than in the media. Williams v. State, 103 Nev. 106, 110,
111, 734 P.2d 700, 703 (citations omitted). The Attorney General's running public comments
on this case display a continuous effort to influence public opinion against Judge Whitehead.
Not only is this conduct ethically unacceptable, it is in direct violation of ARJD 8.
8
ARJD 8
is a very clear and explicit court rule which has been flouted by the Attorney General. This
rule expressly commands that all counsel in judicial discipline matters, at all times, refrain
from engaging in any private or public discussion which relates to the merits of any
judicial discipline matter or which might prejudice a [judge's] reputation or rights to due
process. (Emphasis added.)
For most of the time that this case has been pending the Attorney General has been
engaging in public discussion[s] of one kind or another about the case, saying over and
over again that Judge Whitehead was charged with serious misconduct and issuing public
statements that rather clearly violate ARJD 8. Rather than attempting to catalogue the various
violations of ARJD 8, I will rely in making my point on one very obvious and, may I say,
flagrant example of the manner in which Attorney General Del Papa has defied this court
rule. The Attorney General's press release of January 31, 1994, epitomizes her refusal to abide
by the rules. In this statewide press release, issued to all public news media sources, the
Attorney General publicly accuses the judge of lying (misrepresentation), slander
(smearing others) and tampering with the justice system (going around and above the
law).
9
The Attorney General has waged a public opinion war against Judge Whitehead
and in public statements and press releases has repeatedly attempted to "try her case" in
the media.
__________

8
ARJD 8 provides, in pertinent part, that Commission counsel must refrain from any public or private
discussion about the merits of any pending or impending matter, or discussion which might otherwise prejudice a
[judge's] reputation or rights to due process.

9
The actual public charges made by Attorney General Del Papa against Judge Whitehead are that (1) the judge
was guilty in this case of gross misrepresentations of fact, (2) that he was guilty of smearing others in
waged a public opinion war against Judge Whitehead and in public statements and press
releases has repeatedly attempted to try her case in the media. The January 31 release is
probably the worst and most undeniable example of the Attorney General's misconduct.
Presumably the Attorney General is aware of the contents of ARJD 8 and aware that she is
obliged to refrain from such public . . . discussion[s] and that she must not do or say
anything that will prejudice a [judge's] reputation or rights to due process. Can anyone
doubt that publicly calling a judge a liar or slanderer or publicly accusing a judge of going
around and above the law does not prejudice the judge's reputationespecially when
such statements go to every news source in the state and are made by none other than the
Attorney General of the State of Nevada? Can anyone doubt that Judge Whitehead's due
process rights before the Commission have not been damaged by the Attorney General's
conduct? It may be that notwithstanding the history of this case there is some possibility that
Judge Whitehead might somehow be afforded due process in the future, I do not know; but
one thing is clear and that is that, given the damage that Attorney General Del Papa has done
to Judge Whitehead's reputation and the prejudicial effect that damage necessarily has had on
Judge Whitehead's due process rights, we cannot, entirely apart from any consideration of
constitutional incapacity or conflict of interest, allow Attorney General Del Papa to continue
to act in any capacity in this case. The Attorney General's misconduct, by itself, and
independent of the two grounds stated in the Majority Opinion, requires that she be removed
from any contact with this case at once.
In Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982), we recognized that the
disqualification of a prosecutor's office rests with the sound discretion of the district court
and that [i]n exercising that discretion, [the court] should consider all the facts and
circumstances and determine whether the prosecutorial function could be carried out
impartially . . . . Id. at 309-10, 646 P.2d at 1220 (citations omitted). I cannot imagine how
the Attorney General, who has also been acting as both Judge Whitehead's prosecutor and the
Judicial Commission's legal counsel, can, given the pattern of her manner of handling this
case and the inexcusable issuance of the press release of January 31, 1994, possibly be able to
carry out the prosecutorial function impartially in this case. I do not see how it can be
denied that the Attorney General is clearly unable to act impartially with regard to a man
whom she called "desperate" and whom she has publicly branded as a liar and slanderer
who is trying to escape his just deserts by going "around and above the law."
__________
order to try desperately to save himself, (3) that the judge had gone around and above the law, and (4) that
even Judge Whitehead was not above the law.
regard to a man whom she called desperate and whom she has publicly branded as a liar
and slanderer who is trying to escape his just deserts by going around and above the law. In
my opinion, her flagrant violation of court rules, her public comments on a pending judicial
discipline case, and her prejudicial public statements against Judge Whitehead all combine to
deny Judge Whitehead any possibility of receiving fair treatment and due process for so long
as Attorney General Del Papa, her staff or her special prosecutor have anything to do with
this case. I would disqualify her on this ground alone.
I am not ready at this time to pass judgment on what penalties should be meted out as a
result of the Attorney General's flouting of ARJD 8, but I am convinced that her actions
relative to this case disqualify her from proceeding another day as the prosecutor or in any
other capacity on this case.
I do not agree that the Attorney General, the Assistant Attorney General or the special
counsel hired by the Nevada Commission on Judicial Discipline should be disqualified from
appearing in this proceeding or any disciplinary proceeding now pending before the
Commission. The grounds which the majority and the concurrence allege require the
disqualification of the Attorney General are (1) violation of the separation of powers doctrine,
(2) conflicts of interest and (3) misconduct amounting to violation of due process. None of
these grounds is supported in law or fact.
SEPARATION OF POWERS
There is no basis in the Nevada Constitution, the Nevada statutes or the rules adopted by
this court for holding that the Nevada Commission on Judicial Discipline lacks the authority
to seek the assistance of the Attorney General's office for legal advice and representation. On
the contrary, the Commission is specifically authorized to do so. The legislature enacted NRS
1.450(2) directing the Attorney General to provide, upon request of the Judicial Discipline
Commission, legal counsel in any investigation or proceeding of the Commission. The
majority would have this statute declared unconstitutional in violation of the doctrine of
separation of powers.
Article 3, Section 1 of the Constitution of the State of Nevada provides:
Three separate departments; separation of powers. The powers of the
Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and no persons
charged with the exercise of powers properly belonging to one of these
departments shall exercise any functions, appertaining to either of the others,
except in the cases herein expressly directed or permitted.
charged with the exercise of powers properly belonging to one of these departments
shall exercise any functions, appertaining to either of the others, except in the cases
herein expressly directed or permitted.
There is no dispute that Nevada has adopted the traditional separation of powers doctrine
which provides the checks and balances necessary to prevent any one branch of government
from becoming all-powerful and tyrannical. Each branch has the exclusive authority to
exercise the powers delegated to it. Legislative power is the power to set the policies of the
state through its enactments and the allocation of funds. See Galloway v. Truesdell, 83 Nev.
13, 20, 422 P.2d 237, 242 (1967). Executive power is the power to enforce and implement the
policies of the state as set forth by the legislature. Id. Judicial power is the power to interpret
legislation, to hear and determine justiciable controversies and to enforce any valid judgment,
decree or order. Id.
This does not mean that there is a wall between any of the branches preventing them from
interacting. On the contrary, the structure of government is such that the branches must
interact. That is what keeps any one branch from dominating the government. In The
Federalist No. 47, responding to criticism that there was not sufficient separation of powers in
the proposed federal constitution, James Madison stated:
If we look into the constitutions of the several States, we find that, notwithstanding
the emphatical and, in some instances, the unqualified terms in which this axiom
[separation of powers] has been laid down, there is not a single instance in which the
several departments of power have been kept absolutely separate and distinct.
More recently, the United States Supreme Court has stated, in Morrison v. Olson, that
[T]he system of separated powers and checks and balances established in the
Constitution was regarded by the Framers as a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of the other. We have
not hesitated to invalidate provisions of law which violate this principle. On the other
hand, we have never held that the Constitution requires that the three branches of
Government operate with absolute independence. In the often-quoted words of
Justice Jackson:
While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government.
ernment. It enjoins upon its branches separateness but interdependence, autonomy
but reciprocity.
487 U.S. 654, 693-94 (1988) (citations omitted).
And in Buckley v. Valeo, the United States Supreme Court stated:
[I]t is also clear from the provisions of the Constitution itself, and from the Federalist
Papers, that the Constitution by no means contemplates total separation of each of these
three essential branches of Government . . . . The men who met in Philadelphia in the
summer of 1787 were practical statesmen, experienced in politics, who viewed the
principle of separation of powers as a vital check against tyranny. But they likewise saw
that a hermetic sealing off of the three branches of Government from one another would
preclude the establishment of a Nation capable of governing itself effectively.
424 U.S. 1, 121 (1975) (per curiam).
Neither does the doctrine of separation of powers mean that the legislature or the
constitution may not assign fact-finding functions in disputes to agencies in branches of
government other than the judiciary. There are numerous state agencies which perform
quasi-judicial functions, agencies such as the State Industrial Insurance System, the Board of
Medical Examiners, Board of Parole Commissioners and Real Estate Commission, to name a
few. The adjudicatory decisions made by these agencies affect the fundamental rights of
individuals, and absent an appeal to the courts, are final, with the full force and effect of law.
The majority states A member of the executive branch is simply not constitutionally
permitted to act in a judicial capacity. Fortunately, the majority is wrong. If the majority's
implication that agency adjudication violates the separation of powers doctrine were correct,
the overwhelming majority of government would be unconstitutional.
It has long been settled that the exercise of duties that are judicial in nature is not
necessarily an exercise of the judicial power of the state and therefore does not violate the
separation of powers doctrine. In Sawyer v. Dooley, 21 Nev. 390, 396, 32 P. 437, 439 (1893),
this court stated regarding Article 1, Section 3 of the Nevada Constitution:
These departments are each charged by other parts of the constitution with certain
duties and functions, and it is to these that the prohibition just quoted refers. For
instance, the governor or the judiciary shall not be members of the legislature, nor shall
they make the laws under which we must live.
must live. But this is quite a different thing from saying that no member of the
executive or judicial departments shall exercise powers in their nature legislative, but
which are not particularly charged by the constitution upon the legislative department;
such as where the board of commissioners for the insane makes rules for the
management of the asylum, or a court establishes rules for the transaction of the
business coming before it. It would be impossible to administer the state government
were the officers not permitted and required, in many instances, to discharge duties in
their nature judicial, in that they must exercise judgment and discretion in determining
the facts concerning which they are called upon to act, and in construing the laws
applicable to them. Hence we see no constitutional objection to members of the
executive branch being charged with the duty of assessing property, or of acting upon
the board of equalization, for neither of these functions have been, either expressly or
impliedly, placed by the constitution upon either of the other departments; for certainly,
although in equalizing valuations a board may act in a judicial capacity, the constitution
nowhere contemplates that the judicial department, as organized by article 6, shall
discharge that duty.
Thus, it is clear that not every exercise of a function judicial in nature constitutes an
exercise of judicial power, which power the constitution states is not to be performed by other
branches of government. In Bergman v. Kearney, 241 F. 884, 898 (D. Nev. 1917), the court
stated: Judicial power, in the constitutional sense, is something more than authority to hear
and determine; it includes the power to decide finally and conclusively, and also power to
carry its determination into effect. This power does not rest in any agency or commission,
unless the agency or commission or the party before it, agrees to accept the result with resort
to the courts. The Nevada Constitution makes clear that the judicial power of this state rests
exclusively in the courts. Article 6, Section 1 states:
Judicial power vested in court system. The Judicial power of this State shall be
vested in a court system, comprising a Supreme Court, District Courts, and Justices of
the Peace. The Legislature may also establish, as part of the system, Courts for
municipal purposes only in incorporated cities and towns.
What is now Article 6, Section 21 of the Nevada Constitution, entitled Commission on
Judicial Discipline, began as a proposed Constitutional amendment in the 1973 Legislature.
Following the procedure for constitutional amendment established by Article 16 of the
Nevada Constitution, the elected representatives of the state voted in 1973 and again in
1975 in favor of the proposed amendment.
procedure for constitutional amendment established by Article 16 of the Nevada Constitution,
the elected representatives of the state voted in 1973 and again in 1975 in favor of the
proposed amendment. Finally, in November of 1976 the amendment was ratified by direct
vote of the people.
Prior to 1976 the people of Nevada had no effective remedy for judicial misconduct falling
short of criminal behavior. The traditional checks and balances in our constitutional
organization were not adequate to curb the abuses of power by members of the judicial
branch. Judicial misconduct was, by and large, entirely beyond the jurisdiction of the
executive branch, the legislative branch and all existing administrative agencies. Only the
justices of the Supreme Court could impose discipline on judges of the state.
That the people of Nevada believed that the Supreme Court had not, and could not,
effectively police judicial misconduct is not surprising. Judges and justices, following their
constitutional mandate, hear and determine questions in controversy that are properly brought
before them. See Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967). In
carrying out their duties, judges, unlike legislators and especially unlike executive branch
officials, do not ordinarily have occasion to investigate complaints of misconduct, much less
to prosecute after determining that the complaints have merit. In striking down a statute
which placed the judges in a position of investigator, this court warned, Centuries of
common law tradition warn us with echoing impressiveness that this is not a judge's work.
83 Nev. at 29, 422 P.2d at 248.
Furthermore, in a small state like Nevada, the justices and judges usually know one
another personally. Thus, except in the case of the rare errant judge without strong personal
ties of friendship with the judicial community, it was nearly psychologically impossible for
the justices to adopt, on their own initiative, the role of investigator and prosecutor of judicial
misconduct. The result was a dissatisfied public and the adoption of Article 6, Section 21 of
the Nevada Constitution.
In adopting and ratifying Article 6, Section 21, the people of Nevada clearly intended to
remove the power and responsibility for disciplining noncriminal judicial misconduct from
the judiciary. In so doing, they clearly intended to leave the judiciary with less power and
greater accountability. The one difference in the Nevada Commission on Judicial Discipline
from most other agencies is that it was designed to have greater independence. The members
are not selected by any one branch of government. The Governor appoints three members, the
Supreme Court appoints two members and the Board of Governors of the State Bar
appoints two members.
appoints two members and the Board of Governors of the State Bar appoints two members. In
addition, if the state bar ceases to exist as a public corporation, the legislature must determine
how the attorney members are appointed.
In the Whitehead opinions issued thus far, the majority of this court argues that this could
not have been the intent of the people because the provision creating the Judicial Discipline
Commission was placed in Article 6 of the Nevada Constitution entitled Judicial
Department. Therefore, according to the majority's reasoning, because of the provision's
placement and because the Commission also has some quasi-judicial powers, the
Commission must be a court exercising the judicial power vested in the court system by
Article 6, Section 1.
This analysis does not survive a careful review of Article 6, which contains twenty-one
sections ranging in title from Judicial Power vested in court system to One form of civil
action to Fees or perquisites of judicial officers. First, when the voters added section 21 to
the Constitution, Section 1 of Article 6, which vests the judicial power in the courts, was not
amended to include the Judicial Discipline Commission in the list of courts authorized to
exercise the judicial power of the state. This should be dispositive of the issue.
Furthermore, the contents of the other sections make clear that not all powers created in
Article 6 relate to the exercise of judicial power. What the twenty-one sections have in
common is that each section impacts in some way on the judicial branch of government. For
example, Section 15 grants power to the legislature to fix the salaries of state judges and
justices. It makes no more sense to state that the Judicial Discipline Commission is part of the
judicial branch of government because it receives its powers from a section placed in Article
6 than it does to say that the legislature is part of the judicial branch of government because it
too is the recipient of powers granted by a section of Article 6. Constitutional law does not
depend upon principles of legislative indexing.
This court has recognized that the attorneys of this state are an integral part of Article 6.
Such recognition is embodied in Supreme Court Rule 39, which provides:
Inherent powers of courts. Attorneys being court officers and essential aids in the
administration of justice, the government of the legal profession is a judicial function.
Authority to admit to practice and to discipline is inherent and exclusive in the courts.
The supreme court rules set forth in this Part III are the exclusive rules for the
governing of the legal profession in Nevada.
Yet no one has suggested that because attorneys are officers of the court, they are part of the
judicial branch and are therefore disqualified from representing or serving in the executive or
legislative branches of government.
The judicial power, for constitutional purposes, can be found where it was placed by
Article 6, Section 1 when the Nevada Constitution was ratified in 1864: in a court system,
comprising a Supreme Court, District Courts, and Justices of the Peace. . . .
Justice Springer, in his concurring opinion, offers another reason why he believes that
Article 6, Section 21 must be interpreted as placing the Judicial Discipline Commission in the
judicial branch of government: if it were not so read, Article 6, Section 21 would violate the
separation of powers clause, and thus, by implication, be unconstitutional. In support of this
proposition, Justice Springer cites Dunphy v. Sheehan, 92 Nev. 259, 266, 549 P.2d 332,
336-37 (1976).
There are at least three problems with this analysis. First, it is an oxymoron to state that a
duly-ratified constitutional amendment can, at the time of its passage, violate that same
constitution. It is one of the best-established principles of constitutional interpretation that in
the case of a clear conflict between a constitutional amendment and another constitutional
provision already existing at the time the amendment is ratified, the amendment, being the
later expression of will of the lawmaker, must prevail. Schick v. United States, 195 U.S. 65,
68-69 (1904). Thus, had the language of Section 21 placed the Judicial Discipline
Commission entirely within the executive or legislative branch, neither Article 3, Section 1,
nor any then-existing constitutional provision could be held to invalidate the new amendment.
Second, the court in Dunphy merely stated, in dicta no less, that the promulgation of a
Code of Judicial Ethics, not the enforcement of such a code, is within the inherent power of
the judicial department of this state. 92 Nev. at 266, 549 P.2d at 336-37 (1976). Since
promulgation of the Code of Judicial Ethics remains today in the judicial branch of
government, the decision is irrelevant regarding the creation of the Judicial Discipline
Commission.
Finally, the Dunphy case was decided April 29, 1976, several months before Article 6,
Section 21 was ratified in the November 1976 elections. Thus, even if Dunphy could be read
to immunize the judiciary from judicial disciplinary proceedings from non-judicial bodies, the
case would have been explicitly overruled by the voters as of November 1976.
Justice Springer also seems to believe that there is an inconsistency between the view that
the Commission does not exercise the judicial powers of the State and the opinion in
Goldman v. Nevada Comm'n on Judicial Discipline, 10S Nev. 251
the judicial powers of the State and the opinion in Goldman v. Nevada Comm'n on Judicial
Discipline, 108 Nev. 251, 830 P.2d 107 (1992). There is no inconsistency whatsoever. The
issue in Goldman was the scope of review, not whether judicial power rested in the
Commission, and not whether the Commission was a Court of Judicial Performance and
Qualifications. Goldman held that this court must accord Commission findings a deferential
standard of review. This is no different than the deference this court must grant other state
agencies by statute. See NRS 233B.135.
1
Additionally, there is no dispute that the
Commission has broad power to discipline judges and that its orders are final unless appealed
to this court. The same is true of most state agencies. Thus, Justice Springer's discussion
regarding Commissioners in other states and the fact that they only have power to make
recommendations to the court rather than have final decision-making power is irrelevant to
the instant case.
Specifically, Goldman does not support the sweeping proposition for which it is cited in
Whitehead I that the Commission is not to be regarded merely as an administrative agency
but as a true Court of Judicial Performance and Qualifications.' Whitehead v. Comm'n on
Jud. Discipline, 110 Nev. 128, 161 n.25, 869 P.2d 795, 816 n.25 (1994). As stated, this court
in Goldman merely held that the Judicial Discipline Commission is accorded the same
deferential standard of review as any other state agency.
Since the Judicial Discipline Commission does not exercise the judicial power of the state,
certainly the Commission's attorney would not be exercising that power, even if providing
legal advice could properly be equated with serving as an ex facto member of the
Commission.
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1
This court held in Goldman that it would not undertake de novoor independentreview of Commission
decisions. 108 Nev. at 267, 830 P.2d at 117-18. In this respect, we adopted the same deferential type of review
that we accord other agencies.
It is true that the prosecutor before the Commission, like the prosecutor before the Board of Medical Examiners
(the Board), bears a higher burden than prosecutors in most agency determinations. In most agency
determinations the burden below is substantial evidence. See NRS 233B.135. In professional discipline cases, on
the other hand, the burden imposed below is higher, and we review those cases to determine whether the
evidence presented at the hearing was sufficient to establish, by clear and convincing evidence, that the alleged
violations had been proven. See Goldman, 108 Nev. at 264, 830 P.2d at 115 (stating that burden of proof before
commission is clear and convincing evidence); see also NRS 630.352(1) (requiring the Board to find violations
by clear and convincing evidence before sanctioning a health provider).
Although we review the determinations of the Board and the Commission in accordance with the higher
standards imposed on them by law and court rule, the fact that we do not engage in independent review is
evidence that our review is deferential.
Furthermore, it can be stated as a general rule that the attorney providing legal advice does
not take on the character, for constitutional separation of powers purposes, of the client being
served. That is why the legislature could, without violating the constitution, order the
Attorney General to represent any and all government officers, officials, agencies and even
judges and legislators. See NRS 41.0339. In all branches of government, decision makers, and
not their legal advisors, take responsibility for the decisions they make. Contrary to the
majority's implication, there is nothing sinister about the Commission making decisions either
consistent or inconsistent with the advice of an attorney from the Office of the Attorney
General.
CONFLICTS OF INTEREST
The majority of this court also holds that the Attorney General is disqualified from
representing the Commission because of conflicts of interest. The majority does not make
clear under which constitutional provision it finds a conflict of interest which operates to
nullify NRS 1.450(2). Some of the majority's language suggests that the institutional position
of the Attorney General is so rife with conflicts of interest with respect to the judicial branch
of government that providing legal advice to the Commission violates the separation of
powers clause. Other language suggests that in some way the petitioner's due process rights
will be violated if the Attorney General represents the Commission. Both contentions rest, not
on any actual conflict of interest evidenced in the instant case, but on specters of potential
conflicts and misuses of power, as well as criminal activity.
The general rule regarding conflicts of interests for attorneys is stated in Supreme Court
Rule 157, which provides as follows:
Rule 157. Conflict of interest; General rule.
1. A lawyer shall not represent a client if the representation of that client will be
directly adverse to another client, unless:
(a) The lawyer reasonably believes the representation will not adversely affect the
relationship with the other client; and
(b) Each client consents, preferably in writing, after consultation.
2. A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer's responsibilities to another client or to a third person,
or by the lawyer's own interests, unless:
(a) The lawyer reasonably believes the representation will not be adversely affected;
and
(b) The client consents, preferably in writing, after consultation.
When representation of multiple clients in a single matter is undertaken, the
consultation shall include explanation of the implications of the common representation
and the advantages and risks involved.
This rule would have some bearing on the majority's allegation that there is a conflict
arising from the fact that the Attorney General is official counsel for the judges and justices
of the state. In the event that a judge involved in disciplinary proceedings were in need of
legal services, it is quite possible that the Attorney General would not be able to form a
reasonable belief that the representation would not be adversely affected, mandating
disqualification under SCR 157. The solution to this conflict, which can hardly be
characterized as one of constitutional dimension, is simple and straightforward. Under NRS
41.03435, the Attorney General would, with the approval of the State Board of Examiners,
employ an attorney from the private sector to act as special counsel for the judge or justice.
Supreme Court Rule 157 does not apply to disqualify the Attorney General from providing
legal advice to the Commission under any of the conflicts of interest alleged by the majority.
Yet, despite the absence of a constitutional violation, the majority would nullify an act of the
legislature directing the Attorney General to represent the Commission on the basis of
hypothetical conflicts. This court has no general authority to strike down an act of the
legislature merely because it sees potential or actual conflicts of interest. In State of Nevada
v. Doron, 5 Nev. 399, (1870) this court stated:
[E]very statute is to be upheld, unless plainly and without reasonable doubt in conflict
with the constitution; [and] the legislature has power to pass any law, not positively
prohibited, or by clear implication forbidden by the constitution
. . . .
Both Judge Guy in his concurrence in Whitehead I and the majority in this opinion rest
their arguments on the assumption that Attorneys General will be unable to resist the
temptation to engage in misconduct with respect to judges. The implication is that allowing
NRS 1.450(2) to function as it has since it was enacted by the legislature in 1977 will
inevitably lead to an epidemic of politically-motivated persecutions of judges. This fanciful
scenario may be possible, but does not warrant legal action unless there is some actual
evidence of its occurring. Government operates on the principle that its officers and
employees are persons of good will and honesty who not only follow the law, but their
professional ethical obligations.
follow the law, but their professional ethical obligations. We have been presented with no
evidence that the executive officials have not been acting with professional integrity and
ethics.
The majority view also ignores the very powerful disincentives to such conduct. An
Attorney General or any attorney on the Attorney General's staff who initiated a prosecution
motivated by personal, partisan or political gain, or who attempted to hold a judge
hostage to affect the outcome of a case, would be subject to prosecution under one or more
of the following criminal statutes:
NRS 197.110 Misconduct of public officera gross misdemeanor
NRS 197.170 Extortion of public officera felony
NRS 197.200(2)(b) Oppression under color of officea gross misdemeanor
NRS 199.300(2) Intimidating public officer, public employee, juror, referee,
arbitrator, appraiser, assessor or similar persona gross misdemeanor
NRS 199.310 Malicious prosecutiona felony or misdemeanor
NRS 199.320 Inducing lawsuita misdemeanor
NRS 200.510 Criminal libela gross misdemeanor
NRS 200.560 Threatening to public libela gross misdemeanor
NRS 205.320(4) & (5) Extortiona felony
If criminal prosecution were not enough of a deterrent, the violator could also be charged
with the violation of SCR 101, 174, 179, 181, 201 and 203, which, if found to be true, would
almost certainly lead to disbarment under SCR 102. The law is well-equipped to deal with the
extreme conduct that the majority seems to believe NRS 1.450(2) makes imminent.
The majority's argument, however, suffers from a more serious defect than the fear being
out of proportion to the danger. The argument contains no limiting principle. It could be said
of every district attorney in Nevada that he or she has the power to bring about prosecution of
judges, of legislators and of private citizens for political reasons or to influence decisions. In
fact, all government officials with significant power, including judges and justices, are in a
position to attempt to abuse that power if they are so inclined. That does not justify this court
in prohibiting, as a prophylactic measure, an official from executing the functions assigned to
it by law. On the contrary, even if there are public officials who have abused their powers,
they could only be kept from their assigned duties after procedures which ensure that the
officials have received due process of law.
The majority would do well to heed the words of Justice Frankfurter in his concurrence in
In Re Groban's Petition, 352 U.S. 330, 335-37 (1957):
To whatever extent history may confirm Lord Acton's dictum that power tends to
corrupt, such a doctrine of fear can hardly serve as a test, under the Due Process Clause
of the Fourteenth Amendment, of a particular exercise of a State's legislative power.
And so, the constitutionality of a particular statute, expressive of a State's view of
desirable policy for dealing with one of the rudimentary concerns of societythe
prevention of fires and the ascertainment of their causesand directed towards a
particular situation, cannot be determined by deriving a troupe of hobgoblins from the
assumption that such a particularized exercise of power would justify an unlimited,
abusive exercise of power.
. . . .
We are admonished from time to time not to adjudicate on the basis of fear of foreign
totalitarianism. Equally so should we not be guided in the exercise of our reviewing
power over legislation by fear of totalitarianism in our own country.
It is disingenuous for the majority to suggest that it is a conflict for the Attorney General to
be privy to confidential information regarding judges and justices by virtue of representation
of the Nevada Commission on Judicial Discipline while the Attorney General is not only free,
but obligated, under NRS 41.0338, to represent judges in legal proceedings. The very same
considerations apply in either scenario. When the Attorney General's office represents judges
and justices in litigation, the deputies assigned are also in a position to learn privileged and
confidential information. The specter presented of judges held hostage and basically
subjected to extortion or blackmail is possible, but the mere speculation that such could occur
is no basis for disqualification. A judge is conceivably subject to being held hostage and
subject to extortion or blackmail by anyonean attorney, a litigant, a family member or a
total stranger.
When similar arguments were raised in the federal courts against allowing the Attorney
General to prosecute judges criminally, the Eleventh Circuit Court of Appeals replied as
follows in United States v. Hastings, 681 F.2d 706, 710-11 (1982), cert. denied, 459 U.S.
1203 (1983):
[The judge] contends that the courts would be subject to intolerable pressure from the
executive if executive officers were allowed to prosecute active federal judges for acts
involving the exercise of their judicial power.
Appellant is of course correct that the independence of the judiciary from external
pressures is a highly valued element of our constitutional system. That independence is
already protected by specific provisions in the Constitution. . . . Additionally, judges
enjoy the same protection as do all citizens from vindictive prosecution by officers of
the executive branch. We are not persuaded that the proposed rule of absolute judicial
immunity from federal criminal prosecution is a necessary complement to the
Constitution's explicit protections. Indeed, the miniscule increment in judicial
independence that might be derived from the proposed rule would be outweighed by the
tremendous harm that the rule would cause to another treasured value of our
constitutional system: no man in this country is so high that he is above the law.
(Citations and footnotes omitted.) In the instant case, the hypothetical potential for abuses
must also give way to the competing interest of assuring effective means of preventing abuse
of judicial power.
In addition, the alleged conflict between giving legal advice to the Commission and also
acting as prosecutor before the Commission has long since been resolved by this court. In
Laman v. Nevada R.E. Adv. Commission, 95 Nev. 50, 56-57, 589 P.2d 166, 170 (1979), this
court stated:
Appellant contends that there was an improper commingling of judicial and
prosecutorial functions during the Commission proceedings in that a Deputy Attorney
General participated by advising the Commission on evidentiary matters, while his
subordinate in the same office was engaged in prosecuting appellant. This contention,
unsupported by case authority, is adequately answered by this court's ruling in Rudin v.
Nevada Real Estate Advisory Commission, supra, 86 Nev. at 565, 471 P.2d at 660
[1970]:
It is not uncommon in administrative law to find the combination of
investigating, prosecuting and judging functions. As a general proposition, such a
combination, standing alone, does not constitute a denial of due process. 2 Davis,
Administrative Law Treatise 13.02. Such combination of functions possesses the
potential for unfairness, but unfairness is not its inevitable consequence. In the
matter at hand that combination did not exist. The investigation was conducted by
investigators, the prosecution, by counsel for the Commission, and the decision was
made by the Commission itself. There is nothing to suggest that the prosecutor
decided the case.
To the extent that federal due process is said to be implicated, even if we assume that the
Attorney General performed the roles of investigator, prosecutor, legal advisor and even
adjudicator in this case,
2
the United States Supreme Court has answered clearly. In Withrow
v. Larkin, 421 U.S. 35, 47-53 (1975), the court stated:
The contention that the combination of investigative and adjudicative functions
necessarily creates an unconstitutional risk of bias in administrative adjudication has a
much more difficult burden of persuasion to carry. It must overcome a presumption of
honesty and integrity in those serving as adjudicators; and it must convince that, under
a realistic appraisal of psychological tendencies and human weakness, conferring
investigative and adjudicative powers on the same individuals poses such a risk of
actual bias or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented.
Very similar claims have been squarely rejected in prior decisions of this Court.
. . . .
More recently we have sustained against due process objection a system in which a
Social Security examiner has responsibility for developing the facts and making a
decision as to disability claims, and observed that the challenge to this combination of
functions assumes too much and would bring down too many procedures designed,
and working well, for a governmental structure of great and growing complexity.
Richardson v. Perales, 402 U.S. 389, 410 (1971).
That is not to say that there is nothing to the argument that those who have
investigated should not then adjudicate. The issue is substantial, it is not new, and
legislators and others concerned with the operations of administrative agencies have
given much attention to whether and to what extent distinctive administrative functions
should be performed by the same persons. No single answer has been reached. Indeed,
the growth, variety, and complexity of the administrative processes have made any one
solution highly unlikely. Within the Federal Government itself, Congress has addressed
the issue in several different ways, providing for varying degrees of separation from
complete separation of functions to virtually none at all. For the generality of agencies,
Congress has been content with 5 of the Administrative Procedure Act, 5 U.S.C.
554(d), which provides that no employee engaged in investigating or prosecuting
may also participate or advise in the adjudicating function, but which also expressly
exempts from this prohibition "the agency or a member or members of the body
comprising the agency."
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2
This assumption is contradicted by the respondents' affidavits.
that no employee engaged in investigating or prosecuting may also participate or advise
in the adjudicating function, but which also expressly exempts from this prohibition
the agency or a member or members of the body comprising the agency.
It is not surprising, therefore, to find that [t]he case law, both federal and state,
generally rejects the idea that the combination [of] judging [and] investigating functions
is a denial of due process . . . . 2 K. Davis, Administrative Law Treatise 13.02, p.
175 (1958). Similarly, our cases, although they reflect the substance of the problem,
offer no support for the bald proposition applied in this case by the District Court that
agency members who participate in an investigation are disqualified from adjudicating.
The incredible variety of administrative mechanisms in this country will not yield to
any single organizing principle.
(Footnotes omitted.)
Because Withrow, like other United States Supreme Court precedent on federal due
process, is controlling on the courts of all fifty states, it is not surprising that not one of the
different procedures used for judicial disciplinary proceedings in the 50 states, including all
that use the Attorney General for various functions, has ever been struck down as
unconstitutional on due process grounds.
The majority regards Special Counsel Don Campbell as an attach or functionary of
the Attorney General based on (1) the title special deputy attorney general given to
Campbell after he agreed to serve on the case and (2) the March 25, 1993, contract between
the State of Nevada, acting by and through the Attorney General, and Donald J. Campbell &
Associates. The conclusion drawn by the majority is that Campbell's position is
indistinguishable from that of a full-time salaried employee of the Office of the Attorney
General. This conclusion elevates form over substance. The contract with Campbell is clearly
a form contract used in any case requiring appointment of special counsel under the terms of
NRS 41.03435. The majority in Whitehead II stated that [t]his court will recognize a
document for what it is, rather than the name associated with it. Whitehead v. Comm'n on
Jud. Discipline, 110 Nev. 380, 404, 873 P.2d 946, 961 (1994). Following this wisdom, it is
clear that the form contract tells little, if anything, about the role that Campbell played in this
case. It represents the type of bureaucratic obstacle that anyone from the private sector
serving the state must sign in order to collect the modest financial remuneration which is
allowed for such service.
The substance of special counsel Campbell's service is set forth in uncontradicted
affidavits in the record.
forth in uncontradicted affidavits in the record. As a former state and federal prosecutor, he
had substantial knowledge of and experience with proper investigatory and prosecutorial
procedures. He discharged his investigatory duties personally, without relying on the use of
agents and without sharing any factual findings with the Attorney General or any member of
her staff. While a few conversations took place between Campbell and Assistant Attorney
General Brooke Nielsen, all were of an administrative nature, primarily concerning the details
of the procedures by which Campbell would be paid for his services. Campbell had long since
left the public sector, had no prior connection with the Attorney General's office and, since
his appointment was for this one case only, he could anticipate having no future connection
with the Attorney General's office more substantial than that of any other attorney in private
practice. After completing his investigation, Campbell reported his findings to the Judicial
Discipline Commission and prepared to commence his prosecutorial responsibilities at the
probable cause hearing scheduled by the Commission.
This sequence of events as set forth by the uncontradicted affidavits in the record
illustrates the very type of separation of the investigatory and prosecutorial function from the
adjudicatory and legal advisory functions recommended in the Report and Recommendation
to the ABA House of Delegates on the proposed changes to the American Bar Association's
Model Rules for Judicial Disciplinary Enforcement. The procedures followed by the
Commission and its special counsel far exceeded the due process standards that have been set
forth in both state and federal cases.
It should also be apparent that Campbell's participation in these writ proceedings against
the Commission is not only reasonable but mandatory, considering that so many of
petitioner's allegations of impropriety focus on Campbell's actions. The majority states that,
Although the Attorney General and the Commission have continued to assert that Special
Deputy Attorney General Don Campbell was not and is not acting on behalf of, or in concert
with, the Attorney General's office, we put that contention to rest in Whitehead II . . . . In so
stating, the majority implies that this court has already determined that Special Counsel
Campbell is nothing more than an agent or attach of the Attorney General and that
consequently, whatever responsibilities Campbell undertakes are responsibilities undertaken
by the Attorney General. The majority mischaracterizes Whitehead II.
The majority in Whitehead II simply addressed respondent's contention that the decision
to employ and the selection of Special Counsel Donald J.
Special Counsel Donald J. Campbell was made solely by the Commission, not by the
Attorney General. Whitehead II, 110 Nev. at 391, 873 P.2d at 953. The Whitehead II
majority pointed out the various ways in which it believed that the Attorney General to have
acted in concert with Campbell; however, it never addressed whether the Attorney General's
office and Campbell performed the same functions in this case. In fact, the majority
specifically stated that it would not decide the extent to which the Attorney General and
others under her direct control and supervision have also functioned in an investigatory and
prosecutorial capacity. Id. at 386 n.2, 873 P.2d at 950 n.2. The majority further stated, We
may have occasion to address this subject further at a later date in the course of disposing of
other pending motions. Id. at 394, 873 P.2d at 955.
Given these statements and the question presented and addressed in Whitehead II, it cannot
be said that this court put to rest any contention other than the claim that the decision to
employ and select Campbell was not made solely by the Commission.
3
Considering the
uncontradicted affidavits, it is difficult to determine how the majority reaches its conclusion
that the Attorney General's office, as opposed to Special Counsel Campbell, is investigating
and prosecuting in this case. Unfortunately, it is also a conclusion forming the edifice upon
which much of the majority's argument is built.
ATTORNEY MISCONDUCT
In his concurring opinion, Justice Springer also alleges that the Attorney General's office
should be disqualified from continuing to represent the Judicial Discipline Commission
because of misconduct. Specifically, he alleges that the Attorney General has displayed such
animus and antipathy toward the petitioner that she has rendered herself and her office
unsuitable and incapacitated to serve as a prosecutorial advocate in the judicial discipline case
involving Judge Whitehead and her running comments on this case display a continuous
effort to influence public opinion against Judge Whitehead. These allegations are
unsupported by any competent evidence in the record. Counsel for the Petitioner have made
these allegations, but there are no affidavits or competent evidence on which this court can,
consistent with due process, condemn and sanction an attorney. This is particularly
inappropriate when the client Commission is also, in effect, being sanctioned.
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3
I will accept this for the sake of argument even though I conclude that the record does not support it. The
uncontradicted affidavits indicated that although the Attorney General's office assisted in finding an attorney and
in implementing the procedural details of hiring, the Commission alone made the decision to hire Campbell.
inappropriate when the client Commission is also, in effect, being sanctioned.
Furthermore, Justice Springer quotes a very small portion of ARJD 8. He neglects to point
out that ARJD 8 also states:
In any case in which the subject matter becomes public, through independent sources,
or upon a finding of probable cause and filing of a formal statement of charges, the
commission may issue statements as it deems appropriate in order to confirm the
pendency of the investigation, to clarify the procedural aspects of the disciplinary
proceedings, to explain the right of the respondent to a fair hearing without
prejudgment, and to state that the respondent denies the allegations.
The documents in the file indicating public comments, although not authenticated or properly
considered as evidence, may well conform to the part of Rule 8 quoted above. Certainly, any
decision on whether Rule 8 was violated should be determined after presentation of proper
evidence and an opportunity to controvert the evidence. It should also be noted that any
public comments alleged to have been made by the Attorney General were made after
Petitioner had waived any right to confidentiality and after he and his attorneys had
apparently made extensive comments to the media.
Justice Springer seems to hold it as self-evident that adverse public comment about
Petitioner automatically equates with violation of the Petitioner's due process rights. It should
be apparent that such a concept has never been the law. We would have very few criminal
prosecutions if that were the case.
Justice Springer quotes Collier v. Legakes for the proposition that in exercising its
discretion to disqualify a prosecutor the court should consider all the facts and circumstances
and determine whether the prosecutorial function could be carried out impartially. . . . 98
Nev. 307, 309-10, 646 P.2d 1219, 1220 (1982). Justice Springer chooses to ignore the
uncontradicted evidence that the Attorney General has not been acting as prosecutor. The
uncontradicted evidence establishes that Special Counsel Don Campbell has been performing
the prosecutorial function. There is not one iota of evidence that Campbell could not carry out
his functions impartially or that he has engaged in any misconduct.
I agree that some violations of the rules could amount to a denial of due process, but
whether due process has been provided is inherently fact-bound and requires only such
procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S.
471, 481 (1972). Pre-hearing publicity can only be of constitutional dimension if it deprives
the petitioner of his due process right to an unbiased decision-maker.
only be of constitutional dimension if it deprives the petitioner of his due process right to an
unbiased decision-maker. Thus any public comments of the Attorney General would be
relevant to any constitutional inquiry only if her remarks can be assumed to be of such great
influence on members of the Judicial Discipline Commission so as to render the
Commissioners incapable of deciding the case on the basis of the evidence at the contested
hearing. Nothing in the record so suggests.
Aside from the lack of evidence that the Commission members are particularly
impressionable individuals, none of the remarks even alleged to be made by the Attorney
General discuss the factual allegations against the Petitioner, which would be the subject of
the Commission's inquiry. The discussions relate to the proceedings before this court, not
proceedings before the Commission to which ARJD 8 refers. The presumption of honesty
and integrity in those serving as adjudicators, simply cannot be rebutted on such an
insubstantial basis. See Withrow, 721 U.S. at 47.
This proceeding has been extraordinary in a number of respects, not the least of which has
been the incredibly hostile tone of the pleadings. Unfortunately, the majority of this court has
adopted a similar hostility toward the Nevada Judicial Discipline Commission and its
counsel. This is unjustified, considering that the case involves complex legal issues, many of
constitutional dimension and many of first impression. Many issues are ones over which
competent and ethical attorneys and judges can legitimately disagree. Yet, this court has
treated good faith disagreements with the opinions of the majority as not just ridiculous, but
evilly motivated. Even attorneys whose legal reasoning is incorrect deserve to be treated with
courtesy and respect, not sarcasm and vilification. We should encourage healthy, open debate
on legal issues, not stifle it.
The Commission's attorneys have been especially attacked. I do not recall seeing a case in
which actions of the litigant have all been attributed to the attorney without any evidence that
such attribution is warranted. This seems totally unjustified in any case, but especially here
where the affidavits of the individual members of the Commission refute the attribution. The
members of the Judicial Discipline Commission, judges, attorneys, and non-attorneys
alikeare caricatured as spineless sycophants at the tender mercies of tyrannical attorneys
run amok. It is a tragedy that respected and respectable public servants who have generously
given of their time, energy and abilities should be so denigrated.
The majority of this court has presumed that it has heard the conversations between the
attorneys and their client, and have, in effect, accused the attorneys of:
conversations between the attorneys and their client, and have, in effect, accused the attorneys
of:
1. Counseling acts of resistance (Whitehead I, 110 Nev. 128, 141, 869 P.2d 795,
803 (1994));
2. Making extended effort to establish grounds for charges against petitioner
Whitehead, and to find witnesses to support them . . . . (Whitehead I, 110 Nev. at 147,
869 P.2d at 807);
3. Not reading our Goldman opinion with adequate care. (Whitehead I, 110 Nev.
at 148, 869 P.2d at 807);
4. Using a special prosecutor as an attach and special deputy attorney general to
help [her] pursue ends that [she] may have desired to see realized. (Whitehead I, 110
Nev. at 148, 869 P.2d at 807);
5. Not relying on evidentiary data compiled by original complaints, but rather on
grievances he searched out himself. (Whitehead I, 110 Nev. at 148 n.16, 869 P.2d at
808 n.16);
6. Counseling the Commission members to place themselves in jeopardy of
sanctions for contempt. (Whitehead I, 110 Nev. at 149, 869 P.2d at 808);
7. Counseling the Commission to proceed in direct violation of the current
procedural rules or ARJD. (Whitehead I, 110 Nev. at 162, 869 P.2d at 816);
8. Contumaciously withholding documents. (Whitehead II, 110 Nev. 380, 387,
873 P.2d 946, 951(1994));
9. Violating constitutional principles and court rules. (Whitehead II, 110 Nev. at
387, 873 P.2d at 951);
10. Engaging in exaggerated and hysterical rhetoric as merely a transparent attempt
to attract media attention and inflame public passion. (Whitehead II, 110 Nev. at 390,
873 P.2d at 953);
11. Improperly undertaking commitments in violation of the ARJD. (Whitehead
II, 110 Nev. at 397, 873 P.2d at 957);
12. Demonstrating inordinate and unexpected sensitivity . . . . (Whitehead II, 110
Nev. at 396, 873 P.2d at 956);
13. Attempting to mislead this court into believing that our intervention in this
proceeding is premature . . . . (Whitehead II, 110 Nev. at 401, 873 P.2d at 959);
14. [P]ublicly attempting to arrogate to the Commission a preeminent right of
judicial review . . . . (Whitehead II, 110 Nev. at 409, 873 P.2d at 964);
15. [T]ried to capitalize on contrived leaks' to the media (hopefully engineered by
others) by basing efforts to disqualify justices upon inaccurate 'leaked' material."
disqualify justices upon inaccurate leaked' material. (Whitehead II, 110 Nev. at
416-417 n.33, 873 P.2d at 969 n.33);
16. Having not only engaged in conduct that is not in accord with the ARJD, but,
as mentioned, have made false statements of fact and law to the tribunal, SCR 172, and
have unlawfully obstructed Judge Whitehead's access to evidence, SCR 173.
(Whitehead II, 110 Nev. at 416-417 n.33, 873 P.2d at 969 n.33);
17. Having sought to influence this tribunal by false, abusive statements to the
media and other means possibly prohibited by law, SCR 14 . . . . (Whitehead II, 110
Nev. at 416-417 n.33, 873 P.2d at 969 n.33);
18. [I]nciting a circus-like atmosphere . . . . (Whitehead II, 110 Nev. at 416-417
n.33, 873 P.2d at 969 n.33);
19. Making untrue representations about the Commission's prior position which
were manufactured for the purpose of persuading someone other than the Justices of
this court. (Whitehead II, 110 Nev. at 406-407 n.23, 873 P.2d at 963 n.23).
The majority of this court is willing to presume not only what Commission counsel has
advised, but to ascribe unflattering motivations for their actions without one bit of evidence
supporting these presumptions and ascriptions. On the contrary, in some cases there is
uncontradicted evidence denying the presumptions. Furthermore, the majority has adopted a
hostile and sarcastic tone and characterization regarding legal arguments which competent
and honorable attorneys can legitimately espouse. Furthermore, we should bear in mind that
the opinions of this court are the law of this state, not necessarily because they are legally
sound, but because this court is the court of last resort in this state.
I believe this hostile atmosphere has infected the proceeding and the decision to disqualify
present Commission counsel. There are other forums appropriate for the determination of
whether counsel have behaved appropriately. These forums provide procedures which
recognize the attorney's due process rights, and where sanctions must be based on evidence,
not assumptions.
The rhetoric by all parties involved in this case, as well as by the media, leaves much to be
desired, but it is totally unfair to single out the counsel for the Commission. Aside from my
contention that it is legally wrong, it is also unfair to deprive the Commission of its
experienced counsel in the middle of a proceeding. It continues and lengthens the paralysis of
the constitutionally-created system of judicial discipline in this state.
constitutionally-created system of judicial discipline in this state. The citizens of this state
deserve better.
Of course, the Commission will be free to hire another prosecutor and another legal
advisor, but considerable delay is inevitable. Furthermore, if a former prosecutor like Donald
Campbell can take time away from his private law practice to make his investigatory and
prosecutorial skills available to the public, then proceed to follow the rules of law, procedure
and ethics to the best of his ability, only to be unceremoniously dismissed, surrounded by
insinuations by his state's highest court that he is a ruthless political hit man of a public
official he had never met prior to this case, one can be certain that his successor will have to
be a very brave individual indeed. Much the same could be said for the next legal advisor to
the Commission.
APPOINTMENT OF MASTER
There is no dispute that a breach of a duty to maintain confidentiality can and should be
sanctioned in an appropriate tribunal. I do not agree that this court should appoint a master to
investigate the source of information reported in the media without serious consideration of
the ramifications of such an investigation and without setting forth specific guidelines. This is
a very sensitive area in which Supreme Court Rules regarding confidentiality are likely to
come into conflict with First Amendment rights under the constitution of the United States
and with provisions of the constitution and statutes of the State of Nevada. Justice Springer
apparently believes that there are no legal concerns in such an investigation. He ignores the
fact that the member of the media who was given the information is the one person (other
than the perpetrator) who knows who provided it and that this person is protected from
revealing his source by NRS 49.275. Justice Springer is further assuming (with no
justification whatsoever) that the source is a member of Judicial Discipline Commission.
Furthermore, recent events lead to the strong inference that the breach of confidentiality
occurred within this court. This court should check its own personnel and procedures before
casting aspersions on others.
CONCLUSION
I still protest the piecemeal handling of this case. All of the issues should be resolved in
one opinion as soon as possible. The rights of the citizens of this state, as well as those of
Petitioner, are at stake.
For the reasons discussed above, I would deny the motion to preclude further
involvement of the Attorney General and I would defer decision on the appointment of a
master.
preclude further involvement of the Attorney General and I would defer decision on the
appointment of a master.
____________
110 Nev. 930, 930 (1994) Installation & Dismantle v. SIIS
INSTALLATION & DISMANTLE, INC., Appellant, v. STATE INDUSTRIAL
INSURANCE SYSTEM, an Agency of The State of Nevada, and WILLIAM
FOURNIER, and THE DEPARTMENT OF ADMINISTRATION, APPEALS
OFFICER, Respondents.
No. 24558
July 26, 1994 879 P.2d 58
Appeal from an order of the district court denying appellant's petition for judicial review in
a SIIS matter. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Injured worker who received rehabilitative services sought additional living expenses for
attending out-of-state vocational classes. Department of Administrative Appeals hearing
officer ordered the State Industrial Insurance System (SIIS) to pay requested benefits.
Employer petitioned for review. The district court denied petition. Employer appealed. The
supreme court held that there were no grounds for granting worker additional living expenses.
J. Michael McGroarty, Las Vegas, for Appellant.
R. Scott Young, General Counsel, and Arleen N. Kaizer, Associate General Counsel,
Carson City, for Respondent SIIS.
King, Clark, Gross & Sutcliffe, Las Vegas, for Respondent Fournier.
Geraldine H. Schwartzer, Las Vegas, for Respondent Department of Administration.
Supreme court's role in reviewing administrative decision is identical to that of district court: to review evidence presented to
agency in order to determine whether agency's decision was arbitrary or capricious and was thus abuse of agency's discretion. NRS
233B.135.
On questions of fact, supreme court is limited to determining whether substantial evidence exists in record to support
administrative agency's decision. NRS 233B.135.
Although reviewing court may decide pure legal questions without deference to agency determination, agency's conclusions of law
that are closely related to agency's view of facts are entitled to deference. NRS 233B.135.
Workers' compensation rehabilitative services recipient was not entitled to receive additional living expenses while he attended
out-of-state vocational classes; he would have incurred living expenses whether he remained in Las Vegas or went to Phoenix for
training, and he failed to meet his burden of proving that he was duplicating living expenses while attending vocational training classes
in Phoenix. NAC 616.074.
OPINION
Per Curiam:
BACKGROUND
William Fournier (Fournier) injured his back in a work-related accident while employed by appellant Installation & Dismantle, Inc.
(I&D). The injury resulted in permanent physical impairment which limited Fournier's ability to lift heavy objects. That impairment,
together with an absence of other marketable skills, made Fournier unemployable. Consequently, the SIIS implemented several vocational
rehabilitation programs to return Fournier to gainful employment as a motorcycle mechanic.
The initial rehabilitation program included on-the-job training in Las Vegas and vocational training in Los Angeles, California. While
Fournier was training in Los Angeles, the SIIS provided him with an $84.00 per diem allowance to cover his additional living expenses.
Subsequently, the SIIS decided to send Fournier to Phoenix, Arizona, for additional training and certification. This time, however, no per
diem allowance was provided. Consequently, Fournier requested that the SIIS supply him with $200.00 per month for trailer space rental.
That request was denied. Fournier appealed that decision to the Nevada Department of Administration Hearing Officer. Again, Fournier's
request was denied.
As a result, Fournier appealed the Hearing Officer's decision to the Nevada Department of Administration Appeals Officer, who
ordered the SIIS to pay the requested benefits. I&D appealed that decision to the district court. The district court concluded that there was
substantial evidence in the record to support the Appeals Officer's determination that Fournier was entitled to a trailer space rental
allowance, and it denied appellant's petition for judicial review. This appeal ensued.
LEGAL DISCUSSION
[Headnotes 1-3]
This court's role in reviewing an administrative decision is identical to that of the district
court: to review the evidence presented to the agency in order to determine whether the
agency's decision was arbitrary or capricious and was thus an abuse of the agency's discretion.
Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983). See
NRS 233B.135; State Envtl. Comm'n v. John Lawrence Nev., 108 Nev. 431, 433-34, 834
P.2d 408, 410 (1992). Administrative agencies may receive and weigh evidence and a
reviewing court may not substitute its judgment on questions of fact. Southwest Gas v.
Woods, 108 Nev. 11, 15, 823 P.2d 288, 290 (1992) (citations omitted). On questions of fact,
this court is limited to determining whether substantial evidence exists in the record to
support the administrative agency's decision. See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d
359, 361 (1987). Although a reviewing court may decide pure legal questions without
deference to an agency determination, an agency's conclusions of law which are closely
related to the agency's view of the facts are entitled to deference. SIIS v. Khweiss, 108 Nev.
123, 126, 825 P.2d 218, 220 (1992). Substantial evidence is that quantity and quality of
evidence which a reasonable [person] could accept as adequate to support a conclusion.'
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986)
(quoting Robertson Transp. Co. v. P.S.C., 159 N.W.2d 636, 638 (Wis. 1968)).
Substantial evidence
[Headnote 4]
If an injured worker is physically unable to return to the job he held before his industrial
injury, the injured worker is eligible to receive rehabilitative services. See NAC 616.076.
Moreover, an injured worker is entitled to the reasonable expenditures necessary to return
him or her to gainful employment. See NAC 616.074. It is uncontroverted that Fournier's
industrial injury made him unable to return to his former occupation. Moreover, the parties do
not dispute that Fournier was entitled to rehabilitative services. The only controversy is
whether Fournier was entitled to receive additional living expenses while he attended
vocational classes in Phoenix, Arizona. The resolution of that controversy turns on whether
Fournier's request for additional living expenses was reasonable. NAC 616.074.
In determining that Fournier's request for additional living expenses was reasonable the
Appeals Officer reasoned that:
7. The referral of [Fournier] to the Phoenix school was a reasonable and logical
extension of his vocational rehabilitation program. However, in light of the succession
of rehabilitation programs implemented on behalf of [Fournier] and the various
modifications and changes that were undertaken in connection with those programs,
[Fournier] reasonably expected a possibility of further amendments to his rehabilitation
program. Furthermore, in light of the State System's prior program which allowed a per
diem expense to be paid in connection with out[-]of[-]state training and the additional
expenses associated with out[-]of[-]state training while maintaining a Las Vegas
residence, [Fournier's] request for a $200.00 per month stipend was not unreasonable.
Such an expense is an appropriate undertaken [sic] in light of the nature of the program
developed for [Fournier] in his case.
Conversely, I&D contends that the record is devoid of any evidence to establish and
support the Appeals Officer's finding that Fournier's request for rent was reasonable, that he
was maintaining a Las Vegas residence, or that Fournier reasonably expected anything.
Moreover, I&D contends that Fournier was not planning to maintain a Las Vegas residence
while attending vocational classes in Phoenix.
After careful consideration of the record, we conclude that there are no grounds for
granting Fournier additional living expenses. Although the decision to send Fournier to
Phoenix for vocational training may be reasonable, there is no evidence that additional living
expenses were reasonable or necessary. Fournier would have incurred living expenses
whether he remained in Las Vegas or went to Phoenix for training. Fournier had the burden of
proving that he was duplicating living expenses while attending vocational training classes in
Phoenix. He failed to do so. Consequently, the Appeals Officer's decision that Fournier's
request for additional living expenses was reasonable is not supported by the record, and is,
therefore, arbitrary and capricious.
Accordingly, the district court's order denying appellant's petition for judicial review is
reversed, and the case is remanded to the district court to reinstate the decision of the Nevada
Department of Administration Hearing Officer denying Fournier's request for additional
living expenses.
____________
110 Nev. 934, 934 (1994) Dickenson v. State, Dep't of Wildlife
ROBERT E. DICKENSON, Appellant, v. THE STATE OF NEVADA, NEVADA
DEPARTMENT OF WILDLIFE, Respondent.
No. 24917
July 26, 1994 877 P.2d 1059
Appeal from an order of the district court granting a permanent injunction to the State.
Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.
State Department of Wildlife filed action to prevent landowner from removing water from
reservoir whenever its level fell below minimum expressed in agreement between
Department and landowner. The district court granted permanent injunction in favor of
Department. Landowner appealed. The supreme court held that agreement permitted drawing
of water from reservoir for stock water purposes at discretion of landowner and without
seeking permission from state, even if such use caused level of reservoir to fall below agreed
upon minimum.
[Rehearing denied October 25,1994]
Rose, C. J., dissented in part.
Vargas & Bartlett and Debra B. Robinson, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and C. Wayne Howle, Deputy Attorney General,
Carson City, for Respondent.
1. Contracts.
If contract is ambiguous, then it will be construed against drafter.
2. Judgment.
If there is ambiguity in contract requiring extrinsic evidence to discern parties' intent, then summary judgment is improper, but
words of contract must be taken in their usual and ordinary signification if no ambiguity exists.
3. Contracts.
Interpretation which results in fair and reasonable contract is preferable to one that results in harsh and unreasonable contract.
4. Waters and Water Courses.
Agreement between state Department of Wildlife and landowner permitted drawing of water from reservoir for stock water
purposes at discretion of landowner and without seeking permission from state, even if such use caused level of reservoir to fall below
minimum provided in agreement. Provision for minimum level in reservoir was expressly subject to stock water rights, and another
provision recognized that landowner held stock water rights.
OPINION
Per Curiam:
FACTS
In January 1981, appellant Robert E. Dickenson (Dickenson) and respondent the State of
Nevada, Nevada Department of Wildlife (the State) signed an agreement which allowed the
State to enlarge the Illipah Reservoir located on Illipah Creek. Both the creek and the
reservoir are located on Dickenson's land. The State intended to enlarge the reservoir for
fishing and public recreation purposes while continuing to provide irrigation water for
Dickenson's land.
The agreement, which is the subject of this appeal, acknowledged that Dickenson owned
all outstanding water rights on Illipah Creek, except for certain existing stock water rights,
which belong to two other ranchers. The agreement also acknowledged that the State wanted
the reservation of a 160 acre-foot minimum pool for purposes of public fishing and
recreation.
The agreement went on to provide that Dickenson would have access to the outlet works
(valves) of the dam. The State agreed to install a device to indicate when the water in the
minimum pool fell below the 160 acre-foot minimum level. No drawdown was permitted
below the minimum level except as hereinafter provided, and except when mutually agreed
otherwise in writing between Owners . . . and the Department. Dickenson was permitted to
manage the water in the reservoir at his discretion, excepting the water below the 160
[acre-feet] volume marking device. Emergency drawdown was only permitted by mutual
agreement.
The agreement provided that storage rights contemplated by the agreement were subject to
the referenced stock water rights which shall be satisfied from the 160 acre-foot pool if there
is not sufficient creek flow and/or water storage above said 160 acre-foot pool to satisfy said
right. Finally, the agreement provided that Dickenson may graze cattle in the vicinity of the
reservoir without interference and may use the reservoir for stock water.
The parties signed the agreement on January 9, 1981. Thereafter, the State constructed the
reservoir. In addition, the State established a fishery in the reservoir by planting rainbow trout
in the spring and fall of each year.
In September 1991, the State filed a complaint, a motion for a preliminary injunction and a
motion for a temporary restraining order against Dickenson. The State alleged that Dickenson
had, on several occasions the previous year, opened the valve of the dam without its
consent, releasing water to flood his stock ponds several miles downstream.
on several occasions the previous year, opened the valve of the dam without its consent,
releasing water to flood his stock ponds several miles downstream. This release caused the
level of the minimum pool to drop sixteen inches below the minimum level. The State
claimed that Dickenson's actions of removing water significantly and adversely affected the
fish in the reservoir.
The district court granted a temporary restraining order and enjoined Dickenson from
removing any water from the reservoir without the permission of the State when the water
was below the minimum 160 acre-foot level. Later, after holding a hearing, the district court
issued a temporary injunction that enjoined Dickenson from removing water from the
reservoir and provided for a lock on the valve.
Dickenson filed an answer, asserting that his water rights were senior to the State's storage
rights and therefore could be satisfied from the minimum pool. For this reason, he claimed
that he had not breached the agreement by drawing stock water from the minimum pool.
In May 1993, both parties moved for summary judgment. The court granted summary
judgment for the State, holding that the agreement was clear on its face in granting the State a
minimum pool which Dickenson may use only with the State's consent. The court also held
that Dickenson had violated the agreement by releasing water without the State's permission,
and that there was a distinct risk that he may do so again, thus causing irreparable harm to the
wildlife and recreation resources. Accordingly, the court permanently enjoined Dickenson
from removing water from the minimum pool without the State's consent whenever the water
level in the minimum pool fell below the 160 acre-foot level.
Dickenson appeals, arguing that the district court erred in its interpretation of the
agreement by holding that the agreement abrogated his superior right to draw stock water
from the minimum pool. We agree and reverse the district court's decision.
DISCUSSION
The parties agree that the facts in this case are not in dispute. This court has held that in
the event the parties do not dispute the facts, the question of the interpretation of a contract is
a question of law. Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839 P.2d
599, 602 (1992). In such situations, this court will review the district court's findings de novo
as a question of law. Id.
Dickenson contends that the intent of the agreement was to limit his use of the reservoir
for irrigation, not stock water. He points out that none of the preliminary acknowledgements
evidence an intent that the terms of the agreement are meant to govern his stock water
rights.
dence an intent that the terms of the agreement are meant to govern his stock water rights. He
notes that the State interprets the stock water provision to apply only to other ranchers.
However, he maintains that it would make no sense to interpret the contract to mean that
water could be taken through the creek on his land to neighboring lands to water stock, but
that he is precluded from using the reservoir for his own stock. Finally, he argues that
nowhere does the agreement indicate that he intended to relinquish his stock water rights.
The State contends that there is no provision in the agreement for the unilateral use of the
minimum pool. According to the State, all references to water are generic and there is no
distinction between stock water and irrigation water. Further, the State argues that it would be
unreasonable to limit the use of the reservoir for irrigation water but not stock water.
[Headnotes 1-3]
This court has held that when a contract is ambiguous, it will be construed against the
drafter. Williams v. Waldman, 108 Nev. 466, 473, 836 P.2d 614, 619 (1992). If there is an
ambiguity requiring extrinsic evidence to discern the parties' intent, summary judgment is
improper. Mullis v. Nevada National Bank, 98 Nev. 510, 513, 654 P.2d 533, 535 (1982).
However, if no ambiguity exists, the words of the contract must be taken in their usual and
ordinary signification. Parsons Drilling, Inc. v. Polar Resources, 98 Nev. 374, 376, 649 P.2d
1360, 1362 (1982). An interpretation which results in a fair and reasonable contract is
preferable to one that results in a harsh and unreasonable contract. Sterling v. Goodman, 102
Nev. 218, 220, 719 P.2d 1262, 1263 (1986).
[Headnote 4]
Taking the provisions of the contract in order, it becomes clear that the earlier provisions
are modified by the later provisions. Paragraph five provides that drawdown below the
minimum level is prohibited except as hereinafter provided, and except when mutually
agreed otherwise . . . . (Emphasis added.) Paragraph seven complements this by providing
that Dickenson may manage the reservoir at his discretion, excepting the water below the
160 acre-foot volume marking device. In addition, paragraph eight allows drawdown for
emergencies if both parties consent. Taken together, these provisions permit Dickenson to
remove water at his discretion, provided the pool remains above the 160 acre-foot level.
When the water drops below that level, he must seek the State's permission.
However, paragraph five contains the words except as hereinafter provided. Paragraph
eleven goes on to address stock water and provides that "the above-described stock water
rights" shall be satisfied from the pool "if there is not sufficient creekflow andJor water
storage above said 160 acre-foot pool to satisfy said right."
and provides that the above-described stock water rights shall be satisfied from the pool if
there is not sufficient creekflow and/or water storage above said 160 acre-foot pool to satisfy
said right. (Emphasis added.) A literal reading of this provision allows an owner of the stock
water rights to draw stock water from the pool if the creek is dry even if the pool is below the
minimum level. Paragraph fifteen also addresses stock water and provides that Dickenson
may use the reservoir for stock water. Accordingly, we conclude that these two provisions
permit Dickenson to use the reservoir at his discretion for stock water when the creek is dry.
This interpretation is particularly applicable in light of the acknowledgment on page one
which provides that owners [Dickenson] own all outstanding water rights on Illipah Creek,
except for certain stock water rights. (Emphasis added.) This acknowledgment appears to
provide that Dickenson owns some stock water rights. Therefore, paragraph eleven, which
refers to the above-described stock water rights would include Dickenson's stock water
rights. The storage rights in paragraph eleven are then subject to Dickenson's stock water
rights which are to be satisfied from the minimum pool.
The State asserts that the only stock water rights mentioned in the agreement are those of
downstream users who are not signatories to the agreement. This is obviously incorrect in
light of paragraph fifteen which refers to Dickenson's right to use the reservoir for stock
water.
We therefore hold that the agreement permits Dickenson to draw stock water from the
minimum pool. Paragraph eleven, when construed against the State as the drafter, permits
Dickenson to draw water whenever there is not sufficient creek flow, even if the minimum
pool is below the 160 acre-foot level. The words and/or make such a reading possible.
Under this interpretation, the district court erred in enjoining Dickenson from drawing water
from the minimum pool without the consent of the State when the pool falls below the 160
acre-foot minimum.
In conclusion, we hold that the proper interpretation of the contract permits Dickenson to
draw water from the minimum pool for stock water purposes at his discretion. Accordingly,
we reverse the decision of the district court and remand with instructions to enter judgment
for Dickenson.
Rose, C. J., concurring in part and dissenting in part:
I agree with the majority's decision to the extent that it reverses the order of summary
judgment in favor of the State. However, I would remand the case for trial so the parties can
introduce extrinsic evidence to discern the parties' intent when entering the contract.
Summary judgment is appropriate when the record shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Van
Cleave v. Gamboni Constr. Co., 101 Nev. 524, 706 P.2d 845 (1985). Where a written
contract is ambiguous and extrinsic evidence is required to discern the parties' intent,
summary judgment is inappropriate. Mullis v. Nevada National Bank, 98 Nev. 513, 654 P.2d
536 (1982); see also Mobile Acres, Inc. v. Kurata, 508 P.2d 889 (Kan. 1973).
Although both parties contend that the contract is clear on its face and unambiguous, the
contract is ambiguous. The contract is subject to two different but reasonable interpretations.
A literal reading of paragraph 11, which points to the above mentioned stock water rights,
refers only to the stock water rights described in the second recital. The second recital
describes the stock water rights of nonsignatory parties. The only mention of Dickenson's
stock water rights comes in paragraph 15. Thus, one reasonable reading of the contract is that
Dickenson may only exercise his stock water rights by grazing his cattle next to the reservoir
when the reservoir falls below 160 acre-feet.
1

The majority opinion provides a second reasonable reading of the contract. Namely, that
paragraph 11, read in conjunction with paragraph 15 and the second recital, allows Dickenson
to release water to fill his stock ponds even when the reservoir has fallen below 160 acre-feet.
In light of these reasonable but different interpretations, I feel that extrinsic evidence is
necessary to help discern the parties intentions. This is especially true since the interpretation
of a written contract involves determining the thoughts that the users of the words intended to
convey to each other. 3 Arthur L. Corbin, Corbin on Contracts 543c (1960 & Supp. 1993).
Finally, the majority opinion recognizes that the contract at issue is ambiguous, then
applies the maxim contra proferentum, and construes the document against the State.
However, since the contract involves the public good, the majority could just as easily
construe the contract in favor of the public interest. See County of Clark v. Bonanza No. 1.,
96 Nev. 643, 615 P.2d 939 (1980). Although it appears that the parties agree that no extrinsic
evidence is necessary to discern their intent,
2
equity requires more than the blind application
of maxims of contract interpretation.
__________

1
The majority infers that it would be unreasonable to interpret the contract in a way that would allow
Dickenson to release water to satisfy downstream users but not himself. This may be so, however, it is mere
speculation without further evidence of the parties' intent.

2
This is not surprising considering both parties argue that the document is clear on its face.
Based on the foregoing considerations, I would reverse and remand to allow the parties to
introduce extrinsic evidence to discern their intent.
____________
110 Nev. 940, 940 (1994) Matthews v. Collman
JACK MATTHEWS and JACK MATTHEWS & COMPANY, Appellants, v. PHYLLIS
COLLMAN, Respondent.
No. 22410
July 27, 1994 878 P.2d 971
Appeal from district court order awarding damages and attorney's fees in a dispute over a
brokerage commission. Second Judicial District Court, Washoe County; Charles M. McGee,
Judge.
Real estate broker who had been employed by real estate company under independent
contractor agreement sought commission in sale of commercial property partially owned by
owner of the real estate company. The district court entered judgment for broker on theory of
accord and satisfaction, and company and owner appealed. The supreme court held that: (1)
there was no accord and satisfaction because there was no meeting of the minds; (2) broker
was acting as agent for owner, at least impliedly, and thus was entitled to reasonable value of
her services; and (3) offer of judgment rule and statute do not preclude recovery of costs and
attorney fees by offeror when ultimate judgment is not more favorable than offer of judgment
rejected by offeree.
Jones, Jones, Close & Brown, and Richard F. Holley, Reno, for Appellants.
Mark H. Gunderson and Eric Stovall, Reno, for Respondent.
1. Accord and Satisfaction.
There was no accord and satisfaction of claim by real estate broker against real estate company and its owner for commission on
sale of property owned in part by company's owner, though broker sent company a letter on the matter rejecting offer by owner and
requesting particular commission split, where there was no meeting of the minds as to whether future commission split as specified
with all that was intended by broker or whether the split was in addition to commission on the instant transaction.
2. Accord and Satisfaction.
Prerequisite for finding of accord and satisfaction is clearly established meeting of the minds.
3. Brokers.
In sale of commercial property owned in part by owner of real estate company, broker who had independent contractor agreement
with the company was acting as agent for owner, at least impliedly, and thus was entitled to reasonable value of her services in sale of
the property, despite owner's alleged understanding that she was acting as agent for the purchaser, in light of owner's execution of
documents listing broker as his agent.
4. Costs.
Offer of judgment rule and statute are inapplicable to preclude award of costs to offeror after offer of judgment is rejected by
offeree and offeror fails to obtain a more favorable judgment. Rule and statute bar only the nonaccepting offeree from obtaining costs
and attorney fees. NRS 17.115; NRCP 68.
OPINION
Per Curiam:
Respondent Phyllis Collman was employed as a real estate broker by appellant Jack Matthews (Matthews) and his real estate
company, appellant Jack Matthews & Company (Matthews & Co.). While so employed, Collman assisted in procuring and negotiating
the sale of a valuable commercial site partially owned by Matthews. Collman believed that she was acting on Matthews' behalf, as the
seller's agent, in this transaction and was entitled to a commission. Matthews believed that Collman was acting on behalf of the buyer in the
transaction and did not believe he or his company was obligated to pay her a commission. The district court found that Collman was acting
as Matthews' agent, at least impliedly, and was entitled to the reasonable value of her services; it also found that Collman had reached an
accord and satisfaction with appellants as to the amount she would receive. Appellants agree that such an accord was reached, but disagree
with the district court as to its terms. Appellants also challenge the award of attorney's fees and costs to Collman.
We conclude that the district court erred in finding an accord and satisfaction, and that Collman was entitled to be paid the reasonable
value of her services.
FACTS
Collman filed her action against Matthews and Matthews & Co., alleging breach of contract and of fiduciary duties in refusing to pay
Collman a real estate commission. Matthews is the owner and president of Matthews & Co., a Nevada real estate firm which has been in
business since 1969. Collman obtained her Nevada real estate broker's license in 1988, and in January of the same year, entered
into an "Independent Contractor Agreement" with Matthews & Co.
the same year, entered into an Independent Contractor Agreement with Matthews & Co.
The contract was a form appearing on Matthews & Co. letterhead and contained an
attachment setting forth the graduated commission rate schedule under which Collman would
be operating as an independent contractor.
In October of 1988, as a result of an advertisement that Collman was running, she was
contacted by a broker, Jack Haddock, who later put her in contact with broker Bert Jakobson,
whose clients were interested in purchasing a commercial property site in Reno. Collman had
earlier been informed by the commercial manager for Matthews & Co. that the Smithridge
Financial Plaza, in which the Matthews & Co. offices were located, was available for sale.
Collman was thus prompted to ask her superior, Gene Milligan, to contact Matthews for
permission to show the site. The Smithridge Plaza was owned by Matthews and Monroe
Schneider, as M&S Investments, a general partnership. Collman testified that Milligan
reported to her that the site was still for sale, the price and other conditions of sale, and that
the commission had been set by Matthews at 8 percent.
Matthews testified that at the time he relayed this information to Milligan, Milligan
informed him that Collman was working with a broker that had an interested buyer, but that
he and Milligan did not discuss Collman's status as a listing agent. Matthews noted that
neither he nor Schneider had approached Collman about selling Smithridge on behalf of
M&S and that Collman never discussed or executed any formal listing agreement or
brokerage fee agreement with M&S regarding the sale. Matthews assertedly believed that
Collman and Jakobson were working together on the buyer's behalf.
Jakobson's client, Harold Moates, offered 1.5 million dollars for Smithridge against the
original asking price of 1.7 million. Eventually, the offer was raised to 1.6 million, and, in
order to facilitate a sale, Jakobson and Collman decided to lower their commission to 6
percent, thus increasing the sellers' margin of profit. Jakobson and Collman intended to
evenly split the 6 percent commission.
Collman sent a letter to Matthews and Matthews & Co., dated November 8, 1988, attached
to the 1.6 million-dollar offer, explaining the terms of the offer and noting the brokers'
voluntary reduction of the commission. The offer attached to the letter, termed an
Agreement of Sale and Deposit Receipt, appeared on Jakobson Investment Corporation
letterhead. The offer was signed by Jakobson on behalf of Jakobson Investment Corporation,
as agent for the buyer, as well as Harold Moates, the buyer.
1

__________

1
This document and other trial exhibits referred to in the parties' briefs were not made part of the record on
appeal. For purposes of verification, we
Additionally, the document was signed by Collman, who assertedly believed she was signing
it as a listing agent for Matthews. According to Matthews, the offer identified Collman as the
buyer's agent. Our review of the document reveals that Collman's signature appears after the
typed language: Jack Matthews By/ although it also appears before that portion of the
document entitled acceptance, thus lending some credence to both parties' version of the
instrument. The document specified $96,000.00, or 6 percent of the sales price, as the
brokerage fee.
Collman later prepared a counter offer dated December 12, 1988, which was signed by the
owners, Matthews and Schneider. Collman is listed in this instrument as the person to whom
acceptance of the counteroffer should be communicated as follows: above the phrase
(LISTING AGENT'S NAME) appears the language, Phyllis J. Collman, JACK
MATTHEWS & COMPANY, INC., the agent of Owner[.] Collman's signature also appears
as a witness and agent of the sellers on an addendum to the counteroffer. The addendum
was executed for Jack Matthews by one Mark Wildes, whom Matthews acknowledged was
authorized to sign on his behalf. Matthews testified that he signed the December 12
counteroffer, but did not pay any attention to the fact that Collman's name appeared thereon
as his listing agent. Collman testified that she was never informed by Wildes, Matthews or
Schneider that the references to her in these documents were incorrect.
On January 3, 1989, the sellers accepted the November 8, 1988, offer. Specifically, the
Acceptance portion of the offer was signed by Matthews and Schneider, but the $96,000.00
brokerage fee was lined through by Matthews, with a note that the fee would be established
by separate agreement.
Pursuant to this separate agreement, Matthews and Schneider reduced the brokerage fee
from 6 percent ($96,000.00) to 4 percent ($64,000.00), with provision for Jakobson to receive
his 3 percent ($48,000.00), and the remaining 1 percent ($16,000.00) to be split between
Matthews & Co. and Haddock (as a finder's fee). When this arrangement was communicated
to Milligan, he asked Matthews what was to become of Collman's interest. Matthews replied
that he assumed that Jakobson would pay her, that the property was his, and that [t]here is no
way in the world I would put her on as a listing agent to list my property. Matthews testified
that he only then realized that Collman believed she was entitled to a listing commission as
an agent for the sellers. Matthews assertedly believed that Collman was working with the
buyer, since her name appeared on an offer form and she had no written listing agreement,
as required by written company policy.
__________
elected to contact the Washoe County Clerk for copies of all the exhibits admitted at trial. See NRAP 10(g).
form and she had no written listing agreement, as required by written company policy.
Accordingly, a dispute then arose between Matthews and Collman regarding Collman's right
to a commission.
Matthews offered, and Collman rejected, the $8,000.00 in commission that Matthews &
Co. allegedly had remaining. On February 2, 1989, Collman corresponded with Milligan,
stating in relevant part:
I have re-thought my position on the situation concerning the [Smithridge] property. I
have not changed my position, I do not want the $8,000 that was offered by Mr. Jack
Matthews. I am requesting that Mr. Matthews authorize my commission split position
to be 90%/10%, sales agent split/broker split, effective immediately and effective for
the remainder of 1989. The 90%/10% split is the level I would have been following the
close of escrow on the Smithridge Financial Plaza. I want Mr. Matthews to put this
authorization into writing and on my desk before the close of escrow.
I believe that Mr. Matthews was remiss in his responsibility both as my broker and
as the principle [sic] in the above referenced property. I once again draw your attention
to both the original Agreement of Sale and Deposit Receipt and especially the Counter
Offer signed by both Mr. Matthews and Mr. Schneider which specifically states that I
was the the [sic] listing agent.
I have sent a letter to First Commercial Title, Inc. . . . releasing both my legal and
fiduciary responsibilities to both Mr. Matthews and Mr. Schneider. . . .
Collman testified at trial that this letter was not meant to give up anything, but was meant
to convey that she had earned her full commission on the Smithridge transaction, and was
also entitled to a 90-10 split for the rest of the year. This testimony appears consistent with
the language of the letter, which stated that while Collman had rethought her position, she
had ultimately not changed it.
The contract under which Collman was originally employed by Matthews & Co. stated
that the scale of commission would be graduated based on net commissions received by the
agent. The contract specified that after agents had earned commissions totaling $25,001.00 or
more, they would earn a commission of 90 percent. Thus, Collman apparently felt she had
reached the level of eligibility for a 90 percent commission share through the Smithridge sale.
Matthews assertedly believed that Collman's letter constituted an alternative or
counteroffer with which she would be happy, i.e., getting a 90 percent commission for the
remainder of the year in lieu of getting her desired commission on the Smithridge sale.
i.e., getting a 90 percent commission for the remainder of the year in lieu of getting her
desired commission on the Smithridge sale. By letter dated February 9, 1989, Matthews
acknowledged that Matthews & Co. would pay Collman on a 90 percent basis for any future
recordings that year, believing this would resolve the issue. According to Matthews, Collman
did receive a 90 percent commission split on at least one subsequent closing. The Smithridge
Plaza sale closed on February 15, 1989, and Collman later terminated her affiliation with
Matthews & Co. In November of 1989, Collman filed her action and the matter later
proceeded to trial.
The district court filed its Decision on February 19, 1991, and its Judgment on March
27, 1991. The court determined, as explained in its Decision, that Collman was acting as a
listing agent for the seller at the time she facilitated the sale of [the] Plaza. This conclusion
was based on: Matthews' actions in informing the commercial manager of Matthews & Co.
that the property was still available for sale; executing documents which disclosed Collman's
representative capacity as the agent for the owner; and not fulfilling his duty to himself
and his partner as Collman's employer to make it clear to [Collman] that the opportunity he
made known through his real estate firm would not admit to agency relationship.
Accordingly, the court determined that either under principles of estoppel or
quasi-contract, the Plaintiff is entitled to the reasonable value of her services for having
secured a purchaser and making the sale of a property possible[.] The court calculated the
value of Collman's entitlement at $25,500.00,
2
unless she bargained away her claim prior to
the close of escrow.
The district court proceeded to find that Collman's letter of February 2, 1989, proposing a
90/10 split and releasing her legal and fiduciary responsibilities to Matthews and Schneider,
legally conveyed a willingness to accept a lesser amount to resolve a disputed claim, even if
that was not her actual intent. The court determined that this letter and Matthews' response
agreeing to the arrangement constituted an offer and acceptance forming a binding and
enforceable accord and satisfaction.
__________

2
The court determined that it was clearly within the contemplation of the parties during negotiations that 6
percent, with 3 percent for the buyer's broker and 3 percent for the seller's broker, might be a reasonable fee. The
$25,500.00 figure was then calculated by applying the graduated fee schedule attached to Collman's original
employment contract to $48,000.00 (or 3 percent of $1,600,000.00) minus the $8,000.00 finder's fee. This
amount corresponded with the computation by Collman concerning her entitlement under the schedule. Although
the district court found the graduated fee schedule ambiguous in application, it noted that both parties interpreted
the schedule in the same manner.
ing and enforceable accord and satisfaction. The court then concluded:
A finding of an enforceable accord and satisfaction, however, has an interesting
application in this case, and one which may be altogether unexpected from Mr.
Matthews' standpoint as well. The offer which Mr. Matthews accepted, clearly states
that the 90/10 split would be effective immediately, both in the first paragraph and
the last paragraph. At the time the Smithridge transaction was still pending close of
escrow. The actual broker's commission for the seller at [Matthews & Co.] was
$16,000.00. Ninety percent (90%) of that figure is $14,400.00. Under [the original
employment contract] there is a $50.00 manager's override fee, so that net commission
due Phyllis Collman b[y] [Matthews and Matthews & Co.] is the sum of FOURTEEN
THOUSAND THREE HUNDRED FIFTY DOLLARS ($14,350.00).
A judgment in this amount, together with $10,687.23 in attorney's fees and $834.70 in costs
(for a total award of $25,871.93), was accordingly entered on Collman's behalf. Matthews
now appeals.
DISCUSSION
Although Matthews agrees with the district court's finding of an accord and satisfaction, he
disagrees with the court's findings concerning its terms. Matthews contends that the terms of
the accord and satisfaction were that Collman would receive a 90 percent split on all future
transactions in return for releasing her claim to any commission on the Smithridge sale, and
that there is insubstantial evidence to support the district court's version of the parties'
agreement. Alternatively, Matthews suggests that even if the district court's interpretation
were to be viewed as correct, Collman's 90 percent share in the Smithridge sale should have
been applied to $8,000.00 rather than $16,000.00. Matthews contends that the district court
overlooked the fact that Matthews & Co. paid one-half of its $16,000.00 commission to
Haddock as a cost of sale.
Although Collman's position on appeal is that the damage award she received was
supported by substantial evidence, at oral argument her counsel acknowledged that there was
no real meeting of the minds as to the terms of an accord and satisfaction. Collman also
insists that applying her 90 percent share to a net commission of $8,000.00 would be
unreasonable because Matthews had unilaterally reduced Matthews & Co.'s share to that
amount. Moreover, she notes that an award of less than $S,000.00 to her would mean that
she had rejected Matthews' $S,000.00 settlement offer in return for an accord and
satisfaction entitling her to less than $S,000.00.
$8,000.00 to her would mean that she had rejected Matthews' $8,000.00 settlement offer in
return for an accord and satisfaction entitling her to less than $8,000.00.
[Headnotes 1, 2]
Our review of the record persuades us that the district court erred in finding an accord and
satisfaction. In Morris DeLee Family Trust v. Cost Reduction Eng'g, Inc., 101 Nev. 484, 486,
705 P.2d 161, 163 (1985), we stated:
[A]n 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'l 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).
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 36 Nev. at 31, 131 P.
at 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).
(Emphasis added.)
As noted above, a prerequisite for the finding of an accord and satisfaction is a clearly
established meeting of the minds. The evidence in the instant case reflects no such meeting of
the minds. The parties testified differently concerning the meaning of the agreement to grant
Collman a 90/10 split on future commissions and the manifest differences in the views of the
parties have continued unabated on appeal. Indeed, even the district court's decision reflects a
recognition that no meeting of the minds occurred:
In reaching and applying these principles . . . the Court is fully aware that it is rejecting
in part both the interpretation which the Plaintiff gives to her letter of February 2nd . . .
and the interpretation which Mr. Matthews gives to his acceptance of the offer
contained in his letter of February 9th[.]
[Collman's letter] legally convey[ed] a willingness to accept a lesser amount to
solve a disputed claim[] [e]ven if that was not her actual intent . . . .
accept a lesser amount to solve a disputed claim[] [e]ven if that was not her actual
intent . . . .
A finding of an enforceable accord and satisfaction . . . has an interesting application
. . . which may be altogether unexpected from Mr. Matthews' standpoint as well.
Thus, the district court determined that there was an accord and satisfaction despite the fact
that its terms were unknown by, and contrary to, the intent of both parties. Unfortunately, the
law demands clear evidence that in fact and in reality, the minds of the parties met and
agreed on the terms of an accord and satisfaction before a court may find that such an
agreement was reached.
3

[Headnote 3]
On the other hand, the trial evidence certainly supported the finding by the district court
that Collman was acting as an agent for Matthews, at least impliedly, and that she therefore
was entitled to the reasonable value of her services. The factors enumerated by the district
court, such as Matthews' execution of documents listing Collman as his agent, provide
sufficient factual support for such a finding. This court has long recognized that, absent an
express listing agreement, a broker may nevertheless be entitled to the reasonable value of his
or her services rendered in procuring a sale where the facts support a theory of implied
contract, or quantum meruit. For example, in Atwell v. Southwest Securities, 107 Nev. 820,
823, 820 P.2d 766, 768-69 (1991), we stated:
The requirement that an employment contract be found to exist is easily met. In
[Morrow v. Barger, 103 Nev. 247, 252, 737 P.2d 1153, 1156 (1987)], this court held
that [a] promise to pay the reasonable value of services may be implied, and a real
estate agent may recover under the theory of quantum meruit . . . . Implied
employment contracts between sellers and brokers have been found to exist with only
moderate factual support. For example, in [Shell Oil Co. v. Ed Hoppe Realty Inc., 91
Nev. 576, 580-81, 540 P.2d 107, 109-10 (1975)], this court held that an employment
contract could be found to exist where the only evidence of a contract consisted of
letters sent by the broker to the seller and price information received in return.
__________

3
This is not to say that a district court may never find the existence of a viable accord and satisfaction where the
parties contest its terms at trial. It may be that other evidence will support a trier of fact's finding that the parties
did in fact and in reality reach a meeting of the minds as to the terms of an accord and satisfaction despite
contradictory testimony by the parties. In such a case, the district court's options are in no way limited by our
instant ruling. Here, however, the district court indicated that neither party originally understood the terms and
effects of the agreement they allegedly reached, but imposed an accord and satisfaction upon them anyway.
contract consisted of letters sent by the broker to the seller and price information
received in return. The court noted that the seller was aware of common real estate
practice and knew that the broker expected to be paid, and that the seller continued to
permit the broker to act on the seller's behalf, in reliance detrimental to his own interest.
Id. at 579, 540 P.2d at 108-09.
See also Bangle v. Holland Realty Inv. Co., Inc., 80 Nev. 331, 393 P.2d 138 (1964) (broker
who procured home sales with owner's knowledge and acquiescence and who had no
exclusive listing agreement with owner could recover from owner in quantum meruit for
reasonable value of services).
Based upon the evidence of record and the law cited above, we conclude that there was no
accord and satisfaction, but that Collman was entitled to the reasonable value of her services,
which was calculated at $25,500.00.
We note that our decision awarding Collman an amount greater than $20,000.00 may
preclude her from receiving an award of attorney's fees since the stated authority for the
award was NRS 18.010.
4
However, Collman is not precluded from recovering her costs,
which were awarded below; nor would she be precluded from recovering attorney's fees if the
same were found to be recoverable under some other theory.
[Headnote 4]
Matthews' claim that Collman was precluded from recovering costs and attorney's fees due
to the provisions of NRCP 68 and NRS 17.115 is without merit. NRCP 68 provides, in
relevant part, that where a pretrial offer of judgment is made and rejected, [i]f the judgment
finally obtained by the offeree is not more favorable than the offer [of judgment], the offeree
shall not recover costs, nor attorneys' fees[.] NRS 17.115 provides a similar rule and also
precludes the offeree from obtaining prejudgment interest.
__________

4
NRS 18.010 provides, in pertinent part:
18.010 Award of attorney's fees.
. . . .
2. In addition to the cases where an allowance is authorized by specific statute, the court may make an
allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000; or
Although the judgment appealed from does not expressly designate which section of the foregoing statute was
relied upon, it would appear that the award arose out of the court's discretionary powers under section (2)(a).
similar rule and also precludes the offeree from obtaining prejudgment interest.
In the present case, Collman extended a pre-trial offer of judgment to Matthews to allow
judgment to be entered in her behalf in the amount of $25,500.00. Matthews rejected the offer
and now relies on NRCP 68 and NRS 17.115 for the proposition that it was an abuse of the
district court's discretion to award Collman her costs and attorney's fees. Matthews reasons
that because the amount of the judgment Collman received was less than the amount of the
offer of judgment (or, given our present ruling, was not more favorable than the offer of
judgment), attorney's fees and costs are unavailable to Collman.
Matthews overlooks the fact that Collman was the offeror and Matthews was the offeree.
Collman, as offeror, can not have her claim for costs and attorney's fees defeated under either
NRCP 68 or NRS 17.115. The preclusive aspect of these rules apply where pre-trial offers of
judgment are made by defendants and received by plaintiffs (the party who may obtain a
judgment at trial).
5
In the instant case, the opposite scenario occurred and the preclusive
rules concerning fees and costs are simply inapplicable. Nevada's version of Rule 68, unlike
its federal counterpart, allows either party to make an offer of judgment, rather than giving
the option only to the defendant; both rules, however, contain identical language barring only
the non-accepting offeree from obtaining costs and attorney's fees.
Not only is the result sought by Matthews barred by the plain terms of the rule and statute
relied on, but it is also antithetical to the purposes behind the rules. NRCP 68 and NRS
17.115 are designed to facilitate and encourage settlement. See Morgan v. Demille, 106 Nev.
671, 674, 799 P.2d 561, 563 (1990). They do so by placing the risk of loss on the
non-accepting offeree, with no risk to the offeror, thus encouraging both offers and
acceptance of offers. Placing the risk of loss of eligibility for fees and costs on an offeror, as
Matthews would have us do, would have the opposite result and would discourage plaintiffs
from making offers to settle. Such a result would attenuate Nevada's policy of encouraging
both parties to make pre-trial settlement offers, as illustrated by our rule's specific departure
from the unilateral federal model.
CONCLUSION
For the reasons discussed above, the judgment entered below is vacated, and the matter is
remanded to the district court with instructions to enter judgment in favor of Collman in the
amount of $25,500.00, together with such costs, fees, and interest which the district
court may determine are warranted by law or by the exercise of the district court's
discretion.
__________

5
Of course, counterclaimants and parties with cross-claims would also fit within the rules pertaining to offerees
with a potential for an award of damages.
instructions to enter judgment in favor of Collman in the amount of $25,500.00, together with
such costs, fees, and interest which the district court may determine are warranted by law or
by the exercise of the district court's discretion.
____________
110 Nev. 951, 951 (1994) Transamerica Premier Ins. v. Nelson
TRANSAMERICA PREMIER INSURANCE COMPANY and TRANSAMERICA
INSURANCE COMPANY, Appellants, v. TERRY W. NELSON, Individually; LISA
D. CONNOR, Individually; and NELCON CONSTRUCTION, INC., a Nevada
No. 22908
July 27, 1994 878 P.2d 314
Appeal from an order of the district court granting respondents' motion for summary
judgment. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
After judgment was entered in favor of surety in action brought against it on contractor's
license bond, based on conclusion that action was outside scope of bond coverage, surety
filed third-party complaint against contractor under separate general indemnity agreement.
The district court granted summary judgment for contractor, and surety appealed. The
supreme court held that: (1) surety was entitled to indemnity for costs incurred in defending
action even though action resulted in determination that it was outside scope of bond
coverage; (2) surety was entitled to all attorney fees and costs incurred in good faith; and (3)
evidence supported finding that expenses sought by surety were incurred in good faith.
Lefebvre & Barron, Las Vegas, for Appellants.
1. Principal and Surety.
Under separate agreement entered into by contractor and surety on contractor's license bond, pursuant to which contractor agreed
to indemnify surety against all liability on bonds issued by surety, surety was entitled to indemnity for costs incurred in defending
action brought against it on bond even though result of that action was determination that action was outside scope of bond.
Nonmeritorious claim amounted to demand or liability on bond since invalidity of claim did not preclude entry of default judgment
against surety, and agreement specifically provided that surety had right to reimbursement of attorney fees irrespective of whether bond
loss payment had been made by surety.
Where surety on contractor's license bond provided contractor as indemnitor under separate indemnity agreement with proper
notice of pending litigation on bond and adequate opportunity to defend, surety was entitled to all attorney fees and costs incurred in
good faith in successfully defending action on bond.
In determining whether to award attorney fees to surety pursuant to general indemnity agreement, court should consider only
whether attorney fees were incurred in good faith as result of or in consequence of issuance of bond.
Evidence supported finding that expenses incurred by surety on contractor's license bond in successfully defending against action
on bond were incurred in good faith. Indemnity agreement provided that itemized statement of expenses was prima facie evidence of
fact and extent of liability of contractor as indemnitor, and contractor failed to introduce any evidence proving that surety's list of costs
was inaccurate or that costs were incurred in bad faith.
OPINION
Per Curiam:
1

Appellant Transamerica Insurance Company (Transamerica), posted a bond on behalf of
respondents Terry W. Nelson (Nelson), Lisa D. Connor, and their company, Nelcon
Construction, Inc. (Nelcon).
2
Nelcon signed a general indemnity agreement (GIA), agreeing
to indemnify Transamerica for any costs incurred on the bond. Subsequently, a bond claimant
sued Transamerica. When Nelcon refused to cooperate in defending the action, Transamerica
undertook its own defense. Summary judgment was granted in favor of Transamerica on the
basis that the action was outside the scope of bond coverage. Transamerica filed a third party
complaint against Nelcon seeking indemnification of all costs and attorney's fees incurred by
Transamerica in defending the action. On cross-motions for summary judgment, the district
court granted summary judgment for Nelcon, reasoning that the GIA did not cover the
expenses incurred by Transamerica.
__________

1
By order entered June 4, 1992, this court permitted the law firm of Wells, Kravitz, Schnitzer & Sloane to
withdraw from representation of respondents in this appeal. Additionally, we directed respondents to retain new
counsel and cause counsel to enter an appearance with the clerk of this court. Respondents having failed to
comply with the order of June 4, 1992, and a subsequent order to show cause issued October 29, 1992, on March
3, 1993, we dismissed respondents' cross-appeal and submitted this matter for disposition on the record on
appeal and appellants' opening brief and supplemental opening brief.

2
Respondents will be collectively referred to as Nelcon.
america. We reverse and remand to the district court with instructions to enter summary
judgment for Transamerica for the full amount of attorney's fees and costs incurred in good
faith by Transamerica in defending the action on the bond, and in seeking to enforce the GIA.
FACTS
Transamerica agreed to act as a surety for respondents, posting a contractor's license bond
on their behalf. Such bond is required by NRS 624.270 for respondents to engage in the
business of contracting in Nevada. As a prerequisite to Transamerica posting the bond,
respondents signed a GIA agreeing to indemnify and save harmless the surety from and
against any and all demands, liabilities, loss, costs, damages, or expenses of whatever nature
or kind . . . on bonds issued by the surety.
William Wortman (Wortman) brought an action against Transamerica on the bond.
Wortman had hired Harris Associates to supervise the construction of his home. Harris
Associates hired Floyd Blind Construction Company (Blind) and Nelson to furnish labor and
materials to complete framing work on the house.
3
The work was defective and had to be
redone. Wortman agreed to accept a promissory note from Blind and Nelson in the amount of
$16,453.26 as compensation for the defective workmanship. Blind and Nelson failed to pay
on the note, and Wortman filed claims against both Blind and Nelson's sureties on their
contractor's bonds.
For no apparent reason, Nelson and Nelcon failed to cooperate with Transamerica in
defending the suit. Nelson made misrepresentations to Transamerica's counsel about the
execution of the promissory note, failed to show up for scheduled meetings, and was
unresponsive to letters and requests for information regarding the action. Thus, Transamerica
was forced to assume full responsibility for its own defense.
Transamerica filed a motion for summary judgment, arguing that it was not liable to
Wortman under the bond because Nelson performed the work and executed the promissory
note before Transamerica became Nelcon's surety.
4
The district court granted Transamerica's
motion, finding that the action was outside of the scope of the bond.
__________

3
Nelson was apparently working alone, and not in conjunction with co-respondents Connor and Nelcon, as
only Nelson's name appears on the invoices for the job.

4
Nelson's alleged misconduct occurred in September of 1988, and the GIA and surety agreement were executed
on December 30, 1988, and January 3, 1989, respectively.
Transamerica brought a third party claim against respondents for indemnification,
subrogation, and injunctive relief. Transamerica filed a motion for summary judgment,
arguing that because Transamerica was forced to defend itself as a result of the issuance of
the surety bond, respondents were liable to Transamerica for $8,387.92 in attorney's fees and
expenses incurred in the action. Respondents brought a counter-motion for summary
judgment, arguing that because there was no contractual relationship between Transamerica
and Nelcon at the time of the misconduct alleged in the action on the bond, Nelcon could not
be liable for expenses incurred by Transamerica in defending against the claim.
The district court found that Nelcon had agreed under the GIA to reimburse Transamerica
for all expenses incurred in good faith as a result of the execution of the bond, and that the
attorneys' fees prayed for by Transamerica were fees, costs, and expenses incurred as a result
of the execution of the bond. The district court, however, granted summary judgment in favor
of Nelcon, holding that the GIA provided only for reimbursement of expenses or liabilities
incurred on the bond. The district court reasoned that Transamerica's expenses were not
incurred on the bond since summary judgment had been granted to Transamerica in the
underlying action on the basis that the bond was not in place at the time of the alleged
misconduct. Transamerica appeals the district court's grant of summary judgment in favor of
Nelcon.
DISCUSSION
Coverage under the GIA
[Headnote 1]
Transamerica asserts that the GIA expressly provides for coverage of any liability for
damage or expense incurred as a result of the issuance of the bond, regardless of whether or
not an action is eventually determined to be outside the scope of bond coverage. Thus,
Transamerica maintains that because it was sued by Wortman as a result of issuing the
contractor's bond to Nelcon, it is contractually entitled to indemnity for costs incurred in
defending the action. We agree.
The bond and the GIA are two separate contracts with different terms of rights and
responsibilities. The district court's decision confuses the coverage of the bond with the
coverage of the GIA. The bond, by its terms, was for a finite, specified period of time;
however, claims arising outside this specified period of time, or which are otherwise not
subject to coverage under the bond, may be brought against the surety.
5
As the invalidity of
such a claim will not preclude the entry of a default judgment against the surety, the
surety will be required to defend itself.
__________

5
NRS 624.270(4) provides that claims may be asserted on a canceled bond
will not preclude the entry of a default judgment against the surety, the surety will be required
to defend itself. Thus, such a nonmeritorious claim amounts to a demand or a liability on
the bond, which is expressly covered under the language of the GIA. See Piedmont
Equipment Co., Inc. v. Eberhardt Mfg. Co., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983) (An
indemnitee is not held harmless' pursuant to an express or implied indemnity agreement if it
must incur costs and attorney's fees to vindicate its rights.); see also Lawson v.
Halifax-Tonopah Mining Co., 36 Nev. 591, 598 (1913) (stating that the word indemnity
means immunity from the punishment of past offenses, and an agreement to save harmless
means relief from liability for damages already accrued).
Additionally, the GIA provides that the surety has the right to reimbursement of attorney's
fees irrespective of whether any bond loss payment has been made by a surety. Thus, the
agreement clearly provides for indemnification when the surety successfully defends an
action on the bond.
Our decision is further bolstered by the nature of the suretyship undertaking. The premium
charged to principal obligors for the posting of a bond is calculated in contemplation of a
complete recovery under the GIA. See Randall S. Udelman, Surety Contractors: Are Sureties
Becoming General Liability Insurers?, 22 Ariz. St. L.J. 469, 474 (1990). Sureties, unlike
insurers, profit solely from the premiums they collect. Indemnification rights guard against
potential losses, help reduce the surety's risk, and keep premiums relatively low. Id., Federal
Insurance Company v. Toiyabe Supply Co., 82 Nev. 14, 409 P.2d 623 (1966) (the right to
subrogation distinguishes suretyship from insurance, and such right is considered by the
surety in arriving at the amount of bond premiums).
Accordingly, we conclude that the GIA agreement in the instant case expressly covers
expenses incurred by Transamerica in defending against Wortman's action on the bond.
Amount of attorney's fees under the GIA
[Headnote 2]
Transamerica argues that if a surety provides the indemnitor with proper notice of the
pending litigation and an adequate opportunity to defend, a surety who successfully defends
the claim against it is entitled to all of the attorney's fees and costs incurred in good faith as a
consequence of having posted the bond.
__________
for up to two years after cancellation, explicitly allowing claims on bonds outside of the period of bond
coverage. A decision by this court holding that actions for indemnification may only be successfully maintained
based on bond claims which are made during the period of bond coverage would be at odds with NRS
624.270(4).
incurred in good faith as a consequence of having posted the bond. See United States Fidelity
& Guaranty Co. v. Hittle, 96 N.W. 782 (Iowa 1903) (holding that a surety indemnity contract
is not to pay such expenses as appear to have been reasonably necessary, but to pay such as
have been paid for any cause, requiring only that the surety act in good faith in the matter);
see also Heritage v. Pioneer Brokerage and Sales, 604 P.2d 1059 (Alaska 1979) (holding that
where indemnification is required and the indemnitor is given proper notice of and
opportunity to defend the litigation, the indemnitee is entitled to recover full costs and
attorney's fees); Manson-Ozberg Co. v. State, 552 P.2d 654, 660 (Alaska 1976) (the hold
harmless clause requires that the surety be reimbursed for all costs and attorney's fees in
bringing suit to recover on the indemnity clause because the contractor can avoid such costs
by paying the amount due without the necessity of suit). We agree.
The issue of a surety's entitlement to full attorney's fees and costs under an indemnification
contract is an issue of first impression in Nevada. In Piedmont Equipment Co., Inc. v.
Eberhardt Mfg. Co., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983), this court held that a
distributor in a product liability action was entitled to equitable indemnity from the
manufacturer for its defense costs. Under those circumstances, the court found that the
distributor was not entitled to indemnification for defending charges of its own active
negligence. Id. at 529, 665 P.2d at 260. However, in the case of a surety sued on a bond, the
surety generally has no culpability whatsoever, and the entirety of its obligation arises from
its undertaking on behalf of the indemnitor and principal obligor. Therefore, the GIA entitles
the surety to full recovery of expenses incurred in defending the action on the bond.
[Headnote 3]
Transamerica maintains that many district courts treat the award of attorney's fees to a
surety pursuant to a GIA as a discretionary matter to be determined based upon the court's
subjective analysis of the reasonableness of the fees under the circumstances. We conclude
that such a standard is in contravention of the purpose of the GIA to hold the surety harmless
for all expenses consequential to the issuance of the bond. Thus, we adopt a standard under
which courts should consider only whether the attorney's fees were incurred in good faith as a
result of or in consequence of the issuance of a bond. When the parties contractually agree
that good faith is the standard, undertaking a determination of anything other than good faith
is inappropriate.
6
[Headnote 4]
__________

6
In their district court brief in opposition to Transamerica's summary judgment motion, respondents argue that
the district court already awarded
[Headnote 4]
The GIA in the instant case provides that in any claim or suit, an itemized statement of
expenses is prima facie evidence of the fact and extent of the liability of the indemnitor.
Transamerica submitted a detailed list of expenses for all legal work done in connection with
the suit on the bond, and the suit against Nelcon for indemnity. Nelcon failed to introduce any
evidence proving that the list of costs incurred by Transamerica was inaccurate, or that the
costs were incurred in bad faith. Thus, the district court properly found that the expenses
prayed for by Transamerica were incurred in good faith. See U.S. v. D Bar D Enterprises Inc.,
772 F. Supp. 1167, 1173 (Nev. 1991) (holding that if an indemnity agreement provides that
evidence of payment is prima facie evidence of an indemnitor's liability, the burden is on the
indemnitor to show that the action of the surety, in satisfying obligations, was not reasonable,
or was in bad faith).
Accordingly, we reverse the district court's order granting summary judgment in favor of
respondents, and remand with instructions to enter summary judgment against respondents
for the full amount of attorney's fees and costs incurred by Transamerica as a result of issuing
the bond, including the costs of this appeal.
__________
Transamerica $750.00 reasonable fees and costs for the litigation on the bond when it ordered plaintiff
Wortman to pay that amount to Transamerica. However, Transamerica did not request such an award from the
district court, nor did the district court state at any time that it considered this the full amount to which
Transamerica was entitled. Further, this award does not release a claim against respondents based on the GIA.
____________
110 Nev. 958, 958 (1994) Karow v. Mitchell
ALAN G. KAROW, as Administrator of the Estate of CARL FRANK MARTILLARO,
Deceased, Appellant, v. VAUGHN H. MITCHELL, JR., JAMES V. MITCHELL,
CHARLES E. MITCHELL, MICHAEL H. MITCHELL and JON T. MITCHELL,
Individually, CHARLES E. MITCHELL and VAUGHN H. MITCHELL, JR., as
Trustees of the VAUGHN H. MITCHELL TRUST, Respondents.
No. 23505
ALAN G. KAROW, as Administrator of the Estate of CARL FRANK MARTILLARO,
Deceased, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT of the State of
Nevada, in and for Carson City, and The Honorable MICHAEL GRIFFIN, District
Judge, Respondents, and VAUGHN MITCHELL, JR., JAMES B. MITCHELL,
CHARLES E. MITCHELL, MICHAEL H. MITCHELL and JON T. MITCHELL,
Real Parties in Interest.
No. 23842
July 28, 1994 878 P.2d 978
Appeal from order denying motion for relief from judgment (23505); original petition for
writ of mandamus or prohibition (23842). First Judicial District Court, Carson City; Michael
R. Griffin, Judge.
The district court denied defendant's motion to vacate foreign judgment. Appeal was
taken. The supreme court held that California order allowing plaintiff attorney fees would be
enforced in Nevada, even though order was separate and followed judgment on merits and it
was claimed that order was not part of judgment Nevada court was required to honor.
Affirmed (23505); petition denied (23842).
Laura FitzSimmons, Las Vegas; Hamilton & Lynch, Reno, for Appellant/Petitioner.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Joan Wright, Carson City, for
Respondents/Real Parties in Interest.
1. Mandamus.
Writ of mandamus would not issue to compel trial court to accept out-of-state judgment. Petitioner had adequate remedy at law in
form of appeal from denial of motion to vacate judgment. NRS 34.170.
2. Prohibition.
Writ of prohibition would not issue to compel trial court to accept out-of-state judgment. Petitioner had adequate remedy at law in
form of appeal from denial of motion to vacate judgment. NRS 34.170.
3. Judgment.
California court order granting prevailing party attorney fees was an enforceable judgment in Nevada, even though order had
followed judgment rather than being incorporated within original judgment. California court had indicated that issuance of separate
attorney fees order had been clerical error, and entire case, including fees order, had been reviewed and affirmed by California Court of
Appeals.
4. Judgment.
Assuming that Nevada court was not required to give full faith and credit to California order awarding attorney fees, which had
been issued subsequent to issuance of judgment in favor of prevailing party, defect had been cured by California court issuing another
judgment combining underlying decision and attorney award, which had been approved by California Court of Appeals. U.S. Const.
art. 4, 1.
5. Judgment.
Full faith and credit clause of United States Constitution requires final judgment in sister state to be respected by courts of this
state, absent showing of fraud, lack of due process or lack of jurisdiction in rendering state. U.S. Const. art. 4, 1.
OPINION
Per Curiam:
Docket No. 23505 is an appeal from an order of the district court denying Carl Frank Martillaro's motion to vacate a foreign judgment.
1
Docket No. 23842 is an original petition for a writ of mandamus or prohibition. In his
petition, Martillaro seeks an order from this court directing the district court to grant
Martillaro's motion to strike the filing of the foreign judgment.
FACTS
On July 15, 1983, Martillaro, respondents and others executed a settlement agreement
resolving litigation concerning a mining lease to the Plumbago Mine, a gold mine owned by
respondents. Martillaro, who was designated on the first page of the agreement as a member
of the Plumbago Group, signed the agreement three times: on page 14 as vice president of the
Plumbago Group, on page 15 as a member of the Plumbago Group and on page 16 as counsel
for Robert Plante and the minority shareholders of a group called Dakota Investments.
__________

1
Carl Frank Martillaro died during the pendency of this appeal and this petition for a writ. Alan G. Karow, the
administrator of his estate, has been substituted into these consolidated cases in his place. For purposes of
clarity, we will refer to the appellant in this opinion as Martillaro.
In the settlement agreement, the Plumbago Group agreed, among other things, to
[i]ndemnify and hold harmless the Mitchell Group [respondents] from any and all claims,
demands, causes of action, damages, costs and attorneys fees incurred by it as a result of any
claim, demand, or cause of action made or raised by any successor or assign of the Plumbago
Group or anyone claiming through or under it.
Subsequently, a suit was brought against respondents and respondents incurred legal fees
in successfully defending that suit. Respondents commenced an action in California Superior
Court for indemnification under the settlement agreement excerpted above. After years of
litigation, the California Superior Court entered an order granting summary judgment in
respondents' favor on December 11, 1991. Subsequently, on February 18, 1992, the California
Superior Court entered a post-judgment order granting attorney's fees against defendants
Carl Martillaro and Eugene Chaney.
2

On March 13, 1992, respondents filed in the First Judicial District Court in Carson City,
Nevada, an exemplified copy of the California order granting attorney's fees, along with a
notice of filing of a foreign judgment, affidavits of the judgment creditors and proof of
service. On March 30, 1992, Martillaro filed in district court a motion to strike the notice of
filing of foreign judgment. Martillaro argued that the order for attorney's fees was not a
judgment under California law and that the affidavits in support of the notice were technically
insufficient.
In response to Martillaro's motion, respondents sought clarification from the California
trial court of its orders and judgments. The matter before the trial court was complicated by
the fact that Martillaro's co-defendant in the California action had satisfied the compensatory
portion of the damages awarded in the original order granting summary judgment, leaving
only the attorneys' fees award unsatisfied. The trial judge noted at the hearing on respondent's
motion that it had been the intent of the court that the original order granting summary
judgment be a final judgment.
__________

2
Although the original judgment was in the amount of $28,246.21, the award of attorney's fees against
Martillaro alone was $88,151.25. In affirming this award of attorney's fees, the California Court of Appeals
noted that it was only one-half the attorney fees prayed for. Mitchell v. Martillaro, Nos. A056582, A057354 &
A058331, slip op. at 10 (Cal. Ct. App. June 10, 1993) (not for publication). That court also quoted the trial court
as having found that this matter might have been handled fairly expeditiously [but that] every step of the way
was a huge battle. The trial court noted further that Martillaro took an absolute stonewall position every stage
of the way, and that Martillaro was never willing to resolve the case on a reasonable basis. The trial court also
found that the responsibility for [the delay] is not [respondents']. Id. at 9.
the original order granting summary judgment be a final judgment. The trial judge recognized
that there was a technical defect in the original judgment which, in the opinion of the trial
judge, was the type of irregularity which our Court of Appeals would overlook. The trial
judge suggested that the mistake was obviously non-substantive and without any real
significance, and noted that it was aware of cases in which our Court of Appeals has
overlooked that kind of omission. Nevertheless, because Martillaro was challenging the
validity of the California judgment in Nevada, the trial judge stated his intention to enter a
judgment that would correct any technical problem, as follows:
Look, I am going to enter the document which is a judgment. There is not going to be
any mistake and nobody is going to be in a position to tell the court in Nevada that there
is no judgment in this case. There is going to be a judgment when you walk out of this
courtroom this morning.
On May 15, 1992, the California Superior Court entered a summary judgment and award of
attorney's fees against Martillaro, and declared that the judgment be entered nunc pro tunc to
December 11, 1991, the date of the original, arguably technically deficient summary
judgment. On May 27, 1992, respondents filed an exemplified copy of the new California
judgment in the district court.
On July 13, 1992, Martillaro filed in district court a motion to vacate the judgment of the
California Superior Court pursuant to NRCP 60(b). Martillaro argued that the California
judgment had been entered as a result of fraud on the California court and that the California
court lacked jurisdiction to enter the judgment nunc pro tunc.
On July 30, 1992, the district court denied Martillaro's motion to strike the notice of filing
of foreign judgment. Martillaro filed a notice of appeal from that order on August 17, 1992.
On September 3, 1992, the district court denied Martillaro's motion to vacate the foreign
judgment. Martillaro filed a notice of appeal from that order on September 8, 1992. Both
appeals were filed in this court under the Docket No. 23505. On September 9, 1992, this
court dismissed Martillaro's appeal from the order denying the motion to strike for lack of an
appealable determination. We allowed Martillaro's appeal from the denial of the motion to
vacate to proceed. See Holiday Inn v. Barnett, 103 Nev. 60, 732 P.2d 1376 (1987) (order
denying motion for relief from judgment pursuant to NRCP 60(b) is independently
appealable). Finally, on December 10, 1992, Martillaro filed in this court a petition for a writ
of mandamus or prohibition, which was docketed as No. 23842.
DISCUSSION
[Headnotes 1, 2]
A writ of mandamus will not issue if the petitioner has a plain, speedy and adequate
remedy in the ordinary course of law. NRS 34.170; see Heilig v. Christensen, 91 Nev. 120,
532 P.2d 267 (1975), cert. denied, 423 U.S. 1055 (1976). The same is true of a writ of
prohibition. NRS 34.330.
In this case, Martillaro's appeal from the district court's order denying his motion to vacate
the foreign judgment is an adequate remedy in the ordinary course of the law. Thus, we deny
Martillaro's petition for a writ of mandamus or prohibition in Docket No. 23842. The
arguments tendered in support of that petition, however, may be reviewed in the context of
Martillaro's appeal in Docket No. 23505.
[Headnote 3]
Martillaro argues that the district court should have granted him relief from the foreign
judgment because the first document filed by respondents in this state, the order of the
California Superior Court awarding attorney's fees to respondents, was not a judgment under
California law. Martillaro further argues that the later nunc pro tunc judgment of the
California trial court is ineffective because, according to Martillaro, the California court was
without jurisdiction to enter that order. We disagree.
On appeal, the California Court of Appeals affirmed in all respects the initial order
granting summary judgment, the order for attorney's fees, and the subsequent nunc pro tunc
judgment of the California trial court. Mitchell v. Martillaro, Nos. A056582, A057354 &
A058331, slip op. (Cal. Ct. App. June 10, 1993) (not for publication). Thus, the question of
whether the judgment at issue is enforceable in California has been authoritatively answered,
and that question is not open to this court.
Martillaro argues, nevertheless, that this court should not enforce the California judgment
in Nevada because of the alleged irregularities in the commencement of the proceedings in
this state. Specifically, Martillaro argues that the initial affidavit in support of the original
order awarding attorney's fees was statutorily defective, and that the defect that the original
order was not an enforceable judgment could not be cured by the subsequently entered
judgment. Martillaro argues that respondents should be required to begin their action on the
foreign judgment anew.
Initially, we note that Martillaro's repeated assertion that respondents and the California
trial court conceded that the original order was not an enforceable judgment under California
law is repelled by the record. Neither respondents nor the California trial court ever conceded
that the initial order of the California court was not an enforceable judgment under
California law; indeed, the trial judge stated his express belief that the initial order was
enforceable as a judgment without modification.
California court was not an enforceable judgment under California law; indeed, the trial judge
stated his express belief that the initial order was enforceable as a judgment without
modification. Nevertheless, respondents and the California court recognized that the order
was possibly subject to challenge due to a purely clerical error, which the California court
corrected nunc pro tunc. The California Court of Appeals determined that the trial court acted
properly in so doing. Thus, Martillaro's argument that respondents are attempting to enforce a
non-judgment in this state lacks merit.
3

[Headnotes 4, 5]
Even if we were to assume, however, for the sake of argument, that there were some merit
to Martillaro's challenge to the enforceability of the original California order, it would not be
wise for this court to conclude at this time that respondents' present California judgment,
which has been affirmed by the California Court of Appeals, cannot now be enforced because
of an alleged technical violation of the Uniform Enforcement of Foreign Judgments Act.
The full faith and credit clause of the United States Constitution requires that a final
judgment entered in a sister state must [sic] be respected by the courts of this state absent a
showing of fraud, lack of due process or lack of jurisdiction in the rendering state.
Rosenstein v. Steele, 103 Nev. 571, 573, 747 P.2d 230, 231 (1987). Martillaro does not argue
in this court, nor do the facts suggest, that the California judgment was procured by fraud on
the California courts. Further, the record demonstrates that Martillaro was not deprived of due
process in the California proceedings; indeed, the process spanned several years in that state.
Finally, Martillaro has not argued, nor could he, that the California courts lacked
subject-matter or personal jurisdiction over the controversy at issue. Martillaro merely argues
at this point that based on alleged technical deficiencies in the pleadings, respondents should
be forced to commence a new, independent action in this state to enforce their judgment.
__________

3
The dissent makes much of the fact that respondents have not filed a new notice of filing of foreign judgment
in the district court with respect to the California court's nunc pro tunc judgment, and insists, therefore, that
respondents are attempting only to enforce the original order for attorney's fees, which the dissent believes to be
unenforceable. We view this as a technical defect, at most. It is clear from the record that respondents are
attempting to enforce the original order awarding attorney's fees, as construed by the California court in its
amended judgment. Exemplified copies of both documents appear in the record, and Martillaro has been
provided with ample notice of the judgment against which he must defend. The amount of the judgment is
ascertained with certainty, and respondents' right to recover the judgment cannot be disputed. Any technical
defect in the form of the notice of filing of foreign judgment is of no significant consequence at this stage of this
proceeding.
respondents should be forced to commence a new, independent action in this state to enforce
their judgment. To so require would result in the complete waste of scarce judicial resources.
We conclude, therefore, that the district court properly denied Martillaro's motion for relief
from the foreign judgment, and we affirm in all respects the order of the district court.
I dissent because the Mitchells have not as yet caused an exemplified copy of [a] foreign
judgment . . . [to be] filed with the clerk of [a] district court of this state. NRS 17.350. They
are not entitled, therefore, to have a writ of execution issued by one of our courts.
The Mitchells' Nevada counsel insists that the California order awarding attorney's fees,
that was signed on February 14, 1992, and filed on February 18, 1992, is a judgment that is
entitled to enforcement as a foreign judgment under NRS 17.350. The Mitchells filed an
exemplified copy of this February 1992 order with the clerk of the district court and now seek
to have that order enforced by our courts as though it were a final judgment.
As I read the Mitchells' position as it is expressed throughout this appeal, they rely on the
February 1992 order as the sole documentary basis for justifying the execution proceedings
which they have instituted in the district court. The February 1992 order is either a final
judgment, or it is not. If it is not a final judgment, then it is not entitled to be enforced in this
state. To me the February order clearly is not a final judgment and clearly is not entitled to
enforcement by the courts of this state.
The first problem with the February 1992 order is that it was entered as an ancillary order
and is dependent entirely, for its vitality as a judicial instrument, upon an order issued in
California in December of 1991 allowing summary judgment to be issued. On December 11,
1991, the California Superior Court issued an order (not a judgment) in which the court
ruled that no triable issue of fact exists and that summary judgment for plaintiffs against
defendant Carl Martillaro for . . . $28,246.21 may be entered. As far as I can tell, the actual
summary judgment was never entered in accordance with this order. The December 11, 1991,
order that summary judgment may be entered also provided that the plaintiffs, as prevailing
parties, were authorized to move the court for attorney's fees and costs in accordance with the
California Civil Code, Section 1717 (West 1985). Without ever reducing the December 1991
order to judgment and after discharge of the debt adjudicated in that order, the Mitchells
moved the court for attorney's fees. It seems to me that under these circumstances, the
February 1992 order was a pre-judgment order rather than a post-judgment order; and, as
such, it is clearly not the kind of final judgment that Nevada is required to honor and
enforce under the United States Constitution.
was a pre-judgment order rather than a post-judgment order; and, as such, it is clearly not the
kind of final judgment that Nevada is required to honor and enforce under the United States
Constitution. The Mitchells could not very well file in Nevada an authenticated copy of a
summary judgment upon which the ancillary attorney's fee order was necessarily based
because, when these proceedings were instituted in Nevada, there was no supporting
summary judgment recorded in California. There was no summary judgment against
Martillaro entered in California which could be filed in Nevada. In February 1992, when this
matter was instituted in Nevada, there was in existence in California no judgment against
Martillaro, only an Order Granting Summary Judgment for Plaintiff and Against Defendant
Carl Martillaro, in which the California trial court ordered that judgment against Martillaro
may be entered. (Emphasis added.) In California, an order granting summary judgment is
merely a non-appealable preliminary order and is not a final judgment. Saunders v. New
Capital for Small Business, Inc., 41 Cal. Rptr. 703, 705 (Cal. Ct. App. 1964); Cal. Civ. Pro.
Code 437c(j) (West 1994). Martillaro insists throughout these proceedings that there can be
no valid judgment for attorney's fees (and perhaps not even a valid order awarding attorney's
fees) absent the entry of the final summary judgment pursuant to the December 1991 court
order that judgment may be entered. I agree. At the time the February 1992 order for
attorney's fees was issued by the California Superior Court, there was no summary judgment
in California to support what otherwise might have been a post-judgment order for fees and
costs.
Beyond the absence of a supporting summary judgment in California, there are other
persuasive reasons why the February 1992 order is not entitled to be enforced as a final
judgment in Nevada. The full faith and credit clause of the United States Constitution
requires that final judgment entered in a sister state must be respected by the courts of this
state . . . . Rosenstein v. Steele, 103 Nev. 571, 573, 747 P.2d 230, 231 (1987) (emphasis
added). A judgment will not be recognized or enforced in other states insofar as it is not a
final determination under the local law of the state of rendition. Restatement (Second) of
Conflicts 107 (1971) (emphasis added). There are a number of reasons why the February
1992 order cannot be considered to be final. First, neither the trial judge nor the Mitchells'
California counsel recognized the February 1992 order as being a final judgment in
California, the state of rendition. This tells me that the Nevada courts should not be
compelled to recognize the California order as a judgment when the rendering judge and the
Mitchells' counsel do not recognize the order to be a final judgment.
In May of 1992, the Mitchells filed a Motion for Judgment. One would ordinarily assume
that it would not be necessary to file such a motion for judgment if there were, in fact, already
a valid, final judgment already in existence. On May 4, 1992, in support of the Mitchells'
motion for judgment, one of the Mitchells' California lawyers, Robert Schuchardt, filed a
formal declaration with the California court in which he attested that, as of May 4, 1992,
[n]o formal document entitled judgment has been signed by this court. Another of the
Mitchells' California lawyers, William Weiner, filed a similar declaration in support of the
Mitchells' motion for judgment in which the lawyer declare[d] under penalty of perjury
under the laws of the State of California as follows:
On April 7, 1992 I appeared as counsel for [the Michells'] ex parte application for order
clarifying court's intent. At that time, Judge Pollak [the judge who signed the February,
1992 order in question] and his clerk indicated that neither could find a document in the
file which was a judgment.
The fact that the Mitchells' California counsel swore under oath that there was no
judgment, coupled with the fact that the California lawyers found it necessary at all to move
the court for a final judgment, is certainly a persuasive, if not conclusive, indication that as of
May of 1992 there was no final, enforceable judgment against Martillaro existent in
California. I happen to agree with the lawyers' sworn statements and with the judge who
issued the critical February 1992 order that there was no document in the file which was a
judgment.
Furthermore, the California Code of Civil Procedure provides that [a] judgment is the
final determination of the rights of the parties in an action or proceeding. Cal. Civ. Pro.
Code 577 (West 1976) (emphasis added). Quite plainly, even if summary judgment had
been entered in this case, the subject February 1992 order was not a final determination of
the rights of the parties with respect to attorney's fees, for the order itself provides: 5. The
court retains jurisdiction to award additional attorneys fees, costs and sanctions should the
circumstances warrant. This does not look like a final judgment to me. The order awarding
$88,000.00 in attorney's fees might very well have eventually become appealable under
California Civil Procedure Code section 904.1 (West 1980) (if the summary judgment had
been properly entered before issuance of the attorney's fees order), but this alone does not
give to the order the finality necessary for recognition in another state. Presumably the issue
of attorney's fees attendant to the collection of $25,000.00 had not been finally resolved by
the California trial court or the court would not have retained jurisdiction for the purpose of
entitling it to "award additional attorneys fees, costs and sanctions as the circumstances
warrant."
would not have retained jurisdiction for the purpose of entitling it to award additional
attorneys fees, costs and sanctions as the circumstances warrant. If the Mitchells want
Nevada to enforce their California judgment, let them come here with a final judgment and
not one subject to an additional award.
Finally, as I have previously suggested, California does not consider an order granting
summary judgment to be a final judgment. See, e.g., Avila v. Standard Oil Co., 213 Cal. Rptr.
314, 317 (Cal. Ct. App. 1985) ([a]n order granting a motion for summary judgment is a non
appealable preliminary order). This position was stated most forcefully in the recent
California Court of Appeal's case, Currie v. O'Connor Hospital, 93 Daily Journal, D.A.R.
16192 (December 22, 1993). Although the Currie Court observed that this rule often has
harsh results, it went on to hold that [t]he proper role of an appellate court is to adhere to and
apply Code of Civil Procedure 904.1, not to devise and employ strategies for its wholesale
avoidance. Currie, 93 Daily Journal, D.A.R. at 16193 (quoting Modica v. Merin, 234 Cal.
Rptr. 673, 675 (Cal. Ct. App. 1991).
Apparently, on May 15, 1992, the California court did get around to entering a final
judgment which embodies the fee award against Martillaro. I know this because the Mitchells'
counsel has attached an authenticated copy of this document to one of its motions. In their
Response to Addendum to Motion to Strike Filing of Foreign Judgment, filed in the district
court, the Mitchells informed the court that they had finally obtained a final foreign judgment
and that they were going to present the judgment for enforcement in Nevada. The Mitchells
advised the district court that they had ordered an exemplified copy of the (May 21, 1992)
judgment and that upon receipt, plaintiffs will request to amend their original notice of filing
foreign judgment, substituting the new complete judgment. . . . Upon the filing the complete
foreign judgment, discussion of the original notice of filing [of the order granting the motion
for attorney's fees] will be unnecessary. To me this is a clear recognition by the Mitchells
that there was something wrong, and that if they expected Nevada to enforce a California
judgment, they had better come here with a final and complete foreign judgment. For some
reason, however, the Mitchells' Nevada lawyer retreated from her announced plan to abandon
the Mitchells' attempt to enforce a non-final order rather than a complete foreign judgment
by substituting for the order then on file in the district court an authenticated final judgment
from California. For reasons that escape me, the Mitchells decided not to pursue enforcement
of the new complete judgment and put all of their money on the February 1992 order. The
record is very clear that the Mitchells are not seeking to enforce the May judgment and that
they are, instead, interested only in trying to pursue enforcement of the non-final
February 1992 order.
are not seeking to enforce the May judgment and that they are, instead, interested only in
trying to pursue enforcement of the non-final February 1992 order.
1

Having stated my case for denying to the Mitchells' enforcement of their California order
of February, 1992, I find it useful to go on now to discuss the basic nature of this case. This
case is all about attorney's fees, and only attorney's fees. The case begins with Martillaro's
making the mistake of signing on, some ten years ago, as an indemnitor or guarantor in a
mining deal in California. In 1987, the Mitchells sued him on his agreement claiming that
Martillaro owed them some $25,000.00 in attorney's fees that they claimed to have incurred
as part of the mining deal. The trial court decided that Martillaro had no legal defense to the
attorney's fee claim and ordered that summary judgment may be entered against him.
Within a few weeks after the court authorized summary judgment to be entered, and before
summary judgment actually was entered, the amount claimed by the Mitchells, $28,246.21,
was paid in full. Case closed? Not quite.
Unimaginably, the Mitchells, taking advantage of a provision in the order allowing for an
award of attorney's fees and costs, filed a motion seeking attorney's fees in the sum of
$195,042.00, for the yeoman service rendered by their fine lawyers in obtaining a summary
judgment in a $25,000.00 collection suit. Martillaro argued, of course, that the amount
ordered to be paid had already been paid and that $195,000.00 was a bit much to be claimed
by any lawyers for collecting on a $25,000.00 claim. The judge was merciful. Given that the
$28,246.21 due to the Mitchells had already been paid, the judge decided that $195,000.00
was too much and awarded a mere $SS,151.25 in attorney's fees.
__________

1
There can be no doubt that we are dealing here with the Mitchells' attempt to enforce the original February 18,
1992, California Superior Court order granting the attorney's fee motion. This is the order that was filed in our
district court on March 13, 1992. The Mitchells' counsel insists throughout the documents filed in the district
court that it is the February 18, 1992, order, and not the May 21, 1992, judgment, that she is seeking to enforce
in the present proceedings. For example, in her opposition to Martillaro's Motion to Vacate, filed in July, 1992,
well after the May judgment had been entered, she makes it clear that the Mitchells were continuing to base their
claim on the original order and not the judgment. Even in her answering brief counsel persists in this course. The
first main heading of the brief reads: The February 18, 1992 Order Granting Attorney's Fees Against
Defendants Carl Martillaro and Eugene Chaney Is a Judgment' Under Nevada and California Law, for Purposes
of the Uniform Act and under the Provisions for Full Faith and Credit under the U.S. Constitution, Article IV,
1. (Emphasis added). The Mitchells have made their position most clear, but, unfortunately for the Mitchells,
the February 18, 1992, California order is clearly unenforceable and the March 13, 1992, California judgment, if
properly authenticated, may very well be technically enforceable (aside from public policy considerations which
I will discuss below).
already been paid, the judge decided that $195,000.00 was too much and awarded a mere
$88,151.25 in attorney's fees.
In granting the Mitchells' motion for attorney's fees, the trial judge made a remark that I
find to be of great interest: First of all, unquestionably, this situation is really appalling. And
anybody from outside the legal system who looked at what happened here, or within the legal
system, hopefully, is going to be disturbed to see this kind of situation.
I must agree that an award of an $88,000.00 attorney fee on a $25,000.00 collection that
had already been paid was indeed appalling, but, that aside, there appears to be no question
but that Judge Pollak did not consider his February 1992 order to be a judgment and that the
judge did not intend his ruling on the Mitchells' motion for attorney's fees to be a final
judgment. Judge Pollak made it clear that he did not believe that there was a judgment in
effect in May of 1992 when he attempted to transmute his February 1992 order into a true
judgment by adding to the printed May 15, 1992, judgment, in his own handwriting, the order
that the clerk was to enter judgment, nunc pro tunc as of December 11, 1991. This
handwritten addendum clearly demonstrates that the judge did not believe that there was a
final judgment in effect between December 11, 1991, and May 15, 1992; otherwise, the judge
would have had no need to try to back-date the May 15 judgment to the date of the order
that summary judgment may be entered. I do not know what other reason that Judge Pollak
might have had for inserting the mentioned hand-written addendum into the prepared, printed
order; however, I might speculate that the judge was trying, somehow, to breath life into the
February 1992 document that the Mitchells are trying to foist as a final judgment. Even if
Judge Pollak had the authority to transport the effective date of his May 15, 1992, order into
the past (something that I would challenge were it necessary), no one has seriously argued
that the February 18, 1992, order filed with the Nevada district court on March 13, 1992, was
magically transformed into the judgment that it was not, merely by virtue of Judge Pollak's
handwritten addendum.
Until such time as the Michells file the May 15, 1992, judgment with the clerk, and
amend their original notice, as they said they were going to do, and as is required by NRS
17.350, there is and can be no foreign judgment for the courts of this state to enforce.
2

__________

2
It would not appear necessary to cite case authority for the proposition that the Mitchells are trying to enforce
a non-existent judgment, but I offer, in point, the case of Griggs v. Gibson, 754 P.2d 783 (Colo. Ct. App. 1988).
When the judgment creditor in that case sought enforcement of a foreign judgment, he failed at the time of
initiating the proceedings to file an
Finally, if the Mitchells ever come before this court with a Nevada judgment based on an
authenticated copy of a final judgment, I would still have a serious question in my mind
whether this state should enforce an attorney fee judgment of almost $90,000.00 on a
$28,000.00 collection judgment. To my mind, such an award might very well be violative of
the public policy of this state. Obviously, there is no need for my discussing the point any
further at this juncture.
____________
110 Nev. 970, 970 (1994) Ton v. State
THE THANH TON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24518
August 9, 1994 878 P.2d 986
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of use of
counterfeit coins. Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
The supreme court held that failure to appoint interpreter for defendant did not constitute
violation of due process rights.
Affirmed.
Mark B. Jackson, Gardnerville, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney
and Derrick M. Lopez, Deputy District Attorney, Douglas County, for Respondent.
__________
authenticated copy of the foreign judgment. At the hearing on the judgment, the debtor complained that the file
did not contain an authenticated copy of the foreign judgment; whereupon, the creditor produced such a copy
and asked that the court get on with it, which the court did. On appeal, the debtor's argument was simply that
since plaintiff failed to file an authenticated copy of the foreign judgment in the first instance, the district court
lacked authority to take any steps to enforce that judgment. Id. at 785. This situation is exactly like the present
case except that instead of failing to file any authenticated judgment, the Mitchells failed to file an authenticated
copy of an enforceable, final judgment. The appellate court in Griggs quite properly held that the filing of the
authenticated copy of the foreign judgment is not a mere administrative step that may be waived; it is, rather, the
equivalent of the entry of an original judgment by the domestic court and, thus, is a necessary condition
precedent to the domestic enforcement of that judgment. Id. at 785. The Mitchells failed here by failing to file a
final judgment. They might just as well have filed a will with the court as the February 1992 order.
110 Nev. 970, 971 (1994) Ton v. State
Constitutional Law; Criminal Law.
Failure to appoint interpreter for defendant did not constitute violation of due process, where defendant was not handicapped so as
to require assistance of interpreter and defendant was sufficiently fluent in English language to understand criminal proceedings in
meaningful sense. U.S. Const. amend. 14; NRS 50.050(1)(a), 50.051.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one count of use of counterfeit coins. NRS 465.080(2).
The district court sentenced appellant to serve a term of five years in the Nevada State Prison.
1

On appeal, appellant contends that he was entitled to an interpreter pursuant to NRS
50.051 and NRS 50.050(1)(a). Appellant argues that the district court's failure to appoint an
interpreter pursuant to those statutes violated his right to due process.
50.051 Interpreters for handicapped persons: Appointment required in
criminal proceedings. An interpreter must be appointed at public expense for a
handicapped person who is a party to or a witness in a criminal proceeding.
NRS 50.050(1) provides in part:
(a) Handicapped person means a person who, because he is deaf, mute or has a
physical speaking impairment, cannot readily understand or communicate in the
English language or cannot understand the proceedings.
Appellant's contention is without merit. Appellant does not contend, nor does the record
indicate, that appellant is either deaf or mute or that he has a physical speaking
impairment. Appellant is therefore not a handicapped person for the purposes of NRS
50.051 and had no right to an interpreter under that statute.
A criminal defendant has a due process right to an interpreter at all crucial stages of the
criminal process, irrespective of NRS 50.051, if that defendant in fact does not understand the
English language. See United States ex rel. Negron v. State of New York, 434 F.2d 386 (2d
Cir. 1970); State v. Hansen, 705 P.2d 466 (Ariz. Ct. App. 1985); Parra v. Page, 430 P.2d 834
(Okla. Crim.
__________

1
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.
110 Nev. 970, 972 (1994) Ton v. State
App. 1967). Handicapped or not, a criminal defendant who cannot understand the
proceedings going on around him cannot adequately assist in his defense and has not received
due process of law. He or she might as well have been tried in his or her absence. In the
instant case, the district court did not abuse its discretion in determining that The Thanh Ton
was sufficiently fluent in the English language to understand the proceedings in a meaningful
sense. Accordingly, we affirm the judgment of conviction.
____________
110 Nev. 972, 972 (1994) Milender v. Marcum
WAYNE DONOVAN MILENDER, Appellant, v. SALLIE MARCUM, Executrix of the
Estate of KATHLEEN AMELIA MILENDER, Deceased, Respondent.
No. 23312
August 10, 1994 879 P.2d 748
Appeal from district court order reinstating decree of divorce. Second Judicial District
Court, Washoe County; Steven R. Kosach, Judge.
Following default divorce in district court former husband moved to set aside divorce
decree. The district court set aside default divorce decree and ordered former husband to pay
attorney fees. After former husband refused to pay attorney fees, the district court found
former husband in contempt, held that payment of attorney fees was condition to setting aside
divorce decree, and reinstated original default divorce. Former husband appealed. The
supreme court, Steffen, J., held that: (1) trial court exceeded its jurisdiction and offended
equity in granting former husband's motion to vacate divorce decree, and (2) trial court's order
which reinstated divorce due to former husband's failure to pay attorney fees as required in
prior order would be vacated and cause remanded for further proceedings concerning division
of community property.
Affirmed in part; reversed in part and remanded.
Young, J. and Rose, C. J., dissented in part.
Douglas Roman Hill, Reno, for Appellant.
John C. Hope, Jr., Reno, for Respondent.
1. Divorce.
Trial court exceeded its jurisdiction and offended equity in granting former husband's motion to vacate divorce
decree pursuant to rule providing for relief from judgment on grounds of mistake, inadvertence, surprise, or
excusable neglect where there was no evidence of fraud in obtaining divorce, no expression of intent by
parties other than that of mutual desire to be divorced.
former husband's motion to vacate divorce decree pursuant to rule providing for relief from judgment on grounds of mistake,
inadvertence, surprise, or excusable neglect where there was no evidence of fraud in obtaining divorce, no expression of intent by
parties other than that of mutual desire to be divorced. NRCP 60(b)(1).
Supreme court may affirm rulings of district court on grounds different from those relied upon by district court.
3. Divorce.
Trial court's order which vacated its prior order setting aside divorce decree and reinstated divorce due to former husband's failure
to pay attorney fees as required in prior order would be vacated and cause remanded for further proceedings concerning division of
community property where trial court did not indicate that former husband's payment of attorney fees was condition precedent to
granting motion to vacate default divorce at time order was made.
OPINION
Respondent Kathleen Amelia Milender
1
obtained a default divorce from appellant Wayne Donovan
Milender. The default judgment was entered on October 22, 1990, and the district court filed
its findings of fact, conclusions of law and decree of divorce on December 6, 1990.
2
Almost
eight months later, on July 29, 1991, the district court granted Wayne's NRCP 60(b)(1)
motion to set aside the default divorce decree. Later, after finding Wayne in contempt for
refusing to pay $850 in attorney's fees awarded to Kathleen, the district court held that
payment of the fees operated as a condition to the effectiveness of the order setting aside the
default divorce, and that since the condition had not been met, the order dissolving the
divorce decree was void. The district court therefore held that the original decree of divorce
entered in December of 1990 remained in effect.
Wayne, obviously wanting the property advantages accruing to the status of a widower
rather than a divorced former husband, now seeks relief on appeal. We conclude that relief is
not warranted as to the divorce, but also conclude that the issue concerning the division of the
parties' property must be redetermined.
__________

1
The respondent on appeal is actually Sallie Marcum, executrix of Kathleen Amelia Milender's estate. Kathleen
died of leukemia prior to the issuance of the district court order that is the subject of this appeal.

2
The original absolute decree of divorce was issued on December 6, 1990, by the Honorable Robin Anne
Wright. All proceedings that occurred thereafter involving the Milenders were heard and decided by the
Honorable Steven R. Kosach.
FACTS
Kathleen filed a complaint to end her twelve-year marriage to Wayne in August, 1990. A
default decree of divorce was entered in favor of Kathleen on October 22, 1990, as a result of
Wayne's election not to appear personally or through counsel. Judge Robin Wright filed
findings of fact, conclusions of law, and the decree of divorce on December 6, 1990. As part
of its findings, the district court determined that it had jurisdiction over the subject matter and
the parties to the divorce action, and that the Milenders were incompatible in their marriage.
Among its conclusions of law, the court concluded: (1) that it was ordered and decreed that
the bonds of matrimony were wholly dissolved; (2) that an absolute decree of divorce was
issued to Kathleen, and that both parties were restored to the status of single, unmarried
persons; and (3) that Kathleen was awarded, inter alia, $25,000 cash (payable within five
days of the date of the decree by Wayne) and a 1983 automobile as her sole and separate
property. The decree also awarded each of the parties other specified items of community
property. The parties had no minor children.
At a show cause hearing held on May 10, 1991, Wayne appeared in proper person and was
again ordered to pay Kathleen the $25,000 award plus interest and attorney's fees. Later,
however, Wayne filed a motion to set aside the default decree; the motion was granted by
Judge Kosach on July 29, 1991. The order setting aside the default decree was silent with
regard to Kathleen's attorney's fees, but noted that Wayne's motion was filed pursuant to
NRCP 55(c) and 60(b), and that the basis for Wayne's relief was NRCP 60(b)(1).
3

After entry of the order setting aside the default divorce, Kathleen sought reconsideration
of the costs and attorney's fees expended in obtaining the default decree. Kathleen argued that
it would be unjust not to honor her request for costs and fees; she conceded, however, that the
court acted within its discretion in vacating the default divorce decree. In response to
Kathleen's motion for reconsideration, the district court entered an order reaffirming its prior
order setting aside the default decree, awarded Kathleen $850 in attorney's fees, and directed
Wayne to answer Kathleen's complaint for divorce.
__________

3
In pertinent part, NRCP 60(b)(1) provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from
a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect[.]
. . . .
A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.
answer Kathleen's complaint for divorce. Although Wayne was unresponsive to the order
requiring him to pay attorney's fees, Wayne did file an answer to the complaint in which he
requested, inter alia, that the marriage be forever dissolved. It was thus clear that Wayne's
objection to the default decree was not directed at the dissolution of the marriage, but rather
the division of the parties' property.
On January 31, 1992, Kathleen filed a motion to show cause as a result of Wayne's failure
to pay the $850 in fees awarded by the court. Unfortunately, twenty-two days later, Kathleen
died. Despite Kathleen's death, the show cause hearing was held on March 5, 1992, and
Wayne was held in contempt of court. The subject of Kathleen's demise was not addressed.
On the occasion of this same hearing, Judge Kosach specifically stated that his order of
November 13, 1991, operated as a condition to the setting aside of the default decree; that
upon Wayne's payment of Kathleen's attorney's fees and costs, which he had already been
ordered to pay, the divorce decree would be set aside. Because Wayne had failed to comply
with the court's order, Judge Kosach ruled that the order setting aside the default divorce
decree was void, and that the default divorce decree remained in effect as originally entered in
1990. Wayne thereafter appealed.
4

DISCUSSION
[Headnote 1]
The first issue, not raised by either party, but necessarily addressed by this court because it
is of a jurisdictional nature, is whether the district court had jurisdiction, absent fraud, to set
aside an absolute decree of divorce. Additional factors in the equation concerning this issue
are Nevada's status as a no-fault state, and the fact that both parties to the divorce desired to
terminate the marriage. The sole basis for setting aside the divorce decree was to facilitate a
reconsideration of the property division set forth in the original default decree. We are
unaware of any law or precedent that would have prevented the district court from vacating
that part of the decree relating to the property division without setting aside the termination of
the marriage.
5

__________

4
Concomitant with the notice of appeal, Wayne's counsel filed a notice of death, informing the district court
that Kathleen had died on February 22, 1992. Four days later, Wayne's counsel filed an amended notice of death
with an original death certificate attached. On March 5, 1992, counsel for the now-deceased Kathleen, and her
mother, Sallie Marcum, filed the Will of Kathleen Milender with the Washoe County Clerk.

5
Our ruling does not derogate from the requirement that a divorce proceeding dispose, in one final decree, of
all the issues properly before the court. Gojack v. District Court, 95 Nev. 443, 445, 596 P.2d 237, 238
This court perceives no basis for a district court undivorcing parties under circumstances
where both parties desire to remain divorced, and the only dispute relates to the division of
property as provided in the challenged decree. Great mischief may occur where, absent
considerations of fraud, a marriage has been absolutely dissolved, the parties restored to
single status, and after many months of living as unmarried, single persons, the court enters
an order undivorcing the divorced parties. Intervening relationships, legal and otherwise,
could be adversely affected and complicated by the entry of such an order. Moreover, legal
and equitable considerations aside, such a procedure invokes precious little support in reason
or potential benefit. If the parties had desired to remarry, they could have done so with far
less effort and expense by merely undergoing a simple ceremony. To attempt to undo an
absolute divorce, by supplanting the original decree with a superseding order purporting to
rescind the absolute divorce that both parties desired to remain in effect and thus restore them
to an unwanted married status creates confusion in the record and defies reason. The record
reflects no allegations of fraud in obtaining the divorce, no lack of jurisdiction over the
parties and their marital status, no pejorative grounds for the divorce (simply lack of
compatibility), and no expression of intent by the parties other than that of a mutual desire to
be divorced.
Of course, in the instant case, Wayne now desires to posthumously confer the status of a
deceased wife upon Kathleen in order to retain her share of the community property. To
permit him to do so would engage the judicial process in an elevation of greed and an
affront to equity.
__________
(1979). The default judgment entered in the instant case did in fact, dissolve the marriage and dispose of the
parties' property simultaneously. There is therefore no jurisdictional defect that would call into question the
validity of the original default divorce decree. Id. at 445, 596 P.2d at 239. By analogy, the result reached in the
instant case is supported by our ruling in Smith v. Smith, 100 Nev. 610, 691 P.2d 428 (1984). In Smith, the
appellant both requested and failed to object to the district court entering an absolute decree of divorce prior to
reaching a division of the parties' community property. Id. at 613, 691 P.2d at 431. On appeal, the former
husband contended that the district court was without jurisdiction to enter orders enforcing the parties' marital
termination agreement because it had previously granted an absolute decree of divorce. We disagreed based
upon appellant's active approval in the adoption of such a procedure at trial, and the fact that the district court
had impliedly reserved jurisdiction over the parties' property settlement by referring the matter to a special
master for recommendation. Id. In the instant case, both parties never wavered in their desire to have their
marriage terminated. Even after Wayne timely moved to set the decree aside, and thereafter answered Kathleen's
complaint, he requested that the marriage be forever dissolved. In effect, then, we are left with a situation similar
to Smith where there was agreement as to the entry of an absolute divorce, but a remaining legal basis for the
district court thereafter addressing, separate from the divorce, the division of the parties' property.
him to do so would engage the judicial process in an elevation of greed and an affront to
equity. This we refuse to do.
[Headnote 2]
Unfortunately, the district court erred in deciding that its order setting aside the default
decree was subsequently made conditional by its order of November 13, 1991, requiring
Wayne to pay Kathleen's fees and costs. There is simply no district court decision of record
that purports to make the order setting aside the default decree conditional upon the payment
of such fees and costs or on any other contingency. Although the district court judge may
have had some such conditions in mind, they were never reduced to writing and incorporated
in any order or minutes of the court. However, it is well established that this court may affirm
rulings of the district court on grounds different from those relied upon by the district court.
Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).
In pertinent part, NRS 125.130 provides:
1. The judgment or decree of divorce granted under the provisions of this chapter
shall be a final decree.
2. Whenever a decree of divorce from the bonds of matrimony is granted in this
state by a court of competent authority, the decree shall fully and completely dissolve
the marriage contract as to both parties.
(Emphasis supplied.) In accordance with the provisions of the above-quoted statute, Kathleen
and Wayne were divorced by a default decree properly entered on December 6, 1990.
6
The
fact that during the hearing on Kathleen's motion for reconsideration of the ruling vacating
the default divorce decree, her counsel announced that Kathleen feels that the court has acted
within its discretion to order the Decree filed on May 24, 1991, [obviously counsel intended
to state December 6, 1990, as May 24, 1991, was the date of the filing of Wayne's motion to
vacate the default judgment] to be vacated, is of no moment. Even if counsel's statement
were construed as a concession, it would not confer upon the district court the authority to
vacate the final default decree under the circumstances that existed here. Moreover, the fact
that counsel's statement occurred at a hearing prompted by Kathleen's formal opposition to
Wayne's motion to vacate the default decree indicates that she was not conceding Wayne's
entitlement to have the divorce decree set aside.
__________

6
The default decree issued by the Honorable Robin Wright, provided:
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the bond of
matrimony heretofore and now existing between Plaintiff and Defendant be, and the same are [sic] wholly
dissolved, and an absolute Decree of Divorce is hereby granted to the Plaintiff, and each of the parties,
hereto are [sic] hereby restored to the status of a single, unmarried person.
default decree indicates that she was not conceding Wayne's entitlement to have the divorce
decree set aside. Furthermore, as previously noted, when Wayne dutifully complied with the
district court's order to answer Kathleen's complaint, he also requested that the court order the
marriage to be forever dissolved. If there is one thing clear on this record, it is that after
Kathleen filed her complaint for a divorce and prior to her death, neither party indicated
anything less than a desire to have their marriage terminated.
At no time has NRS 125.130 been interpreted to prohibit a district court from modifying
alimony or property aspects of a divorce decree without vacating the divorce. Indeed, without
reserving jurisdiction, the district court may modify property rights in a decree where the
parties provide a written stipulation to the court for such purpose. NRS 125.150(6). Although
the district court did not receive a written stipulation from the parties in the instant case, it is
clear from the record that Wayne simply wanted to have an opportunity to contest the
property distribution contained in the default divorce decree, and that Kathleen did not
oppose giving Wayne that opportunity.
Under the fact-specific circumstances of this case, we conclude that the court exceeded its
jurisdiction in setting aside the original decree of divorce insofar as it purported to undo the
final divorce that was entered without fraudulent inducement by a court having jurisdiction in
the premises. In setting aside the default decree, the district court granted Wayne's motion for
such relief pursuant to NRCP 60(b)(1) thus impliedly finding that grounds for relief existed in
the form of mistake, inadvertence, surprise, or excusable neglect. It is clear, however, that
no such grounds existed with respect to the divorce. Wayne was fully aware that his wife was
filing for divorce and elected not to contest it. Kathleen alleged incompatibility and the
divorce was granted without any infirmity pertaining to mistake, inadvertence, surprise,
excusable neglect, fraud, or lack of jurisdiction. In short, the marriage was absolutely
terminated and dissolved and the only means by which it could have been resuscitated would
have been through remarriage. Under the circumstances of this case, the dissolution of the
marriage in the original decree was divisible and separate from that part of the decree that
addressed the property rights and entitlements of the parties.
Finally, despite our ruling that the district court exceeded its jurisdiction in purporting to
undo a valid final, absolute decree of divorce, there are equitable grounds for endorsing the
result of our ruling. Equity considers as done that which ought to be done. 30A C.J.S. Equity,
121, p. 339. Kathleen's divorce ought to have remained undisturbed. Wayne's attempt to
hold valid that which he clearly desired to terminate before Kathleen's death offends
equity and will not be aided by this court.
which he clearly desired to terminate before Kathleen's death offends equity and will not be
aided by this court.
[Headnote 3]
Although, for different reasons, we affirm the district court's order with respect to the
continuing validity of the original default divorce, we are unable to affirm the remainder of
the order that would preclude revisiting the property division set forth in the original default
decree. Since the NRCP 60(b)(1) relief was granted by the district court and may not be
overturned by this court based upon an unwritten, unspoken condition precedent to the order
setting aside the decree, we must remand this matter to the district court for further
proceedings concerning the division of the community property.
7
Of course, the district court
retains complete jurisdiction to divide the property in accordance with the law, equity, and the
evidence and to impose whatever lawful sanctions, if any, it may conclude are warranted
because of Wayne's recalcitrant and contemptuous refusal to obey the district court's order
pertaining to the payment of Kathleen's costs and fees.
Other issues raised and not addressed in this opinion are either without merit or need not
be considered given our disposition of this appeal.
CONCLUSION
For the reasons stated above, that part of the district court's order which purported to
reinstate the absolute decree of divorce is affirmed, since the dissolution of the marriage was
never effectively invalidated; to the extent that the order entered below purported to
invalidate the relief accorded to Wayne pursuant to
__________

7
Unfortunately, the district court failed to specify in other than the most general terms why it determined that
Wayne was entitled to relief pursuant to NRCP 60(b)(1). The entire order on the subject provided:
This matter comes before the Court on defendant's Motion to Vacate Default Judgment/Decree filed on
May 24, 1991. After a complete review of the file and pleadings therein, the Court finds the following.
Defendant has filed his motion in accordance with NRCP 55(c) and 60(b). Having satisfied this Court
that the relief requested by defendant is within the statutory provisions set forth in NRCP 60(b)(1), and
good cause appearing, defendant's motion is hereby GRANTED.
Because the district court did not provide a record concerning its reasons for granting Wayne relief under NRCP
60(b)(1) (see criteria for relief in Yochum v. Davis, 98 Nev. 484, 653 P.2d 1215 (1982)), we are unable to
determine whether the district court's ruling was justified. In no event do we have a basis in the record for
affirming the district court's order declaring the order granting Wayne relief under NRCP 60(b)(1) invalid
insofar as it applies to the division of the parties' property.
his NRCP 60(b)(1) motion, insofar as a redetermination of the parties' entitlement to property
is concerned, it is reversed, and this matter is remanded to the district court for purposes of
redetermining the proper division of the parties' property.
Springer and Shearing, JJ., concur.
Young, J., with whom Rose, C. J., joins, concurring in part and dissenting in part:
While I concur in general with the majority's opinion, I dissent from that portion having to
do with the status of the marital relationship in the event a default decree of divorce is set
aside.
Initially, I feel compelled to address the rather troubling procedural events taking place
here. The majority appears to characterize Wayne in a pejorative way as the greedy
perpetrator of all disputes in this case. After a careful review of the limited record, I am of the
opinion that one of the dominant features of this case was the relentless pursuit of fees by
Kathleen's attorney,
1
intertwined with the efforts of both parties to terminate a twelve-year
marriage. Neither side was entirely blameless for what happened, but I cannot agree with the
harsh judgment that Wayne was concerned only with what might euphemistically be
described as mundane matters.
Kathleen obtained a default judgment against Wayne which included, among other things,
award of the marital home and $25,000.00 in cash to be paid in five days!
2
When Wayne
failed to pay the $25,000.00 award, Kathleen sought to have Wayne held in contempt and
asked for attorney's fees. The court ordered Wayne to pay the $25,000.00 plus interest and
$511.00 in attorney's fees.
At this point Wayne concluded that things were getting serious and contacted a lawyer.
Apparently Wayne, a retired slot machine mechanic, told his counsel that he had not
previously employed a lawyer because Kathleen and he had originally decided to work out a
property settlement by themselves. Wayne's counsel required a $1,500.00 up-front retainer
to ask the court to set aside the decree.
Kathleen was disappointed when the court granted Wayne's motion to vacate the decree
and immediately moved for reconsideration, complaining that Wayne "stood by while [she]
expended $740.00 in attorney's fees and $110.00 in costs in obtaining said divorce."
__________

1
Kathleen's attorney on appeal was not the same attorney that represented her below. Wayne also was
represented by a different attorney in the trial court.

2
Wayne stated that the only community assets were the marital home and the 1989 travel trailer, the aggregate
value of the two items being approximately $27,000.00.
eration, complaining that Wayne stood by while [she] expended $740.00 in attorney's fees
and $110.00 in costs in obtaining said divorce. Wayne countered by reminding her that he
had expended over twice that much in attorney's fees, namely $1,500.00, to vacate the decree
and return the parties to a level playing field. Unpersuaded, Kathleen struck back, arguing
that nonetheless Wayne should be ordered to pay her attorney's fees and costs of $850.00 in
obtaining the default because she did everything right and it was [Wayne] who begged this
court for mercy through his ignorance. Kathleen's argument fell upon a sympathetic ear and
she emerged victorious in this exchange with the court ordering Wayne to pay the fee
Kathleen incurred in obtaining the vacated decree.
Unfortunately, the matter of legal fees continued to plague Wayne. An English writer
nearly four centuries ago wisely observed that it is easier to open an oyster without a knife
than a lawyer's mouth without a fee. Respecting this common law tradition, Wayne's lawyer
asked for an additional $4,000.00 up-front. Wayne, unemployed and lacking this kind of
money, cast about in other waters to find an attorneybut the next attorney he approached
wanted a $10,000.00 retainer!
3
Wayne then concludedunwiselythat it could be no more
expensive if he represented himself!
Meanwhile, back at the district court, Kathleen's attorney continued a single-minded
pursuit of fees from Wayne. A motion was filed to have Wayne held in contempt for failure
to pay the $850.00although no time limit had been set in the order. Not surprisingly, an
additional attorney's fee was sought in this motion.
Wayne attended the hearing on March 5, 1992, without counsel. Kathleen had died eleven
days before and on the day of the hearing her counsel filed Kathleen's will with the clerk of
the court. In what might have been an unduly restricted presentation by Kathleen's counsel,
the case was argued as if she were still alive. The record does not indicate whether Kathleen's
counsel informed the judge of the death so presumably the judge did not know Kathleen was
dead when he issued the order later that day!
Wayne testified at the hearing that he had not been able to pay the $850.00 attorney's fee
because all his funds have been used for house payments and utility bills. Wayne's comment
on house payments is puzzling in view of the fact that three months earlier Kathleen's counsel
had recorded what was arguably a defective deed by the clerk of the court purporting to
transfer Wayne's interest in the marital home to Kathleen.
__________

3
I venture to say that by this time Wayne would well agree with Lord Brougham, who once defined lawyers as
those who rescue your estate from your enemies and then keep it for themselves.
deed by the clerk of the court purporting to transfer Wayne's interest in the marital home to
Kathleen.
4

Later that afternoon the district court signed an order holding that the order setting aside
(seven months earlier) the default divorce decree had been contingent upon Wayne's payment
of the $850.00 attorney's fees later awarded. Neglecting to pay the fee, Wayne had triggered
the set-aside order and thus breathed new life into the vacated decree eleven days after
Kathleen's death.
5

Although it has been well said that there are usually no grave legal problems in the
dissolution of a matrimonial community with limited assets, the instant case may well be the
exception! It is apparent that the dynamics of the generation and collection of fees by counsel
for both sides have played a more important role than the legal issues in determining the
judicial destinies of the litigants.
6
I agree with the majority opinion that the order entered
after Kathleen's death should be vacated. The majority predicates its opinion on the premise
that the sole basis for setting aside the divorce decree was to facilitate a reconsideration of the
original property division. However, in reading the order setting aside the decree, I discern no
such limitation. The order merely states that the motion to vacate the default judgment of
divorce is granted. I submit that nothing in a close reading could persuade the reader to think
that only the property settlement was affected by the order.
This court has previously disapproved of a trial judge sua sponte bifurcating a divorce
action. Gojack v. District Court, 95 Nev. 443, 596 P.2d 237 (1979); see also Smith v. Smith,
100 Nev. 610, 613, 691 P.2d 428, 431 n.1 (1984) (Despite our acceptance of the separate
trials in this particular case we wish to emphasize that bifurcated divorce proceedings and the
problems they are likely to engender are disfavored and should generally be avoided.). The
majority in the instant case, however, appears to conclude that such a bifurcation properly
took place. I submit that our holdings in Gojack and Smith seem to militate against such a
result.
__________

4
The record does not indicate whether Wayne was aware of the transaction even though he continued to make
house payments.

5
Kathleen's death certificate indicates that she died in a hospital in Kentucky and her status was listed as being
a divorced person. The majority seems to believe that somehow Wayne profits from the decree having been set
aside. In fact, if the parties were married at her death, it might expose Wayne, as the husband, to being called
upon to pay her medical bills.

6
As Benjamin Franklin once wrote:
Blind Plaintiff, lame Defendant, share
The Friendly Laws impartial care,
A Shell for him, a Shell for thee,
The Middle is the Lawyer's Fee.
that our holdings in Gojack and Smith seem to militate against such a result.
While the motion to vacate did contain some discussion of problems in the property
settlement, it did not specifically request that only the property aspect of the default decree be
vacated. Nothing suggests that the motion was anything other than a motion to vacate the
default decree in its entirety. Accordingly, I am of the opinion the majority is reading
something into this order that simply is not there. The original decree dissolved the marriage.
The purpose of the motion by the husband was to vacate the default decree, not just part of it.
I submit that that is what the order clearly and unambiguously did. Generally, when a decree
is vacated, it is as if that decree never existed, regardless of the subject of the decree.
The majority expresses concern over the great mischief that may occur if parties who
have been divorced by a default decree are restored to their marriage status by a court
vacating the decree. Pursuant to such concern, the majority holds that parties may not be
undivorced in this manner, i.e., that a court may vacate a decree only as to property but not
as to marital status. However, in order to reach such a conclusion, it appears that the court is
creating an exception to its own duly promulgated rulesan exception for divorce decrees.
Or will other judgments be bifurcated on an ad hoc basis in accordance with equities as seen
through the spectacles of an appellate court on an incomplete and cold record?
Further, the majority expresses great apprehension as to intervening relationships which
may result after parties terminate marital status by a default decree. However, I am of the
opinion that parties who deliberately obtain changes in status by default make their own
choices as to the risk of impermanency and invalidity. This court's job is not to protect parties
from the consequences of their own voluntary actions, even if guessing wrong and electing to
receive a default decree. I submit that our court must strive for consistency in its decisions,
making changes in the law and rules only when necessary. I can see no reason to carve out an
exception to our rules as to vacating decrees merely to facilitate or protect intervening
relationships, which on the record are not present here.
____________
110 Nev. 984, 984 (1994) Flamingo Realty v. Midwest Development
FLAMINGO REALTY, INC., a Nevada Corporation; and TERRY FIELDS, Individually and
in Her Capacity as an Agent of Flamingo Realty, Inc., Appellants, v. MIDWEST
DEVELOPMENT, INC., a Nevada Corporation; TOROSAN, INC., a Nevada
Corporation; PIUS REIGER; and LEROY HILT, Respondents.
No. 23544
August 10, 1994 879 P.2d 69
Appeal from money judgment entered pursuant to a bench trial. Eighth Judicial District
Court, Clark County; William P. Beko, Senior Judge.
Appeal was taken from judgment of the district court awarding damages to real estate
broker and awarding costs to one defendant. The supreme court, Steffen, J., held that: (1) in
determining amount of damages on quantum meruit theory, court should have used the
customary method and rate of compensation in real estate industry; (2) evidence sustained
finding in favor of defendants on fraud claim; (3) there was no basis for award of attorney
fees to prevailing defendant; and (4) costs awarded to prevailing defendant should be passed
through to nonprevailing defendants.
Modified in part; affirmed in part; reversed in part.
Young, J., dissented in part.
K. Michael Leavitt, Jason G. Langess and David Rivers, Las Vegas, for Appellants.
Cherry, Bailus & Kelesis, Las Vegas, for Respondents Midwest, Reiger and Hilt.
Edward R. J. Kane, Las Vegas, for Respondent Torosan.
1. Appeal and Error; Damages.
District court is given wide discretion in calculating award of damages, and award will not be disturbed on appeal absent abuse of
discretion.
Proper measure of damages under quantum meruit theory of recovery is the reasonable value of the services.
3. Brokers.
In awarding damages to broker on quantum meruit theory, court should have considered established customs to determine the
reasonable value of the real estate agent's services, and agent should have been compensated based on customary method and rate of
compensation in the real estate industry.
4. Brokers.
Real estate agent who is the procuring or inducing cause of a sale is entitled to agreed compensation irrespective of who makes the
actual sale or supplies the terms thereof.
5. Brokers.
It was not unreasonable to conclude that 8.75 percent real estate broker's commission specified in agreement was inapplicable
under quantum meruit analysis due to the fact that the agreement was never consummated, and it was also not unreasonable to
conclude that net listing approach would be unfair because it would yield a commission of only $50,000 on a transaction involving an
excess of $5 million.
6. Fraud.
Finding that vendor and purchaser did not engage in fraud to deprive broker of commission was supported by the evidence.
When substantial evidence supports lower court's finding, supreme court will not disturb the result despite suspicions and doubts
based upon conflicting evidence. Fact that the supreme court may have arrived at different conclusion based on its review of the cold
record does not justify overruling district court's judgment.
8. Costs.
If attorney fees are provided for by rule, statute, or contract, decision to award attorney fees is left to the sound discretion of the
district court, but district court may abuse its discretion when it clearly disregards governing legal principles.
9. Damages.
Award of attorney fees as damages on counterclaim was not made pursuant to rule, statute, or contract and thus was an abuse of
discretion. NRS 18.010(2)(b).
10. Damages.
Even though defendant had not filed memorandum of costs, it was proper to award costs as damages on counterclaim where award
of costs would be passed through to other defendants against whom the plaintiff prevailed. NRS 18.110(1).
11. Costs.
Costs awarded to prevailing defendant against plaintiff should have been passed through to nonprevailing defendants.
OPINION
THE FACTS
Respondent Midwest Development, Inc. (Midwest) owned a 45-acre parcel of real property situated in Las Vegas. Respondents Pius
Reiger and Leroy Hilt were the principal shareholders of Midwest. In May of 1990, Midwest decided to sell the parcel for a net price of
$5,250,000.00. Appellant Terry Fields
1
approached Midwest in early September of 1990 and offered to
provide a "ready, willing, and able" purchaser of the subject property.
__________

1
Fields was working as an agent for Appellant Flamingo Realty at all relevant times. For stylistic ease and
clarity we will refer to the two parties as Fields.
approached Midwest in early September of 1990 and offered to provide a ready, willing, and
able purchaser of the subject property. Thereafter, Midwest executed in favor of Fields a
nonexclusive listing agreement that recited a list price of $5,750,000.00 and a realtor's
commission of 8.75%. The list price, less the commission, would have netted approximately
$5,250,000.00 to Midwest.
Fields immediately delivered to Midwest a purchase offer of $5,750,000.00 from
Bodysonic, a Nevada corporation whose primary shareholder and officer was a Japanese
businessman by the name of Kyota Yamada. However, Bodysonic's purchase offer was
contingent upon the approval of a joint venture/partnership agreement by and between the
buyer and seller. After intensive negotiations, the parties were unable to reach an agreement
regarding the joint venture and Yamada returned to Japan without closing the sale. The listing
agreement, which was executed on September 7, 1990, terminated by its own terms on
September 20, 1990.
In late 1990, Bodysonic submitted a second purchase offer in the amount of
$5,325,000.00. Fields had continuously worked with Yamada in preparing the offer and
finding an unrelated joint venturer to aid in developing the property. Bodysonic's offer
contained a provision stating that Midwest would be responsible for paying Fields'
commission. Midwest delivered a counteroffer to Bodysonic specifying the $5,325,000.00 as
a net price
2
and omitting the paragraph relating to Fields' commission. By the parties' own
admissions, the only impediment to closing the transaction was Fields' commission.
Midwest ultimately sold the property to respondent Torosan, Inc., (Torosan) for
$5,300,000.00, and Torosan immediately resold the property to Bodysonic for $5,325,000.00.
When Fields learned of the latter sale, she demanded that Midwest pay her a commission.
Midwest refused, prompting Fields to file a complaint against Midwest, its principals, and
Torosan for fraud, fraudulent conveyance, and breach of contract. Torosan responded by
filing a counterclaim against Fields for its attorney's fees and the costs of defending a
frivolous and/or meritless lawsuit.
After a bench trial, the district court found that Fields had failed to prove the necessary
elements of her claims, and awarded Torosan attorney's fees and costs as damages on its
counterclaim.
__________

2
After the first negotiations failed, Midwest incurred approximately $75,000.00 in predevelopment architecture
and engineering fees. As a result, Midwest increased the selling price to $5,325,000.00 in order to realize its
earlier net requirement of $5,250,000.00.
The court also found that Fields had failed to produce a ready, willing, and able purchaser
according to the terms of the expired listing agreement. Despite the foregoing, the court did
find that Fields had been the procuring cause of the ultimate sale and that she was entitled to
compensation. Because there was insufficient evidence in the record to determine the amount
to award Fields, the court reopened the trial for the limited purpose of determining the
reasonable value of Fields' services.
Fields' expert, Ron Reiss, testified that the customary value of Fields' services was
somewhere between 8 and 10 percent of a property's selling price. Reiss buttressed his
testimony with significant evidence of similar listings and transactions. However, his opinion
was based upon his belief that Fields had complied with the terms of a standard,
percentage-based listing agreement. Respondents' expert witness, Shirley Rappaport,
conceded that real estate commissions are normally determined as a percentage of the selling
price. Rappaport nevertheless analyzed Fields' experience, income, the quality and quantity
of services performed, duration of the services and other factors and concluded that Fields'
compensation could be calculated by reference to an hourly wage. The district court accepted
Rappaport's evidence and determined that Fields devoted at least 40 hours per week for a
period of six months for $92,304.00, and at least 20 hours per week for two months for
$15,384.00, or a total of $107,688.00.
DISCUSSION
Fields raises four assignments of error on appeal: (1) the court used an inappropriate
measure of damages under quantum meruit; (2) the court erred in finding insufficient
evidence of fraud, (3) the court erred in awarding attorney's fees and costs to Torosan; and (4)
the court erred in refusing to pass Torosan's costs through Fields and to the nonprevailing
defendants Midwest, Reiger and Hilt.
1. The appropriate measure of damages under quantum meruit
[Headnotes 1, 2]
A district court is given wide discretion in calculating an award of damages and an award
will not be disturbed on appeal absent an abuse of discretion. Parsons Drilling, Inc. v. Polar
Resources Co., 98 Nev. 374, 377, 649 P.2d 1360, 1363 (1982). In the instant case, the parties
recognize that the proper measure of damages under a quantum meruit theory of recovery is
the reasonable value of [the] services. Morrow v. Barger, 103 Nev. 247, 252, 737 P.2d
1153, 1156 (1991). Unfortunately, the parties disagree on the best method of measuring the
"reasonable value" of Fields' services.
disagree on the best method of measuring the reasonable value of Fields' services.
[Headnote 3]
In Florey v. Sinkey, 77 Nev. 275, 362 P.2d 271 (1961), the respondent was the procuring
cause of a sale of mining property. Based upon an implied agreement that the sellers would
pay the respondent the reasonable value of his services, the trial court awarded the
respondent 10% of the sale proceeds. In affirming the award, we concluded that the sum
found to be due . . . as compensation for his services, under the established custom of the
mining locality, became the reasonable value of such services. Id. at 279, 362 P.2d at 273.
Thus, we have previously recognized the applicability of established customs when
determining the reasonable value of a real estate agent's services. We are persuaded that the
standard used in Florey should have been utilized in the instant case, thereby compensating
Fields based upon the customary method and rate of compensation in the real estate industry.
See also Needs v. Hebener, 797 P.2d 146, 151-52 (Idaho Ct. App. 1990) (the reasonable
value of services is determined by the nature of the work and the customary rate of pay for
such work in the community).
The district court abused its discretion when it expressly refused deference to the manner
in which real estate agents are customarily paid.
3
Both experts testified that real estate agents
are not customarily paid an hourly wage. In fact, Rappaport testified as follows concerning
the hourly wage schematic she presented to the court:
I was looking at something other than a commission which I have never really done
before, and it's really not that normal in the real estate business, but this is the only way
I could see that I could equate an income or something reasonable instead of giving a
commission is basing on maybe what they had done before or what a good commercial
salesperson could make or does make and equate it to hours.
To compound the error, Fields was unable to estimate the number of hours she worked on
the sale and the district court simply estimated the hours Fields could have worked, and
multiplied those hours by an arbitrary hourly rate.
[Headnote 4]
Having concluded that the trial court erred in fixing Fields' compensation, it becomes
necessary to determine the value of Fields' services based upon the customary methods of
compensating real estate professionals.
__________

3
The district court stated at one point: I'm not interested in what is customarily done. I'm interested in learning
what just compensation would be based upon the services performed by Terry Fields.
Fields' services based upon the customary methods of compensating real estate professionals.
The primary source for resolving this issue is the original listing agreement between Fields
and Midwest. The district court found that the parties agreed to a net listing of
$5,250,000.00. Substantial evidence of record supports the district court's finding. The
original agreement is an important part of our analysis because a real estate agent who is the
procuring or inducing cause of a sale, is entitled to the agreed commission, irrespective
of who makes the actual sale or supplies the terms thereof. Schneider v. Biglieri, 94 Nev. 426,
427, 581 P.2d 8, 9 (1978) (citing Bartsas Realty, Inc. v. Leverton, 82 Nev. 6, 409 P.2d 627
(1966)); see also Herrman v. Blase, 77 Nev. 127, 133, 359 P.2d 745, 748 (1961) (the agreed
compensation may become the amount of quantum meruit).
We also conclude from the record that the compensation agreed to by both parties was
within the customary practice for establishing a reasonable commission in the real estate
industry. Although both experts testified that the percentage-based commission is prevalent in
the industry, Fields' own expert testified that net listings are common as well.
Unfortunately, in fashioning a transaction through Torosan to Bodysonic without provision
for a commission to Fields, Midwest foreclosed the propriety of using Midwest's net listing
requirement as a fair measure of the reasonable value of Fields' services. Fields originally
presented to Midwest an offer to purchase from Bodysonic for $5,750,000.00 with an agreed
commission of 8.75% of the selling price. Although the parties were unable to resolve certain
impediments to that sale, Bodysonic thereafter offered to purchase the property for
$5,325,000.00 with the proviso that Midwest pay Fields her commission. Rather than
arranging for payment of a commission to Fields, Midwest accomplished the sale to
Bodysonic through Torosan for $5,300,000.00. The difference between the original proffered
purchase price of $5,750,000.00 and the eventual sales price to Torosan of $5,300,000.00 is
$450,000.00, or nearly 8.5% of the actual sales price. This figure is well within the usual fee
of 8-10% testified to by Mr. Reiss, and is less than the 8.75% fee originally agreed to in the
listing agreement between Fields and Midwest.
[Headnote 5]
The district court did not unreasonably conclude that the 8.75% commission specified in
the original agreement was inapplicable under a quantum meruit analysis because that
agreement was never consummated. Nor was the trial judge unreasonable in concluding that a
net listing approach would be unfair because it would have yielded a commission of only
$5,000.00 [sic] (the difference between the net listing of $5,250,000.00 and the sale to
Torosan of $5,300,000.00, actually would have yielded a commission of $50,000.00).
sale to Torosan of $5,300,000.00, actually would have yielded a commission of $50,000.00).
We are nevertheless persuaded that the following complex of factors predominate: (1) the
district court found that Midwest, at least through knowledge imputed through its attorney,
knew that Fields was continuing her efforts to effectuate a sale to Bodysonic; (2) Bodysonic's
second offer to purchase for $5,325,000.00 included a proviso that Midwest pay Fields'
commission; (3) Midwest thereafter consummated the sale to Bodysonic through Torosan (a
newly formed Nevada corporation whose stock was owned by respondent Hilt's daughter and
two sons) without any provision for payment of a commission to Fields; and (4) it was not the
intention of any of the parties that Fields' services were to be gratuitous. On balance, we
conclude that the combination of circumstances present in this case conduce in favor of
applying the customary commission in the industry, despite Midwest's firm resolve to realize
a net sales price of $5,250,000.00. In other words, as the procuring cause of the sale, we are
persuaded that Fields' position is endowed with a greater measure of equity and principle than
that of Midwest.
Moreover, we are unable to endorse the district court's attempt to reach a reasonable award
for Fields through a speculative process of determining the hours Fields could have
expended on the sale multiplied by an arbitrary hourly charge. We are persuaded that an
award of $450,000.00 to Fields is justified by the evidence of record and the principles
discussed above. She was the procuring cause of a very substantial and highly profitable sale,
and the victim of an attempt to utilize the benefit of her efforts without paying her a
commission. It is both just and equitable that Fields receive damages within the range of the
parties' original agreement and that which is customary in the industry. We therefore modify
the district court's award of damages to Fields by increasing it to the sum of $450,000.00.
2. The fraud claims
[Headnotes 6, 7]
Fields asks us to reweigh the evidence presented at trial and conclude that the district court
erred when it found insufficient evidence to support her claims of fraud and fraudulent
conveyance. The sale of the subject property from Midwest to Torosan, and from Torosan to
Bodysonic is admittedly suspect and the circumstantial evidence supplies a strong basis for
suspecting bad faith on the part of the respondents. However, the district court considered the
voluminous evidence presented at trial and evaluated the credibility of each witness before
finding against Fields on her allegations of fraud. Specifically, the district court found the
defendants' explanations which contradicted the circumstantial evidence upon which the
fraud allegations were based were not rebutted in any way."
tial evidence upon which the fraud allegations were based were not rebutted in any way. We
have reviewed the record and are unable to conclude that the district court's findings are
clearly erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d
590, 591-92 (1990). It is a basic principle of appellate review that when substantial evidence
supports the lower court's finding, as it does in this case, we will not disturb the result
despite suspicions and doubts based upon conflicting evidence. Allen v. Webb, 87 Nev.
261, 266, 485 P.2d 677, 679 (1971). The fact that we may have arrived at a different
conclusion based upon our review of the cold record does not justify overruling the district
court's judgment with respect to the fraud claims.
3. Attorney's fees
[Headnote 8]
Torosan's counterclaim alleged that Fields' complaint was brought without reasonable
ground and/or to harass Torosan. At the conclusion of Fields' case-in-chief, the district court
simply invited Torosan to submit a summary of its fees and costs; the counterclaim was never
tried. The court then awarded Torosan attorney's fees and costs under the following
justification:
Torosan has counterclaimed the plaintiffs for their attorney's fees and expenses in
defending this litigation. Since plaintiffs have not recovered any damages against
Torosan, Torosan is entitled to an award for its costs incurred as the prevailing party,
amounting to $3,618.37 and attorney's fees in the sum of $18,985.02, all of which the
court finds to be reasonable.
We have consistently held that attorney's fees are only available when authorized by a
rule, statute, or contract. See, e.g., Ace Truck v. Kahn, 103 Nev. 503, 512 n.4, 746 P.2d
132, 138 (1987). Within the stated criteria, the decision to award attorney's fees is left to the
sound discretion of the district court. County of Clark v. Blanchard Constr. Co., 98 Nev. 488,
492, 653 P.2d 1217, 1220 (1982). However, a district court may abuse its discretion when it
clearly disregards guiding legal principles. Franklin v. Bartsas Realty, Inc., 95 Nev. 559,
562-73, 598 P.2d 1147, 1149 (1979) (citing Goodman v. Goodman, 68 Nev. 484, 489, 236
P.2d 305, 307 (1951)).
[Headnote 9]
Although the counterclaim appears to be a recitation of NRS 18.010(2)(b),
4
the district
court specifically awarded attorney's fees as damages under Torosan's counterclaim.
__________

4
NRS 18.010(2)(b) provides:
2. In addition to the cases where an allowance is authorized by
fees as damages under Torosan's counterclaim. Hence, the award was not made pursuant to a
rule, statute or contract, and constitutes an abuse of discretion. In the absence of a contract
or rule, a prevailing defendant/counterclaimant may only recover attorney's fees when the
requirements of NRS 18.010(2)(b) are met. To allow attorney's fees as an element of damages
from an ostensible common-law cause of action we have not yet embraced would swallow the
purposes for the attorney's fees statute. In any event, our review of the record indicates that
Torosan was properly named as a defendant to the underlying action; therefore, NRS
18.010(2)(b) is inapplicable and the award of attorney's fees is reversed.
4. Costs
[Headnote 10]
Torosan prevailed against Fields and is unquestionably entitled to costs pursuant to NRS
18.020(3).
5
See Randono v. Turk, 86 Nev. 123, 133, 466 P.2d 218, 224 (1970) (the statutory
award of costs is mandatory). Unfortunately, the method by which the district court awarded
Torosan's costs failed to recognize the need for Torosan to file a memorandum of costs as
required by NRS 18.110(1).
6
Indeed, the district court specifically found that compliance
with the statute was unnecessary because costs were awarded as damages under Torosan's
counterclaim and not pursuant to the statute regarding costs. Although we recognize that
noncompliance with NRS 1S.110 would ordinarily require the forfeiture of costs, under
the peculiar circumstances of this case we will allow the cost award to stand since Fields
must prevail on her claim that the award should be passed through her to the
nonprevailing defendants.
__________
specific statute, the court may make an allowance of attorney's fees to a prevailing party:

5
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 an action for the recovery of money or damages, where the plaintiff seeks to recover more than
$2,500.

6
1. The party in whose favor judgment is rendered, and who claims his costs, must file with the clerk, and
serve a copy upon the adverse party, within 5 days after the entry of judgment, or such further time as the
court or judge may grant, a memorandum of the items of his costs in the action or proceeding, which
memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his
attorney, stating that to the best of his knowledge and belief the items are correct, and that the costs have
been necessarily incurred in the action or proceeding.
noncompliance with NRS 18.110 would ordinarily require the forfeiture of costs, under the
peculiar circumstances of this case we will allow the cost award to stand since Fields must
prevail on her claim that the award should be passed through her to the nonprevailing
defendants. Therefore, we affirm the award of costs in the amount of $3,618.37.
[Headnote 11]
Finally, as noted above, Fields contends that the district court erred when it failed to pass
Torosan's costs through her to the nonprevailing defendants. We agree. In the analogous case
of Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985), the plaintiff prevailed
against three of the six defendants and this court allowed the plaintiff to recover the taxable
costs of the prevailing defendants from the nonprevailing defendants. Id. at 832, 712 P.2d at
789. The rule in Schouweiler is applicable here. Accordingly, we conclude that Fields may
tax the costs of Torosan's defense against respondents Midwest, Reiger and Hilt.
CONCLUSION
For the reasons heretofore discussed, the district court used the wrong measure of damages
when it calculated the value of Fields' services. We therefore modify the damages award to
Fields by increasing the amount of the award to $450,000.00. The district court's judgment
awarding attorney's fees is reversed and vacated, and the award of costs favoring Torosan is
affirmed but assessed against the nonprevailing defendants rather than Fields. The judgment
entered below with respect to the fraud claims is affirmed. This matter is remanded to the
district court for modification of the judgment in accordance with the dictates of this opinion.
Rose, C. J., and Springer and Shearing, JJ., concur.
Young, J., concurring in part and dissenting in part:
Although I concur that the district court used the wrong quantum meruit valuation method,
I respectfully disagree with my colleagues' assessment of damages on appeal. Over my
several years as a jurist, I have tried to remain true to a fundamental principle of appellate
review: courts of appeal should spend their working hours deciding issues of law and not
issues of fact. Only on rare occasions and under the most egregious circumstances (clearly
erroneous, manifestly wrong or abuse of discretion) should we disrupt the factual
rulings of the district court. It is on even rarer occasions that this court should peruse the
record on appeal and redecide issues that are specifically reserved for the trier of fact.
In the instant case, the majority has spurred this dissent by straying from these
fundamental concepts and tangling with an animal that is uniquely bred for trial court
tamingdamages. See Nelson v. Reinhart, 47 Nev. 246, 219 P. 554 (1923) (issue of value of
services performed by broker is a question uniquely reserved for trier of fact). In an attempt to
work justice and arrive at an equitable solution to Fields' claim for quantum meruit, the
majority reweighs the evidence that was before the trial court and concludes that Fields is
entitled to a $450,000.00 real estate commission. This is an additur of nearly $350,000.00.
My colleagues hold that the percentage-based commission represents the customary practice
in the industry and drives the brokerage fee quantum meruit determination.
I respectfully submit that the majority's application of this calculation method is erroneous.
There is a bedrock principle of contract damages restricting Fields' recovery that is absent
from the majority opinion. The litigant can only recover damages that the contract would
provide. In the absence of a contract, I contend that Fields can only recover in quantum
meruit what the sale of the investment property would have provided. The ultimate sale to
Bodysonic for $5,325,000.00, which the district court held was procured by Fields, simply
would not allow for a percentage-based commission.
If the majority feels compelled to reevaluate issues of fact and establish a commission
amount on appeal, I submit that the proper calculation method would be the net listings or
flat fee commission. Fields' expert testified that this type of commission was customary and
common in the industry. This court has even recognized and upheld the net listing
commission in the quantum meruit context. See Close v. Redelius, 67 Nev. 158, 215 P.2d 659
(1950). Under this type of arrangement, the broker is simply paid a flat fee over and above a
prearranged net sales price. In other words, the seller tells the broker, I must realize a net
sale of $5,250,000.00, and any sales price you can obtain over and above this amount is your
commission.
Midwest demanded a net sale of $5,250,000.00. Midwest would not consummate any deal
if it could not obtain such an amount. Fields realized this fact, Bodysonic realized this fact,
and the district judge realized this fact. There are several purchase offers and an expired
listing contract lying in a trash bin in Fields' office as a result of Midwest's steadfast demand.
Yet after today's decision, and after Midwest has absorbed the $450,000.00 commission that
it must pay Fields, Midwest has obtained a net sale of only $4,875,000.00 ($5,325,000.00
minus $450,000.00). This is $375,000.00 below its demand. Is this equity?
equity? Is it fair for Midwest to pay a commission based upon a hypothetical deal that it
would never have consummated?
Quantum meruit should not be restrained by such an obdurate shackle as percentage-based
commission in every real estate broker fee case. See, e.g., Close, 67 Nev. at 167-68, 215 P.2d
at 663 (quantum meruit net sale commission was appropriate even though amount was
slightly more than one-half of the charge usually made by a broker for selling business
property); see also Romanek-Golub & Co. v. Anvan Hotel Corp., 522 N.E.2d 1341 (Ill. App.
Ct. 1988) (affirming five percent quantum meruit commission even though testimony
indicated that ten percent commission was customary); and Weichert Co. Realtors v. Ryan,
608 A.2d 280 (N.J. 1992) (in remanding for proper determination of brokerage fee, court
holds that reasonable value of fee includes, but is not limited to, customary fees for similar
transactions). Quantum meruit is an equitable principle that is applied at the hands of the trial
judge after considering the respective positions of the parties. The district court understood
that Midwest would never have solidified the sales transaction without netting $5,250,000.00.
As a result, the district court specifically rejected a percentage-based commission. The
amount was too high and repugnant to the negotiations and efforts of the parties. More
importantly, the court realized that the percentage-based commission would have given life to
a listing agreement between Midwest and Fields that was dead and withered on the vine.
1

Neglecting the foregoing, the majority spreads their hands across the vineyard, breathes
life into the listing agreement, and makes wine for Fields. My colleagues conclude that the
primary source for resolving this issue [quantum meruit] is the original listing agreement
between Fields and Midwest. Yet in their supporting calculations and rationale, they neglect
the very fiber of that agreement. Midwest had to have a $5,250,000.00 net sale.
As I have indicated, if the majority feels some compulsion to establish a commission based
upon a paper record, the more appropriate method of valuation is the net sales approach.
This approach is more consistent with the district court's findings of fact and seems mandated
by the months of negotiations throughout which Midwest steadfastly demanded a
$5,250,000.00 net sale. If a commission must be determined on appeal, Fields was entitled
only to the amount of money Midwest realized over this demand or $75,000.00 {eventual
sale price to Bodysonic, $5,325,000.00, minus the net demand of $5,250,000.00).
__________

1
The original listing agreement binding Fields and Midwest was signed on September 7, 1990. By the
agreement's own terms, it expired two weeks later on September 20, 1990, and more than four months before the
property was eventually sold to Bodysonic.
demand or $75,000.00 (eventual sale price to Bodysonic, $5,325,000.00, minus the net
demand of $5,250,000.00). This is a more equitable figure than that generated by the majority
and a more accurate reflection of the negotiations that preceded the eventual sale of the
investment property. Fields cannot recover anything greater than the sales transaction would
provide.
Casting aside any temptation to determine damages on appeal, however, I would remand
to the trial court for further proceedings. The district court heard the testimony of the parties,
evaluated the witnesses, and contemplated all of the evidence presented at trial. As a result,
the district court is in a better position to make the equitable decisions needed to resolve the
quantum meruit dilemma presented by this case.
The majority recognizes that both the net sales and percentage-based commissions are
customary in the industry. Moreover, we all agree that the district court abused its discretion
in assessing damages by neglecting these customary practices. Yet why take that additional
step and choose among these two equally acceptable valuation approaches and engage in an
application process on appeal? By balancing the equities, I submit that the majority reaches a
decision that is contradictory to the facts of this case and the integrity of the district court's
decision. For example, my colleagues state that [u]nfortunately, in fashioning a transaction
through Torosan to Bodysonic without provision for a commission to Fields, Midwest
foreclosed the propriety of using Midwest's net listing requirement as a fair measure of the
reasonable value of Fields' services. They continue and conclude that Fields' position is
endowed with a greater measure of equity and principle than that of Midwest. The majority
is suggesting that Midwest was engaged in chicanery and was therefore prohibited from
claiming that Fields could only recover a net sales commission. This type of equitable
reasoning is contradictory to our conclusion that the district court properly determined that
there was insufficient evidence to support Fields' claims for fraud and fraudulent conveyance.
On the one hand, the majority posits that Midwest fashioned a suspect deal through Torosan
and therefore equity demands a $350,000.00 additur for Fields. On the other, the majority
agrees with the trial court that the deal through Torosan was not suspect for the purposes of
evaluating Fields' fraud-based claims for relief.
This inconsistency aptly illustrates my point that this court is in no position to sift through
the record on appeal and make equitable determinations that are best reserved for the trial
court. I would remand and allow the district court to assess which party is endowed with the
more equitable position and then have the district court determine what type of commission
Fields was entitled toa percentage-based or net sales commission.
district court determine what type of commission Fields was entitled toa percentage-based
or net sales commission. Both are customary in the industry.
For the foregoing reasons, I respectfully dissent from the portion of the majority opinion
that establishes, with no little spirit of innovation, a quantum meruit amount on appeal.
____________
110 Nev. 997, 997 (1994) Keesee v. State
KAREN ANN KEESEE and MARK HUGH KEESEE, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 23677
August 10, 1994 879 P.2d 63
Appeal from judgments of conviction entered upon appellants' guilty pleas to one count
each of possession of a controlled substance and being under the influence of a controlled
substance. In addition, appellant Mark Hugh Keesee pleaded guilty to one count of conspiracy
to manufacture a controlled substance. Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
The supreme court held that: (1) probable cause existed for issuance of search warrants,
and (2) search warrants not overbroad.
Affirmed.
Ken Ward, Public Defender, Lyon County, for Appellants.
Frankie Sue Del Papa, Attorney General, Carson City; Keith Loomis, District Attorney,
and Robert E. Estes, Deputy District Attorney, Lyon County, for Respondent.
Arrests and searches must be based upon probable cause, which requires that law enforcement officials have trustworthy facts
and circumstances which would cause person of reasonable caution to believe that it is more likely than not that specific items to be
searched for are seizable and will be found in place to be searched. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
When issuance of search warrant is based upon information obtained from confidential informant, proper standard for determining
probable cause for issuance of warrant is whether, under totality of circumstances, there is probable cause to believe that contraband or
evidence is located in particular place. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
When reviewing issuance of search warrant, court is not to conduct de novo probable cause determination but instead is merely to
decide whether evidence viewed as whole provided substantial basis for magistrate's finding of probable cause. Const. art. 1, 18; U.S.
Const. amend. 4; NRS 179.045.
Oral affidavits contained specific allegations indicating that criminal activity was taking place and thus, probable cause existed for
issuance of search warrant, where oral affidavits indicated that deputies knew connection existed between informant and one suspect,
informant related first-hand observations of drug activity inside suspect's fifth-wheel trailer, informant told deputies that when
informant was on suspects' property, informant smelled strong odor resembling nail polish, asked about odor and was told it was better
that informant not know, informant told deputies that suspect was planning to leave area and then deputy observed suspect leaving, and
deputies were aware about connection between suspects, and where deputies corroborated some of the information. Const. art. 1, 18;
U.S. Const. amend. 4; NRS 179.045.
Search warrant permitting deputies to search defendants' residence and attached buildings was not overbroad though probable
cause existed to search only portion of premises. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
Search warrant permitting deputies to search defendants' residence and attached buildings permitted deputies to search any
building within curtilage of residence, though search warrant did not specify outbuildings, where defendants were in control of
outbuildings within curtilage of residence. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
OPINION
Per Curiam:
BACKGROUND
Appellants Mark and Karen Keesee own a residence located at 1160 Whippletree Lane, Fernley, Nevada. The adjoining property, 1170
Whippletree Lane, is owned by the woman who sold the Keesee's their residence. This woman, a resident of Northern California, allows the
Keesee's to use a blue metal shed located behind 1170 Whippletree.
On August 26, 1990, Deputy James Neal and Corporal Russ Cadwallader of the Lyon County Sheriff's Department made a routine
traffic stop on a Dodge Raider which had run a stop sign. The driver, Cheryl Russell (Cheryl), could not produce a driver's license, proof of
insurance or registration of the vehicle. The deputies noticed that Cheryl's demeanor was extremely nervous and she was trying to be as
cooperative as possible.
A short while later, Stanley Moss appeared on the scene. He identified himself as the owner of the Dodge that Cheryl
was driving.
identified himself as the owner of the Dodge that Cheryl was driving. He too, appeared to be
nervous and was perspiring profusely. Deputy Neal wrote Cheryl a traffic citation and then
she and Moss drove away, leaving the Dodge at the side of the road.
The next day, Deputy Neal noticed the Dodge was still parked at the side of the road so he
decided to run a computer search of its vehicle identification number (VIN). While he was
obtaining its VIN he laid his sunglasses on the hood of the Dodge. After obtaining the VIN he
drove away without retrieving his sunglasses.
Later that day, while sitting at the Truck Inn Restaurant finishing a report, Deputy Neal
realized he did not have his sunglasses. After retracing his steps, he realized that he must
have left his sunglasses on the Dodge. Deputy Neal drove to where the Dodge was parked and
searched the area with no success. Several hours later, Deputy Neal saw Stanley Moss in the
RV parking area of the Truck Inn. He and Corporal Cadwallader went to Stanley Moss'
fifth-wheel trailer to inquire about the sunglasses. Moss gave the deputies general directions
to Mark and Karen Keesee's residence, where he believed the Dodge was located. The
deputies drove to that location and retrieved the sunglasses from Mark Keesee.
Afterwards, the deputies went back to the Truck Inn where they were approached by
Cheryl. Cheryl told the deputies that: (1) Stanley Moss was trafficking in drugs; (2) that she
had been inside Moss' fifth-wheel trailer and had seen drug activity taking place; (3) that
Moss was planning to leave the area because he thought the police were suspicious; (4)
Cheryl had been at the Keesee's residence the night before, and had smelled a strong odor that
resembled nail polish; and (5) when she inquired about the odor she was told it was better for
her not to know. Further, Cheryl stated that she was in fear of her life and that she wanted the
deputies assistance in returning to California.
The deputies asked Deputy Tilton to conduct surveillance on the fifth-wheel trailer and
attached Chevrolet pickup truck at the Truck Inn while they went to the magistrate and
applied for a search warrant. During that surveillance, Deputy Tilton observed the pickup
truck and trailer leave the Truck Inn and go to Whippletree Lane.
During the proceeding for the search warrant, the deputies explained the circumstances
surrounding the vehicle stop of the Dodge the previous afternoon, and how they met Cheryl
Russell and Stanley Moss and their demeanor during the traffic stop. They also informed the
magistrate that Cheryl had indicated that drug dealings were being transacted in the
fifth-wheel trailer and at the Keesee's residence where the trailer was now situated.
at the Keesee's residence where the trailer was now situated. However, the deputies
erroneously told the magistrate that the residence was located on Winnie Lane.
Based on that information, the magistrate granted oral permission to search the fifth
wheel trailer and residence and any attached buildings or buildings thereof where
[contraband] could be held . . . and the vehicles. However, the written search warrant was
narrower than the oral permission to search given by the magistrate. The written search
warrant did not include attached buildings and was limited to:
a travel trailer, license number 1CF1550, California, in a 1989 Chevrolet pickup truck,
license number 3X40463, California, and/or in the residence on Winnie Lane where the
vehicle is presently located.
When the deputies went to execute this warrant, they discovered that the address was
incorrect and that the correct address was 1160 Whippletree Lane. Consequently, the deputies
appeared again before the magistrate and were given permission to search the correct
address which is 1160 Whippletree and any ah . . . [sic] the vehicles and the travel trailer
which are at that residence.
Later that day, after searching Stanley Moss' Chevrolet pickup which was located at 1170
Whippletree Lane at the time of the search, and after finding three pounds of
methamphetamine in the pickup, the deputies went back to the magistrate and requested an
additional warrant to search the residence at 1170 Whippletree Lane. The probable cause
presented to the magistrate in support of the new search warrant was: (1) the two residences
at 1160 and 1170 Whippletree Lane were next door to each other; (2) the fifth-wheel trailer
had been parked at 1160 Whippletree and the pickup truck was parked at 1170 Whippletree;
(3) a substantial amount of a controlled substance had already been discovered in the pickup
truck parked at 1170 Whippletree; and (4) when the deputies arrived to execute the first
search warrant, Candy Moss ran from the pickup truck to the residence at 1170 Whippletree
where she threw drugs and a hypodermic syringe kit underneath the residence and then tried
to enter the back door of the residence at 1170 Whippletree before she was stopped by the
deputies. The magistrate orally authorized the search of 1170 Whippletree Lane in addition to
locations requested earlier. But again, the written search warrant was narrower than the oral
permission given by the magistrate.
Nevertheless, the deputies searched the residence at 1170 Whippletree and an unattached
blue shed located at the rear of that address. Inside the shed the deputies found cardboard
boxes which contained items suspected to be used in the manufacture of
methamphetamine.
which contained items suspected to be used in the manufacture of methamphetamine.
Consequently, Mark Keesee and Karen Keesee were arrested and charged with: (1)
conspiracy to manufacture a controlled substance; (2) manufacturing a controlled substance;
(3) two counts of possession of a controlled substance; (4) possession of a controlled
substance for the purpose of sale; and (5) using or being under the influence of a controlled
substance.
Appellants moved the district court for an order to suppress the evidence seized pursuant
to the search warrants. That motion was denied by the district court and the case proceeded to
trial. After the conclusion of the State's case-in-chief, appellants pled guilty pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), and Tiger v. State, 98 Nev. 555, 654 P.2d 1031
(1982) to one count of possession of a controlled substance and being under the influence of a
controlled substance. In addition, appellant Mark Hugh Keesee pled guilty to one count of
conspiracy to manufacture a controlled substance. The State dismissed all remaining charges.
As a result, Mark Keesee was sentenced to four years in Nevada State Prison and Karen
Keesee was sentenced to four years probation.
LEGAL DISCUSSION
Probable Cause
[Headnote 1]
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
Similarly, Article 1, Section 18 of the Nevada Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable seizures and searches shall not be violated; and no warrant shall issue but
on probable cause, supported by Oath or Affirmation, particularly describing the place
or places to be searched, and the person or persons, and thing or things to be seized.
It is well established that arrests and searches must be based upon probable cause. Draper
v. United States, 358 U.S. 307 {1959).
(1959). Probable cause requires that law enforcement officials have trustworthy facts and
circumstances which would cause a person of reasonable caution to believe that it is more
likely than not that the specific items to be searched for are: seizable and will be found in the
place to be searched. Carrol v. United States, 267 U.S. 132 (1925). In this regard, NRS
179.045 provides, in pertinent part:
1. A search warrant may issue only on affidavit or affidavits sworn to before the
magistrate and establishing the grounds for issuing the warrant . . . . If the magistrate is
satisfied that grounds for the application exist or that there is probable cause to believe
that they exist, he shall issue a warrant identifying the property and naming or
describing the person or place to be searched.
. . . .
4. The warrant . . . must state the grounds or probable cause for its issuance and the
names of the persons whose affidavits have been taken in support thereof. It must
command the officer to search forthwith the person or place named for the property
specified.
[Headnotes 2, 3]
When the issuance of a search warrant is based upon information obtained from a
confidential informant, the proper standard for determining probable cause for the issuance of
the warrant is whether, under the totality of the circumstances, there is probable cause to
believe that contraband or evidence is located in a particular place. Illinois v. Gates, 462 U.S.
213 (1983): Barrett v. State, 105 Nev. 361, 775 P.2d 1276 (1989). The reviewing court is not
to conduct a de novo probable cause determination but instead is merely to decide whether
the evidence viewed as a whole provided a substantial basis for the magistrate's finding of
probable cause. Massachusetts v. Upton, 466 U.S. 727 (1984); see also 1 Wayne R. LaFave,
Search and Seizure 3.1(c) (2d ed. 1987) (a search warrant should be upheld as long as there
is a substantial basis for a fair probability that evidence will be found in a particular case).
[Headnote 4]
In the instant case, appellants contend that search warrants were obtained by the deputies
solely on the basis of Cheryl's statements that drug related activities were ongoing, and that
no independent investigation of her information was conducted to determine whether Cheryl
was reliable or trustworthy. Thus, appellants contend that the deputies' statements to the
magistrate that they suspected the existence of a methamphetamine lab were conclusory and
provided no basis that probable cause existed.
However, the record proves otherwise. The deputies first discovered a connection between
Cheryl and Stanley Moss when Cheryl was stopped by the deputies for running a stop sign.
Moss came to the scene and told the deputies that Cheryl was driving his car. Then, Moss and
Cheryl departed together. Obviously, Moss and Cheryl knew each other. Second, Cheryl
related first-hand observations of drug activity inside Moss' fifth-wheel trailer. The deputies
knew Moss had a fifth-wheel trailer parked at the Truck Inn because Deputy Neal observed
him there when he was searching for his sunglasses. Third, Cheryl told the deputies that when
she was at the Keesee's residence she had smelled a strong odor resembling nail polish and
that when Cheryl inquired about the odor she was told it was better for her not to know.
Fourth, Cheryl told the deputies that Moss was planning to leave the area because he thought
the police were suspicious. This was confirmed when Deputy Tilton observed Moss'
fifth-wheel trailer leave the Truck Inn and move to the Keesee's residence. Finally, the
deputies were also aware of a connection between Stanley Moss and the Keesees because
Moss had sent Deputy Neal to the Keesee's residence to retrieve his sunglasses.
The deputies corroborated the connection between Cheryl Russell and Stanley Moss. They
also corroborated Cheryl's prediction that Moss would be moving his fifth-wheel trailer from
the Truck Inn. Further, the deputies corroborated a connection between Stanley Moss and the
Keesees. These corroborations tend to give more credence to Cheryl's statement that she
observed drug activity inside Stanley Moss' fifth-wheel trailer. The oral affidavits presented
to the magistrate were not bare bones affidavits devoid of factual support or simply
conclusory statements. Those affidavits contained specific factual allegations indicating that
criminal activity was taking place. In light of these considerations, and the totality of the
circumstances test set forth in Gates, we conclude that probable cause existed for the issuance
of a search warrant.
Search Warrants
[Headnotes 5, 6]
Appellants contend that even if there was probable cause to search the fifth-wheel trailer,
there was no probable cause to search the residence and its outbuildings. Thus, appellants
contend that the search warrant was overbroad.
The following dialogue was exchanged between the magistrate and the deputies during the
application for the search warrant:
THE COURT: What is the current location of that fifth wheel trailer?
[Deputy] Cadwallader: The current location at this present time, is a residence located
on [Whippletree Lane] in this town.
THE COURT: Did you. . . . Have you done any search of the area?
[Deputy] Cadwallader: An actual search, no.
THE COURT: The person who was in that trailer came and indicated to you that there
was some type of drug activities taking place within the premise?
[Deputy] Cadwallader: Not only within that premise, Your Honor, but also at the
location where the fifth wheel trailer is parked right now.
. . . .
THE COURT: Okay, I will give you at this point, I will grant you permission to search
the fifth wheel trailer and the residence and any attached buildings or buildings thereof
where [contraband] could be held.
From these exchanges it is evident that the deputies had information that drug activities were
occurring at the Keesee's residence as well as in the fifth-wheel trailer. Consequently, the
magistrate granted permission for the deputies to also search the residence and buildings
within its curtilage.
Other defendants have objected with some frequency, but with little success, to search
warrants which describe more than one place or building as the object of authorized search.
See generally 2 Wayne R. LaFave, Search and Seizure 4.5(c) (2d ed. 1987). Cases in which
the courts have had the least difficulty are those in which the warrant makes reference to
barns, sheds, and outbuildings within the curtilage. United States v. Moore, 743 F.2d 254 (5th
Cir. 1984) (search warrant for a house covers garage thirty-five to forty feet from house);
United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983) (a warrant may authorize a search of
an entire street address while reciting probable cause to only a portion of the premises if the
defendant is in control of the whole premises); United States v. Williams, 687 F.2d 290 (9th
Cir. 1982) (warrant authorizing search of premises in a rural area includes buildings on that
land); Barton v. State, 288 S.E.2d 914 (Ga. Ct. App. 1982) (warrant for premises authorized
search of shed twenty feet behind house and within curtilage); State v. Trapper, 269 S.E.2d
680 (N.C. Ct. App. 1980) (warrant for house trailer authorized search of shed thirty feet away
because it is within the curtilage of the house).
In the instant case, the deputies had obtained information that drug activity was being
conducted at the Keesee's residence. In addition, the Keesees were in control of outbuildings
within the curtilage of the residence.
curtilage of the residence. Thus, under Whitten the search warrant was not overbroad even if
the police only had probable cause to search a portion of the premises. Moreover, under
Barton and Trapper the deputies could have searched any building within the curtilage of the
residence even if the search warrant did not specify outbuildings. Accordingly, we conclude
that the search warrants were not overbroad.
CONCLUSION
The search warrants were supported by probable cause and were not overbroad. Moreover,
we have considered appellants' other arguments and find them to be unpersuasive.
Accordingly, the judgments of the district court are affirmed.
____________
110 Nev. 1005, 1005 (1994) State, Dep't of Mtr. Vehicles v. Madrigal
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellants, v. MANUEL MADRIGAL, Respondent.
No. 23986
August 10, 1994 879 P.2d 746
Appeal from an order of the district court reversing a Department of Motor Vehicles
hearing officer's decision to revoke respondent's driving privileges. Eighth Judicial District
Court, Clark County; Joseph T. Bonaventure, Judge.
Motorist sought judicial review of decision of Department of Motor Vehicles to revoke
driving privileges based upon two driving under the influence convictions within seven years.
The district court reversed. Appeal was taken. The supreme court held that record of
convictions need not be certified by issuing court to justify revocation of driver's license.
Frankie Sue Del Papa, Attorney General and Andres R. Rappard, Deputy Attorney
General, Carson City, for Appellants.
John Watkins, Las Vegas, for Respondent.
1. Automobiles.
Department of Motor Vehicles has mandatory duty to revoke an individual's driver's license for one year upon receiving record of
conviction showing that the individual was convicted twice within seven years of driving under the influence and was not eligible for a
restricted license during any of that period. NRS 483.460(1)(b)(5), 484.379.
2. Automobiles.
Record of previous driving under the influence convictions need not be certified by issuing court to be used as basis for revoking
driver's license in civil administrative proceeding before Department of Motor Vehicles. NRS 483.450(2), 483.460.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing the decision of a Department of Motor Vehicles (DMV) hearing officer to
revoke respondent Manuel Madrigal's driving privileges.
On June 25, 1991, the DMV issued an order revoking Madrigal's driving privileges for one year on the grounds that its records
indicated that he had been twice convicted of violating NRS 484.379 (DUI) within seven years. Upon Madrigal's request, an administrative
hearing was conducted on December 17, 1991. At the hearing, the hearing officer considered, over Madrigal's objection, copies of
documents the DMV had received from two justice's courts indicating that Madrigal had been convicted of DUI in 1985 and 1991. The
documents were certified as true and correct copies of the original documents on file at the DMV; however, they were not certified as true
and correct copies of the originals on file at the courts in which Madrigal had been convicted. The hearing officer rejected Madrigal's
contention that the documents were not properly authenticated and upheld the DMV's decision to revoke Madrigal's driving privileges.
Madrigal petitioned the district court for review and the district court reversed the hearing officer's decision. The district court found
that the exhibits failed to establish that they are properly certified copies of documents issuing from the courts of record, but only show
that they are certified copies of documents in the possession of the Department[.] This appeal followed. We conclude that the district court
erred because there is no requirement, statutory or otherwise, that the DMV receive certified documentation of an individual's DUI
convictions from the court in which the conviction was entered in order to revoke a driver's license.
[Headnotes 1, 2]
NRS 483.460(1)(b)(5) imposes upon the DMV a mandatory duty to revoke an individual's driver's license for one year upon receiving
a record of his conviction showing that the individual was convicted twice within seven years for violating NRS 484.379 and was not
eligible for a restricted license during any of that period.
that period. See also Yohey v. State, Dep't Motor Vehicles, 103 Nev. 584, 747 P.2d 238
(1987). NRS 483.450(2) defines what a record of conviction must contain:
A record of conviction must be made in a manner approved by the department. The
court shall provide sufficient information to allow the department to include accurately
the information regarding the conviction in the driver's record. The record of conviction
from the court must include at least the name and address of the person convicted, the
number of his driver's license, his social security number, the registration number of the
vehicle involved, the date the citation was issued or the arrest was made, the number of
the citation and the date and final disposition of the citation.
Neither NRS 483.460 nor NRS 483.450(2) requires that a record of conviction be certified by
the issuing court.
Madrigal argues, however, that Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990),
requires the introduction of documents certified by the issuing court. Appellant's argument is
unpersuasive. In Pettipas, we held that the state does not have to introduce certified formal,
written judgments of prior DUI convictions in order to enhance a DUI to a felony. Instead, we
held that certified copies of docket sheets and other documents from the court in which the
individual was convicted are sufficient to demonstrate that the individual was so convicted.
Pettipas is inapplicable to the instant case because it involved the issue of what quantum of
proof is necessary to enhance a misdemeanor to a felony in a criminal proceeding pursuant to
NRS 484.3792(2), not what quantum of proof is necessary to revoke a driver's license in a
civil administrative proceeding pursuant to NRS 483.460. Further, we did not hold in Pettipas
that certified copies from the issuing court are required in order to prove prior convictions in
a criminal proceeding; we merely held that the documents presented in that case were
sufficient.
Accordingly, we reverse the decision of the district court, and remand this case to the
district court with instructions to enter an order affirming the hearing officer's order of
revocation.
____________
110 Nev. 1008, 1008 (1994) Campo v. Carnival Leisure Industries
MANDY CAMPO, Appellant, v. CARNIVAL LEISURE INDUSTRIES, LTD., a Bahamian
Corporation, Respondent.
No. 22950
August 10, 1994 879 P.2d 745
Appeal from a judgment of the district court holding appellant liable for a debt which he
incurred while gambling in the Bahamas. Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Bahamian corporation that operated hotel-casino in Nassau sued Nevada resident to
recover $25,000 debt incurred by Nevada resident while gambling at Bahamian hotel-casino.
The district court entered judgment in favor of Bahamian corporation for $25,000 plus
interest and attorney fees. Nevada resident appealed. The supreme court held that debt
incurred by Nevada resident while gambling at Bahamian hotel-casino was enforceable in
Nevada.
Affirmed.
Michael H. Singer, Las Vegas, for Appellant.
Deaner, Deaner & Scann and John A. Curtas, Las Vegas, for Respondent.
1. Gaming.
Debt incurred by Nevada resident while gambling at Bahamian hotel-casino was enforceable in Nevada. NRS 104.3104, 463.0129.
2. Gaming.
Enforcement of Bahamian gaming licensee's credit instruments executed by Nevada resident in connection with gambling in
Bahamian hotel-casino did not violate Nevada's gaming laws. As matter of public policy, Nevadans who incur gaming debts at validly
licensed operations in other jurisdictions should not be exempt from enforcement of those debts in Nevada. NRS 104.3104, 463.0129.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court in favor of respondent Carnival Leisure Industries, Ltd., a Bahamian
Corporation. Respondent filed a complaint against appellant Mandy Campo, a Nevada resident, to recover a $25,000 debt which Campo
incurred on September 15, 1984, at respondent's hotel-casino in Nassau. A bench trial was held at which the parties stipulated that Nevada
law would govern this dispute. On November 13, 1991, the district court entered judgment in favor of respondent for
$25,000 plus interest, plus $5,000 in attorney's fees and $11S.75 in costs.
110 Nev. 1008, 1009 (1994) Campo v. Carnival Leisure Industries
November 13, 1991, the district court entered judgment in favor of respondent for $25,000
plus interest, plus $5,000 in attorney's fees and $118.75 in costs. This appeal followed.
[Headnote 1]
Appellant's sole contention on appeal is that the district court erred in concluding that a
debt incurred by a Nevadan while gambling at a Bahamian hotel-casino is enforceable in
Nevada. We disagree.
[Headnote 2]
Appellant does not challenge the district court's conclusion that the credit documents were
valid and enforceable as negotiable instruments under Nevada law. See NRS 104.3104
(amended, 1993 Nev. Stat., ch. 402, 18 at 1257-59). Furthermore, the district court did not
err in concluding that enforcement of the Bahamian gaming licensee's credit instruments does
not violate Nevada's gaming laws. As a matter of public policy, and consistent with the
general purpose of Nevada's statutory scheme, see NRS 463.0129 (amended, 1991 Nev. Stat.,
ch. 371, 2 at 968-69; ch. 645, 1 at 2144-45), Nevadans who incur gaming debts at validly
licensed operations in other jurisdictions should not be exempt from enforcement of those
debts in Nevada. Accordingly, we affirm the judgment of the district court.
1

____________
110 Nev. 1009, 1009 (1994) Smith v. State
ADRIAN RICARDO SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24752
August 10, 1994 879 P.2d 60
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of first
degree murder. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The district court entered judgment of conviction, pursuant to accused's guilty plea, of one
count of first degree murder. Accused appealed, alleging guilty plea was result of coercion.
The supreme court, Springer, J., held that: (1) guilty plea was result of coercion, and (2)
guilty plea memorandum was completely inconsistent with guilty plea canvass and thus,
could not support guilty plea.
__________

1
The Honorable Robert E. Rose, Chief Justice, did not participate in the decision of this appeal.
110 Nev. 1009, 1010 (1994) Smith v. State
Patricia Erickson, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, Douglas Herndon, Deputy District Attorney, Clark
1. Criminal Law.
Although court generally will not consider challenge to validity of guilty plea unless defendant first brings challenge in district
court, where error clearly appears from record, defendant is not required to start process of review anew.
2. Criminal Law.
Plea canvass demonstrated coercion and was insufficient to support plea of guilty to premeditated first degree murder, where plea
was result of extensive coaching by all concerned, including district court, and where after coaching, most accused would admit was
that accused knew killer would probably kill victim.
3. Criminal Law.
Where guilty plea canvass established that guilty plea to murder was improper result of coercion and was given because of
prosecutor's promise not to seek death penalty, guilty plea memorandum, which stated that accused's plea was voluntary and not result
of threats, coercion or promises of leniency, was mere boiler plate formality and was inconsistent with plea canvass and, thus could not
supersede what defendant told court face-to-face, so as to sustain guilty plea.
OPINION
Appellant Adrian Ricardo Smith (Smith) was charged with one count each of first degree murder, robbery and attempted sexual
assault.
[Headnotes 1, 2]
Smith pleaded guilty to first degree murder and signed a formal written pleading prepared by the district attorney's office, called a
Guilty Plea Memorandum, in exchange for the State's dismissal of the robbery and sexual assault charges and for the State's promise not
to seek the death penalty. The transcript of the guilty plea canvass clearly reveals that Smith's plea is the result of coercion rather than being
an informed and voluntary decision. See NRS 174.035(1); Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981). The plea canvass pretty
much speaks for itself. The Guilty Plea Memorandum does not validate Smith's guilty plea to premeditated, first degree murder.
1

__________

1
Although we stated in Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), that this court will not consider a
challenge to the validity of a guilty
110 Nev. 1009, 1011 (1994) Smith v. State
PLEA CANVASS
The guilty-plea proceedings begin with the court's advising Smith that he could receive a
penalty of death and asking him if one of the reasons that he was pleading guilty to first
degree murder was to avoid the possibility of . . . a sentence of death. Smith replied in the
affirmative.
The court then asked Smith if on November 17, 1990, he and some other person had taken
Nancy Sheffield and really beat her to death and strangle[d] her? . . . . And, at that time, was
she killed? Smith's answer was Not in my presence, sir.
When asked again if he and another person had . . . been engaged with him in beating her
up at that time, Smith's answer was again, No, sir. Pressing on, the court asked, You
didn't hit her? Smith's answer: No, sir. Further: You didn't choke her? Answer: No,
sir.
The foregoing colloquy caused the court to redirect its questions, and Smith was asked:
Did you know that he was going to kill her? Smith's answer was that although he knew the
killer was pretty mad, he didn't know what he [the killer] was going to do. When asked
by the court, Smith denied that he had had a pretty good idea he was going to beat her up
and kill her.
It was very apparent that the district judge was making no progress in trying to get Smith
to admit that he had killed someoneeven if by doing so he might avoid the possibility of
a death sentence. This stalemate called for a conference between Smith and his lawyer so that
his lawyer could explain to him what he had to say if he was going to avoid the possibility of
death. Smith's lawyer: [C]an we have the Court's indulgence for just a moment?
Back on the record, on a new tack:
THE DEFENDANT: He did say he was going to kick her ass, but he didn't say
when or where.
THE COURT: And when he said he was going to kick her ass, what did that mean
to you?
THE DEFENDANT: He was just going to push her around like everybody else.
THE COURT: By push around, you mean he was going to kill her?
THE DEFENDANT: Nookay, a lot of incidents happen around that area. A lot of
men and women get socked up and go about their business, about on their marry [sic]
way.
__________
plea unless the defendant first brings his or her challenge in the district court, this rule cannot be applied without
exception. In cases such as this one where the error clearly appears from the record, it is a waste of judicial
resources to require the defendant to start the process of review anew. Compare Lyons v. State, 105 Nev. 317,
319, 775 P.2d 219, 220 (1989).
110 Nev. 1009, 1012 (1994) Smith v. State
THE COURT: When you say socked up. Do you mean killed?
THE DEFENDANT: Beat up or, you know, shot or whatever.
THE COURT: See, we have got a woman here that was not only beat up, she was
strangled to death. So she didn't die because she was beat up. She was strangled to
death.
THE DEFENDANT: Yes, sir, I understand that.
THE COURT: And the evidence that's presented here and the evidence that would
continue to be presented here is that you strangled her.
THE DEFENDANT: No, sir, I didn't.
THE COURT: What are you pleading guilty for?
THE DEFENDANT: So I won't get the death penalty for something I didn't do.
The foregoing, obviously, called for another off-the-record conference between Smith and
his lawyer. His lawyer then advised the court that Mr. Smith was finally prepared to
continue with his explanation as to what happened that morning.
After conferring with his attorney Smith had a new explanation as to what happened.
The new and as yet untried explanation was that Smith led the victim to her slaughter.
Smith then became willing to tell the court that he got her to come outside so Sixty [the
murderer] could beat her up and I left. Now we might be on to something. The Court
pursued it: Was he just going to beat her up? Disappointingly, Smith responded, Yes, sir.
Asked further, No kill?, Smith replied, No kill. This clearly called for another
instructional, off-the-record conference between Smith and his attorney. The court is getting
impatient: . . . . I'm not sure whether I should allow the guilty plea without an admission of
first degree murder and that includes an admission that there was an added mixture of
premeditation, deliberation, that there was malice aforethought and a willful killing of Nancy
Sheffield at that day and time. This remark called for a fourth off-the-record attorney-client
conference.
2

In the next stab at trying to get Smith to admit he was an absentee first degree murderer,
the prosecutor lent a hand. Felony murder looked like it might be a good way to go; so the
district attorney made this suggestion to the court: [I]f there was an admission that a felony
took place during the course of the killing or shortly thereafter or before the killing of Ms.
Sheffield, the robbery or attempted sexual assault, I think that would satisfy first degree
murder under the felony rule. This sounded like a pretty good idea, so the court pursued
this in its fifth canvass of Mr.
__________

2
At this point the prosecutor concedes that the State is not satisfied with the plea canvass.
110 Nev. 1009, 1013 (1994) Smith v. State
pretty good idea, so the court pursued this in its fifth canvass of Mr. Smith.
THE COURT: Was there a robbery or sexual assault at this time?
THE DEFENDANT: Uh?
THE COURT: I asked was there a robbery or sexual assault at this time?
THE DEFENDANT: No, sir.
THE COURT: Nobody reached in her vagina to look for money.
THE DEFENDANT: Not in my presence.
THE COURT: Nobody took anything from her?
THE DEFENDANT: Not in my presence.
THE COURT: I think we are playing a game here.
THE DEFENDANT: It ain't no game.
The try at a felony-murder admission did not work. This called for another off-the-record
instructional session. Let's try aiding and abetting on the sixth try. By now Smith was ready to
say anything.
THE DEFENDANT: I aided him in doing it.
THE COURT: How did you aid him in doing it?
THE DEFENDANT: By going out there.
THE COURT: By getting her to come outside?
THE DEFENDANT: Yes, sir.
THE COURT: When you got her to come outside, did you have reason to believe
that he was going to rob her or sexually assault her or kill her?
THE DEFENDANT: Well, robbery and sexual assault, no. Kill, it's hard to say.
THE COURT: Well, if you didn't believe that he was going to kill her, then you
didn't aid and abet, did you?
THE DEFENDANT: I did bring her outside.
THE COURT: Did you bring her outside realizing that she would probably be
robbed or sexually assaulted or killed?
THE DEFENDANT: Probably killed.
THE COURT: You believed that she would probably be killed.
THE DEFENDANT: Yes, sir.
THE COURT: And you want to enter this plea of guilty to first degree murder that
carries a minimum of life with the possibility of parole sentence so you are precluded
from having any death penalty being imposed on you; is that right?
THE DEFENDANT: Yes, your Honor.
110 Nev. 1009, 1014 (1994) Smith v. State
Smith testified clearly that it was hard to say whether he had reason to believe that the
victim might be killed by Sixty. Finally they got Smith to admit that he believed that she
would probably be killed. After all that pulling and tugging the most that Smith would ever
admit is that when Sixty took some one out, there was a probability of death in the offing.
The plea canvass is clearly insufficient to support a plea of premeditated first degree murder.
Smith's plea was the result of extended coaching by all concerned, including the district
court. [J]udicial involvement in plea negotiation inevitably carries with it the high and
unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty.
United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992). If this plea is to stand, it can only
stand on the basis of a written Guilty Plea Memorandum which Smith signed.
GUILTY PLEA MEMORANDUM
[Headnote 3]
The Guilty Plea Memorandum is a formal pleading signed by Smith, his attorney and a
deputy district attorney. In the document prepared for Smith and signed by him, Smith states
that he understands the nature of the charges and that by pleading guilty he admits the facts
which support all the elements of the offense(s) to which I now plead. No mention of
dropping the death penalty is made, but the document does indicate that Smith's plea is
voluntary and not the result of any threats, coercion or promises of leniency [such as no
death penalty]. The formal Guilty Plea Memorandum was a mere boiler plate formality
that is completely inconsistent with the court's canvass discussed above. Given the gross
deficiencies of that canvass, Smith's signing of this document cannot supersede what he told
the court face-to-face.
Smith's guilty plea is ordered set aside, and the case remanded for further proceedings
consistent with this opinion.
Rose, C. J., and Steffen and Young, JJ., concur.
Shearing, J., concurring:
I concur in the result.
____________
110 Nev. 1015, 1015 (1994) Gordon v. Ponticello
TERRY GORDON, JOHN SWEENEY, and GEORGE A. McCLARTY, JR., Appellants, v.
FRANK PONTICELLO, Deputy District Attorney of Clark County, Respondent.
No. 24788
August 10, 1994 879 P.2d 741
Appeal from a decision and order denying a petition for writ of mandamus. Eighth Judicial
District Court, Clark County; Jack Lehman, District Judge.
Suspects, under grand jury investigation, filed petition for writ of mandamus to require
state to disclose information regarding the investigation. The district court denied suspects'
petition, and suspects appealed. The supreme court held that suspects' petition was discovery
request and therefore not within scope of rights given to persons under grand jury
investigation.
Affirmed.
Gentile & Porter, Las Vegas, for Appellant Gordon.
Laura FitzSimmons, Las Vegas, for Appellant Sweeney.
Steve Wolfson, Las Vegas, for Appellant McClarty, Jr.
Rex Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Frank
Ponticello, Deputy District Attorney, Clark County, for Respondent.
1. Grand Jury.
Although state has obligation to present exculpatory evidence to grand jury in grand jury investigation, and person under
investigation by grand jury has conditional and limited right to testify before grand jury, and therefore to receive reasonable notice of
grand jury proceedings, person under investigation does not have discovery rights regardless of whether that person seeks
state-appointed counsel or copies of evidence that state will present to grand jury. NRS 172.145, 172.241(1).
2. Grand Jury.
Where party under grand jury investigation requested dates, times and places of transactions, names of all persons involved in
transactions and nature of acts which allegedly constitute criminal conduct, party was seeking discovery and not mere notice and thus
request was not within scope of grand jury target's right to testify before grand jury. NRS 172.241(1).
3. Grand Jury.
Rights of persons under grand jury investigation do not extend beyond those expressly provided by statute.
4. Grand Jury.
Persons under investigation by grand jury received all notice to which they were entitled where they were notified of all crimes for
which they were being investigated, manner in which it was alleged those crimes were perpetrated, and
locations and general time frame in which crimes allegedly took place.
which they were being investigated, manner in which it was alleged those crimes were perpetrated, and locations and general time
frame in which crimes allegedly took place. NRS 172.241(1).
OPINION
Per Curiam:
Appellants Terry Gordon, John Sweeney, and George A. McClarty, Jr. are allegedly involved in the operation of Chase, Ltd., a
corporation which operates adult-oriented nightclubs in Clark County, Nevada.
1
Appellants are under investigation for
operating sex-tease clubs, where patrons are induced to purchase expensive bottles of
non-alcoholic champagne and led to believe that they will receive sexual favors from female
club employees in return. Appellants were served with a Notice of Intent to Seek
Indictment. The notice advised appellants that they had been investigated for the crimes of:
Obtaining Money Under False Pretenses (FelonyNRS 205.380, 195.020); Attempt to
Obtain Money Under False Pretenses (FelonyNRS 193.330, 205.380, 195.020) and
Racketeering (FelonyNRS 207.400), occurring on or between October 23, 1991 and
February 9, 1993. The notice informed appellants that they had five days in which to contact
the district attorney's office and inform it whether appellants wished to testify before the
grand jury in their own behalf or present any evidence which tends to explain away the
crimes. Counsel for Terry Gordon, immediately wrote to the district attorney and informed
him that Gordon wished to testify. Counsel also requested the State provide him with copies
of all documents seized from Chase, Ltd. and with the dates, times, and places of the events
which formed the basis of the proposed indictment so that counsel could point the State to
evidence that would tend to explain away the charges against his client.
On August 27, 1993, appellants filed a petition for writ of mandamus to require the State
to
disclose to [appellants] immediately . . . the names of the persons whom [the State]
alleges were defrauded, or attempted to be defrauded, a description of the false
pretenses alleged to have been employed by Petitioners, the date and premises
upon which the alleged crimes occurred, the parties directly involved in the claimed
criminal conduct, descriptions of the predicate acts and theory upon which
racketeering is alleged to have been committed, and a description of the property
that [the State] alleges to be forfeitable . . . .
__________

1
Since the filing of this appeal, a grand jury indictment has been returned against appellants Gordon and
Sweeney, but not appellant McClarty. The State thereafter filed a motion to dismiss this appeal as moot. We
agree that this appeal is moot as to appellant McClarty, and accordingly, the motion to dismiss this appeal is
granted as to appellant McClarty. Because the outcome of this appeal could still have substantial practical
consequences for appellants Gordon and Sweeney and because we see the need to provide additional guidance to
public officials and the trial courts on this question, we deny the State's motion to dismiss this appeal in its
entirety.
attempted to be defrauded, a description of the false pretenses alleged to have been
employed by Petitioners, the date and premises upon which the alleged crimes
occurred, the parties directly involved in the claimed criminal conduct, descriptions of
the predicate acts and theory upon which racketeering is alleged to have been
committed, and a description of the property that [the State] alleges to be forfeitable . . .
.
The State opposed the petition. Following a hearing, the district court denied appellants'
petition, and this appeal followed.
[Headnote 1]
Appellants contend that in order for them to exercise their right to testify, and in order for
the State to fulfill its duty to apprise the grand jury of exculpatory evidence, appellants must
be given the information they seek, so that they might point out to the State where such
exculpatory evidence lies. We conclude that appellants seek an unwarranted expansion of the
rights of grand jury targets and accordingly dismiss their appeal. Appellants' argument may be
summarized in this way: Appellants have a right to testify before the grand jury, and the State
has an obligation to present exculpatory evidence to the grand jury; without specific
information about the charges, appellants cannot meaningfully exercise their right to testify
and cannot direct the State to exculpatory evidence; therefore, appellants' rights have been
violated.
The State's obligation to present exculpatory evidence to the grand jury is established in
NRS 172.145(2) which provides that [i]f the district attorney is aware of any evidence which
will explain away the charge, he [or she] shall submit it to the grand jury. The right of a
grand jury target to testify before the grand jury is set forth in NRS 172.241(1) which
provides that
[a] person whose indictment the district attorney intends to seek or the grand jury on its
own motion intends to return, but who has not been subpoenaed to appear before the
grand jury, may testify before the grand jury if he [or she] requests to do so and
executes a valid waiver in writing of his [or her] constitutional privilege against
self-incrimination.
Appellants rely primarily on several recent decisions of this court to support their position
that these two statutes require disclosure of the information they seek. First, in Sheriff v.
Marcum, 105 Nev. 824, 783 P.2d 1389 (1989), this court held that a grand jury target's
statutory right to testify before the grand jury would be meaningless unless the State were
required to give that target reasonable notice of the grand jury proceedings.
that target reasonable notice of the grand jury proceedings. See also Sheriff v. Walsh, 107
Nev. 842, 845, 822 P.2d 109, 111 (1991) (Being given the opportunity to explain away the
charges' is tantamount to being given the opportunity to exercise the right to testify.). In
Sheriff v. Frank, 103 Nev. 160, 734 P.2d 1241 (1987), this court expounded on the
prosecutor's obligation to present exculpatory evidence to the grand jury, affirming a district
court order granting a pre-trial writ of habeas corpus to a grand jury target because the
prosecutor had failed to present to the grand jury exculpatory evidence of which the
prosecutor was aware. Id. at 164, 734 P.2d at 1244. The court noted in dicta that [t]he grand
jury's mission is to clear the innocent, no less than to bring to trial those who may be guilty.'
Id. at 165, 734 P.2d at 1244 (quoting United States v. Dionisio, 410 U.S. 1, 16-17 (1973)).
According to appellants, the sum teaching of these cases reflect[s] a firm appreciation by this
Court that the statutory rights afforded to grand jury targets by the Nevada Legislature are
actual, and must be capacitated to retain their meaning. We do not disagree with this
characterization, however, it does not resolve the current question before the court.
We consider Sheriff v. Bright, 108 Nev. 498, 835 P.2d 782 (1992), to be more informative
on the question presented in this appeal than the cases which appellants have cited. In Bright,
two grand jury targets, Bright and Harvey, petitioned for a writ of habeas corpus. Id. at 499,
835 P.2d at 783. Bright argued that his right to counsel had been violated because the State
did not provide him with counsel for his appearance before the grand jury. Id., 835 P.2d at
783. Harvey, on the other hand, conceded he had counsel, but argued that he was deprived of
effective counsel because he was denied access to discovery prior to the grand jury
proceedings. Id., 835 P.2d at 783. The court first noted that Nevada has, by statute, provided
greater protections than those traditionally provided to grand jury targets. Id. at 501-02, 835
P.2d at 784-75. The court, however, decline[d] to read more into the laws governing the
rights of persons targeted by grand juries than is apparent. Id. at 502, 835 P.2d at 785. The
court noted that nowhere in Marcum or in subsequent opinions have we suggested that the
full panoply of rights enjoyed by criminal defendants attaches to persons targeted by grand
juries. Id., 835 P.2d at 785. The court then concluded that indigent grand jury targets do not
have a right to state-appointed counsel. Id., 835 P.2d at 785.
With regard to Harvey's argument that he was denied effective counsel because he could
not conduct discovery prior to the grand jury proceeding, the court concluded that
Inability to obtain copies of the evidence to be presented to the grand jury did not
render Harvey's counsel ineffective. . . . [I]t may well be true that in some cases
preindictment investigation could help a defendant prepare a better defense. But, as we
have noted, our cases have never suggested that the purpose of the right to counsel is to
provide a defendant with a preindictment private investigator . . . . United States v.
Gouveia, 467 U.S. 180, 191 (1984).
We do not now consider it practical or prudent to extend discovery rights to persons
under investigation by grand juries.
Id. at 503, 835 P.2d at 785-86 (emphasis added).
Appellants attempt to distinguish Bright from the instant case because they do not seek
State-appointed counsel or copies of the evidence that the State will present to the grand
jury. Appellants also point out that Bright involved grand jury targets who were members of
lawless gangs. Although the court did indeed emphasize this fact in its opinion, Bright
cannot fairly be read as applying only to members of street gangs; Bright militates strongly
against appellants' position.
[Headnote 2]
Although appellants vehemently protest that they are not seeking discovery, merely notice,
we have difficulty seeing appellants' extensive requests as anything but requests for
discovery.
2
The information requested by appellantsdates, times and places of
transactions, the names of all persons involved in those transactions, and the nature of the acts
which allegedly constitute criminal conductis extremely broad-ranging. If the production of
such information were to become the norm, it could endanger the secrecy of grand jury
proceedings
__________

2
Appellants suggest that one way to accommodate their requests would be for this court to order the prosecutor
to give appellants a copy of the proposed indictment and a few weeks to review documents. First, it is sheer
speculation to posit that the State has a complete indictment prior to the convening of the grand jury. The grand
jury is not a mere rubber stamp; it has broad investigatory powers and may very well uncover matters beyond
those the prosecutor initially envisioned. Furthermore, if the grand jury did go beyond the scope of what the
prosecutor initially had in mind, defendants would no doubt argue they were denied due process because they
did not have adequate notice of the new charges which the grand jury uncovered. This would unduly hamper the
legitimate investigatory function of the grand jury. See NRS 172.175 (grand jury may inquire into any and all
matters affecting the morals, health and general welfare of the public). Secondly, NRS 174.245 provides that a
court may not order the discovery of reports, memoranda or other internal state documents made by state
agents in connection with the investigation or prosecution of the case. (Emphasis added.)
the secrecy of grand jury proceedings and might even allow grand jury targets to intimidate
witnesses, tamper with evidence or otherwise interfere with the legitimate function of the
grand jury.
As we noted in Bright, this court, in step with the United States Supreme Court, is
reluctant to expand the rights of grand jury targets and make them coextensive with those of
criminal defendants. See United States v. Calandra, 414 U.S. 338, 343 (1973) (the operation
of the grand jury generally is unrestrained by the technical procedural and evidentiary rules
governing the conduct of criminal trials). If we were to grant the expansion of rights here
requested we would run the risk of unnecessarily prolonging and complicating what is by its
very nature an investigative process limited to the determination of probable cause rather than
guilt. NRS 172.155. If disclosure of the information appellants request is statutorily
mandated, then one would question why a reasonable time to prepare to testify, or to review
documents, or to consult with one's attorney would not be equally necessary. We are of the
view that [t]o convert a grand jury proceeding from an investigative one into a mini-trial of
the merits would be unnecessarily burdensome and wasteful, since, even if an indictment
should be filed, the defendant could be found guilty only after a guilty plea or criminal jury
trial in which guilt was established beyond a reasonable doubt. United States v. Ciambrone,
601 F.2d 616, 622 (2d Cir. 1979). The relief appellants request would be one more step in
that direction.
[Headnotes 3, 4]
In conclusion, we are unwilling to expand the rights of grand jury targets beyond those
expressly provided by statute. Although appellants assert they seek only notice, what they
truly seek is limited preindictment discovery. The conduct in which appellants are alleged to
have engaged, although occurring at different times and locations, is virtually identical.
Appellants have been notified of the crimes for which they are being investigated, the manner
in which it is alleged those crimes were perpetrated, and of the several locations and the
general time frame in which the crimes allegedly took place. We conclude that this is all that
notice requires in this context. We are not unsympathetic to grand jury targets who are
faced with numerous charges and who cannot obtain exact and specific information of the
sort which appellants seek here. This dilemma, however, only surfaces because the Nevada
Legislature has chosen to extend the right to testify to grand jury targets, a grant of grace that
it was not constitutionally required to make. Finally, the exceptions to the notice requirement
set forth in Nevada's statute and in the ABA Model Grand Jury Act provide strong evidence
that the right to testify is a conditional and limited right.
conditional and limited right. See NRS 172.241(2) and (3); American Bar Association, ABA
Model Grand Jury Act, 102, cmt. at 22-23 (1982).
Because of our decision on the merits of appellants' claim, we do not reach the question of
whether mandamus is an appropriate remedy in this situation.
For reasons discussed above, the decision and order of the district court are affirmed.
____________
110 Nev. 1021, 1021 (1994) City of Las Vegas v. Municipal Court
THE CITY OF LAS VEGAS, Petitioner, v. THE LAS VEGAS MUNICIPAL COURT and
THE HONORABLE GREGORY J. BARLOW, Municipal Court Judge, Respondents,
and MISTY RICCIO, Real Party in Interest.
No. 25222
August 10, 1994 879 P.2d 739
Original petition for a writ of mandamus.
Complaint was lodged alleging that defendant had violated terms of temporary protective
order, and motion to dismiss complaint for lack of jurisdiction was granted by the Las Vegas
Municipal Court. City appealed and petitioned for writ of mandamus, and the district court
denied petition for mandamus and dismissed appeal. City then petitioned again for writ of
mandamus. The supreme court held that municipal court had jurisdiction to entertain criminal
action charging misdemeanor violation of temporary protective order (TPO).
Petition granted.
Bradford R. Jerbic, City Attorney, Las Vegas, for Petitioner.
Morgan D. Harris, Public Defender and Craig B. Davis, Deputy Public Defender, Clark
County, for Real Party in Interest.
1. Criminal Law.
Municipal court had jurisdiction to entertain criminal action charging misdemeanor violation of temporary protective order (TPO)
issued by family division of district court. Jurisdiction of district court and justice's court is not exclusive. NRS 3.223(2), 5.050; Las
Vegas Municipal Code, 10.02.010.
2. Criminal Law.
Statute, which provides that prisoner who violates temporary protective order (TPO) with use of physical violence shall be
sentenced to imprisonment in county jail for not fewer than five days, does not vest exclusive jurisdiction over
TPO in district court and in justice's court, even though municipal court may not sentence offenders to
county jail; rather, because legislature has granted municipal courts jurisdiction over misdemeanor criminal
violations of city ordinances, such statute would be construed to allow courts to sentence violent offenders
of TPO as to any jail in county where violation occurred.
imprisonment in county jail for not fewer than five days, does not vest exclusive jurisdiction over TPO in district court and in justice's
court, even though municipal court may not sentence offenders to county jail; rather, because legislature has granted municipal courts
jurisdiction over misdemeanor criminal violations of city ordinances, such statute would be construed to allow courts to sentence
violent offenders of TPO as to any jail in county where violation occurred. NRS 33.100, 33.100(1)(b), (c).
3. Statutes.
Supreme court will harmonize statutory sections provided that doing so does not violate ascertained spirit and intent of legislature.
4. Mandamus.
Writ of mandamus is available to compel performance of act that law requires as duty resulting from office, trust, or station, or to
control arbitrary or capricious exercise of discretion. NRS 34.160.
5. Mandamus.
Writ of mandamus is appropriate to remedy municipal court's refusal to entertain action under its statutorily defined jurisdiction.
NRS 34.160.
OPINION
Per Curiam:
FACTS
The family division of the district court issued a temporary protective order (TPO) against real party in interest Misty Riccio. A
complaint was subsequently lodged against Riccio in the Las Vegas Municipal Court, alleging that Riccio had violated the terms of the
TPO. Riccio moved the municipal court to dismiss the complaint. Riccio contended that the legislature granted exclusive power to issue
and enforce TPOs to the district court and the justice's court.
Petitioner, City of Las Vegas, opposed the motion. The City contended that the municipal court, in addition to the district court and the
justice's court, has jurisdiction to enforce TPOs. The municipal court disagreed and granted Riccio's motion to dismiss.
The City appealed the municipal court's decision to the district court. The City simultaneously petitioned the district court for a writ of
mandamus. The district court subsequently consolidated the two actions.
The district court denied the City's petition for a writ of mandamus and dismissed the City's appeal.
1
The district court
ruled that the legislature granted concurrent but exclusive jurisdiction to enforce TPOs to
the district court and the justice's court.
__________

1
The district court properly denied the City's petition for extraordinary relief because the City had an adequate
remedy available in the ordinary course of the law by way of a direct appeal to the district court. See NRS
34.160. In addition, because the City has no remedy available in the ordinary
ruled that the legislature granted concurrent but exclusive jurisdiction to enforce TPOs to the
district court and the justice's court. The City then petitioned this court for a writ of
mandamus.
DISCUSSION
[Headnote 1]
The City contends that NRS 5.050 provides the municipal court jurisdiction to enforce
TPOs. That statute provides in relevant part: The municipal courts have jurisdiction of all
misdemeanors committed in violation of the ordinances of their respective cities. NRS
5.050(2). The Las Vegas Municipal Code provides that any act which is made a
misdemeanor by the laws of the State is hereby declared to be and shall constitute a
misdemeanor. LVMC 10.02.010. The legislature has established that a violation of a TPO
is a misdemeanor. NRS 33.100. The city contends that because the violation of a TPO is a
misdemeanor under Las Vegas city ordinances, the municipal court has jurisdiction to enforce
TPOs.
Riccio challenges this reasoning by contending that NRS 3.223(2) grants concurrent but
exclusive jurisdiction over TPOs to the district court and the justice's court. NRS 3.223(2)
provides: The family [division of the district] court, where established, and the justices' court
have concurrent jurisdiction over actions for the issuance of a temporary or extended order
for protection against domestic violence. According to Riccio, this specific authorization to
issue TPOs indicates the legislature's intent to grant the district court and the justice's court
exclusive jurisdiction over TPOs.
NRS 5.050 plainly grants the municipal court jurisdiction to entertain criminal actions
charging a misdemeanor violation of the terms of a TPO. The legislature has not limited the
municipal court's jurisdiction over misdemeanor violations of city ordinances, including
violations of the terms of TPOs. The municipal court thus has jurisdiction to entertain a
criminal action charging the misdemeanor violation of a TPO. See McKay v. City of Las
Vegas, 106 Nev. 203, 205, 789 P.2d 584, 585 (1990) (the legislature defines the jurisdiction
of the municipal court).
[Headnote 2]
Riccio also protests that the statute establishing the penalties for violations of TPOs
demonstrates that the legislature intended to vest exclusive jurisdiction over TPOs in the
district court and the justice's court.
__________
course of the law from the decision of the district court sitting in its appellate capacity, the City has properly
brought this original petition for extraordinary relief in this court. Id.
the justice's court. As Riccio notes, NRS 33.100(1)(b) provides that a person who violates a
TPO with use of physical violence shall be sentenced to imprisonment in the county jail for
not fewer than 5 days nor more than 6 months . . . . (Emphasis added). Riccio contends that
because only the district court and the justice's court may sentence a person to incarceration in
the county jail, NRS 33.100(1)(c) indicates the legislature's intent to vest exclusive
jurisdiction over TPOs in the district court and the justice's court.
NRS 33.100 does not purport to confer jurisdiction on the courts of this state. We therefore
find the language of that statute unpersuasive in determining the jurisdiction of the municipal
court. The legislature appears instead to have overlooked the jurisdiction of the municipal
court when it designated the county jail in NRS 33.100.
[Headnote 3]
This court will harmonize statutory provisions provided that doing so does not violate the
ascertained spirit and intent of the legislature. City Council of Reno v. Reno Newspapers,
105 Nev. 886, 892, 784 P.2d 974, 978 (1989). Because the legislature has granted the
municipal court jurisdiction over misdemeanor criminal violations of city ordinances, we
construe NRS 33.100 as allowing courts to sentence violent offenders of TPOs to any jail in
the county where the violation occurred. This construction preserves the clearly expressed
intent of the legislature to vest the municipal court with jurisdiction to entertain criminal
actions charging misdemeanor violation of city ordinances such as the violation of TPOs.
[Headnotes 4, 5]
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 637 P.2d 534 (1981). A writ of mandamus is appropriate to remedy the municipal
court's refusal to entertain an action under its statutorily defined jurisdiction. NRS 34.160.
Accordingly, we grant the City's petition for a writ of mandamus. The clerk of this court shall
issue a writ of mandamus directing the municipal court to entertain the City's complaint
charging Riccio with violating the terms of the TPO.
____________
110 Nev. 1025, 1025 (1994) Morgano v. Smith
JEROME J. MORGANO, Appellant, v. JAMES E. SMITH, ESQ., Respondent.
No. 24958
ANDRE SCHOKA, Appellant, v. JEROME POLAHA, Respondent.
No. 25215
August 10, 1994 879 P.2d 735
Consolidated proper person appeals from district court orders in favor of respondents in
actions for legal malpractice against former criminal defense counsel. Eighth Judicial District
Court, Clark County; Jack Lehman, Judge (docket number 24958); First Judicial District
Court, Carson City; Michael E. Fondi, Judge (docket number 25215).
Convicted defendants brought legal malpractice actions against their private attorneys. In
each case, the district court entered summary judgment for attorneys and appeals were taken.
Cases were consolidated. The supreme court held that: (1) malpractice suit could not be
maintained against private attorneys, absent showing that defendants had prevailed on appeal,
and (2) defendants had not made required showing.
Affirmed.
Jerome J. Morgano, In Proper Person, Las Vegas, for Appellant.
Fitzgibbons and Anderson, Las Vegas, for Respondent James E. Smith, Esq.
Andre Schoka, In Proper Person, Carson City, for Appellant.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for Respondent Jerome Polaha.
When defense counsel is public defender, counsel cannot later be held liable in malpractice action for allegedly negligently
representing defendant in underlying criminal proceeding. NRS 41.032(2).
Court-appointed counsel cannot later be held liable in malpractice action for allegedly negligently representing defendant in
underlying criminal proceeding. NRS 41.0307(4)(b).
Statute providing that court-appointed attorneys would have same immunity as conferred upon public defenders, did not apply to
attorney who had provided representation prior to effectiveness of amendment. NRS 41.0307(4)(b).
Elements of professional negligence action are: (1) duty to use such skill, prudence, and diligence as other members of profession
commonly possess and exercise; (2) breach of that duty; (3) proximate causal connection between negligent conduct and resulting
injuries; and (4) actual loss or damage resulting from professional's negligence.
To state claim for legal malpractice against private criminal defense counsel, claimant must assert basis for claim that his or her
conviction or sentence was caused by something other than claimant's own conduct.
Criminal defendants could not recover in civil suits brought against their attorneys, alleging malpractice; neither attorney had
made necessary showing that he obtained appellate or post-conviction relief from conviction or sentence, or otherwise established
innocence of charges.
OPINION
Per Curiam:
These appeals are from orders of the district courts in favor of respondents in actions for legal malpractice against former criminal
defense counsel. Docket number 24958 is a proper person appeal from an order of the district court granting the respondent's motion for
summary judgment. Docket number 25215 is a proper person appeal from an order of the district court dismissing the appellant's
complaint. Both appeals raise questions of first impression in Nevada regarding legal malpractice actions brought by criminal defendants
against the attorneys who represented them in criminal proceedings.
1
We therefore elect to consolidate these
appeals in this opinion. See NRAP 3(b).
FACTS
Docket number 24958
Appellant Jerome J. Morgano filed an attorney malpractice action against respondent
James E. Smith. Smith had served as Morgano's court-appointed counsel in a criminal
proceeding which resulted in Morgano's entering a plea of guilty to one count of sale of a
controlled substance. Both parties sought summary judgment. Following a hearing, the
district court issued an order granting summary judgment in favor of Smith. The court
ordered Morgano's complaint dismissed with prejudice, imposed sanctions of $500 because
the action was frivolous, and awarded Smith $344 in costs and $3,475 in attorney's fees. This
appeal followed.
__________

1
This issue is the only issue raised in docket number 25215. Numerous other issues are raised by appellant
Morgano in docket number 24958.
Docket number 25215
Appellant Andre Schoka filed an attorney malpractice action against respondent Jerome
Polaha. Schoka had hired Polaha to represent him in a criminal proceeding which resulted in
Schoka's entering a plea of guilty to one count of attempting to obtain money by false
pretenses. Polaha filed a motion to dismiss the complaint on the ground that it failed to state a
claim upon which relief could be granted. Schoka opposed the motion. The district court
granted the motion and ordered Schoka's complaint dismissed. This appeal followed.
DISCUSSION
Standards governing legal malpractice actions brought by criminal defendants against their
attorneys
The standard governing a criminal defendant's civil malpractice action against former
defense counsel alleging negligent representation in a criminal proceeding depends on
whether defense counsel is a public defender, is court-appointed, or is privately hired. We
have previously stated the standard which applies to public defenders, but we have not
previously articulated the standard applicable to attorneys who are not public defenders. We
take the opportunity today to develop the law in this area more fully and to set forth the
standards which apply in each instance.
1. Public defenders
[Headnote 1]
The general rule is that, when defense counsel is a public defender, counsel cannot later be
held liable in a malpractice action for allegedly negligently representing the defendant in the
underlying criminal proceeding. Ramirez v. Clark Co. Public Defender, 105 Nev. 219, 220,
773 P.2d 343, 344 (1989). Pursuant to NRS 41.032(2), no action may be brought against an
officer of the state which is:
Based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or of any officer, employee or immune contractor of any of these, whether
or not the discretion involved is abused.
A public officer or officer includes [a] public defender and any deputy or assistant
attorney of a public defender.' Ramirez, 105 Nev. at 220, 773 P.2d at 344 (quoting NRS
41.0307{4){b)).
41.0307(4)(b)). A public defender is immune from suit for malpractice arising out of
discretionary decisions made pursuant to his or her duties as a public defender. Id. at 220, 773
P.2d at 344-45. This rule is not implicated in these appeals, nor does our decision today in
any way affect this rule as it applies to public defenders.
2. Court-appointed counsel
[Headnote 2]
Since the time of our decision in Ramirez v. Clark Co. Public Defender, 105 Nev. 219,
773 P.2d 343 (1989), NRS 41.0307(4)(b) has been amended. A public officer or officer
now includes not only a public defender but also an attorney appointed to defend a person
for a limited duration with limited jurisdiction. See 1993 Nev. Stat., ch. 547, 3 at 2261
(effective July 1, 1993). Thus, court-appointed attorneys now enjoy the same degree of
immunity as is extended to public defenders. They cannot be held liable for malpractice
arising out of discretionary decisions made pursuant to their duties as court-appointed defense
counsel. Cf. Ramirez, 105 Nev. at 220, 773 P.2d at 344-45.
[Headnote 3]
Even though in docket number 24958 respondent Smith was court-appointed, he cannot
claim the benefit of this immunity because the statute was not amended until after his
representation of Morgano had ceased. He therefore falls under the rule governing private
counsel.
3. Private counsel
[Headnotes 4, 5]
We have not previously enunciated the standard governing legal malpractice actions filed
by criminal defendants against privately hired defense attorneys.
2
We now hold that, to state
a claim for legal malpractice against private criminal defense counsel, the plaintiff must assert
a basis for claiming that the plaintiff's conviction or sentence was caused by something
other than the plaintiff's own conduct.
__________

2
We have, however, addressed professional malpractice actions in a more general context. The elements of a
professional negligence action are: (1) the duty to use such skill, prudence, and diligence as other members of
the profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection
between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the
professional's negligence. Charleson v. Hardesty, 108 Nev. 878, 883-84, 839 P.2d 1303, 1307 (1992). The
standard we announce today is merely an elaboration of the existing standard as it applies in the particularized
context of a legal malpractice action against private criminal defense counsel.
tiff's conviction or sentence was caused by something other than the plaintiff's own conduct.
See generally, Gregory G. Sarno, Annotation, Legal Malpractice in Defense of Criminal
Prosecution, 4 A.L.R.5th 273-402 (1992). Specifically, the plaintiff must plead that he or she
has obtained appellate or post-conviction relief in order to overcome a motion for summary
judgment or a motion to dismiss.
3
See Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358,
1360 (Alaska 1991) (a convicted criminal must obtain post-conviction relief before pursuing
a legal malpractice action against former defense counsel); Stevens v. Bispham, 851 P.2d
556, 561, 566 (Or. 1993) (for a convicted criminal to maintain a legal malpractice action
against former defense counsel, the plaintiff must allege exoneration of the underlying
offense through reversal on direct appeal, post-conviction relief or other means).
Furthermore, in order to prevail at trial, the plaintiff must prove actual innocence of the
underlying charge. See Glenn v. Aiken, 569 N.E.2d 783, 788 (Mass. 1991) (plaintiff asserting
civil malpractice claim against former defense counsel must prove not only that counsel's
negligence caused plaintiff harm, but also that plaintiff is innocent of the crime charged);
Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987) (to state a cause of action for legal
malpractice arising from negligent representation in a criminal proceeding, plaintiff must
allege innocence or colorable claim of innocence of underlying offense);
4
also cf. Heck v.
Humphrey,
------
U.S.
------
, 62 U.S.L.W. 4594 (June 24, 1994) (No. 93-6188) (to recover
damages for unconstitutional or otherwise unlawful conviction or imprisonment under 42
U.S.C.
__________

3
We reject the argument that, under this standard, a malpractice plaintiff who is a criminal defendant faces a
higher burden than an ordinary civil litigant. Criminal defendants have available to them the possibility of having
their judgments of conviction set aside in post-conviction proceedings. Where, as here, the instances of alleged
negligence are based primarily on the ineffective assistance of counsel, post-conviction proceedings, rather than
civil proceedings, provide such litigants a more appropriate forum to present their claims. Civil litigants have no
similar remedy. Any perception of inequity in our rule is therefore ameliorated by the existence of additional
remedies available only to criminal defendants. Cf. Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358,
1361-62 (Alaska 1991) (because of overlap of issues raised in post-conviction proceedings and legal malpractice
actions, requiring post-conviction relief as a prerequisite to a malpractice action promotes judicial economy and
acknowledges differing policy considerations underlying civil malpractice actions based on allegedly negligent
criminal defense).

4
We have considered cases from other jurisdictions which have held to the contrary, see, e.g., Krahn v. Kinney,
538 N.E.2d 1058, 1061 (Ohio 1989) (plaintiff need not allege reversal of conviction to state cause of action for
legal malpractice arising from representation in a criminal proceeding), but reject the analysis in such cases as
either inapposite or otherwise inadequate.
1983, plaintiff must prove that conviction or sentence has been reversed on appeal,
expunged by executive order, declared invalid by state tribunal, or called into question by
federal court's issuance of writ of habeas corpus). Neither appellant meets this standard.
[Headnote 6]
In docket number 24958, appellant Morgano contends that the district court erred in
granting summary judgment to respondent because there were genuine issues of material fact
in dispute such that his case should have gone to trial. We disagree. Appellant Morgano did
not obtain any appellate or post-conviction relief from his conviction or sentence. This court
dismissed Morgano's direct appeal from his judgment of conviction in the underlying criminal
matter. Morgano v. State, Docket No. 22425 (Order Dismissing Appeal, January 24, 1992).
This court also dismissed Morgano's appeal from an order of the district court denying his
petition for post-conviction relief. Morgano v. State, Docket No. 23459 (Order Dismissing
Appeal, September 29, 1992). In addition, this court dismissed Morgano's appeal from an
order of the district court denying his post-conviction petition for a writ of habeas corpus.
Morgano v. State, Docket No. 25145 (Order Dismissing Appeal, February 4, 1994).
Accordingly, we conclude that in docket number 24958 the district court properly granted
summary judgment in favor of respondent.
Similarly, in docket number 25215, appellant Schoka contends that the district court erred
in dismissing his complaint for failure to state a claim upon which relief could be granted.
Again, we disagree. Any claim of innocence of the underlying crime is repelled by the record.
Further, the complaint filed by appellant Schoka did not allege that he had obtained any
appellate or post-conviction relief from his conviction or sentence. The record in docket
number 25215 does not reveal whether Schoka filed a direct appeal from his judgment of
conviction. However, this court recently dismissed Schoka's appeal from an order of the
district court dismissing his petition for post-conviction relief. Schoka v. State, Docket No.
23680 (Order Dismissing Appeal, March 31, 1994). Accordingly, we conclude that in docket
number 25215 the district court properly ordered appellant's complaint dismissed.
CONCLUSION
In determining the applicable standard in legal malpractice actions arising from
representation of criminal defendants, it is important to distinguish between public defenders,
court-appointed attorneys, and private counsel. We have endeavored to clarify the law in this
area.
clarify the law in this area. For the reasons set forth above, we conclude that neither appellant
can demonstrate error in these appeals.
5
Accordingly, we affirm the orders of the district
courts.
____________
110 Nev. 1031, 1031 (1994) Skipper v. State
HUBERT PRESTON SKIPPER, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23843
August 10, 1994 879 P.2d 732
Appeal from judgment of conviction pursuant to a jury trial of two counts of cheating at
gaming. Second Judicial District Court, Washoe County; Mills B. Lane, Judge.
The supreme court held that statute prohibiting cheating at gambling was not
unconstitutionally vague as applied to dice sliding.
Affirmed.
Joseph W. Houston, II, Las Vegas, for Appellant.
Due Process Clause does not require impossible standard of specificity in penal statutes. U.S. Const. amend. 14.
Legislation is presumptively constitutional, and person challenging legislation bears burden of clearly demonstrating
that challenged statute is invalid.
__________

5
Although neither appellant has been granted permission to file documents in these matters in proper person,
see NRAP 46(b), we have received and considered their proper person documents.
In case number 24958, we deny as moot appellant Morgano's motion to proceed in proper person, motion for
leave to proceed in forma pauperis, and Motion to Strike document Dates December 6, 1993 or Alternate
Answer Respondents Motion to Leave. We further deny as moot respondent Smith's motion to dismiss
Morgano's appeal and motion for leave to file a response to Morgano's opposition to Smith's motion to dismiss
pursuant to NRAP 28(a) and for a stay of the briefing schedule. We have carefully considered the issues raised
by appellant Morgano in his proper person opening brief and supplemental authorities, and we have determined
that they are without merit.
In case number 25215, we deny appellant Schoka's motion for placing this appeal in abeyance. We conclude that
briefing and oral argument are unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911
(1975), cert. denied, 423 U.S. 1077 (1976).
legislation bears burden of clearly demonstrating that challenged statute is invalid.
3. Gaming.
Statutes prohibiting cheating at gambling have clear and certain application to those who attempt to supplement elements of
chance with surreptitious conduct that alters both nature of game and criteria for winning and are not unconstitutionally vague as
applied to craps. U.S. Const. amend. 14; NRS 465.015, 465.083.
4. Gaming.
Defendant was guilty of cheating at gambling within meaning of statutes where he sought in craps game to slide dice without
rolling and to prevent dealer from detecting and invalidating method of play by utilizing confederate to obscure dealer's vision. Method
of altering elements of chance deceitfully altered integral attribute of game and affected otherwise established probabilities of various
outcomes and clearly constituted cheating. NRS 465.015, 465.083.
5. Gaming.
Persons of average intelligence who play game of craps in Nevada will have no difficulty understanding that surreptitious
manipulation of dice contrary to rules of game, in order to alter outcome, constitutes cheating as defined in statutes prohibiting
cheating at gambling. NRS 465.015, 465.083.
OPINION
Per Curiam:
Appellant Hubert Preston Skipper, Jr. was convicted of cheating at gaming pursuant to NRS 465.070(7) and NRS 465.083. For the
reasons discussed below, the judgment of conviction is affirmed.
FACTS
The facts of record are brief and uncontested on appeal. While playing craps at two different gaming establishments in Reno, Skipper
was videotaped throwing the dice in a manner that is colloquially referred to as dice sliding. As the term implies, dice sliding occurs
when one or both of the dice slides down the table without tumbling or otherwise altering the number(s) preselected by the gambler to face
upward. Dice sliding is a difficult manipulation because it requires both dexterity of the ring and pinkie fingers and the aid of an inattentive
or collaborating craps dealer or, as here, an accomplice who is able to obscure the dealer's view of play. The surveillance tapes admitted
into evidence show that Skipper's occasional attempts to slide a die (some of which were successful) were preceded by changes in his
betting pattern and manner of throw. Additionally, Skipper refrained from such attempts whenever the floor boss was watching the game.
More importantly, the tapes show that Skipper's method of play was aided by a confederate who sought to block the dealer's view of the
sliding die.
Skipper presented no defense to the charges brought against him, choosing instead to
challenge the constitutionality of the criminal statutes under which he was charged. The jury
convicted Skipper of two counts of cheating at gaming and this appeal followed.
DISCUSSION
[Headnotes 1, 2]
Skipper's sole argument on appeal is that NRS 465.070(7) and NRS 465.083 are
unconstitutionally vague because they fail to alert persons of ordinary intelligence that dice
sliding constitutes criminal conduct. The Due Process Clause contained in the Fourteenth
Amendment to the United States Constitution prohibits states from holding an individual
criminally responsible for conduct which he could not reasonably understand to be
proscribed.' Sheriff v. Martin, 99 Nev. 336, 339, 662 P.2d 634, 636 (1983) (quoting United
States v. Harriss, 347 U.S. 612, 617-18 (1954)). However, the Due Process Clause does not
require an impossible standard of specificity in our penal statutes, and we have earlier held
that a statute will not be void for vagueness 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);
see also Sheriff v. Martin, 99 Nev. 336, 339, 662 P.2d 634, 636 (1983). Finally, legislation is
presumptively constitutional and Skipper bears the burden of clearly demonstrating that the
challenged statutes are invalid. Id. NRS 465.083 makes it unlawful for any person to cheat
at any gambling game. NRS 465.015 defines cheat as alter[ing] the selection of criteria
that determines either the result of a game or the amount or frequency of payment in a
game.
1
We have previously concluded that NRS 465.083 and NRS 465.015 are
constitutionally certain as they relate to card crimping, but unconstitutionally vague as they
relate to slot machine handle manipulation (handle popping). Sheriff v. Martin, 99 Nev.
336, 662 P.2d 634 (1983); Lyons v. State, 105 Nev. 317, 775 P.2d 219 (1989); see also
Childs v. State, 107 Nev. 584, 816 P.2d 1079 {1991); Childs v. State, 109 Nev. 1050
__________

1
NRS 465.015 provides, in full, as follows:
As used in this chapter:
1. Cheat means to alter the elements of chance, method of selection or criteria which determine:
(a) The result of a game;
(b) The amount or frequency of payment in a game; or
(c) The value of a wagering instrument approved by the state gaming control board for use in connection
with a cashless wagering system.
2. The words and terms defined in chapter 463 of NRS have the meanings ascribed to them in that
chapter.
1079 (1991); Childs v. State, 109 Nev. 1050, 864 P.2d 277 (1993).
In Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983), Jesse Martin and an accomplice
were playing blackjack at the same table when the accomplice was observed crimping cards
and aiding Martin's play. The two players were arrested and charged by criminal information
with violating NRS 465.083. Id. at 338, 662 P.2d at 636. The district court dismissed the
charges against Martin on grounds that the definition of cheating provided by NRS 465.015,
on which NRS 465.083 rests, was unconstitutionally vague. After fully discussing the void
for vagueness doctrine, we concluded that the statute was not vague as applied to Martin's
conduct:
In light of the statutory purpose, we interpret the current cheating statutes to proscribe
the alteration of the group of characteristics which identify and define the game in
question. The attributes of the gameits established physical characteristics and basic
rulesdetermine the probabilities of the game's various possible outcomes. Changing
those attributes to affect those probabilities is a criminal act.
. . . .
Thus, if a player or dealer deceitfully alters the identifying characteristics or attributes
of a game with the intent to deprive another of money or property by affecting the
otherwise established probabilities of the game's various outcomes, he or she is guilty
of cheating within the meaning of NRS 465.015 and NRS 465.083.
Id. at 341, 662 P.2d at 637-38.
In Lyons, the defendant was arrested for manipulating the handles of vulnerable slot
machines. We noted that NRS 465.015 extends to knowing, purposeful, unlawful conduct
designed to alter the criteria that determines the outcome of any lawful gambling activity,
and thus proscribes, in addition to card crimping, the use of mirrors, confederates, electronic
equipment, magnets, tools or other devices. We also concluded that gifted patrons who
simply exploit their skills or play of the game (e.g., card counting or serendipitously
observing the dealer's cards) in hopes of altering the usual criteria of play do not run afoul of
the statute. 105 Nev. at 321, 775 P.2d at 221. We then held that handle popping, which
neither damages nor mechanically alters a slot machine, and which is discoverable by an
innocent novice, is within the latter category.
[Headnote 3]
Skipper assumes, without meaningful discussion, that Lyons and its progeny limit our
holding in Martin and control the disposition of this case.
disposition of this case. We are constrained to disagree because of the expressly narrow
application of Lyons and the distinct differences between handle popping and die sliding. A
handle popper alters no mechanism in the machine, and merely adopts a handle pulling
methodology that summons the best advantages to the player that the mechanical conditions
of the slot machine will provide. On the other hand, a dice slider uses a methodology of play
that is based upon a purposefully orchestrated combination of factors designed to change the
nature of play through affirmative acts of cheating and deception. For example, as noted
above, Skipper utilized an accomplice to obscure the dealer's vision of the table while
Skipper purposely engaged in sliding the dice.
The game of craps understandably involves players who throw the dice in accordance with
the rules of play. The rules of play require the roll of the dice, thus resulting in the dice
either tumbling or bouncing off the end of the table as a result of the player's throw. The
evidence adduced at trial indicated that craps dealers are trained to call a no roll unless the
dice are thrown in the manner described. Thus players who may accidently slide the dice
simply have their play nullified by the dealer's call. Skipper, however, sought to prevent the
dealer from detecting and invalidating his method of play by utilizing a confederate to
obscure the dealer's vision. In effect, Skipper was blindfolding the dealer while placing the
dice on the table in a winning combination. This method of altering the elements of chance
clearly constitutes cheating. Innocent players would not engage in this type of deceptive,
manipulated play.
NRS 465.083 and NRS 465.015 have clear and certain application to those who attempt to
supplant elements of chance with surreptitious conduct that alters both the nature of the game
and the criteria for winning. A skilled dice slider such as Skipper, surreptitiously and contrary
to the rules of the game, alters the probable outcome of a throw and drastically increases the
chances of winning certain types of bets on the craps table.
[Headnote 4]
According to the standard of law enunciated in Martin, Skipper is guilty of cheating within
the meaning of NRS 465.015 and NRS 465.083. Skipper deceitfully altered an integral
attribute of the game in affecting the otherwise established probabilities of its various
outcomes. However, unlike the dice slider, a handle popper does not alter the physical
characteristics of the game (slot machine) or violate any established or defined rule of play.
2
See Lyons, 105 Nev. at 322, 775 P.2d at 222.
__________

2
In Childs v. State, 107 Nev. 584, 816 P.2d 1079 (1991), we held that a new provision, NRS 465.070(7), that
purported to make unlawful varying the pull of a slot machine handle was unconstitutionally vague because
the
[Headnote 5]
Finally, we conclude that persons of average intelligence who play the game of craps in
Nevada will have no difficulty understanding that a surreptitious manipulation of the dice
contrary to the rules of the game, in order to alter its outcome, constitutes an act of cheating
as defined in NRS 465.015 and proscribed as a criminal act under NRS 465.083. In light of
our ruling, it is unnecessary to discuss the application of NRS 465.070(7)
3
to the instant
case.
For the reasons discussed above, the judgments of conviction entered by the district court
are affirmed.
4

____________
110 Nev. 1036, 1036 (1994) Southwest Securities v. Amfac, Inc.
SOUTHWEST SECURITIES, a Nevada Limited Partnership, Appellant, v. AMFAC, INC., a
Hawaii Corporation; AMFAC HOTELS AND RESORTS, INC., a Delaware Corporation,
Respondents.
No. 24235
August 18, 1994 879 P.2d 755
Appeal from an order of the district court granting summary judgment in a bankruptcy
related matter. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Pursuant to order in Chapter 7 liquidation proceeding involving assignee of lessee of hotel,
bankruptcy trustees took possession of hotel premises and entered into agreements with
lessor-creditor. Lessor-creditor brought action for breach of guaranty against guarantor. The
district court entered judgment for the guarantor, and the creditor appealed. The supreme
court held that agreements between creditor and trustees did not discharge guarantor from
liability on guaranty.
__________
new subsection did not provide a definition of a normal' pull from which a player must not vary. Id. at 587,
816 P.2d at 1081.

3
NRS 465.070(7) provides in pertinent part:
It is unlawful for any person:
. . . .
7. To manipulate, with the intent to cheat, any component of a gaming device in a manner contrary to the
designed and normal operational purpose for the component . . . with knowledge that the manipulation
affects the outcome of the game or with knowledge of any event that affects the outcome of the game.

4
[Rehearing denied March 13, 1995]
Galane, Tanksley, Rickdall & Ballif, Las Vegas, for Appellant.
Lionel Sawyer & Collins, Las Vegas, for Respondents.
1. Guaranty.
Operation and transition agreements between lessor-creditor and bankruptcy trustees of lessee's assignee did not alter obligation of
lessee-principal without consent of guarantor so as to exonerate guarantor from liability, though agreements and hotel lease contained
different terms, where, under order for Chapter 7 liquidation proceeding, bankruptcy trustees took possession of hotel, and trustees and
creditor entered into agreements, allowing trustees to operate hotel, in order to mitigate damages. 11 U.S.C. 365(d)(3).
2. Guaranty.
Lessor-creditor did not release or discharge guarantor or co-obligor, under provision of Uniform Joint Obligations Act that release
or discharge of one co-obligor without express reservation against other co-obligors discharges others to extent provided in statute,
where lessee's assignee filed for bankruptcy, and trustees paid creditor rent under operation and transition agreements, in order to help
mitigate potential damages. Lease was not terminated or replaced by the agreements, and assignee did not enter any agreements with
anyone, but merely surrendered its interest as required by the Bankruptcy Code. 11 U.S.C. 365(d)(3); NRS 101.060(1).
3. Guaranty.
Lessor's procurement of mitigation tenant does not automatically work discharge or release of former occupant, defaulting lessee
or any guarantor from liability. 11 U.S.C. 365(d)(3); NRS 101.060(1).
4. Guaranty.
To exonerate guarantor from obligation on guaranty, it must be shown that creditor and principal altered agreement that was
guaranteed without consent of guarantor.
OPINION
Per Curiam:
BACKGROUND
At the heart of the underlying dispute is a real property lease to the Marina Hotel & Casino (Marina), formerly located on the southern
end of the Las Vegas Strip. Appellant Southwest Securities (Southwest) was the owner and landlord of the Marina.
On October 30, 1973, Southwest executed a hotel lease agreement with Resorts, Inc., a wholly owned subsidiary of Amfac, Inc.
(AMFAC), a Hawaii corporation. In that agreement, Resorts agreed to lease the hotel portion of the Marina for thirty years commencing
May 1, 1975. Contemporaneously, AMFAC executed a lease guaranty which absolutely guaranteed the faithful performance of the
hotel lease agreement between Southwest and Resorts.
performance of the hotel lease agreement between Southwest and Resorts. The casino portion
of the Marina was leased, in a separate agreement, by Southwest to Airport Casino, Inc.
(Airport).
On December 31, 1980, Resorts assigned its interest in the hotel lease to Airport. In
consideration for Southwest's consent to the hotel lease assignment, AMFAC executed an
additional guaranty confirming that AMFAC's existing guaranty on the hotel lease remained
in full effect, notwithstanding the assignment of the lease to Airport.
On February 3, 1984, Airport filed a petition for relief under Chapter 11 of the Bankruptcy
Code. Unable to succeed as debtor-in-possession, on March 27, 1987, Airport informed the
bankruptcy court that it would be abandoning the premises as early as next week.
Consequently, on April 6, 1987, the bankruptcy court ordered the case converted to a Chapter
7 liquidation proceeding.
In response to that order, the bankruptcy trustees took possession of the Marina.
Contemporaneous with possession by the trustees, Southwest and the trustees entered into an
operation agreement whereby:
[Southwest] [] agreed to allow the Trustees to operate the Marina in order to mitigate
[Airport's] and certain guarantors damages.
Moreover, it was agreed that the automatic stay would be lifted and the trustees would:
deliver possession of the premises to [Southwest] who will permit the Trustees to
operate the premises pursuant to the terms of this Agreement, subject to any right
Amfac, Inc. might have to take possession of the Hotel Lease premises. Trustees do
hereby tender possession of the Hotel premises to Amfac.
On September 1, 1988, Southwest and the trustees entered into a transition agreement
whereby possession of the Marina would be turned over to Southwest when Southwest
obtained a gaming license. The trustees continued to operate the hotel and casino until
September 30, 1988, when Southwest obtained its gaming license. Thereafter, Southwest
operated the Marina until it was sold to MGM Grand, Inc. on January 5, 1990.
Meanwhile, Southwest sued AMFAC in state court for breach of guaranty. The district
court ordered summary judgment in favor of AMFAC after concluding that the operation and
transition agreements between Southwest and the trustees discharged Airport from further
liability; thus, AMFAC as guarantor of Airport was also discharged from further liability as
a matter of law.
Airport was also discharged from further liability as a matter of law.
LEGAL DISCUSSION
It is well-settled that guarantors and sureties are exonerated if the creditor alters the
obligation of the principal without the consent of the guarantor or surety. Marion Properties,
Ltd. v. Goff, 108 Nev. 946, 948, 840 P.2d 1230, 1231 (1992). Thus, if Southwest, as
lessor-creditor, altered the obligation of Airport, the lessee-principal, without the consent of
AMFAC, the guarantor, then AMFAC's obligation as guarantor was exonerated.
[Headnote 1]
Respondents contend that the operation and transition agreements materially altered the
hotel lease without their consent in the following ways. First, the hotel lease was for thirty
years, commencing on May 1, 1975. The operation agreement commenced on April 6, 1987,
did not specify a term, but provided that either party could terminate on five days notice.
Second, the hotel lease provided for basic rent of $103,055.75 per month and annual
percentage rent of 25% of the lessee's gross receipts. The operation agreement provided for
basic rent of $393,202.27 per month, with no annual percentage rent. Third, the hotel lease
required hotel operation to be kept separate from casino operations. The operation agreement
provided for the hotel and casino operations to be combined. Fourth, the hotel lease contained
extensive provisions with respect to damage, destruction or condemnation of the premises,
assignment and subletting, parking, expansion of improvements and default. The operation
agreement contained no such provisions. Consequently, respondents contend that the
operation agreement substantially and materially altered the terms of the tenancy that Resorts
had agreed to, and AMFAC had guaranteed, without their consent. Thus, respondents contend
that they were exonerated from further liability on the hotel lease guarantee.
[Headnote 2]
Moreover, respondents contend that under the Uniform Joint Obligations Act, a release or
discharge of one co-obligor without express reservation against other co-obligors discharges
the others to the extent provided in NRS 101.060. Whittlesea v. Farmer, 86 Nev. 347, 349,
469 P.2d 57, 58 (1970). NRS 101.060(1), in pertinent part, provides:
If an obligee releasing or discharging an obligor without express reservation of rights
against a coobligor, then knows or has reason to know that the obligor released or
discharged did not pay so much of the claim as he was bound by his contract or
relation with that coobligor to pay, the obligee's claim against that coobligor shall
be satisfied to the amount which the obligee knew or had reason to know that the
released or discharged obligor was bound to such coobligor to pay.
contract or relation with that coobligor to pay, the obligee's claim against that coobligor
shall be satisfied to the amount which the obligee knew or had reason to know that the
released or discharged obligor was bound to such coobligor to pay.
Respondents contend that Southwest did not reserve any rights against Airport's co-obligor,
Resorts, or Resorts' guarantor, AMFAC. Consequently, respondents contend, Resorts and its
guarantor, AMFAC, are released from any obligation to Southwest under the hotel lease
guaranty.
Conversely, Southwest contends that to the extent that the district court's decision implies
that the agreements between Southwest and the trustees discharged or released Airport from
liability for obligations arising from prebankruptcy defaults, the decision was error. These
agreements involved, among other things, the payment of rent by the trustees to Southwest.
Under a provision of the Bankruptcy Code specially applicable to nonresidential real
property, Chapter 7 trustees must pay rent to use and occupy nonresidential real property
that had been occupied by Chapter 7 debtors. 11 U.S.C. 365(d)(3).
1
Southwest contends
that the agreements between itself and the trustees were merely the fulfillment of the trustees'
obligations under 11 U.S.C. 365(d)(3), and Southwest's duty to mitigate damages.
[Headnote 3]
Further, Southwest contends that the hotel lease was not terminated or replaced by either
the operation or transition agreement. Instead, Southwest contends, the trustees merely
represented a new entity, the bankruptcy estate, and by their willingness to pay rent after
having achieved emergency gaming license approval from state authorities, presented
Southwest with a reasonable opportunity to mitigate potential damages. Moreover, Southwest
contends, Nevada law does not espouse the theory that a landlord's procurement of a
mitigation-tenant automatically works a discharge or release of the former occupant, the
defaulting lessee, or of any guarantor from liability from past defaults and damages accruing
therefrom.
[Headnote 4]
We agree. There is no evidence in the record to support the proposition that Southwest
discharged or released Airport from its liability on the hotel lease or that Southwest altered
the obligations of Airport, or of its co-obligor or guarantor on the hotel lease.
__________

1
11 U.S.C. 365(d)(3) (1984), in pertinent part, provides:
The trustee shall timely perform all the obligations of the debtor . . . arising from and after the order for
relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected . .
. .
its liability on the hotel lease or that Southwest altered the obligations of Airport, or of its
co-obligor or guarantor on the hotel lease. To exonerate a guarantor from obligation on a
guaranty, it must be shown that the creditor and the principal altered the agreement that was
guaranteed without the consent of the guarantor. Marion Properties, Ltd. v. Goff, 108 Nev.
946, 948, 840 P.2d 1230, 1231 (1992); Williams v. Crusader Disc. Corp., 75 Nev. 67, 70-72,
334 P.2d 843, 846 (1959). In the instant case, there is no evidence that the principal, Airport,
entered into an agreement with anyone. Airport simply surrendered its interest in the hotel
lease to the trustees, as required under the bankruptcy code. It did nothing else. Thus, under
Marion Properties and Williams, AMFAC was not discharged from its obligation under the
lease guaranty.
Absent proof that Airport, the principal, participated in an alteration of the hotel lease,
respondents look to the agreements entered into by the trustees to exonerate their obligation
under the lease guaranty. However, those agreements were not intended to alter the hotel
lease.
2
Instead, the trustees were merely fulfilling their statutory duty and paying rent and
expenses for occupying the hotel premises.
CONCLUSION
We conclude that Southwest did not alter the hotel lease it had with Airport. Airport
surrendered its interest in that lease to the bankruptcy trustees. The bankruptcy code requires
the trustees to compensate a landlord of nonresidential real property for occupying its
premises. Moreover, Southwest had a duty to mitigate Airport's and its guarantor's damages.
This was the essence of the operation agreement between Southwest and the trustees. There is
no evidence in the record that Southwest discharged or released Airport from its liability
under the hotel lease. Since Airport was not discharged from its liability, neither were its
co-obliger or guarantor.
Consequently, we conclude that genuine issues of material fact exist as to respondents'
breach of the lease guaranty. Accordingly, the district court's order of summary judgment is
reversed and this case is remanded to the district court for proceedings consistent with this
opinion.
3
Rose, C. J., Steffen and Springer, JJ., and Adams, D.
__________

2
In an affidavit submitted to the district court, the trustees' attorney, Lenard E. Schwartzer, stated that neither
[the Operation nor the Transition] Agreement[s] was intended to effect a release of [Airport], [Resorts] or
[AMFAC].

3
The Honorable Miriam Shearing, Justice, voluntarily recused herself from participation in the decision of this
appeal.
Rose, C. J., Steffen and Springer, JJ., and Adams, D. J.
4

____________
110 Nev. 1042, 1042 (1994) Schwartz v. Estate of Greenspun
MILTON I. SCHWARTZ; CHECKER CAB COMPANY OF NEVADA, INC., and
YELLOW CAB COMPANY OF NEVADA, INC., Nevada Corporations,
Appellants/Cross-Respondents, v. THE ESTATE OF HERMAN MILTON
GREENSPUN, BRIAN LEE GREENSPUN and LAS VEGAS SUN, INC., a Nevada
Corporation, Respondents/Cross-Appellants.
No. 22999
September 28, 1994 881 P.2d 638
Appeal from judgment pursuant to jury verdict and from award of attorney's fees and
costs; cross appeal from order denying NRCP 41(e) motion to dismiss. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
The district court entered judgment in favor of newspaper and columnists in private
figure's libel and intentional infliction of emotional distress suit. Private figure appealed, and
newspaper defendants cross-appealed. The supreme court, Steffen, J., held that: (1) private
figure's expert testimony was properly excluded; (2) newspaper defendants' offer of judgment
was timely made more than 10 days before presentation of evidence began; (3) award of
$150,000 in attorney fees pursuant to offer of judgment was proper; and (4) private figure
failed to provide sufficient record to permit review of award of costs.
Affirmed.
Frederic I. Berkley, Las Vegas, for Appellants/Cross-Respondents.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Moran &
Weinstock, Las Vegas; Gipson, Hoffman & Pancione and Vincent H. Chieffo, Los Angeles,
California, for Respondents/Cross-Appellants.
1. Evidence.
Exclusion of expert testimony is within district court's sound discretion.
__________

4
The Honorable Brent T. Adams, Judge of the Second Judicial District Court, was designated by the Governor
to sit in place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 21.
Supreme court will not interfere with lower court's ruling excluding expert testimony absent abuse of discretion.
3. Evidence.
In common-law defamation case, expert testimony analyzing all articles about private figure in defendant newspaper was properly
excluded where expert was not expressing opinion on common-law malice, but proffered testimony concerning professional
journalistic standards, which were irrelevant given inapplicability of professional standards to proof of ordinary negligence.
Common-law malice focuses on ill will and hatred harbored by defendant against plaintiff. NRS 41.332.
Constitutional malice focuses on defendant's belief regarding truthfulness of his statements.
6. Judgment.
For purposes of rule permitting offer of judgment at any time more than 10 days before the trial begins, trial begins when actual
presentation of evidence commences. NRCP 68.
7. Judgment.
Offer of judgment was timely when made more than 10 days before actual presentation of evidence began, even though jury
selection commenced within 10 days of offer. NRS 17.115, NRCP 6(a), 68.
8. Costs.
Award of $150,000 in attorney fees made under offer of judgment would be affirmed in protracted litigation where, although
district court failed to enter express findings regarding factors expressed in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), it
reviewed points and authorities on those factors and awarded amount that was substantially less than sum requested. NRS 17.115,
NRCP 6(a), 68.
9. Costs.
Trial bench is cautioned to provide written support under factors expressed in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268
(1983) for awards of attorney fees made pursuant to offers of judgment even where award is less than sum requested. NRS 17.115;
NRCP 6(a), 68.
10. Costs.
Award of costs to prevailing party is mandated where damages were sought in amount in excess of $2,500. NRS 18.020(3).
11. Costs.
Taxable costs were payable to prevailing defendant as matter of right where judgment was not more favorable to plaintiffs than
offer. NRS 17.115(4)(b).
12. Costs.
District court retains discretion in determining reasonableness of amounts and items of cost to be awarded in cases in which costs
are awardable as matter of right under offer of judgment. NRS 17.115(4)(b), 18.005.
Where record is as susceptible of one conclusion as another, it will not be presumed that district court erred.
Supreme court will not reverse order or judgment unless error is affirmatively shown.
Appellant's failure to create and transmit record that would have demonstrated error in award of costs precluded review of issue.
Record was devoid of any evidence that appellant sought to obtain itemization of costs included in award. NRS 18.005.
OPINION
Appellants Milton I. Schwartz, Checker Cab Company and Yellow Cab Company of Nevada (collectively Schwartz) filed the instant
action against the late Herman Greenspun, Brian Greenspun and their family-operated newspaper, the Las Vegas Sun, Inc. (collectively
Greenspun).
1
Schwartz alleged claims for defamation and intentional infliction of emotional
distress based upon Greenspun's publication of five articles in the Las Vegas Sun. During the
course of the proceedings, the district court twice denied Greenspun's motion to dismiss
pursuant to NRCP 41(e) and Schwartz rejected an offer of judgment made by Greenspun
pursuant to NRCP 68 and NRS 17.115. Prior to trial, the district court excluded Schwartz's
expert witness. After a lengthy trial, the jury returned a defense verdict and the district court
awarded Greenspun attorney's fees and costs. Schwartz appealed the district court's orders
excluding his expert witness and awarding fees and costs. On cross appeal, Greenspun
complains that the district court erroneously denied the motions to dismiss.
For the reasons hereafter discussed, we affirm the district court's exclusion of Schwartz's
expert and the award of attorney's fees and costs to Greenspun.
FACTS
Milton Schwartz is an officer and part owner of Yellow Cab Company and Checker Cab
Company. The instant controversy stems from five columns entitled Where I Stand written
by Brian Greenspun and the late Herman Hank Greenspun and published in the respondent
newspaper, the Las Vegas Sun. In the articles, Greenspun denounced as unsafe the site which
housed a 30,000 gallon propane tank used to fuel Schwartz's cabs. The articles decried
Schwartz and various government officials for failing to relocate the tank to a less populated
area.
On June 5, 1985, Schwartz filed the instant action against the Sun and Greenspun,
asserting claims for common law defamation and intentional infliction of emotional
distress.
__________

1
The Estate of Herman Milton Greenspun was substituted in this action for Herman Greenspun, who died prior
to the trial in this matter.
Sun and Greenspun, asserting claims for common law defamation and intentional infliction of
emotional distress. Schwartz alleged that the articles falsely accused him and his companies
of engaging in acts of bribery and other improprieties in connection with obtaining
governmental approval for the site and operation of the propane tank.
In the midst of the litigation, Greenspun petitioned this court for extraordinary relief in
connection with a discovery order. That proceeding terminated on September 29, 1988, in
favor of Greenspun. See Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988).
No stay was in effect during the pendency of the writ proceedings.
On August 28, 1990, Greenspun filed a motion under NRCP 41(e) seeking dismissal of the
action for failure to bring the case to trial within five years. Schwartz opposed the motion on
the ground that the three-year saving provision of NRCP 41(e) extended the time within
which to bring the case to trial to September 29, 1991. The district court denied Greenspun's
motion without opinion and trial was scheduled for September 16, 1991.
Approximately one month before trial, Greenspun again moved to dismiss under NRCP
41(e). Concurrently, Greenspun moved for summary judgment on the grounds that Schwartz
had failed to prove constitutional malice by clear and convincing evidence. Greenspun argued
that Schwartz was required to prove constitutional malice because Schwartz was a public
figure and the newspaper articles involved matters of public concern. The district court again
denied Greenspun's motion to dismiss without opinion. It also denied Greenspun's motion for
summary judgment, ruling that Schwartz and the cab companies were not public figures.
On September 6, 1991, Greenspun extended an offer of judgment to Schwartz pursuant to
NRCP 68 and NRS 17.115. Greenspun offered the three plaintiffs $25,000 each. The offer
was rejected and the matter proceeded to trial.
Prior to the commencement of trial, the district court granted Greenspun's motion in limine
and excluded all newspaper articles not relevant to Schwartz's claims. The district court also
excluded Schwartz's expert, Robert Lichter, whose testimony was to consist of an analysis of
the excluded articles.
Voir dire began on September 16, 1991, and the jury was impanelled on September 17,
1991; however, the jury did not begin to hear the case until September 19, 1991. After a
four-week trial, the jury returned a defense verdict.
Following the entry of judgment, Greenspun filed a motion for attorney's fees and costs,
together with memoranda and supplemental memoranda of costs and disbursements.
mental memoranda of costs and disbursements. Schwartz opposed the motion and a hearing
was held on January 27, 1992. The district court awarded Greenspun attorney's fees and costs
pursuant to NRCP 68, NRS 17.115 and NRS 18.020. This appeal ensued.
DISCUSSION
On appeal, Schwartz assigns error to the district court's order excluding his expert witness
and awarding attorney's fees and costs to Greenspun. Greenspun's cross appeal challenges the
district court's rulings denying his motions to dismiss under NRCP 41(e).
1. Exclusion of Expert Witness
Schwartz retained Dr. S. Robert Lichter to analyze 193 articles from the Sun and the Las
Vegas Review Journal, which discussed Schwartz. Schwartz asserts that based on a
content-analysis, Dr. Lichter would have testified that Greenspun's articles fell below the
degree of care required by accepted journalistic standards. Schwartz also contends that
Lichter would have testified regarding Greenspun's state of mind, which was relevant to
prove malice.
[Headnotes 1, 2]
Exclusion of expert testimony is within the district court's sound discretion. Griffin v.
Rockwell Int'l, Inc., 96 Nev. 910, 911, 620 P.2d 862, 863 (1980). Absent an abuse of that
discretion, this court will not interfere with the lower court's ruling. Id. Upon careful
consideration of the record and arguments on appeal, we are unable to discern an abuse of
discretion by the trial judge.
[Headnotes 3-5]
Dr. Lichter's testimony was irrelevant to the issue of constitutional malice because
Schwartz's claim was for common law defamation and the district court had ruled that the
plaintiffs were private figures. See Nevada Indep. Broadcasting v. Allen, 99 Nev. 404, 414,
664 P.2d 337, 344 (1983). And, Schwartz's offer of proof demonstrated that Dr. Lichter was
not expressing an opinion on common law malice.
2
Dr. Lichter's proffered testimony
concerning professional journalistic standards was also irrelevant given the district court's
ruling that professional journalistic standards were inapplicable since Schwartz
__________

2
Common law malice focuses on ill will and hatred harbored by the defendant against the plaintiff. NRS
41.332. By contrast, constitutional malice focuses on the defendant's belief regarding the truthfullness of his
statements. Nevada Indep. Broadcasting, 99 Nev. at 414, 664 P.2d at 344.
nalistic standards were inapplicable since Schwartz needed only to prove ordinary negligence.
In short, the testimony Schwartz intended to offer through Dr. Lichter would not have
assisted the jury in understanding the evidence or in determining a fact in issue. See NRS
50.275. Thus, the testimony was properly excluded.
2. Attorney's Fees and Costs
In a post-trial motion for attorney's fees and costs, Greenspun requested $222,823.43 in
costs and $277,771.25 in attorney's fees. The district court awarded Greenspun $125,046.70
in costs and $150,000 in attorney's fees, to be allocated among the three law firms
representing the Greenspun defendants. Interest was awarded on the total amount of
$275,046.70 from the time of entry of the order (March 19, 1992) until paid.
Schwartz contends that the award of attorney's fees and costs was erroneous because: (1)
the offer of judgment was untimely; (2) the district court awarded attorney's fees without
making specific findings as to each of the four factors announced in Beattie v. Thomas, 99
Nev. 579, 668 P.2d 268 (1983); and (3) the award of costs may include costs not recoverable
under NRS 18.005. Each contention will be considered in turn.
A. Timeliness of Offer of Judgment
[Headnote 6]
The trial in this matter was scheduled to commence on September 16, 1991. On September
6, 1991, Greenspun made an offer of judgment to Schwartz for a total amount of $75,000,
divided equally among the three plaintiffs. The offer was made pursuant to NRCP 68 and
NRS 17.115. Schwartz contends that the offer of judgment was untimely because it was not
made more than ten days before trial began.
Under NRCP 68, an offer of judgment can be made [a]t any time more than 10 days
before the trial begins . . . . The ten-day period is determined in accordance with NRCP 6(a).
3
See Polk v. Montgomery County, 130 F.R.D. 40, 42 (D. Md. 1990).
Schwartz maintains that the trial began on September 16, 1991the first day of voir dire.
Contrarily, Greenspun contends that for purposes of Rule 68, trial begins with the
presentation of the case to the fact-finder, which in this case did not occur until September
19.
__________

3
NRCP 6(a) provides in pertinent part: In computing any period of time prescribed or allowed by these rules .
. . the day of the act, event, or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included [with some exceptions] . . . .
In determining when trial commences for purposes of NRCP 68, it is necessary to consider
the policy underlying the rule. With respect to NRCP 41(e), we have said that a case is
brought to trial by, inter alia, examining jurors. See Smith v. Timm, 96 Nev. 197, 200, 606
P.2d 530, 531 (1980). For the purpose of determining double jeopardy, trial begins when the
jury is impanelled and sworn. Serfass v. United States, 420 U.S. 377, 388 (1975). Regarding
Rule 68, the infrequently encountered issue of when trial begins has been held to be when
the trial judge calls the proceedings to order and actually commences to hear the case.
Greenwood v. Stevenson, 88 F.R.D. 225, 229 (D.R.I. 1980).
In Greenwood, the jury was impanelled on April 2, 1980, but because of a pending
criminal trial, the matter was not scheduled to proceed to trial until June 1st. In the interim,
the defendants served an offer of judgment which they later desired to retract. The defendants
argued that the offer was untimely because it was made after the jury was impanelled and thus
after the trial had begun. The federal court in Greenwood noted that in several other contexts,
jury selection seemed to mark the official beginning of trial. The court opined that selecting
the impanelling of the jury as a measuring point reflected an accommodation of policy and
practicality. 88 F.R.D. at 227. The court offered the following examples: In Hopt v. Utah,
110 U.S. 574 (1884), a criminal case, voir dire marked the beginning of trial to further a
policy of allowing a criminal defendant to be present at a most crucial stage of the
guilt-determining phase. In United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th
Cir.), cert. denied 423 U.S. 849 (1975), a civil removal action, trial was held to commence
when the veniremen are called to be examined. The policy to be furthered in that case was
minimization of federal interference with state proceedings. Greenwood, 88 F.R.D. at 228.
In concluding that the impanelling of the jury did not mark the beginning of trial for
purposes of Rule 68, the Greenwood court reasoned:
In the context of Rule 68, there is no such compelling policy to mandate the choice of
impanelling as the beginning of the trial. The purposes of the Rule are to encourage
settlements, thereby avoiding the expense to the parties and the court of protracted
litigation, and to protect a party who offers a good faith settlement proposal from
liability for subsequently accrued costs (citations omitted) . . . . Since a late settlement
that avoids some of the trial costs would seem to be better than no settlement at all, the
policy of the Rule would appear best served by selecting the last possible point in time
for cutting off Rule 68 offers.
88 F.R.D. at 228. See also Cover v. Chicago Eye Shield Co., 136 F.2d 374 (7th Cir.), cert.
denied, 320 U.S. 749 (1943).
[Headnote 7]
The language of Fed. R. Civ. P. 68 concerning the time by which an offer of judgment
must be served is identical to our Rule 68. The purpose of Rule 68 is to encourage the
settlement of a suit before trial. Morgan v. Demille, 106 Nev. 671, 674, 799 P.2d 561, 563
(1990). We agree with the court in Greenwood that the policy behind Rule 68 is best served
by interpreting the phrase before trial begins to refer to the point in trial when the actual
presentation of evidence commences. In the instant case, the presentation of evidence began
on September 19thmore than ten days after the offer of judgment was made. Accordingly,
we hold that Greenspun's offer of judgment was timely.
B. Propriety of Attorney's Fees Award
Schwartz alternatively contends that the district court abused its discretion in awarding
attorney's fees because it failed to specifically consider each of the following factors:
(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendants'
offer of judgment as 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.
See Beattie, 99 Nev. at 588-89, 668 P.2d at 274. We disagree.
Beattie requires the district court to weigh the enumerated factors before awarding up to
the full amount requested. If the district court fails to consider these factors and makes no
findings based upon the evidence that the attorney's fees sought are reasonable and justified,
it is an abuse of discretion for the court to award the full amount of the fees requested. Id. at
589, 668 P.2d at 274. The district court need not, however, make explicit findings as to all of
the factors where support for an implicit ruling regarding one or more of the factors is clear
on the record. See National Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 543-44, 815
P.2d 601, 606 (1991).
[Headnotes 8, 9]
The record reveals that the district court considered and evaluated the Beattie factors in
determining whether to award Greenspun attorney's fees. The district court reviewed written
points and authorities addressing each of the Beattie factors as they pertained to the facts of
this case and heard the argument of counsel on the subject. In its order awarding fees and
costs, the district court indicated that it had considered and evaluated the four factors in
finding that $150,000 was a reasonable award for attorney's fees.
district court indicated that it had considered and evaluated the four factors in finding that
$150,000 was a reasonable award for attorney's fees. Although the district court failed to
enter express findings regarding the Beattie factors, it also awarded fees in an amount that
was substantially less than the sum requested by Greenspun. We conclude on this record that
the district court's award of fees should be affirmed. However, we caution the trial bench to
provide written support under the Beattie factors for awards of attorney's fees made pursuant
to offers of judgment even where the award is less than the sum requested. It is difficult at
best for this court to review claims of error in the award of such fees where the courts have
failed to memorialize, in succinct terms, the justification or rationale for the awards. Such
findings are of special importance where, as here, large sums are awarded as fees.
Nevertheless, given the fact that the district court judge did consider the Beattie factors in
reaching his finding, and given the magnitude of the reduction in the amount of fees awarded
compared to the total fees requested, we have concluded that it would simply add to the costs
of this protracted litigation to remand for a more detailed justification of the award by the trial
judge.
C. Propriety of Costs Award
In his motion for costs, Greenspun requested approximately $222,823; the motion was
made pursuant to NRS 18.020(3) and 17.115, as well as Rule 68. Schwartz opposed the
motion on the basis that certain items of costs were not specifically authorized by statute and
that the amounts were unreasonable. After a hearing, the district court issued its order
awarding Greenspun, as the prevailing party, $125,000 in costs. Schwartz appealed.
[Headnotes 10-12]
An award of costs to the prevailing party is mandated where, as here, damages were sought
in an amount in excess of $2,500. See NRS 18.020(3); Day v. West Coast Holdings, 101 Nev.
260, 264, 699 P.2d 1067, 1070 (1985) (allowance of costs in action at law is mandatory and
not subject to court's discretion). Costs were also payable to Greenspun as a matter of right
under NRS 17.115(4)(b) (where judgment is not more favorable than the offer, the offeror is
entitled to taxable costs). The district court retains discretion, however, in determining the
reasonableness of the amounts and the items of cost to be awarded. See Bergmann v. Boyce,
109 Nev. 670, 856 P.2d 560 (1993); Arnold v. Mt. Wheeler Power, 101 Nev. 612, 615, 707
P.2d 1137, 1139 (1985); see generally NRS 18.005.
[Headnotes 13, 14]
Schwartz insists that the district court abused its discretion by failing to specify items of
cost allowed and disallowed, thereby leaving to speculation whether the awarded costs
included items which are not specified in NRS 18.005.
4

Unfortunately, the record, though voluminous, provides us with no basis for determining
whether the district court abused its discretion in rendering the cost award. However, where,
as here, the record is as susceptible of one conclusion as another, it will not be presumed that
the district court erred. Dillon v. Dillon, 68 Nev. 151, 153, 227 P.2d 783, 784 (1951). We will
not reverse an order or judgment unless error is affirmatively shown. Charmicor, Inc., v.
Bradshaw Finance Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976).
[Headnote 15]
Schwartz has failed to demonstrate that the district court erred in its cost award. The
record is devoid of any evidence which demonstrates that Schwartz sought to obtain an
itemization of the costs included in the award.
__________

4
NRS 18.005 defines costs as:
1. Clerks' fees.
2. Reporters' fees for depositions, including a reporter's fee for one copy of each deposition.
3. Jurors' fees and expenses, together with reasonable compensation of an officer appointed to act in
accordance with NRS 16.120.
4. Fees for witnesses at trial, pretrial hearings and deposing witnesses, unless the court finds that the
witness was called at the instance of the prevailing party without reason or necessity.
5. Reasonable fees of not more than five expert witnesses in an amount of not more than $1,500 for each
witness, unless the court allows a larger fee after determining that the circumstances surrounding the
expert's testimony were of such necessity as to require the larger fee.
6. Reasonable fees of necessary interpreters.
7. The fee of any sheriff or licensed process server for the delivery or service of any summons or
subp[o]ena used in the action, unless the court determines that the service was not necessary.
8. The fees of the official reporter or reporter pro tempore.
9. Reasonable costs for any bond or undertaking required as part of the action.
10. Fees of a court bailiff who was required to work overtime.
11. Reasonable costs for telecopies.
12. Reasonable costs for photocopies.
13. Reasonable costs for long distance telephone calls.
14. Reasonable costs for postage.
15. Reasonable costs for travel and lodging incurred taking depositions and conducting discovery.
16. Any other reasonable and necessary expense incurred in connection with the action.
costs included in the award. As the party challenging the award of costs, Schwartz should
have created and transmitted to this court a record that would demonstrate error in the court
below. See M & R Investment Co. v. Mandarino, 103 Nev. 711, 718, 748 P.2d 488, 493
(1987). His failure to do so precludes review of this issue. The cost award is therefore
affirmed.
CONCLUSION
We conclude that the issues raised by Schwartz are without merit. It is therefore
unnecessary to address the issues raised in the cross appeal. The district court did not err in
excluding the expert testimony proffered by Schwartz or in its award of costs and attorney's
fees to Greenspun. Accordingly, the judgment entered by the district court is affirmed.
5

Rose, C. J., concurring:
I disagree with the majority's conclusion that the district court properly excluded Dr.
Lichter's testimony, but conclude that the error is not of a magnitude requiring reversal.
We permit expert testimony to assist the jury in understanding the evidence or in
determining a fact in issue. See NRS 50.275. Schwartz was required to prove that Greenspun
published a false, defamatory statement of fact about him without the degree of care which an
ordinary prudent person would have exercised under similar circumstances. Dr. Lichter's
content analysis study would have aided the jury in determining whether the publication of
the articles in question was made without the requisite degree of care.
Dr. Lichter was prepared to testify that: (1) the total pattern of coverage indicated that in
each incident where the Sun could have gone either way, it came down on the negative side in
dealing with Mr. Schwartz and his enterprises; (2) the extent of criticism of Schwartz was far
beyond what was in the Review-Journal; (3) though there was much more extensive coverage
of Schwartz by the Sun than by the Review-Journal, the Sun used Schwartz as a source less
often than the Review-Journal did; (4) the Sun extensively used highly-charged, emotive
language to characterize Schwartz in negative ways; (5) the Sun used highly charged language
in describing the tank; and (6) the Sun made extensive reference to prior accidents involving
the tank, including one accident that never actually occurred.
1

__________

5
The Honorable Charles E. Springer, Justice, did not participate in the decision of this appeal.

1
Dr. Lichter, the founder and director of the Center for Media and Public Affairs, analyzed 193 articles from
the Sun and the Review-Journal, of which
Based on these conclusions, Dr. Lichter was prepared to testify that the Sun's coverage of
Schwartz and his enterprises was of a negativity that transcended the normal journalistic
boundaries of fairness and balance, and accordingly, fell below professional journalistic
standards. From such testimony, the jury certainly could have inferred that the articles were
published without the ordinary degree of care a prudent person would have exercised in a
similar situation.
Additionally, though Schwartz was not required to prove constitutional malice, malice was
a necessary element to prove in support of his punitive damages claim. Dr. Lichter's
testimony could certainly lead to an inference of ill will or reckless disregard towards
Schwartz, and was thus relevant in proving malice. See Katz v. Enzer, 504 N.E.2d 427,
431-32 (Ohio Ct. App. 1985) (providing for the admissibility of subsequent words tending to
show ill will, spite or malice on the part of the defendant so long as the evidence can be
linked reasonably to the defamatory statements at issue as part of a continuing course of
conduct).
Accordingly, I feel that the district court erred in excluding Dr. Lichter's testimony. We do
not, however, presume prejudice from the occurrence of error in a civil case. See Boyd v.
Pernicano, 79 Nev. 356, 385 P.2d 342 (1963). In the instant case, Dr. Lichter's testimony was
relevant to only one of the necessary elements. The jury found that Schwartz had failed to
establish, by a preponderance of the evidence, any of the elements required to prove
defamation. Thus, I conclude that such error does not require reversal.
____________
110 Nev. 1053, 1053 (1994) Gardner v. Gardner
BRIAN GARDNER, Appellant/Cross-Respondent, v. RUTH ANN GARDNER,
No. 23626
September 28, 1994 881 P.2d 645
Appeal and cross-appeal from award of spousal support. Eighth Judicial District Court,
Clark County; Addeliar D. Guy, III, Judge.
After husband and wife were divorced, the district court awarded spousal support to wife.
Husband and wife both appealed. The supreme court, Steffen, J., held that spousal support
award was inadequate.
Award modified; case remanded.
__________
156 were straight news stories and the remaining 37 were editorials and signed columns.
Young, J., dissented.
Mark A. Jenkin, Las Vegas, for Appellant/Cross-Respondent.
Orin G. Grossman, Las Vegas, for Respondent/Cross-Appellant.
1. Divorce.
In reviewing an award of spousal support, reviewing court extends deference to discretionary determination of district court and
withholds its appellate power to modify or reverse except in instances where abuse of trial court's discretion is evident from review of
entire record.
2. Divorce.
Wife should not have been given rehabilitative alimony, under theory that it would facilitate income parity between former wife
and husband, but rather, should have been given spousal support award that was evaluated under criteria of that which is fair and just
under circumstances, where it was shown that even if wife, a teacher, pursued further education, her earning capacity would not
approximate husband's, but, in fact, pursuit of doctorate would be detrimental to her current contract income. NRS 125.150(1)(a), (8).
3. Divorce.
Award of temporary spousal support to wife of $1,300 per month the first year and $1,000 per month the second year to end at that
time absent substantial change in circumstances, was inadequate where wife and husband were married for 27 years, husband's annual
salary was $75,000 and wife's was $43,000, husband and wife moved many times in order to pursue husband's career ambitions, and
where each time wife moved with husband, she lost seniority and retirement benefits. Alimony should be paid for additional ten years
at rate of $1,000 per month.
OPINION
The single issue raised by the appeal and cross-appeal concerns the spousal support awarded by the district court.
Appellant/cross-respondent, Brian Gardner, contends that the lower court abused its discretion in awarding alimony.
Respondent/cross-appellant, Ruth Ann Gardner, insists that the spousal award was inadequate both in amount and duration. On this record,
we are constrained to agree that Ruth is entitled to additional relief, and accordingly reverse and remand.
FACTS
Brian and Ruth terminated their childless, twenty-seven-year-old marriage on August 14, 1992. At the time of their divorce, Brian was
a forty-eight-year-old commercial airline pilot and Ruth was a forty-seven-year-old reading specialist with the Clark County School
District.
County School District. The couple married while attending college in Colorado. Ruth was
supported by her father until she received her B.A. degree. Thereafter, the couple moved to
California where Ruth commenced teaching and Brian continued with his schooling. Brian
was not gainfully employed while pursuing his education. During this period, Brian obtained
both a private pilot's license and a flight instructor's license at the expense of the community.
After Brian secured his degree, he and his wife moved to Pensacola, Florida, where Brian
received a commission in the military and commenced Naval pilot training. Ruth was
employed as a teacher throughout Brian's six and one-half years in the Navy, with the
exception of a six-month period when Brian was stationed in Europe. After Brian's discharge
from the Navy, the couple moved to Atlanta, Georgia, where Ruth again taught school while
obtaining her Master's degree. Brian studied architecture at Georgia Tech and flew with the
Naval Reserve. Two years later, the couple returned to California where Ruth again taught
school and Brian obtained two degrees on the G.I. Bill. He also continued flying with the
Naval Reserve and accepted employment as a charter pilot.
Eventually the couple moved to Las Vegas where Ruth commenced teaching year round
and Brian began working as a commercial airline pilot. Although Ruth had filed for divorce
on two prior occasions, and had thereafter dismissed the actions, the action which culminated
in divorce was filed by Brian in 1991.
The district court divided the community property equitably and apparently without
objection from either of the parties. At the time the decree of divorce was entered on August
14, 1992, Brian was earning an annual salary of approximately $75,000.00; Ruth's annual
income was approximately $43,000.00.
The district court awarded Ruth temporary alimony in the amount of $1,300.00 per month
for the first year, and $1,000.00 per month the second year in order to achieve parity in the
two incomes by permitting Ruth to obtain additional professional, university credits. The
court retained jurisdiction to review the award after the two-year period, but held that absent a
substantial change in circumstances, the alimony would cease at that time. As noted
previously, neither party accepted the court's decision with respect to the spousal support,
thus prompting this appeal and cross-appeal.
DISCUSSION
[Headnote 1]
In reviewing an award of spousal support, this court extends deference to the discretionary
determination of the district court and withholds its appellate power to modify or reverse
except in instances where an abuse of the trial court's discretion is evident from a review
of the entire record.
and withholds its appellate power to modify or reverse except in instances where an abuse of
the trial court's discretion is evident from a review of the entire record. Shane v. Shane, 84
Nev. 20, 22, 435 P.2d 753, 755 (1968); see also Williams v. Waldman, 108 Nev. 466, 471,
836 P.2d 614, 617 (1992) (this court generally affirms district courts' rulings in divorce
proceedings where supported by substantial evidence and free from appearance of abuse of
discretion).
Brian's challenge to the alimony award is essentially based upon the following premises:
(1) the lower court abused its discretion in taking the wooden approach of combining the
salaries of the parties, dividing by two, and then equalizing the two incomes for an additional
two years thus perpetuating the financial status of the parties as it existed during marriage; (2)
Ruth clearly expressed no interest in additional educational pursuits, and was tenured and
comfortable, and content with her existing career situation; and (3) Ruth was not in need of
supplemental financial support from Brian.
Although Ruth does not seriously dispute the amount of the spousal support she was
awarded by the district court, she contends that it would be more equitable to award her
alimony of $1,625 per month for a period of twelve years. Ruth maintains that the award she
seeks would yield an equitable recognition of the future earning capacities and retirement
benefits of the parties. In addition, Ruth suggests that increasing the amount and duration of
her alimony is justified for the following reasons: (1) there is no evidence in the record that
she could earn an additional $1,000.00 or $1,300.00 per month within two years; (2) if she
were to pursue a doctorate, required summer study would adversely impact her present
contract pay, and in any event, receiving her doctorate degree would yield an increase in her
annual income of only $1,000.00 to $2,000.00; (3) the trial court failed to take into
consideration the disparity in the earning capacities of the two parties; (4) Brian achieved his
current success and financial status because she supported him at the expense of her own
career; that each time the couple moved in order to pursue Brian's career ambitions, she was
forced to leave her employment and lose seniority and retirement benefits, the latter benefits
then being used for the community; and (5) that as a result of her many sacrifices, Brian will
be assured of much greater income and retirement benefits than Ruth.
[Headnote 2]
Without burdening this opinion with unnecessary citations to legal precedent already
established and readily accessible, we prefer to focus on this court's opinion in Heim v. Heim,
104 Nev.
605, 763 P.2d 678 (1988). As it relates to the instant case, Heim articulates the principles that
have convinced us that the alimony award provided by the district court was inadequate and
thus unfair. In Heim we stated that in deciding matters concerning alimony, the judge must
form a judgment as to what is equitable and just, having regard to the respective merits of
the parties and to the condition in which they will be left by the divorce. Id. at 609, 763 P.2d
at 680. Moreover, we noted that the Buchanan guidelines'
1
are simply an inexhaustive list
of such common sense considerations as the financial condition of the parties (property,
income, relative earning capacity), duration of the marriage, age and health of the parties and
the contribution each has made to the property owned by the community. Id. at 608-09, 763
P.2d at 680. Finally, in Heim, we emphasized that an award of alimony must be fair. Id. at
610, 763 P.2d at 681.
Our case law thus reflects the clear legislative mandate that authorizes the district courts to
award alimony to the wife or husband in an amount that appears just and equitable. NRS
125.150(1)(a).
Under Nevada's current statutory scheme regarding alimony, the legislature has provided
for at least two types of alimony. The first, discussed above, is a form of alimony a court may
award in order to satisfy the demands of justice and equity. A second type of alimony
(rehabilitative alimony) is that provided by the legislature under NRS 125.150(8) which is
designed to provide necessary training or education relating to a job, career or profession.
The fact that the legislature intended to provide for two categories of alimony is apparent
from the terms of NRS 125.150(9) which elucidates certain conditions, provisions and
options relating to the second form of alimony specified under NRS 125.150(8). NRS
125.150(9)(c) thus provides: The spouse who is the recipient of the alimony may be granted,
in addition to any other alimony granted by the court . . . . (Emphasis added.)
The court below provided a form of rehabilitative alimony expressly designed to allow
Ruth to obtain additional university experience that would enable her to more closely
approximate Brian's earning capacity. However, our review of the record reveals no reason to
expect that Ruth could approach Brian's earning capacity even if she were to obtain a
doctorate degree within the time allotted for her alimony. Indeed, the record reflects that
pursuing her doctorate would be detrimental to her current contract income and would not
provide a significant salary increase after the higher degree was achieved.
__________

1
See Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974).
Having concluded that Ruth's rehabilitative alimony award would accomplish little toward
the district court's attempt to facilitate income parity, we are persuaded that Ruth's award
should be evaluated under the criteria of that which is fair and just under the circumstances.
[Headnote 3]
Ruth and Brian were married for twenty-seven years. Ruth continually sacrificed in order
to promote Brian's career desires and opportunities. Although she was able to further her own
education in the process, the benefits she derived therefrom within the context of marriage
were substantially diluted when the marriage bond was severed. The magnitude of Ruth's
contribution to the community over many years is not fairly recognized by the two-year
alimony award she received when the marriage was terminated.
We conclude that the district court abused its discretion in the award of spousal support
accorded to Ruth. Given the length of the marriage, the comparative earning capacities of the
parties, the contribution Ruth made in assisting Brian to achieve his present level of success,
Ruth's financial contributions to the community and to Brian's education, and the financial
detriment suffered by Ruth in accommodating Brian's desires to relocate for the benefit of his
career, substantial additional alimony is necessary in order to be fair to Ruth.
We are persuaded that it would be both just and equitable to increase the length of Ruth's
alimony award by an additional ten years, at the rate of $1,000.00 per month.
2
This will still
fail to achieve income parity between the two, but under the totality of the circumstances,
including the division of property between the parties, we are satisfied that fairness will result
from such an award.
CONCLUSION
For the reasons discussed above, we modify the alimony award entered by the district
court by increasing the period over which the alimony is to be paid to an additional ten years
at the rate of $1,000.00 per month.
__________

2
In Rutar v. Rutar, 108 Nev. 203, 827 P.2d 829 (1992), the marriage lasted for approximately nineteen years,
and both spouses had completed dental technician school. The husband's training provided him a greater income
potential. After working full-time together for a number of years in their own dental laboratory, the wife
discontinued her employment and became a full-time homemaker caring for the couple's two children. While at
home, the wife performed some routine, part-time bookkeeping work for the laboratory. The district court
awarded rehabilitative alimony to the wife for three and one-half years. This court increased the award by
$700.00 per month and the duration of the award to eight years.
$1,000.00 per month. Accordingly, we remand this matter to the district court to enter an
amended judgment reflecting the modified alimony award and to retain jurisdiction to review
this modified award in the event of a substantial change of circumstances that would suggest
the need for additional relief to either party.
Rose, C. J., and Springer and Shearing, JJ., concur.
Young, J., dissenting:
Respectfully, I dissent from the majority's opinion. I cannot conclude that the district court
in this case so abused its discretion that this court must step in and not only modify the
alimony award, but also change the basis for the award.
The majority concludes that the rehabilitative alimony awarded to Ruth was incorrect in
light of her stated lack of desire to pursue additional education. The majority then goes on to
increase the length of the alimony award by an additional ten years at a different amount,
concluding that this plan is more just and equitable as opposed to rehabilitative. I disagree
with this conclusion for several reasons.
First, the cases upon which the majority bases its decision are factually different from the
case at bar. Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988), and Rutar v. Rutar, 108 Nev.
203, 827 P.2d 829 (1992), both involved spouses left with little if any ability to support
themselves. In those cases, it was undoubtedly just and equitable to increase what were
grossly inadequate alimony awards. However, in this case, Ruth is a highly educated
professional quite able to support herself. The district judge awarded alimony to her in order
to provide her with the option of continuing her education. I can find no abuse of discretion in
such an award.
In addition to what I perceive as no abuse of discretion, I note that jurisdiction was
retained by the district court. The district court would have had the option in two years of
modifying the alimony award in the event of a change in circumstances. Should the parties'
respective incomes remain inequitably different, the district court would have had the option
to adjust the award to remedy the situation. I can see no reason for this court to intrude upon
the district court's jurisdiction over this case by eliminating the district court's ability to
modify its own award. We should defer to the district court's greater knowledge of the parties
and their circumstances.
Finally, I dissent from the majority's opinion in light of what I see as perilous precedent. I
fear that this decision will open the door to numerous appeals based upon objections to
alimony awards.
awards. We are not a secondary trial court formed to retry the facts of a case and supersede
the decision of the district court. Only in the most egregious of circumstances should we act
in such a manner. As such, I am of the opinion that absent a clear abuse of discretion, we
must defer to the findings of the district court in its awards of alimony. I cannot conclude that
there was an abuse of discretion in the instant case. Accordingly, I dissent from the majority's
decision.
____________
110 Nev. 1060, 1060 (1994) Minton v. Board of Medical Examiners
GREGORY A. MINTON, D.D.S., M.D., Appellant, v. BOARD OF MEDICAL
EXAMINERS, Respondent.
No. 24446
September 28, 1994 881 P.2d 1339
Appeal from an order of the district court denying a petition for judicial review. Second
Judicial District Court, Washoe County; Brent T. Adams, Judge.
Doctor filed petition for judicial review of decision of Board of Medical Examiners
revoking his medical license. The district court denied petition, and doctor appealed. The
supreme court held that: (1) evidence supported Board's findings that doctor had engaged in
inappropriate sexual conduct with dental patients, in violation of statutes; (2) district court
did not abuse its discretion in denying doctor's motion to supplement record; and (3) any error
in Board's admitting expert opinion testimony on veracity and affidavit testimony of patient's
husband was harmless.
Affirmed.
Goodman & Chesnoff, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General and Page Underwood, Deputy Attorney General,
Carson City, for Respondent.
1. Physicians and Surgeons.
Statute requiring clear and convincing evidence in medical license revocation proceedings before license can be revoked
supersedes portion of Administrative Procedure Act subjecting factual findings to standard of clearly erroneous in view of the reliable,
probative and substantial evidence. NRS 233B.135(3)(e), 630.352(1).
In professional discipline case in which burden on prosecuting authority is to establish violations by clear and convincing
evidence, supreme court will not engage in independent, or de novo, review but, rather, supreme court will review record and decision
with degree of deference, seeking only to determine whether evidence adduced at hearing was sufficient to have convinced
deciding body that violations were shown by clear and convincing evidence.
hearing was sufficient to have convinced deciding body that violations were shown by clear and convincing evidence.
It is province of Board of Medical Examiners to make credibility determinations in license revocation proceedings, and supreme
court is not permitted to pass on credibility of witnesses or to weigh their testimony.
Determination by Board of Medical Examiners that doctor had engaged in inappropriate sexual conduct with eight dental patients,
in violation of statutes, was supported by clear and convincing evidence, including testimony of patients that he had touched their
breasts, placed their hands on his penis and placed his penis in their mouths. Considerable testimony from friends and relatives of
patients provided some degree of corroboration regarding details surrounding visits and complaints. NRS 630.301, 630.304(5),
630.306(2), (7).
It was not arbitrary and capricious for Board of Medical Examiners to find that doctor had engaged in inappropriate sexual
conduct with dental patient who complained of inappropriate breast examination while finding no violations with respect to majority of
complaining witnesses alleging inappropriate breast examinations, as patient's testimony described scenario different in quality and
scope from other breast exam complainants. Patient testified that breast exam took place despite her statement that she did not think it
was necessary, that examination proceeded for seven to ten minutes, and that doctor was massaging and kneading her breasts, feeling
[her] up. I would say in a sexual way.
Under statute providing that court reviewing agency decision may'' receive evidence concerning alleged irregularities in
procedure before agency that are not shown on record, decision to accept supplemental information is within discretion of district
court. NRS 233B.135(1)(b).
7. Constitutional Law; Physicians and Surgeons.
Absence of media safeguards or other affirmative action by tribunal in medical license revocation proceeding regarding doctor
charged with sexually inappropriate conduct with dental patients did not violate doctor's due process rights. There was no evidence of
how Board of Medical Examiners, composed of professionals, was or could have been prejudicially influenced by alleged conduct of
media, nor was it shown how media restrictions would have tended to reduce risk of erroneous deprivation of doctor's license, and
detailed media guidelines would have entailed fiscal and administrative burden. Const. art. 1, 8; U.S. Const. amend. 14.
Generally, right to practice medicine is property right protected by due process clause of United States and Nevada Constitutions,
and license to practice medicine may not be arbitrarily abridged or revoked; consequently, due process protections apply in
administrative hearings to revoke medical license. Const. art. 1, 8; U.S. Const. amend. 14.
To determine whether given procedure in administrative forum appropriately safeguards individual's due process guarantees,
reviewing court must weigh: private interest affected by official action; risk of erroneous deprivation of that private interest through
procedures used and probable value, if any, of additional or substitute procedural safeguards; and
government's interest, including function involved and fiscal and administrative burdens that additional or
substitute procedural requirements would entail.
and probable value, if any, of additional or substitute procedural safeguards; and government's interest, including function involved
and fiscal and administrative burdens that additional or substitute procedural requirements would entail. Const. art. 1, 8; U.S. Const.
amend. 14.
Right to continued possession of one's medical license implicates significant private interest for purposes of due process analysis
in context of administrative forum. Const. art. 1, 8; U.S. Const. amend. 14.
11. Administrative Law and Procedure; Physicians and Surgeons.
Prior statement of dental patient was not exculpatory or inconsistent with her testimony in medical license revocation proceeding
against doctor alleged to have engaged in inappropriate sexual conduct and, thus, district court did not abuse its discretion in failing to
supplement record with prior statement. While doctor claimed that prior statement proved patient was not alone with him, she did not
testify that she was alone with him during entire procedure, only that at some point in time she felt her breasts being fondled and felt
her hand placed on his crotch.
Trial court did not abuse its discretion on review of medical license revocation proceeding arising from charges of sexual
misconduct involving dental patients when district court failed to supplement record to consider allegedly exculpatory statement given
by doctor's assistant at sheriff's department. While statement was allegedly inconsistent with assistant's hearing testimony because it
refuted that doctor had pattern of scheduling young women for late afternoon procedures, statement confirmed that most of doctor's
late afternoon patients were women, although admitting that his practice as whole was largely female.
District court, on review of medical license revocation proceeding arising from charges of inappropriate sexual conduct with
dental patients, did not abuse its discretion in refusing doctor's request to supplement record with testimony and letters of two former
assistants. Letters and testimony were not exculpatory and, in fact, testimony revealed that both assistants considered doctor's late
afternoon behavior suspicious.
14. Criminal Law.
In criminal trials, expert witness may not offer opinion regarding veracity of witness, as doing so invades province of fact finder.
Board of Medical Examiners, in allowing expert to offer opinion as to veracity of complainants against doctor charged with sexual
misconduct with dental patients, did not disregard concepts behind rules of evidence to such extent as to give rise to due process
violation. Const. art. 1, 8; U.S. Const. amend. 14.
16. Criminal Law.
Error in allowing expert to opine as to veracity of complaining witnesses is subject to harmless error analysis in criminal case.
17. Criminal Law.
In criminal case, failure to object to inadmissible evidence precludes right to assign error on appeal.
Absent objection by doctor to testimony of expert in license revocation proceeding regarding veracity of dental patients claiming
sexual misconduct, doctor was precluded from assigning error to Board of Medical Examiners on review.
misconduct, doctor was precluded from assigning error to Board of Medical Examiners on review.
Any error in admission of expert's testimony at medical license revocation proceeding, opining as to veracity of dental patients
complaining of sexual misconduct by doctor, was harmless in view of entire record and testimony of, and attempted impeachment of,
all three patients in question.
Any error by Board of Medical Examiners in admitting sworn statement of dental patient's nontestifying husband in license
revocation proceeding arising from charges of sexual misconduct was harmless in light of overwhelming evidence. Although husband
was not at hearing and, thus, not subject to cross-examination, patient herself was present, and doctor expressed his primary concern to
be opportunity to attack patient's motives and credibility.
21. Criminal Law.
Constitutional confrontation clause violations are subject to harmless error analysis in criminal trials. U.S. Const. amend. 6.
OPINION
Per Curiam:
INTRODUCTION
The Board of Medical Examiners (the Board) revoked the medical license of Dr. Gregory A. Minton (Minton) after a four-day
administrative hearing. At the hearing, the Board considered evidence of numerous alleged instances of sexual misconduct by Minton with
his dental patients. The Board heard the testimony of fifteen complaining witnesses, their friends and family members, two assistants from
Minton's office, seven medical experts, three character witnesses and Minton. The Board found numerous violations of the Physicians and
Assistants chapter of the Nevada Revised Statutes and revoked Minton's license. Minton then filed a petition for judicial review in the
district court.
In his petition, Minton asked the district court judge to supplement the record on review with evidence of media misconduct at the
hearing, in order to support his claim of due process violations at the hearing. He also sought to supplement the record on review with prior,
allegedly inconsistent statements of witnesses who had testified at the hearing. The judge denied Minton's motion to supplement the record.
In addition to seeking permission to supplement the record on review, Minton challenged the Board's findings and conclusions and
assigned error to the admission of expert testimony. He also claimed that the prosecutor failed to disclose exculpatory material. The district
court judge denied Minton's petition, letting stand the Board's revocation of Minton's license.
Minton appealed the district court judge's denial of his petition to this court, claiming: (1)
that the Board's factual findings were erroneous and its conclusions unsupported by clear and
convincing evidence; (2) that the judge abused his discretion in denying Minton's motion to
supplement the record; and (3) that Minton's substantial rights were prejudiced when an
expert, at the hearing, opined as to the veracity of three complaining witnesses and when the
Board allowed affidavit testimony of one of the complaining witness's husbands.
We conclude that the Board had before it sufficient evidence at the hearing to support its
findings and to warrant its conclusions. We therefore do not disturb the Board's conclusions
that Minton committed violations of the Physicians and Assistants chapter. We also conclude
that the district court judge did not abuse his discretion in denying Minton's motion to
supplement the record. Finally, we conclude that the Board's errors in admitting the expert
opinion testimony on veracity and the affidavit testimony of a victim's husband were harmless
error. We therefore affirm the district court's denial of Minton's petition.
STATEMENT OF FACTS
On March 23, 1992, the Board filed a complaint against Minton, alleging violations of the
Physicians and Assistants chapter of the Nevada Revised Statutes, which contains, inter alia,
possible charges for inappropriate conduct by medical workers. The complaint alleged seven
violations of NRS 630.304(5),
1
630.306(2)(a)
2
and 630.306(7)
3
with three former patients.
The Board amended the complaint on April 14, 1992 to allege twenty-three additional
violations under the same provisions with ten additional former patients, and to allege the
violation of NRS 630.301{3).
__________

1
NRS 630.304(5) provides, in relevant part:
The following acts, among others, constitute grounds for initiating disciplinary action or denying
licensure:
5. Influencing a patient in order to engage in sexual activity with the patient or with others.

2
licensure:
2. Engaging in any conduct:
(a) Which is intended to deceive[.]

3
licensure:
7. Continual failure to exercise the skill or diligence or use the methods ordinarily exercised under the
same circumstances by physicians in good standing practicing in the same specialty or field.
630.301(3).
4
The Board amended the complaint a third and fourth time, on June 9, 1992 and
July 9, 1992, respectively, to allege eleven additional instances of misconduct under the same
provisions with three more women, for a total of forty-one alleged violations against fifteen
women. Many of the incidents were charged under two or more provisions.
The Board conducted a four-day hearing from July 30, 1992 to and including August 2,
1992. The Board heard testimony from the fifteen former patients of Minton, eight of whom
claimed that Minton had performed inappropriate pre-operative breast examinations. The
remaining complaining witnesses claimed that Minton had engaged in a variety of other
sexual actions, including placing the complainants' hands on his penis and placing his penis
in their mouths. Some of these complainants alleged that they had also received inappropriate
breast examinations. Two former office assistants of Minton's testified, as did Minton, seven
expert medical witnesses and three character witnesses.
Following is a summary of the testimony of the patients with whom the Board found that
Minton had engaged in inappropriate sexual conduct, patients A, D, E, F, G, I, O and P. The
Board did not find violations with patients B, C, J, K, L, M and N, the majority of
complaining witnesses who had alleged that Minton had performed inappropriate breast
examinations.
5
Charges regarding patient H were dropped at the beginning of the hearing
due to the patient's reluctance to testify.
Patient A testified as follows: She was nineteen when she saw Minton for surgery for
removal of her wisdom teeth in October 1990. Minton and the receptionist advised a late
appointment. There was one nurse present when surgery began. Patient A remembered
waking up to the sound of voices, Dr. Minton saying a thank you and a goodbye" to the
nurse, who then left the room.
__________

4
licensure:
3. [Now 4.] Gross or repeated malpractice, which may be evidenced by claims of malpractice settled
against a practitioner.

5
The Board found that breast examinations performed in [Minton's] private office while the women were fully
clothed and seated in an office chair were conducted in a manner and a physical setting which may have created,
or contributed, to a perception that the examination was inappropriate, or improper. However, the Board found
that with respect to those complaining witnesses who were all scheduled for oral surgery, a breast examination,
as part of a routine pre-operative history and physical, may have been performed within an acceptable standard
of care. The Board then concluded that applying the standard of clear and convincing evidence, there is
insufficient evidence establishing that the breast examinations constituted conduct in violation of [NRS
630.306(2)(a), and NRS 630.306(7).]
saying a thank you and a goodbye to the nurse, who then left the room. She
then remember[ed] waking up to his voice telling me to take deep breaths and feeling
his hand placed under my shirt on to my left breast, skin to skin, not on my bra, but on
the breast and realizing this was wrong, this wasn't normal procedure.
I tried to rationalize. It was his hand only. There was no stethoscope with him or
underneath my shirt. It was his hand only. And I then I [sic] remember waking up again
and feeling my right arm away from my body to the right placed out in this direction to
where he was sitting on a stool. My hand was being moved in a backward and forward
motion.
She then stated that my hand was placed on what I realized to be his penis and was being
moved in a backward and forward motion on that. He had me fondling him with his hand on
top of mine. She explained that she knew it was not his fingers,
[b]ecause I can tell between the skin on his hand and the skin that would be in the
genital area of a lighter, softer, looser skin. There was no doubt in my mind. I realized
where my hand was and immediately tried to pull it away several times, and my hand
was placed back immediately to where it was before. I then remember him making a
sudden movement and yelling something through the backdoor [sic], something in
reference to being just a moment or just a minute. He then got up very hurriedly and got
me out of the chair and in a very rushed fashion got me out of the doctor's room.
Patient A testified that she then joined her mother in the waiting room, and that she, the
patient, was very upset realizing what had happened. I was crying very hard. I was very
scared and I didn't know quite what to do. I could barely talk. She told her mother about the
incident on the way home, and her mother immediately called her uncle, a sergeant at the
Douglas County Sheriff's office. Patient A stated on cross-examination that she only felt, and
did not see, these occurrences.
Patient A's mother testified as follows: After Minton's receptionist had left the office,
Minton suggested that the mother go to the pharmacy to have her daughter's prescription
filled. A's mother testified that she
told him I was concerned about getting the prescriptions. And he looked at his watch
and he said, Yes, I think you should go get them. And he suggested K-Mart. So I left,
and as I was driving to K-Mart, I started to get an uneasy feeling. I was thinking to
myself, I've left her there alone with him."
with him. And then another part of me was saying, Well, that's okay. He's a doctor.
When she returned, the office personnel were gone and loud rock music was playing. She
became concerned, but waited a few minutes before she leaned across the receptionist's desk
into the inner office (the procedures room) and yelled Hello. She heard Minton say that he
would be out in a minute. She tried the doorknob on the door to the procedures room and it
was locked. When her daughter came out of the procedures room she appeared frightened and
was crying. The patient was pointing at Minton and back at herself to indicate something, and
on the way home, she told her mother what had happened. She and her mother called police
officers and went to the hospital for a physical examination.
Patient D was twenty-six when she visited Minton for removal of her wisdom teeth, in
June or July of 1990. She testified that she had a midafternoon appointment, around 2:30 to
3:00. Nothing eventful happened during the procedure, but she returned for a follow-up
lunchtime appointment because of excessive swelling and infection from the surgery. Patient
D testified that the whole staff left for lunch after Minton indicated he did not need any
assistance with the procedure. She testified that she and Minton were alone, and that she was
under general anesthesia. She then felt Minton place his hand under her blouse and fondle her
breasts. When she woke up her blouse was unbuttoned. Minton then drove the patient home
or back to work, where someone else drove her home.
Patient D also testified that Minton called her to check into her condition after this
follow-up. She was still swollen, and Minton told her that she could come in that day, a
weekend day, and he would see her right away. D testified that the proposed appointment
would have fallen on either Father's Day or Mother's Day and that she indicated that she
could wait until the following Monday because she did not want to keep Minton from his
family on a holiday. Minton said that he could see her immediately.
D testified that at this third appointment Minton said that he would have to reopen the
area, and that she was put under general anesthesia. During the procedure, she looked down
and saw her breasts exposed, and her bra, which was a front closure bra, open. She felt
Minton remove her blouse and saw him place his mouth on one breast, and a hand on the
other. She said Minton told her that he had contacted her parents to tell them he had run into
some problems and that he would drive her home.
D testified that she went back after the first incident because she felt that being a
pharmacy tech . . . I know the affects [sic] of Valium and Demerol together can make an
individualit can make an individual hallucinate, basically or I don't think imagine, but
why would I think, having an oral procedure done, hallucinate on a sexual situation like
this?"
of Valium and Demerol together can make an individualit can make an individual
hallucinate, basically or I don't think imagine, but why would I think, having an oral
procedure done, hallucinate on a sexual situation like this? Cross-examination and
questioning by the Board revealed confusion over the dates of the alleged third procedure,
and Minton denied that it ever occurred. It was not recorded in the patient's chart.
D's mother, a nurse, testified that D had immediately reported the first incident to her, but
that the two women, both being in the medical field, thought that maybe the incident had not
really happened.
6
D's mother stated that she believed one of the procedures to have happened
on a weekend, as both she and her husband were home watching D's children.
Patient E testified that she visited Minton on September 6, 1991 for removal of her
wisdom teeth. She had a morning appointment. While she was under general anesthesia she
felt someone fondle her breast, and touch her nipples. She felt Minton place her hand on his
crotch. E's husband had been sent to fill her prescription while she was undergoing surgery.
Patient E described the incident in detail, and when she left the room and saw her husband,
she became visibly upset. She was told by the office assistant that it was normal to be
emotional when emerging from anesthesia. She then felt a relief, that maybe it didn't just
happen. It was just the anesthesia. She was visibly upset for several hours thereafter.
Patient F, who was twenty at the time of the alleged incident, testified that she had a late
afternoon appointment with Minton on November 30, 1989 for oral surgery. Minton had
scheduled the surgery after informing her he had a 4:30 appointment slot open. She heard
Minton say goodbye to his assistant, and tell his assistant that she could leave for the night.
She specifically remembered this because she was afraid to be alone there, because her
father-in-law had been taken to the Intensive Care Unit after receiving a bad batch of
Valium in Minton's office, and her father-in-law had been teasing her about this all week.
Patient F testified that as she began to wake up, she felt a penis in her mouth. She stated
that she felt pressure on my chest.
__________

6
Patient D recounted the following conversation with her mother:
Mom, it went fine, He opened the area. But I know this sounds funny, but I think Dr. Minton was playing
with my breasts. And she quite honestly, she said, [her name]. I know, Mom. I know that sounds
strange. I know that sounds funny . . . And she says, Well, you know, could it be. I guess it could be
that I was under the affect [sic] of anesthesia or a pain med or whatever, and it wasit was all a
hallucinatory thing.
pressure on my chest. It was very difficult to breathe. I began to wake, open my eyes. It
was dark. I felt something in my mouth at that time. I remember where I was. I knew
why I was there. I started to wake up and I felt something in my mouth. My first
thought was it was a rod. I realized it wasn't an instrument. It was flesh, but it wasn't his
hand. As I woke up, I could swear it was a penis in my mouth.
F's head had been tilted to the right, and the chair was fully reclined. She then heard
rustling and a zipper. She told her husband about this that same evening, but did not
otherwise report it until she read in the newspaper about the other allegations.
F's husband testified that he accompanied her to the appointment, and that since his wife
was afraid of needles he was present when Minton administered the I.V. He then left to fill
his wife's prescription, and when he returned the staff was gone and Minton and his wife were
alone in the procedures room, with the door locked. Minton emerged from the room after a
few minutes and said to give her a few minutes to wake up, and I'll bring her right out.
Fifteen minutes later Minton brought her out of the procedures room.
Patient G testified that on October 25, 1988 she went to Minton's office with her
boyfriend for surgery to remove wisdom teeth. Minton had suggested a late afternoon surgery.
When she started to emerge from anesthesia, she felt Minton's hand on her breast. Minton had
told Patient G's boyfriend that she had really taken to the anesthesia, and [that she] was
going to have to sleep it off. G also testified that when she began coming to, I felt his hand
on my breast, and when my eyeswhen I started to open my eyes, his hand moved from my
breast to my chest, like he was shaking me. She stated it was his right hand on her left
breast. She also stated that [w]hen I got into the car, my first question, I remember the whole
thing going through my mind of what I felt and how I didn't think that would be possible,
because you put a certain amount of trust in a doctor, and youit never occurs to you that
will ever happen.
G told her boyfriend about the incident on the way home. She was living in San Francisco
when her boyfriend called her and said, You're not going to believe this, everything that
happened . . . It's happened to other people. You shouldn't be embarrassed . . . . Other people
are coming forward. She then reported the incident to the Board.
Patient G's boyfriend testified that Minton's office staff left shortly after 5:00 p.m. and that
Minton told him that G would be a while longer. Minton asked him to leave to fill her
prescription and get a milk shake from a fast food restaurant. He returned and G was still not
ready to leave; she was finally ready to go between 7:30 and S:00.
G was still not ready to leave; she was finally ready to go between 7:30 and 8:00. When G
and her boyfriend were in his car, she asked him if Minton had a ring on his finger, because
she believed he was less likely to have done what she felt him do if he were married. The
boyfriend wanted to return to confront Minton but stated that, Quite honestly [G] wanted to
forget about it as soon as possible.''
Patient I saw Minton in February 1988 for surgery on her jaw. She went into Minton's
back office, just this little office of his own . . . . And no nurse, no assistant, no anything,
didn't have you dress down in a gown, and proceeded to give the [breast] exam. Minton told
her that he needed to give a breast exam, and she
told him I didn't think it was necessary. And he said, Yes, it is. And I said, I just had
my yearly checkup in December and there's nothing wrong with my breasts and I don't
think it's necessary. And he asked if I had any history of cancer in my family, and I
told him, Yes, my mother's mother had died of breast cancer. So then he told me it
was all the more important that he give me a breast exam.
She testified that it went on forever. And the first [breast] was two minutes or more. And I
said, Don't you think it's enough?' And he said, I feel something there. I want to make sure.'
Like he was feeling lumps. She testified that the examination proceeded for seven to ten
minutes. She testified that Minton was massaging and kneading her breasts, feeling [her] up,
I would say in a sexual way.
Patient I then drove to her parents' home in Tahoe City. She testified that she cried all the
way and told her parents that she did not want the surgery, that she did not trust or feel
comfortable with Minton. Her parents told her she had come this far, and that she would
not be alone with him in the surgery. They advised her to continue with the surgery, and her
father took her to Carson City the next day.
The surgery proceeded uneventfully, but Patient I had complications thereafter. She
testified that she continued to visit Minton because she did not want to pay someone else
another $6,000 to perform surgery to correct something [Minton] didn't, [sic] which is what I
had to do anyway. Because of the complications she had to return for a forced duction
7
procedure two weeks later. She asked both of her parents to attend. She arrived at the office at
approximately 5:30 p.m. with both her parents.
__________

7
This is not oral surgery, but rather is a procedure in which Minton, with gloved hands, would massage both the
inside and outside of the patients face and jaw.
Minton asked both of Patient I's parents to leave to fill her prescription, and they indicated
that they did not want to leave. When Minton pressed, I's father indicated that he would fill
the prescription while his wife stayed at the office. Minton then allegedly stated that if both of
them were not going to go, then neither should.
When Minton asked the parents to wait in the waiting room, the patient said the procedure
would not occur unless one of her parents was present in the room. Minton asked if she did
not trust him, and she answered that she did not. She felt that he was trying to get rid of her
parents. On the way back to Tahoe, her parents told her that it wasn't in [her] head. She
cancelled a later appointment with Minton and never returned.
Patient I had contacted the Medical Board in 1989 and had called lawyers, but had
confined her inquiry to whether it was proper for an oral surgeon to conduct a breast exam.
She was told by the Board that [i]f you were going to be admitted into a hospital for some
kind of surgery, usually breast exam is within a health and physical. Her lawyers advised her
at that time not to pursue charges against Minton.
Patient I's mother testified to the sequence of events involving she and her husband and to
her daughter's condition after the first breast exam. I's father also testified and confirmed the
details of his daughter's and his wife's testimony.
Patient O saw Minton for dental work nearly a dozen times in 1985. She experienced an
uncomfortable breast exam during one of these visits.
8
O returned to Minton in 1987,
1988 and 1989, when she also experienced uncomfortable breast exams. She testified that
Minton assured her these were normal procedure. Patient O saw Minton several times
between procedures. Each time she was not wary of being placed under general anesthesia
because female assistants were present at the commencement of the procedures.
On May 4, 1990 she received a forced duction procedure under general anesthesia. When
she was awakening from the anesthesia she felt Minton leaning over her, kissing her on the
lips, and sticking his tongue in her mouth.
__________

8
Patient O testified that when Minton first told her he was going to do a breast examination before dental
surgery that she looked at him kind of quizzically, and he assured me that it was normal procedure. She said
that a lot of things made her uncomfortable about it, such as [t]he way it was done, how close he was to me
when it was done, and that it was not like a breast exam that I had had by any of my previous physicians.'' All
the testimony about these uncomfortable examinations was brought out on cross-examination, and O stated
that she continued to return because she thought it was my own paranoia or whatever. Ihe assured me it was
normal procedure. I tried to blow it off and think, Well, maybe it's just because we're doing it in a different kind
of setting.' I didn't want to think that he was being inappropriate.
sticking his tongue in her mouth. He also placed his hand under her shirt and bra and fondled
her breast. She testified that this occurred at the last procedure before she was going to move
to Idaho, and she wanted to let it go. I knew I'd be safe. She told her friend, Kim, about this,
but Kim did not believe her.
Before she moved, patient O sent a card to the office staff and to Minton. In that letter, she
wrote, Special thanks to you, Dr. Minton, and your staff for all the trips to outer space and
for all the staff putting up with me and the appointments I screwed up. I'll really miss you all .
. . .
Patient O returned from Idaho to Carson City for a procedure with Minton in August 1990.
Her husband drove her. She said that Minton had called her and asked her if she needed the
procedure, and that she would not have to pay for it. O testified that, during this procedure
and while under anesthesia, Minton was standing on her right side, he leaned over her, kissed
her, placed his hand on her breast and fondled her breast. She stated that Minton was sitting
facing her on the chair, with his penis exposed, and that he placed her hand on his penis to
have [her] masturbate him. Minton then stood to her right-hand side, placed her hand on his
penis, and placed his penis in her mouth. She said that Minton said this would stretch her jaw
muscles. She then heard pounding on the door. She said that Minton did not ejaculate,
because when he was buttoning his pants he was still erect. There was evidence that the
patient did in fact pay for the procedure.
Patient O's husband did not testify. Instead, the Board allowed the prosecutor to introduce
an affidavit, in which O's husband stated that he drove his wife to her appointment. He also
claimed that Minton told him to go get a prescription for his wife and to do some
sightseeing. When he returned to the office there were no support staff members present
and the door to the procedures room was closed and locked.
Patient O did not tell her husband what had happened. However, her friend Kim, to whom
she had disclosed the first incident immediately, called O in Idaho to tell her of the charges
against Minton. O then became upset and told her husband.
Patient P first met Minton in May 1986 after she was referred to Minton to correct an
infection from a wisdom tooth removed by another doctor. P developed romantic feelings for
Minton and became emotionally involved with him. She testified that he did not charge her
for some procedures and wrote off a lot of bills . . . And there were a lot of reasons why I
knew things were different.
P was asked if Minton ever made any passes at her, and she responded, Yes. . . . Which
incident? She said that Minton told her he was going to Texas with his wife, but that "he
was going to be baching it for a while, [while] his wife [remained in] Texas," and that he
would like to call her for a drink when he returned from Texas.
told her he was going to Texas with his wife, but that he was going to be baching it for a
while, [while] his wife [remained in] Texas, and that he would like to call her for a drink
when he returned from Texas. He called her, but she was negotiating a marriage settlement
with her former husband, and she could not talk at that time. He never called to ask her out
again.
Minton asked patient P to be his last appointment for a procedure in August 1991, and he
asked her to have a friend, rather than her former husband, bring her. P testified that Gretchen
Gattis, an office assistant, was there when Minton put P under anesthesia. She then testified
that when I woke up, there was no one in the room, the chair was back in a totally reclining
position. He had his right hand on my head. His left hand was on his penis and his penis was
in my mouth. She stated that she saw his penis, and felt a backward and forward movement.
She said she was very confused. I wasn't confused about what he'd done, but I was confused
about the way he went about doing it. She remembered asking him why he knocked her out
to do this, and she remembered him kissing her at that point and reaching toward the I.V. with
his hand. She then went under again.
P said that she was not conscious [of] when he ejaculated in my mouth, but there is
absolutely no doubt in my mind that he did. When I woke up, the taste of semen was so
strong in my mouth, the first thing that I did was reached up and I felt like my face, surely it
had to be wet. It wasn't. She testified also that she did not feel she had been offended. I was
very confused. I had just gotten separated . . . I was an emotional wreck.
Patient P testified that her friend was in the room when she awoke, so she did not confront
Minton. She told her friend what had happened in the car. She stated also that as time went
on, it just became more difficult and I thought maybe he thought that I did not have any
conscious memory . . . and it was easier for me to deal with it by just trying to forget about
it.
Patient P saw Minton again in November 1991. She had decided that she was not going to
see Minton after that because she was becoming emotionally involved with him. She went
for a forced duction procedure at 4:30, and she heard Minton tell his office attendant that she
could leave after the procedure. Minton then told her about his wife's trip to Texas, and he
kissed her, whereupon she said, Oh, that was really nice. You're giving me a Christmas
kiss.' And then he gave me a kiss again. It was a passionate kiss, and I kissed him back, but I
still hadn't talked to him yet . . . . P's friend had gone to use the phone, at which time P told
Minton that she would not be able to see him again because of her feelings; Minton then
kissed P and she kissed him back. Minton stopped kissing P when her friend appeared.
Patient P also testified that Minton called her on her cellular phone, after some of the
incidents had been reported, and that Minton asked her to write a testimonial for him. She
asked what he wanted her to write, and stated that she would have done anything for him.
He asked her to write about a preoperative breast exam, which she had never received. He
wanted her to state that he had given her the examination. She did not remember such an
exam, and asked him what he wanted her to write.
Although she considered writing the testimonial, she never wrote it. However, she did
write Minton an intimate personal letter describing her feelings for him. She wrote the letter
in April 1992. P testified that her intentions in writing the letter were to get together with
Minton; she wanted to discuss what had happened and she was expressing her feelings for
him. In January 1992 she had confided in a doctor friend and described the fellatio incident.
Although he advised her to come forward, she began therapy and tried to forget the incident.
Michael R. Mandel, M.D., a psychiatrist with extensive expertise in psychopharmacology,
testified regarding the hallucinogenic effects of certain drugs, including Valium, Demerol and
Brevital, the anesthetics used by Minton. He testified that, A hallucination is a perception,
primarily visual, sometimes auditory, and there are other types . . . including olfactory . . . or
tactile or feeling hallucinations. He testified that tactile hallucinations are exceedingly rare,
if they occur at all, outside schizophrenia and cocaine addiction. He further testified that a
combination of sensory hallucinations, such as a patient experiencing a tactile, auditory and
visual hallucinations at once, is extraordinarily rare.
Mandel also testified that he conducted an extensive search to discover literature on the
hallucinatory effects of the drugs used by Minton, looking particularly for articles on the
frequency or incidence of sexual hallucinations. He found research by only one author, J. W.
Dundee, Ph.D., M.D. Mandel noted that Dundee's writings were based only on case studies,
and not controlled, careful research. Richard Bjur, Ph.D., professor of pharmacology at the
University of NevadaReno School of Medicine, concurred in Mandel's assessment of the
quality and reliability of Dundee's study.
9
Mandel stated that it was his medical opinion
that the drugs used by Minton do not "give any credence to any defense that the
allegations . . . were really sexual hallucinations.''
__________

9
None of the information presented to this court indicates that Dundee ever conducted a study. Instead,
Dundee, who was a professor emeritus in Anesthetics at the Queen's University of Belfast, collected eleven
isolated reported incidents from a variety of countries and reported them in an article titled, Further Data on
Sexual Fantasies During Benzodiazepine Sedation. Dundee posited that an ordinary incidence of physical
contact could be a
that the drugs used by Minton do not give any credence to any defense that the allegations . .
. were really sexual hallucinations.''
Mandel was also allowed to offer his opinion regarding three of the complainants, Patients
D, O and P. He stated that psychological evaluations that he conducted on all three
complainants indicated that they were credible. He also stated that Brevital blues, a
condition in which a patient may be depressed or emotional after undergoing anesthesia with
Brevital, typically lasts one hour and that he would be surprised if it lasted six to twelve
hours.
Gerald Hanson, D.D.S., a Las Vegas oral surgeon, testified from his personal knowledge
and experience regarding his method of conducting pre-operative breast examinations, and
regarding the 6400 patients to whom he has administered the same type of drugs as Minton
administered. He stated that none of his patients reported hallucinations, including sexual
hallucinations.
Minton called three medical experts, all oral surgeons, who testified that breast exams are
part of a normal pre-operative physical and history. They then testified regarding their
methods of conducting pre-operative breast examinations, and regarding the effects of the
same drugs on their patients as Minton had administered on his. The Board found that none of
the doctors had described situations in which patients had reported sexual hallucinations,
except one doctor's wife who had become amorous after the administration of nitrous
oxide, a drug unrelated to the three used by Minton.
Minton also called Carson City doctors who testified that of the hundreds of patients they
have referred over the years, no patient has ever complained about Minton's conduct. Minton
also called a former employee who testified that she had never heard complaints about the
breast exams.
Finally, Minton testified that he performed breast examinations as part of a routine
pre-operative practice. Minton testified that he would have the woman raise her right arm,
and that he would examine each quadrant of each breast. He then described a very detailed
procedure that was inconsistent with each of the eight complainants who had described what
they felt was an inappropriate breast examination. He performed these examinations in his
private office, as it was the only private area in the office area.
__________
stimulus that might influence a patient on general anesthesia to transfer the ordinary contact into a sexual
perception. However, as Minton himself notes, Dundee also plainly wrote that he could not definitely exclude
the possibility of the reports being genuine complaints.
He did not testify that there was always a female attendant present during the examination,
but he did testify that he had never heard a complaint.
10

Minton also testified that to recuperate a patient he will squeeze the trapezius muscle, talk
to them, give them verbal commands, take a deep breath, put my hand on their chest, tap their
chest or push on their chest to try to see if that stimulates them to take a deep breath, as well.
Minton also testified that he was responsible for removing the I.V. and bringing the patient
around, and that he would allow the assistants to leave at 5:00 while he waited to do this. He
testified that during the day the door was not usually locked, but that when he was alone he
would lock the door because he did not want the patient's ride or whatnot becoming
syncopal and having a problem. He also stated he did not want two patients on his hands
(should the ride walk in and become ill at seeing his friend or relative after a procedure).
Minton also testified that he would send his patients' rides to the pharmacy because he was
concerned that a late-day patient would not be able to fill a prescription before the pharmacy
closed, and because he was concerned that a groggy patient might be left alone in the car
when the ride stopped to fill the prescription on the way home.
Minton also testified that although he kissed patient P on the cheek after she kissed him,
that Patients F, O and P were lying about their fellatio accounts. He stated that all of the
complainants who complained of inappropriate breast exams were not telling the truth about
those incidents. He also stated that he felt the women stood to gain financially and from the
publicity. In addition, he posited psychiatric problems as a reason for the reports.
The Board found violations of the statutory provisions involving the seven women who
complained of sexual activity other than breast examinations, and involving one of the
women who complained of an inappropriate breast examination, and revoked Minton's
medical license in a decision rendered August 26, 1992.
__________

10
This assertion was contradicted by a November 22, 1991 letter written by Minton to Patricia Perry, Executive
Director of the Nevada State Board of Medical Examiners. This letter was admitted at the hearing. In the letter
Minton attempted to explain and justify to the Board the complaint of a former twenty-year old patient of
Minton's (who later became patient B in the complaint). She had became upset over a pre-operative breast
examination and cancelled her surgery with Minton. She apparently was concerned over the length of the exam
and the fact that Minton performed it alone in his private office.
Minton wrote a three-page letter, which, inter alia, referred to the Clarence Thomas hearings and the Mike
Tyson rape trial. He stated in the letter that [the complainant] could feel free to call [him] at the office anytime
or come by and learn about what comprises an adequate breast examination, (emphasis in original), and that he
now cast[s] a suspicious eye on any patient [he] sees . . . ., and that if [the complainant] feels self-conscious
about [her] large breasts, that is her problem. (Emphasis in original).
ing the seven women who complained of sexual activity other than breast examinations, and
involving one of the women who complained of an inappropriate breast examination, and
revoked Minton's medical license in a decision rendered August 26, 1992. Regarding the
other seven women, the Board did not find by clear and convincing evidence that the breast
examinations complained of were outside an acceptable standard of care.
Specifically, the Board found all of the witnesses credible and without motive to fabricate
their testimony. The Board also found the following circumstances (present in most
instances) to be circumstances corroborating the testimony of the witnesses: (1) nearly every
complaining witness was a female whose appointment had been scheduled late in the
afternoon, when such procedure would require the patient to remain in the office past closing;
(2) nearly every patient was left alone with Minton when office personnel left for the day
before each patient's appointment was complete; (3) Minton, in each instance, asked the
patient's ride to leave the office and to go to the pharmacy to fill the patient's prescription
so that the patient would have medication on leaving the doctor's office; (4) the door to the
office and/or to the operating room was locked when the ride returned.
Minton filed a petition for judicial review in the district court, claiming that his rights to
due process were violated in the administrative hearing and asserting numerous other errors.
Particularly, Minton claimed in the petition that: (1) he was forced to bear the burden of proof
to disprove the allegations and establish his innocence; (2) the proceedings were unfairly
influenced by the news media and the Board failed to maintain order, protect witnesses from
outside influence and provide a forum consistent with due process; (3) the guilty
determinations were not based on clear and convincing evidence; (4) in making the guilty
determinations, the Board made inconsistent, clearly erroneous and arbitrary and capricious
findings and conclusions; and (5) that the Board erred in allowing an expert witness to vouch
for the credibility of three complainants. In his opening brief to the district court, Minton also
alleged that his constitutional right to confront the witnesses against him had been violated,
and that he was deprived of the ability to defend against stale claims.
In addition, Minton moved the court to supplement the record on judicial review. Minton
asked the court to consider affidavits regarding the conduct of the media at the hearing, and to
consider statements of complainants and possible witnesses that were allegedly exculpatory
and not disclosed to the Board. The court denied Minton's motion to supplement the record,
and after considering the briefs, the record and oral argument, denied Minton's petition for
review. Minton appealed to this court, asserting several of the same arguments, claiming
specifically: {1) that the Board's findings of fact were clearly erroneous and that its
conclusions were not supported by clear and convincing evidence; {2) that the district
court judge abused his discretion in denying Minton's motion to supplement the record on
review to explore Minton's claim of a due process violation; {3) that the district court
judge abused his discretion in denying Minton's motion to supplement the record on
review to allow the consideration of allegedly inconsistent and exculpatory prior
statements of witnesses in the possession of the prosecutor and Board investigators; and
{4) that Minton's substantial rights were prejudiced when an expert, at the hearing,
opined as to the veracity of three complaining witnesses and when the Board allowed
affidavit testimony of one of the husbands of a complaining witness.
asserting several of the same arguments, claiming specifically: (1) that the Board's findings of
fact were clearly erroneous and that its conclusions were not supported by clear and
convincing evidence; (2) that the district court judge abused his discretion in denying
Minton's motion to supplement the record on review to explore Minton's claim of a due
process violation; (3) that the district court judge abused his discretion in denying Minton's
motion to supplement the record on review to allow the consideration of allegedly
inconsistent and exculpatory prior statements of witnesses in the possession of the prosecutor
and Board investigators; and (4) that Minton's substantial rights were prejudiced when an
expert, at the hearing, opined as to the veracity of three complaining witnesses and when the
Board allowed affidavit testimony of one of the husbands of a complaining witness.
I. WHETHER THE BOARD'S FINDINGS OF FACT WERE CLEARLY ERRONEOUS
AND ITS CONCLUSIONS OF LAW UNSUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
Minton claims that the Board's factual findings are clearly erroneous and its conclusions
that he violated the Physicians and Assistants chapter unsupported by clear and convincing
evidence. We disagree.
NRS 233B.135(3)(e) provides that a reviewing court may set aside in whole or in part a
final decision of an administrative agency if the final decision is clearly erroneous in view of
the reliable, probative and substantial evidence on the whole record. (Emphasis added.) This
statute articulates the substantial evidence standard of review for assessing factual findings
and agency decisions. We have defined substantial evidence as that [evidence] which a
reasonable mind might accept as adequate to support a conclusion. State, Emp. Security v.
Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986).
[Headnote 1]
In the instant case, however, a more specific statute provides the particular standard of
review for assessing factual findings. In medical license revocation proceedings, clear and
convincing evidence is required before a license may be revoked. NRS 630.352(1). We
construe this statute to supersede the portion of the administrative procedure act subjecting
factual findings to the clearly erroneous in view of the reliable, probative and substantial
evidence standard. Instead, the applicable statute requires that the Board's factual findings,
and the conclusions which are based thereon, be supported by clear and convincing evidence.
[Headnotes 2, 3]
In addition, in a professional discipline case such as this one, where the burden on the
prosecuting authority is to establish violations by clear and convincing evidence, this court
will not engage in independentor de novoreview. See Goldman v. Nevada Comm'n on
Judicial Discipline, 108 Nev. 251, 267, 830 P.2d 107, 117-18 (1992); see also Whitehead v.
Comm'n on Judicial Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (Shearing, J. dissenting)
(Whitehead III).
11
This court will instead review the record and decision with a degree of
deference, seeking only to determine whether the evidence adduced at the hearing was
sufficient to have convinced the deciding body that violations had been shown by clear and
convincing evidence. See id. Moreover, this court is prohibited from substituting its judgment
for that of the Board as to the weight of evidence on a question of fact. NRS 233B.135(3).
Finally, it is the province of the Board to make credibility determinations and this court is not
permitted to pass on the credibility of witnesses or to weigh their testimony. See, e.g., id.;
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986);
Local Gov't Emp. v. General Sales, 98 Nev. 94, 98, 641 P.2d 478, 480-81 (1982).
[Headnote 4]
The testimony adduced at the hearing and recounted above was significant and was
sufficient to constitute clear and convincing evidence for the Board's factual findings and for
its conclusions based thereon that violations of the chapter had been established. The
witnesses reported in detail their observations and the Board members themselves questioned
the complaining witnesses extensively after the prosecutor and Minton's attorney had had an
opportunity to examine them. The Board specifically found each of the complaining
witnesses credible and without motive to fabricate testimony. The Board also heard
considerable testimony from friends and relatives of the complaining witnesses who all
provided some degree of corroboration regarding the details surrounding the visits and the
complaints. We conclude that the Board had before it clear and convincing evidence of the
violations that it found.
__________

11
This court does, however, exercise independent review over professional discipline matters involving
attorneys because of its authority to govern the legal profession and its inherent authority flowing therefrom to
discipline attorneys. See SCR 39, 99(1); State Bar of Nevada v. Claiborne, 104 Nev. 115, 126, 756 P.2d 464,
471 (1988).
[Headnote 5]
In addition to claiming that the testimony of the complaining witnesses did not constitute
clear and convincing evidence of violations, Minton claims that the Board's findings and
conclusions with regard to Patient I were arbitrary and capricious. He claims that it was
arbitrary and capricious for the Board to have found a violation with this patient who
complained of an inappropriate breast examination but to have acquitted Minton on the
other complaints of improper breast examinations. We conclude, after reviewing the record,
that Patient I's testimony described a scenario different in quality and scope from the other
breast exam complainants such that the Board's conclusion that a violation had occurred is
neither arbitrary nor capricious.
The Board's findings and conclusions, based on the testimony adduced at the hearing, are
supported by clear and convincing evidence in the record and are not arbitrary and capricious.
Accordingly, we defer to the professional board whose members were in the best position to
judge the credibility of all witnesses and to examine the witnesses in light of their
professional knowledge and experience. We therefore uphold the Board's decision on this
basis and reject Minton's challenge.
II. WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING
MINTON'S MOTION TO SUPPLEMENT THE RECORD ON REVIEW TO
EXPLORE MINTON'S CLAIM OF DUE PROCESS VIOLATIONS.
Minton claims that his hearing was conducted in a manner that deprived him of his
constitutional due process guarantees. He claims that the circus atmosphere'' at the hearing
was reminiscent of the Salem Witch Hunt, and that the conduct of the media requires
reversal in this case. Minton asked the district court judge to supplement the record on review
with several sworn letters and affidavits.
12
In the letters, the authors describe being
overcrowded into a small hearing room, with media personnel interrupting the proceedings,
exiting and entering in a noisy manner, setting up equipment on the respondent's (Minton's)
table, placing microphones within inches of the witnesses' faces and generally being given
"free reign" over the hearing room.
__________

12
Minton provided notarized letters written by the following individuals: Stacy Trivitt (relation, if any, not
disclosed), Laverne M. Souza (same), Jon Thomas Driscoll (Minton's nephew-in-law), Patricia T. Driscoll
(Minton's sister-in-law), Carol Driscoll (relation not disclosed, but same last name as two other writers); Hanson
Troberman (relation, if any, not disclosed), Cheryl Romigh (same), Gary LaFleur (same), Debra LaFleur (same),
Jeanne Minton (Minton's wife), Garland A. Minton (Minton's father), and Shirley A. Minton (Minton's mother).
and generally being given free reign over the hearing room. Minton did not object at any
time during the proceedings to the alleged misconduct of the media. The district court judge
denied Minton's motion to supplement the record.
A court reviewing an agency decision is authorized to supplement the record and to
receive evidence [i]n cases concerning alleged irregularities in procedure before [the] agency
that are not shown in the record. NRS 233B.135(1)(b).
13
Any evidence must pertain only to
the alleged irregularities. Id. Thus, the court was authorized to accept the information, in the
form of sworn letters or affidavits, if it determined that the proffered information was relevant
to a procedural irregularity.
[Headnote 6]
The relevant statute provides, however, that the court may receive evidence. NRS
233B.135(1)(b). The decision to accept supplemental information is therefore within the
discretion of the district court.
14
This court will not reverse matters within the discretion of a
district court judge absent a showing of abuse of discretion. Cf. NRS 233B.135(3)(f) (stating
abuse of discretion as a basis for reversing decision); Young v. Johnny Ribiero Building, 106
Nev. 88, 92, 787 P.2d 777, 779 (1990) (discovery sanctions); Schouweiler v. Yancey Co., 101
Nev. 827, 831, 712 P.2d 786, 789 (1985) (district court's denial of excess expert witness
fees).
[Headnote 7]
In the instant case, the district court judge concluded that the conduct described in the
letters did not rise to the level of a violation of Minton's due process guarantees. Unless the
complained-of conduct establishes that due process violations occurred, the judge acted
within his discretion in denying Minton's motion. Accordingly, we consider whether a
proceeding without media safeguards or other affirmative action by the tribunal violates due
process, and whether the district court judge's ruling was therefore an abuse of discretion.
15

__________

13
NRS 233B.135(1) provides in full:
1. Judicial review of a final decision of an agency must be:
(a) Conducted by the court without a jury; and
(b) Confined to the record.
In cases concerning alleged irregularities in procedure before an agency that are not shown in the record,
the court may receive evidence concerning the irregularities.

14
Minton implicitly concedes that abuse of discretion is the proper standard of review, as he argues that the
judge's denial of his motion was an abuse of discretion.

15
We note that the district court judge's ruling was to deny the motion to supplement the record. However, from
the ruling it appears that the judge
[Headnote 8]
Generally, the right to practice medicine is a property right protected by the due process
clauses of the United States and Nevada Constitutions, and a license to practice medicine may
not be arbitrarily abridged or revoked. See Molnar v. State, Bd. of Med. Examiners, 105 Nev.
213, 216, 773 P.2d 726, 727 (1989); Potter v. State, Bd. of Med. Exam'rs, 101 Nev. 369, 371,
705 P.2d 132, 134 (1985). As a result, due process protections apply in administrative
hearings to revoke a medical license. See Molnar, 105 Nev. at 216, 773 P.2d at 727-28 (due
process requires Board to base decision on conclusions of hearing officer who heard
testimony); Potter, 101 Nev. at 371, 705 P.2d at 134 (voting process violated due process);
Cf. Bivins Constr. v. State Contractors' Bd., 107 Nev. 281, 283, 809 P.2d 1268, 1270 (1991)
(cross examination in administrative hearing may not be curtailed).
[Headnote 9]
However, the legal process due in an administrative forum is flexible and calls for such
procedural protections as the particular situation demands. Burleigh v. State Bar of Nevada,
98 Nev. 140, 145, 643 P.2d 1201, 1204 (1982). To determine whether a given procedure
appropriately safeguards an individual's due process guarantees, a reviewing court must
weigh: (1) the private interest affected by the official action; (2) the risk of an erroneous
deprivation of that private interest through the procedures used and the probable value, if any,
of additional or substitute procedural safeguards; and (3) the government's interest, including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirements would entail. State, Dep't Mtr. Vehicles v. Vezeris, 102
Nev. 232, 236, 720 P.2d 1208, 1211-12 (citing Matthews v. Eldridge, 424 U.S. 319, 335
(1976); Burleigh, 98 Nev. at 145, 643 P.2d at 1204 (citing Matthews).
[Headnote 10]
The right to continued possession of one's medical license implicates a significant private
interest, as the ability to practice medicine affects the livelihood of the individual holding the
license. See Molnar, 105 Nev. at 216, 773 P.2d at 727 (citing Potter, 101 Nev. at 369, 705
P.2d at 134).
__________
read and considered the letters and affidavits in light of the entire record and concluded that no due process
violation occurred. Although the letters were never made part of the record on review, they were presented to us
so that we could determine whether the judge improperly denied the motion to supplement the record. We also
have considered the underlying substantive claim to determine whether the judge's ultimate ruling (that no due
process violation occurred) was correct.
Potter, 101 Nev. at 369, 705 P.2d at 134). Accordingly, the first factor weighs heavily in
Minton's favor.
Under the second prong of the due process test, however, the absence of safeguards must
suggest a risk of erroneous deprivation. Minton has not produced evidence nor suggested a
theory as to how a Board composed of professionals was or could have been prejudicially
influenced by the conduct of the media alleged to have occurred at his hearing. Nor has
Minton shown how media restrictions, formal or informal, or other action taken by the Board,
would have tended to have reduced the risk of an erroneous deprivation of his license.
This was not a jury trial, in which courts have found that due process requires significant
restriction of media intrusion. See, e.g., Estes v. Texas, 381 U.S. 532, 540, 561 (1965);
Callahan v. Lash, 381 F. Supp. 827 (N.D. Ind. 1974); see also SCR 229-247 (outlining in
detail the procedures to be followed and limitations placed upon media conduct regarding
any . . . matter held in open court which the public is entitled to attend).
16

The hearing was, rather, a proceeding conducted by medical professionals who questioned
the complaining witnesses and other witnesses (including Minton) extensively based upon
their medical experience and knowledge. The Board was not an impressionable panel of
laypersons. In addition, not one statement by a witness or board member and not one break in
testimony or other indication supports the inference that the Board was subjected to
interruption of testimony or other conduct that would indicate the Board gave less than its full
attention to the testimony before it. Accordingly, the risk of erroneous deprivation appears to
be absent from the equation.
The Board, of course, has a continuing duty to rule appropriately on proper objections
interposed by the defendant. It does not appear, however, that any procedure or set of
guidelines would alter the minimal risk of an erroneous deprivation of a medical license
because of the media's conduct or misconduct.
In addition, detailed media guidelines, such as those which have been drafted to govern
criminal trials and appeals, and which impose on the panel obligations beyond the general
duty to conduct a proceeding free of interruptions and to rule appropriately on proper
objections to alleged misconduct, would entail a fiscal and administrative burden on the
agency. Although the burden would not be extreme, the burden is a factor to consider in the
balancing test required by Burleigh and Vezeris.
__________

16
These rules (applicable to all civil and criminal trials in Nevada) recognize the importance of preserving the
decorum and dignity of the court, and require limitations imposed when any media representative is
interfering in any way with the proper administration of justice. SCR 235, 231.
After balancing the above factors, we conclude that the absence of media guidelines in
itself does not rise to the level of a violation of due process guarantees. In addition, no
indication in the record demonstrates the type of situation that would have required Board
members to affirmatively police the media in the absence of an objection, and there is no way
of knowing whether the Board would have ruled appropriately on proper objections because
none were made. The district court judge therefore did not abuse his discretion in denying
Minton's motion to supplement the record on review with the affidavit testimony and did not
err in denying Minton's petition on his due process claim.
III. WHETHER THE DISTRICT COURT JUDGE ABUSED HIS DISCRETION IN
DENYING MINTON'S MOTION TO SUPPLEMENT THE RECORD ON REVIEW
WITH EVIDENCE OF ALLEGEDLY INCONSISTENT AND EXCULPATORY
WITNESS STATEMENTS IN THE POSSESSION OF THE PROSECUTOR AND
BOARD INVESTIGATORS.
Minton also claims that the district court judge abused his discretion in failing to
supplement the record with additional evidence of deposition testimony and allegedly
inconsistent prior statements of witnesses that were in the possession of Board investigators
and the prosecutor. He claims that although discovery is not required in administrative
hearings, due process requires the production of exculpatory material in the possession of the
charging authority.
A review of the proffered statements and testimony, however, reveals that the statements
were not exculpatory or inconsistent. Although there may be instances in which failure to
produce exculpatory material may rise to the level of a due process violation, that did not
occur here. There was no reason for the prosecutor or Board investigators to have considered
the statements it had collected as exculpatory.
[Headnote 11]
Minton claims that a prior statement of Patient E proved that she was not alone with
Minton. However, in her testimony, this patient never claimed she was alone in the office
during the entire procedure with Minton, only that at some point in time she felt her breasts
being fondled and felt her hand placed on Minton's crotch. The allegedly inconsistent and
exculpatory prior account contains a statement that she heard Dr. Minton say, I think she's
coming out of it,' as an assistant was coming into the room. Thus, the prior account indicates
her belief that she was alone with Minton until the assistant entered the room. As this was
the only portion of this prior statement claimed to be exculpatory, we conclude that the
judge did not abuse his discretion in refusing to supplement the record with the
statement.
was the only portion of this prior statement claimed to be exculpatory, we conclude that the
judge did not abuse his discretion in refusing to supplement the record with the statement.
[Headnote 12]
Minton also claims that a statement given by his assistant Gretchen Gattis, at the Carson
City Sheriff's Department, was an exculpatory prior statement that the prosecutor was
required to disclose. Again, however, a reading of the statement indicates that it is not
inconsistent with the witness's testimony at the hearing. Minton claims that the statement is
inconsistent with the witness's hearing testimony because it refutes that Minton had a
pattern of scheduling young women for late afternoon procedures. However, Gattis
confirms in her statement that most of Minton's late afternoon patients were women, although
she admits that Minton's practice as a whole was largely female. This fact was brought out
repeatedly at trial. The judge did not abuse his discretion in failing to supplement the record
on review to consider this statement.
[Headnote 13]
Finally, Minton sought to supplement the record on review with the testimony of two
former assistants, Nicole Gager and Adrienne Flanders. He did not allege that the information
he sought to introduce was in the possession of prosecutors; rather, he alleged that the new
information was evidence that tended to refute or contradict important witness testimony
that had been admitted at the revocation hearing.
The new information was the testimony of Gager and Flanders, testimony that had been
given at the preliminary hearing held to determine whether to bind Minton over on criminal
charges. It also included three letters written by Gager over a six-month period, the content of
which formed the bulk of her preliminary hearing testimony.
There is nothing exculpatory about the letters and testimony, however. In fact, the
testimony revealed that both women, along with other office assistants, considered Minton's
late afternoon behavior suspicious. Their preliminary hearing testimony revealed that some of
the employees had waited together outside in a car after one of the late afternoon procedures
to observe Minton and to determine if anything strange was occurring. Finally, the letters and
testimony confirm that Minton scheduled, or that the assistants scheduled, late appointments
and that the assistants would leave when they were finished with their work, and that Minton
would sometimes lock the door to the procedures room after they left. Based on the above, it
is evident that the district court judge did not abuse his discretion in failing to supplement the
record on review with this information.
IV. WHETHER MINTON'S SUBSTANTIAL RIGHTS WERE PREJUDICED WHEN AN
EXPERT, AT THE HEARING, OPINED AS TO THE VERACITY OF THREE
COMPLAINING WITNESSES AND WHEN THE BOARD ALLOWED AFFIDAVIT
TESTIMONY OF ONE OF THE HUSBANDS OF A COMPLAINING WITNESS.
Minton claims that the Board committed prejudicial error when it allowed Dr. Mandel to
offer his opinion as to the veracity of three of the complainants, Patients D, O and P.
Mandel was allowed to state:
It's my opinion that they are not the types of people who would distort. They are, in
fact, I think the opposite. They tended to be a bit reluctant at first in coming forward.
They didn't have any axe to grind, in my opinion. They didn't have any particular gain.
They were most credible.
[Headnote 14]
In criminal trials, an expert witness may not offer an opinion regarding the veracity of a
witness, as this invades the province of the fact-finder. Lickey v. State, 108 Nev. 191, 196,
827 P.2d 824, 827 (1992); Townsend v. State, 103 Nev. 113, 119, 734 P.2d 705, 708 (1987).
However, the Board is not bound by formal rules of evidence. NRS 630.344(1).
[Headnote 15]
Although admission of Mandel's testimony would certainly have been error in a criminal
trial, it was not necessarily error at the Board's hearing because the Board is not bound by
formal, statutory rules of evidence. There may well be instances in which an agency
disregards the concepts behind the rules of evidence to such an extent that due process
violations may occur, but that did not occur in the instant case with this isolated alleged error.
[Headnotes 16-18]
In addition, this type of error is subject to harmless error analysis in a criminal case.
Townsend, 103 Nev. at 119, 734 P.2d at 708. Furthermore, also in a criminal case, failure to
object to inadmissible evidence precludes the right to assign error on appeal. Henderson v.
State, 95 Nev. 324, 326, 594 P.2d 712, 713 (1979). In the instant case, Minton never objected
to the proffered testimony, and he would be precluded from assigning error on appeal in a
criminal case. We conclude that he is also precluded from assigning error to the Board on
review in the instant case.
[Headnote 19]
In any event, assuming that admission of the statement was error, it was harmless in view
of the entire record and the testimony of, and attempted impeachment of, all three
witnesses.
testimony of, and attempted impeachment of, all three witnesses. The trier of fact was a board
of professionals, not a jury likely to be influenced by the testimony of an expert regarding a
witness's veracity or credibility. The Board members and Minton extensively questioned the
complaining witnesses and the Board was in a position to judge their veracity and credibility
without the benefit of Mandel's expert testimony.
In addition, Minton placed mental health in issue, and Mandel testified that when he
conducted psychological examinations of the three women, he found them credible and he
found them to be mentally healthy, but in need of counselling for adjustment disorders. He
did not testify that their hearing testimony was credible, only that he found them to be
credible in forming his professional opinion and diagnosis. This may well have been relevant
to rebut Minton's assertion that the allegations were fabrications stemming from mental
disorders and were therefore not worthy of belief.
For all the reasons above, we conclude that the Board, if it erred in admitting Mandel's
statement at all, did not commit prejudicial error requiring reversal of its decision.
[Headnote 20]
Finally, Minton claims that the Board committed reversible error in admitting a statement
made by the husband of Patient O, which was introduced and admitted only as a sworn
statement. O's husband did not testify at the hearing. Minton claims that O's credibility was
key, and that her husband's affidavit unfairly bolstered her credibility. Minton argues that had
the husband been present, he would have cross-examined the husband, not regarding his own
statement, but regarding the husband's beliefs as to why O had not reported the incident
earlier, and other matters regarding O's motives and credibility.
First, although the affidavit would probably have been inadmissible hearsay in a court
trial, the Board is not bound by formal rules of evidence. See NRS 630.344(1). Second, O
was present and could have been questioned regarding her own statements and motives. For
these reasons, it is not clear that the Board erred in admitting the affidavit, although it would
have been preferable to have had the husband testify orally.
[Headnote 21]
Moreover, even if introducing the affidavit were error, it was harmless. Constitutional
Confrontation Clause violations are subject to harmless error analysis in criminal trials. See
Power v. State, 102 Nev. 381, 382, 724 P.2d 211, 213 (1986) (citing Chapman v. California,
386 U.S. 18 (1967)). Assuming that introduction of the affidavit was error, in light of the
overwhelming evidence it was harmless. As stated, although O's husband was not at the
hearing and therefore not subject to cross-examination, O herself was, and Minton
expressed his primary concern to be the opportunity to attack O's motives and credibility.
was not at the hearing and therefore not subject to cross-examination, O herself was, and
Minton expressed his primary concern to be the opportunity to attack O's motives and
credibility. Minton cross-examined O and could easily have cross-examined her regarding
these matters.
For all the reasons stated above, we affirm the district court judge's denial of Minton's
petition and let stand the decision of the Board to revoke his medical license.
17

____________
110 Nev. 1088, 1088 (1994) Threlkel v. Shenanigan's, Inc.
DAVID THRELKEL, Appellant, v. SHENANIGAN'S, INC. and GARY BRENNAN,
Respondents.
No. 24764
September 28, 1994 881 P.2d 674
Appeal from judgment of personal liability on a promissory note. Eighth Judicial District
Court, Clark County; Jack Lehman, Judge.
Seller that financed portion of purchase price in sale of business asserted claim against
corporate buyer's officers, claiming that they were personally liable on promissory note even
though they had signed it in their representative capacities. The district court entered
judgment for seller, and one officer appealed. The supreme court held that officer was
personally liable where last sentence of note, just prior to signatures, provided that the
undersigned personally guaranteed payment.
Affirmed.
Marc L. Simon, Las Vegas, for Appellant.
James J. Brown, Las Vegas, for Respondents.
1. Guaranty.
Evidence supported finding under promissory note executed by corporate buyer of business in favor of seller that signers of note
were personally liable even though buyer was identified and signers signed as officers of buyer; last sentence of note, just prior to
signatures, provided that the undersigned personally guaranteed payment of note, and signers rather than corporate buyer were the
undersigned. NRS 104.3402(2)(a).
2. Guaranty.
Handwritten statement of corporate capacity of signer of promissory note did not necessarily constitute conflicting contract
provision such that signer could not be held personally liable for payment under typewritten provision of note,
and could merely be considered descriptive in nature, particularly in view of fact that signer's name and his
corporate capacity were also typewritten on note below his signature.
__________

17
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
that signer could not be held personally liable for payment under typewritten provision of note, and could merely be considered
descriptive in nature, particularly in view of fact that signer's name and his corporate capacity were also typewritten on note below his
signature.
Signer's claim that his personal liability on promissory note as guarantor was discharged by impairment of collateral securing note
could not serve as basis for relief on appeal where nothing in appellate record supported reliance on impairment-of-collateral defense
and documentation allegedly supporting contention was not provided to appellate court.
OPINION
Per Curiam:
FACTS
The Las Vegas Fountain General Partnership (hereinafter Fountain) was the owner of commercial property in Las Vegas leased to
respondent Shenanigan's, Inc. and its sole shareholder and President, respondent Gary Brennan, who operated a restaurant and bar on the
premises. Respondent Shenanigan's, Inc. sold its business and equipment and assigned its lease to Shenanigan's-Las Vegas, Inc. for the sum
of $240,500. Seventy-thousand dollars ($70,000) of the total purchase price was to be financed by the seller. Accordingly,
Shenanigan's-Las Vegas, Inc. executed a $70,000 promissory note in favor of Shenanigan's, Inc. and Brennan. This note was signed by
Marsha Miller, as President, and by appellant David Threlkel, as Secretary/Treasurer of Shenanigan's-Las Vegas, Inc. Threlkel's signature
appears just prior to the handwritten notation of his corporate capacity, and his name and corporate capacity are also typewritten on the
note below his signature. The last sentence of the note, just prior to the signatures of Miller and Threlkel, provides as follows: The
undersigned do hereby personally guarantee the payment of this note.
Shenanigan's-Las Vegas, Inc. ultimately defaulted on its lease payments as well as its payments under the note, and thereafter filed a
petition in bankruptcy. As a result, Fountain filed a complaint against Shenanigan's, Inc. and Brennan for over $30,000 in delinquent lease
payments and for failure to surrender the premises. Shenanigan's, Inc. and Brennan filed a third-party complaint against Threlkel and
Miller, alleging that Threlkel and Miller were personally liable on the promissory note. Threlkel and Miller's answer to the third-party
complaint admitted existence of the note, but denied personal liability thereon.
Fountain's claims against respondents were ultimately settled and Shenanigan's, Inc. and Brennan proceeded against
Threlkel and Miller on the issue of their liability on the note.
and Shenanigan's, Inc. and Brennan proceeded against Threlkel and Miller on the issue of
their liability on the note.
1
Although the bench trial was not recorded, the lower court's
Decision indicates that Threlkel was allowed to offer his own parol testimony stating that
the parties did not intend for him to be personally obligated on the note. The trial court
ultimately found this testimony unconvincing and insufficient to overcome what the court
determined was the clear intent of the note. Judgment in favor of Shenanigan's, Inc. and
Brennan in the amount of $70,000 plus interest was accordingly entered on August 4, 1993.
Only Threlkel now appeals from this decision and judgment.
DISCUSSION
[Headnote 1]
Threlkel contends that under Nevada's enactment of the UCC, as well as cases interpreting
the Uniform Act, if a signer both identifies the principal on whose behalf he is signing and
discloses the representative capacity in which he is signing, his or her signature does not
create personal liability in the signer.
2
Ergo, because the subject promissory note identified
the principal and revealed the corporate capacity in which he signed, Threlkel is not liable on
the note.
Threlkel's characterization of the statutory rule is correct. See, e.g., NRS 104.3402(2)(a);
Bradley v. Romeo, 102 Nev. 103, 106, 716 P.2d 227, 229 {19S6) {"Because the note
neither names [the principal] nor indicates that Romeo signed in a representative
capacity, he is personally obligated as a matter of law.").
__________

1
According to Threlkel's opening brief, the respondents also sought to recover payment on the note from
Shenanigan's-Las Vegas, Inc. by filing a claim in the bankruptcy action, but this claim was allegedly rejected as
unperfected. These assertions are not corroborated by our record.

2
Threlkel cites the 1991 version of NRS 104.3403 for this proposition. Nevada has recently adopted a revised
version of article 3 of the Uniform Commercial Code, under which NRS 104.3402(2) (which does not materially
change the principle relevant to Threlkel's assertions) is the pertinent section. NRS 104.3402(2) reads as follows:
2. If a representative signs his own name to an instrument and the signature is an authorized signature of
the represented person, the following rules apply:
(a) If the form of the signature shows unambiguously that the signature is made on behalf of the
represented person who is identified in the instrument, the representative is not liable on the instrument.
(b) Except as otherwise provided in subsection 3, if the form of the signature does not show
unambiguously that the signature is made in a representative capacity or the represented person is not
identified in the instrument, the representative is liable on the instrument to a holder in due course that
took the instrument without notice that the representative was not intended to be liable on the instrument.
With respect to any other person, the representative is liable on the instrument unless the representative
proves that the original parties did not intend the representative to be liable on the instrument.
106, 716 P.2d 227, 229 (1986) (Because the note neither names [the principal] nor indicates
that Romeo signed in a representative capacity, he is personally obligated as a matter of
law.). However, this rule does not apply when representatives sign instruments which state
that the signers personally guarantee . . . payment thereunder, as the statute simply does not
contemplate or provide for such an intervening factor.
McBride Elec., Inc. v. Putt's Tuff, Inc., 685 P.2d 316, 320-21 (Kan. Ct. App. 1984),
involved a promissory note wherein, following the signature obligating the principal, a group
of individuals separately signed the note as guarantors. The Kansas court rejected the
guarantors' attempt to avoid liability under the guarantee, stating:
Defendants' argument that the inclusion of their corporate titles behind their signatures
prevents their being personally liable is also without merit. To accept defendants'
argument would elevate form over substance and allow them to escape by subterfuge a
clear expression of personal liability. It would also have the untenable result of making
the guarantor of the note the same corporation which was primarily liable thereon. Such
a promise of guaranty would be illusory only; we cannot interpret the guaranty
provision in such an illogical manner.
Likewise, Threlkel is essentially arguing that the corporation principally liable on the note
was also the undersigned for purposes of the sentence reading that the undersigned . . .
personally guarantee the payment of this note[,] an untenable proposition.
Further support for our position is found in Consolidated Beef Indus. Inc. v. Schuyler, 716
P.2d 544, 549 (Kan. 1986), where the court ruled:
Defendant Schuyler argues that he is not personally liable because he signed the
personal guaranty agreement using the name of James C. Schuyler, President. It is his
position that because he signed the guaranty agreement as President, he cannot be
held personally and individually liable for the corporate debt. We find no merit to this
contention. The identical issue was before the United States Court of Appeals for the
Tenth Circuit in Ricker v. B-W Acceptance Corporation, 349 F.2d 892 (10th Cir. 1965).
. . . The Ricker court ruled that the company president's position that he did not intend
to obligate himself personally raised no material issue of fact, because the written
guaranty agreement was not ambiguous. The court held that to construe the written
guaranty as binding only the corporation and not Ricker, individually, would
contradict and vary the language of the written agreement itself.
guaranty as binding only the corporation and not Ricker, individually, would contradict
and vary the language of the written agreement itself.
The same holding is required under the facts in this case. In the guaranty and
indemnity agreement, Schuyler, as guarantor, unconditionally guaranteed to the
obligees to pay all sums presently and hereafter owed by the obligor to the obligees.
In Appliance & Heating Supply Inc. v. Telaroli, 682 P.2d 867 (Utah 1984), the Utah
Supreme Court was faced with a credit agreement signed by the corporate signer as
President but including language that the undersigned, being an officer, shareholder . . .
assumes personal responsibility for the payment of said corporation's account, and guarantees
in full that said account will be promptly paid. Id. at 868. The court held that: Telaroli
thereafter signed the document, followed by the word president,' which he claimed, in
refusing to make payment, absolved him from personal liability. Such contention flies in the
teeth of the language of the . . . agreement above. There is no ambiguity in such language.
Id.
The Telaroli court also relied on an earlier Utah decision, Boise Cascade Corp. v.
Stonewood Development Corp., 655 P.2d 668 (Utah 1982). In that case, Ronald Bennett, who
had signed a guarantee agreement as vice-president of the principal debtor corporation,
claimed he was not personally liable thereon. The Boise Cascade court ruled that:
The terms of the guarantee are clear and unambiguous, and need no parol evidence
to clarify. . . . The V- Pres. following appellant's signature on the agreement is a
matter of description (descriptio personae), not of capacity to bind a different principal
obligor; otherwise the liability would result in an absurdity, i.e., that the principal
obligor also was the guarantor of his own obligation.
Id. at 669.
Other courts have also relied upon the concept of descriptio personae (a term
descriptive of the person rather than the relationship in which he signs the agreement) when
ruling in this area. See Sebastian Int'l, Inc. v. Peck, 240 Cal. Rptr. 911, 913 (Ct. App. 1987),
and cases cited therein.
Threlkel attempts to distinguish these cases on the basis that the note he signed contained
only a single sentence, rather than an entirely separate paragraph, or separately signed
agreement, upon which his personal liability depends. Threlkel also contends that his single
signature could not have bound both himself personally and the corporation as principal.
It is true that the promissory note at issue was not particularly well drafted, and would
have avoided ambiguity by providing separate signature lines for the principal and the
guarantor. However, Threlkel has failed to cite any authority for the proposition that a single
signature may not suffice for binding both the principal and the guarantor. More importantly,
to the degree the above-cited cases reflect less ambiguity in the contested instruments, it must
be remembered that, unlike most of those cases, this is not an appeal from a directed verdict
or order of summary judgment, but from a decision following an evidentiary hearing.
Ambiguity in the instrument requires an evidentiary determination that may or may not result
in personal liability on the part of the alleged guarantor. See, e.g., Addison State Bank v.
National Maintenance Management, Inc., 529 N.E.2d 30 (Ill. App. Ct. 1988) (rejecting order
of summary judgment and remanding for trial where signer's notation of official capacity
made the note ambiguous as to whether President was intended to be personally obligated
thereon).
Here, the issue of Threlkel's personal liability on the note was determined at trial. The
district court, having heard and considered the evidence, including parol testimony
concerning the intent of the parties, found Threlkel's testimony and evidence less credible
than that of the respondents. There is no basis in the record or in law for this court to overturn
this factual finding.
Threlkel's remaining contentions must likewise be rejected. Threlkel argues, for example,
that all of the documentation surrounding the transaction entered into between the parties
must be considered together. However, the facts surrounding the transaction to which the
promissory note was an incident do not appear to be in dispute. Nothing in the other
documents detracts from the conclusion that the language the undersigned do hereby
personally guarantee the payment of this note means what it says.
[Headnote 2]
Threlkel also contends that where a contract contains conflicting handwritten and printed
provisions, the handwritten provisions prevail. However, as the cases cited above
demonstrate, the handwritten statement of official capacity does not necessarily constitute a
conflicting contract provision (such as in their official capacity only might have), but may
merely be considered descriptive in nature.
[Headnote 3]
Finally, Threlkel insists that, assuming personal liability on the note, his liability as a
guarantor or surety of the principal was discharged by the respondents' impairment of the
collateral securing the note. Specifically, Threlkel contends that the respondents impaired
the collateral by failing to perfect their security interest therein and that this failure is
shown by various filings in the Shenanigan's-Las Vegas, Inc. bankruptcy proceeding.
respondents impaired the collateral by failing to perfect their security interest therein and that
this failure is shown by various filings in the Shenanigan's-Las Vegas, Inc. bankruptcy
proceeding. However, there is nothing in the record before us to support Threlkel's reliance
on the impairment of collateral defense or to corroborate his assertions that the respondents
failed to perfect their interest in the collateral securing the loan. Assertedly, documentation
supporting this contention appears in the Shenanigan's-Las Vegas, Inc. bankruptcy court
filings. However, no such documentation has been provided to this court.
This court on appeal must confine its review to the facts shown in the record. . . . [T]here
is no way we can review the contention of [an] appellant [which is not demonstrated in the
record]. Lee v. Sheriff of Clark County, 85 Nev. 379, 380, 455 P.2d 623, 624 (1969). It does
not appear that Threlkel presented evidence regarding this defense below, as it warranted no
mention in the district court's decision. This apparent failure to present evidence on this issue
in the trial court may not now be used as a basis for relief on appeal. See, e.g., Bradley, 102
Nev. at 106-07, 716 P.2d at 229:
Regarding Romeo's claim that the note [on which he had been held personally
obligated] may have been discharged by impairment of collateral . . . or partial
payment, it should be noted that these questions were in issue when the matter was tried
below. Since Romeo failed to present any evidence to support these defenses, we are
not inclined to order a new trial to give Romeo a second chance to prove his case.
CONCLUSION
For the reasons explained above, the judgment of the district court is affirmed.
____________
110 Nev. 1094, 1094 (1994) Smith v. State
JOSEPH WELDON SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24213
September 28, 1994 881 P.2d 649
Appeal from a judgment of conviction of three counts of murder with use of a deadly
weapon and one count of attempted murder with use of a deadly weapon and from a sentence
of death. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
110 Nev. 1094, 1095 (1994) Smith v. State
The supreme court held that: (1) hammer was not deadly weapon for purposes of sentence
enhancing statute; (2) death penalty statute was unconstitutionally vague as applied where
instruction did not include limitation that aggravating circumstance based on depravity must
include torture, mutilation, or other serious and depraved physical abuse beyond act of killing
itself; and (3) trial court did not abuse discretion in allowing victim impact testimony during
penalty phase of trial.
Affirmed in part; reversed in part and remanded for a new penalty hearing.
Morgan D. Harris, Public Defender and Stephen J. Dahl, Deputy Public Defender, Clark
Tufteland, Chief Deputy District Attorney, and Ronald C. Bloxham, Deputy District Attorney,
1. Criminal Law.
Hammer is not deadly weapon for purposes of sentence enhancement statute. NRS 193.165.
2. Criminal Law.
Denial of motion for mistrial is within trial court's sound discretion, and trial court's determination will not be disturbed on appeal
in absence of clear showing of abuse.
3. Homicide.
Death penalty statute was unconstitutionally vague as applied where instruction did not include limitation that aggravating
circumstance based on depravity of mind must include torture, mutilation, or other serious and depraved physical abuse beyond act of
killing itself and jury found in disjunctive torture, depravity of mind, or mutilation but did not specify which it had found and might
have based its finding on circumstance of depravity of mind and not torture or mutilation. NRS 200.033(8).
4. Homicide.
Reviewing court could not hold unconstitutional application of sentence enhancement statute to be harmless error or reweigh
aggravating and mitigating evidence, and sentences of death would be vacated, where application of enhancement statute was
unconstitutionally vague and jury found no other aggravating factors. NRS 200.033(8).
5. Homicide.
Statute specifically addressing first degree murder cases, rather than general victim impact statute, governs admissibility of victim
impact statements during penalty hearing of first degree murder case. NRS 175.552, 176.015.
6. Homicide.
Questions of admissibility of testimony during penalty phase of capital murder trial are largely left to discretion of trial judge.
110 Nev. 1094, 1096 (1994) Smith v. State
7. Homicide.
Trial court did not abuse discretion in allowing statement by woman who was daughter and half-sister of persons killed to give
victim impact testimony during penalty hearing of first degree murder trail. NRS 175.552.
OPINION
Per Curiam:
On December 11, 1992, appellant Joseph Weldon Smith was convicted, pursuant to a jury trial, of three counts of first degree murder
with use of a deadly weapon for killing his wife, Judith Smith, and Judith's daughters, Wendy Jean Cox and Kristy Cox. All three victims
had been struck by a blunt object, which the state alleged was a hammer, and then manually strangled. Smith was also convicted of
attempted murder with use of a deadly weapon for the attempted murder of Frank Allen. Smith was sentenced to death for the murders of
Wendy and Kristy, to a sentence of life without possibility of parole for Judith's murder, and to two consecutive twenty-year prison terms
for the attempted murder of Allen with use of a deadly weapon.
On appeal, Smith argues that the district court erred in submitting the issue of whether a hammer is a deadly weapon to the jury. He
submits that, as a matter of law, a hammer is not a deadly weapon. Smith further argues that his convictions should be reversed and a new
trial ordered based on alleged prosecutorial misconduct during the cross-examination of Smith. Smith also challenges his sentences of
death, claiming that the only aggravator the jury found, torture, depravity of mind, or mutilation, was invalid. Finally, Smith contends that
the district court abused its discretion in allowing the state to introduce the testimony of Adrian McEachin, Judith's daughter and Wendy
and Kristy's half-sister, at the penalty hearing.
FACTS
During the trial Michael Hull, a police officer for the City of Henderson, testified as follows: On Saturday, October 6, 1990, at
approximately 2:29 a.m., he was dispatched to the Fountains, a gated community in Henderson. While on his way, Hull was flagged down
by a man who subsequently identified himself as Frank Allen. Allen appeared frantic and Hull observed blood on his shirt and blood
running down the left side of his head. Allen told Hull that Smith had attacked him with a hammer or a hatchet.
After arriving at the Smiths' home, located at 2205 Versailles Court inside the gated community, Hull and two other officers
observed a large broken window laying on the front porch outside the house.
110 Nev. 1094, 1097 (1994) Smith v. State
observed a large broken window laying on the front porch outside the house. Allen had
explained to the officers that he had left through that window. The officers entered the
premises and, during a search of a bedroom, observed what appeared to be a figure beneath a
blanket. After lifting the blanket, they discovered a dead body, subsequently identified as
twelve-year-old Kristy Cox. In an adjacent bedroom they discovered a second body, also dead
and covered with a blanket, later identified as twenty-year-old Wendy Cox. Under a blanket
in the master bed, the officers found a third victim, Kristy and Wendy's mother and Smith's
wife, Judith.
The officers also located some notes written by Smith. The first, found inside a briefcase
in the upstairs den, and dated October 5, 1990, read:
A triple murder was committed here this morning. My wife, Judith Smith and my two
stepdaughters, Wendy Cox and Kristy Cox, were assassinated. I know who did it. I
know who sent them. I had been warned that this would happen if I did not pay a large
sum of money to certain people. I have been owing it for a long time and simply could
not come up with it. And I didn't believe the threat. I don't need any help from the
police in this matter. I will take care of it myself. They will have to kill me, too. When
and if you find me, I'm sure I will be dead, but that's okay. I already killed one of the
murderers. And I am going to get the others and the man who I know sent them. There
were three in all. You will probably find my body within a day or two.
Thank you, Joe Smith.
P.S.: I thought I had gotten away when we moved here, but it didn't work. When we
moved, we were being watched. If I am successful in my task at hand, I will turn myself
into (sic) the police.
The second letter stated, Frank [Allen], look in the locked room upstairs for your package.
The key is on the wet bar. Joe.
Dr. Giles Sheldon Green, Chief Medical Examiner for Clark County, testified that he
performed the autopsies on the bodies of the three victims. Green stated that all three victims
died from asphyxia due to manual strangulation. He also opined that the pattern of injuries
found on the three victims could have been inflicted with a carpenter's hammer. On Kristy,
Green observed three blunt lacerations to the scalp and a lot of blood in Kristy's hair, some
bruising and a scratch on her neck, and substantial hemorrhaging as a result of the trauma to
her scalp.
On Wendy, Green observed several quite ragged, irregular, deep lacerations of the
forehead, and at least six or seven wounds of the face. There were a total of thirty-two head
lacerations, some of which were patterned injuries of pairs of penetrating wounds of the
scalp tissue.
110 Nev. 1094, 1098 (1994) Smith v. State
tions, some of which were patterned injuries of pairs of penetrating wounds of the scalp
tissue. On the left side of Wendy's head, a large laceration inside the ear almost cut the outer
ear in two. Green found numerous scratches and abrasions on the front of Wendy's neck, as
well as defensive wounds, such as a fractured finger, bruises on the backs of her hands and a
finger with the skin over the knuckle knocked away. Green found areas in which the various
head impacts had created depressed fractures of the outer and inner surfaces of the skull.
There was also a great deal of hemorrhaging and damage to the soft tissues of Wendy's neck.
On Judith, Green found lacerations of the forehead and above her right eyebrow, abrasions
and scratches on the front of her neck and a cluster of at least five lacerations of the scalp,
mainly on the right side of the back of the head. It was Green's opinion that the five
lacerations were inflicted after death.
Allen testified as follows: He met Smith in September 1990, when Smith came to Allen's
home located at 2205 Versailles Court, inside the Fountains, wishing to purchase that home.
Although Allen first indicated that the house was not for sale, after Smith agreed to pay
$50,000 over the appraised value of $650,000, Allen agreed to sell him the house. Allen
subsequently gave Smith the keys to the house, but retained one of the bedrooms for his use
when he came to Las Vegas on weekends, until the sale was final. Smith informed Allen that
he was in a rush to move into the house because he wanted to make preparations for his
step-daughter, Wendy's, wedding in November.
On September 21, 1990, Smith gave Allen a personal check for $35,000 as a good faith
deposit. Approximately six days later, the bank notified Allen that the check had been
returned because Smith had closed his account. Smith assured Allen that he would mail him a
certified check immediately. Two days later, having not received a check, Allen indicated to
Smith that he would be coming to Las Vegas on Friday, October 5, 1990, and would pick up
the check then.
On Friday morning, Allen received a call from Smith who stated, I thought you were
coming up here this morning. Allen told Smith that he would be coming later in the day.
Smith stated that he and his wife were going to California to shop for furniture that day, so
they arranged for Smith to leave two checks, the $35,000 deposit check and a $3,338.80
check for the October mortgage payment, behind the wet bar in the house, along with Allen's
mail.
Allen arrived at the house between 1:00 a.m. and 1:30 a.m. on Saturday, October 6, 1990,
and noticed that the security system was off. He went behind the wet bar to retrieve his mail
and found the note from Smith telling him to look in the locked room upstairs for the
package.
110 Nev. 1094, 1099 (1994) Smith v. State
upstairs for the package. Allen went to that room and, not finding any checks, went into the
game room. Although the light was not on in the game room, the area was illuminated by a
large chandelier in the hallway.
In the game room, Allen saw Smith crouched in the closet. Smith then jumped out and
began to pound Allen in the head with an object, which Allen assumed was a hammer. Allen
asked Smith what he was trying to do, but Smith did not say anything. Realizing that Smith
was trying to kill him, Allen said, You're not going to get away with this, and pushed Smith
backward and ran down the stairway with Smith pursuing him. Allen tried to figure out the
best way to get out of the house, and after realizing that he had locked himself in, ran straight
through the full-length, leaded-glass front door. He then got into his car and drove to the
guard shack at the entrance to the development and asked the guard to call the police.
Eric Lau, the security guard then on duty at the guard-gated entrance to the Fountains,
testified that at approximately 2:30 a.m. on Saturday, October 6, 1990, Allen ran up to the
side of the guard house and pounded on the window. Allen's shirt was covered with blood and
he said, He's after me! He's after me! Lau immediately called for help and then saw Smith's
Lincoln automobile exit the Fountains, with Smith behind the wheel.
Yolanda Cook, Judith's daughter-in-law, testified that on the morning of Friday, October 5,
1990, at 8:00 a.m., she called the Smiths' house to see if someone could take her son to
school. She spoke with Smith, who told her that he had to go to a meeting and that Judith,
Wendy and Kristy had gone shopping for Wendy's wedding. Between 9:00 a.m. and 3:30
p.m., Yolanda called the Smiths' house three more times, and each time Smith told her that
Judith and her daughters were away.
Yolanda further testified that on Saturday, October 6, 1990, at approximately 5:00 a.m.,
Smith called her and told her of the three murders. He told her that Allen came into the house
and bludgeoned them to death. Smith requested that she tell all of Judith's other children and
then go to the house and get the letters out of his briefcase explaining what happened. He then
told her that he was going to kill himself and hung up the phone.
William Lawrence Cook, one of Judith's sons, testified that Smith had expressed concern
and irritation over financial obligations such as Wendy's pending wedding and the new house.
William testified that Smith would often refer to himself as the Lone Wolf and say, I gotta
get outta here. Sometimes Smith would say that he just wanted to go away and live on an
island somewhere around no kind of family or nothing like that. William also remembered
Smith telling him that the worse thing to f---- up a man was to have a family."
110 Nev. 1094, 1100 (1994) Smith v. State
to f
------
up a man was to have a family. Smith made these statements during a collection of
conversations over a period of years.
Smith took the stand on his own behalf and testified as follows: In 1986 he encountered
financial difficulties and agreed to accept a drug dealing opportunity in Los Angeles with an
organization. That same year, Smith moved to Las Vegas and continued working for the
organization. At some point, the organization falsely accused Smith of stealing cocaine and
told Smith that he now owed the organization a big debt. Smith quit working for the
organization and in 1989 Gino, a man from the organization, found Smith and reminded him
of the debt, saying that it had to be paid or else they were going to give [him] a fate worse
than death.
He resumed working for the organization, and also began to look for a new house in a
gated community. He found the house at the Fountains and arranged payment terms with
Allen, which included giving Allen eleven kilograms of cocaine in exchange for the equity in
the house. The eleven kilograms were part of a twenty kilogram shipment which Smith had
received from the organization and had decided to keep for himself. Smith gave Allen ten
kilograms of cocaine, worth approximately $200,000, on the same day that he gave Allen the
$35,000 check. He claimed that Allen knew that the check was no good and served only to
make the transaction seem legitimate, and said he would not deposit it.
On Thursday, October 4, 1990, Smith left the additional kilogram of cocaine owed Allen
in Allen's bathroom sink, upstairs where Allen stayed when he was in town for weekends.
That same day, Smith told the organization that he had sold twenty kilograms of cocaine and
was keeping the money because he was tired of working for peanuts.
Between 2:00 a.m. and 3:00 a.m. on the morning of Friday, October 5, while he was in bed
with Judith, he was awakened by a tap on his toe. He then saw three men standing over his
bed, one of whom picked up a hammer Smith had been using the previous night and began
slapping it in his hand and asking Smith where the stuff was. Another man, who had a
sawed-off shotgun, forced Smith to go into the game room and made him lay down and stay
there. Smith subsequently discovered that his family had been killed.
On Friday, after the murders, he remembered receiving three phone calls from Yolanda.
He stated that I brushed her off like I had other things to do, a meeting I had to attend . . . I
really needed some time to sort this out. There was too many loose ends that I didn't have
answers to. Smith stated that he did not go to the police because he would have to tell
them about the drugs and because it looked like he committed the crime and he knew
they would put him in jail.
110 Nev. 1094, 1101 (1994) Smith v. State
the police because he would have to tell them about the drugs and because it looked like he
committed the crime and he knew they would put him in jail. He stated that he was also
trying to figure out if Allen might have been involved in the murders and might have
provided the killers with keys to the house. He called Allen that Friday morning to see if he
could find out from Allen's voice if Allen was involved in the murders. After the phone call,
he decided that Allen was not involved.
At approximately 4:00 p.m. on Friday, Smith took some sleeping pills and lay down on the
game room floor by the closet. Early Saturday morning, he awoke to the sounds of someone
coming into the game room. He thought that the killers had returned and began swinging the
hammer at a man. He did not know it was Allen because it was dark and Allen did not say
anything during the attack.
Six months after the murders, Smith was arrested in California. When he was arrested,
evidence was seized which indicated that he was attempting to change his identity. Smith was
charged with three counts of murder with use of a deadly weapon and one count of attempted
murder with use of a deadly weapon. He was convicted of all four counts and sentenced to
death for the murders of Kristy and Wendy, life without possibility of parole for Judith's
murder and to two consecutive twenty-year terms for the attempted murder of Allen with use
of a deadly weapon.
The deadly weapon sentence enhancement
Before his trial, Smith moved to dismiss the deadly weapon sentence enhancement,
arguing that a hammer is not a deadly weapon under Nevada law. The trial judge denied
Smith's motion, ruling that the jury should decide the issue. See Zgombic v. State, 106 Nev.
571, 577, 798 P.2d 548, 552 (1990) (where trial judge cannot determine as a matter of law
whether the weapon is or is not a deadly weapon, the judge must submit the entire issue to the
jury after instructing it on the definition of a deadly weapon). The jury found use of a deadly
weapon in all three murders and in the attempted murder. Pursuant to NRS 193.165,
1
the
trial judge enhanced the twenty-year sentence for the attempted murder of Allen with a
consecutive twenty-year sentence.
__________

1
Additional penalty: Use of a deadly weapon or tear gas in commission of crime; restriction of
probation.
1. [A]ny person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for the crime. The sentence prescribed by this section runs
consecutively with the sentence prescribed by statute for the crime.
2. This section does not create any separate offense but provides an
110 Nev. 1094, 1102 (1994) Smith v. State
the attempted murder of Allen with a consecutive twenty-year sentence.
2

[Headnote 1]
Smith argues that the district court erned in failing to dismiss the deadly weapon
enhancement. We agree. In Zgombic, this court overruled the functional test articulated in
Clem v. State, 104 Nev. 351, 356-57, 760 P.2d 103, 106-07 (1988), and supplanted it with the
inherently dangerous weapon test. 106 Nev. at 574, 798 P.2d at 550. Zgombic defined an
inherently dangerous instrument as one which, if used in the ordinary manner contemplated
by its design and construction, will, or is likely to, cause a life-threatening injury or death.
106 Nev. at 576-77, 798 P.2d at 551.
Under the Zgombic test, a hammer is not a deadly weapon for purposes of sentence
enhancement. A hammer, while potentially harmful when misused, is not intended by its
nature or design to be used to cause injury. See Hutchins v. State, 110 Nev. 103, 111, 867
P.2d 1136, 1141 (1994). As stated in Zgombic, the thrust of the penalty enhancement statute
is to deter the carrying and use of firearms and other inherently dangerous deadly weapons.
106 Nev. at 575, 798 P.2d at 552; see also Kazalyn v. State, 108 Nev. 67, 76, 825 P.2d 578,
584 (1992). This point was recently reiterated in Hutchins where this court, in holding that
scissors are not a deadly weapon, stated, This legislative intent is not furthered by enhancing
penalties for the use of potentially dangerous household items, such as scissors, in the
commission of a crime. 110 Nev. at 111, 867 P.2d at 1142. We hold that a hammer is not a
deadly weapon as contemplated by NRS 193.165.
Prosecutorial misconduct
During the cross-examination of Smith, the prosecutor pursued a line of questioning which
Smith asserts amounted to prosecutorial misconduct. Defense counsel objected to the state's
line of questioning and moved for a mistrial. The district court overruled the objections and
denied Smith's motion for a mistrial. Smith appeals the district court's denial of his motion.
[Headnote 2]
Denial of a motion for mistrial is within the trial court's sound discretion.
__________
additional penalty for the primary offense, whose imposition is contingent upon the finding of the
prescribed fact.
3. The provisions of subsections 1 and 2 do not apply where the use of a firearm, [or] other deadly
weapon . . . is a necessary element of such crime.

2
The trial judge erroneously failed to enhance the sentence of life without possibility of parole.
110 Nev. 1094, 1103 (1994) Smith v. State
discretion. Owens v. State, 96 Nev. 880, 883, 620 P.2d 1236, 1238 (1980). The trial court's
determination will not be disturbed on appeal in the absence of a clear showing of abuse. Id.
We hold that under the circumstances of this case, the district court judge did not abuse his
discretion in denying Smith's motion for a mistrial.
Aggravating circumstance
During the penalty phase in the instant case, over the objection of defense counsel, the
court instructed the jury that murder of the first degree may be aggravated if the state proves
beyond a reasonable doubt that the murder involved torture, depravity of mind or the
mutilation of the victim. See NRS 200.033(8). The district court also instructed the jury on
the definitions of torture and mutilation approved of by this court. See e.g., Robins v. State,
106 Nev. 611, 629, 798 P.2d 558, 570 (1990), cert. denied, 499 U.S. 970 (1991) (torture);
Parker v. State, 109 Nev. 383, 394, 849 P.2d 1062, 1069 (1993) (mutilation); Rogers v. State,
101 Nev. 457, 467, 705 P.2d 664, 671 (1985), cert. denied, 476 U.S. 1130 (1986)
(mutilation). The district court instructed the jury regarding the definition of depravity of
mind as follows:
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.
The jury received no other limiting instruction on depravity of mind.
3

The jury found that the state had established beyond a reasonable doubt that the murders of
Kristy and Wendy involved torture, depravity of mind, or the mutilation of the victim.
(Emphasis added.) The jury found no mitigating factors and imposed sentences of death for
the murders of Wendy and Kristy.
Smith argues that the district court erred in allowing the jury to consider torture, depravity
of mind or mutilation as an aggravating factor. We need not reach Smith's contention,
however, as we hold that the instructions regarding NRS 200.033{S) rendered the statute
unconstitutionally vague as applied.
__________

3
The district court rejected Smith's proffered instruction, which read:
In order to find the aggravating factor of torture, depravity of mind, or mutilation of the victim, you must
find that there was torture, mutilation or other serious depraved physical abuse beyond the act of killing
itself. In other words, you must find an intent to cause wholly unnecessary suffering or mutilation to the
victim.
110 Nev. 1094, 1104 (1994) Smith v. State
hold that the instructions regarding NRS 200.033(8) rendered the statute unconstitutionally
vague as applied.
In Godfrey v. Georgia, 446 U.S. 420, 428 (1980), the United States Supreme Court held
that states imposing the death penalty must:
channel the sentencer's discretion by clear and objective standards that provide
specific and detailed guidance, and that make rationally reviewable the process for
imposing a sentence of death.
In Robins, 106 Nev. at 627-630, 798 P.2d at 568-70, this court, relying on Godfrey, analyzed
the constitutionality of NRS 200.033(8) and determined that it was not facially
unconstitutional or unconstitutional as applied. Essential to our conclusion that the statute
was not unconstitutionally applied was our holding that if an aggravating circumstance is
based upon depravity of mind, it must include torture, mutilation or other serious and
depraved physical abuse beyond the act of killing itself. 106 Nev. at 629, 798 P.2d at 570;
see also Canape v. State, 109 Nev. 864, 876, 859 P.2d 1023, 1031 (1993); Parker, 109 Nev.
at 394, 849 P.2d at 1069; Jiminez v. State, 106 Nev. 769, 774, 801 P.2d 1366, 1369 (1990).
In Libby v. State, 109 Nev. 905, 859 P.2d 1050 (1993), we reiterated our holding in Robins
that an aggravating circumstance based upon depravity of mind must include torture,
mutilation or other serious and depraved physical abuse beyond the act of killing itself. We
then held that since, in Libby's case, the jury received no such limiting instruction, the
aggravating circumstance based on depravity of mind was applied unconstitutionally. Libby,
109 Nev. at 917, 859 P.2d at 1058; see also Canape, 109 Nev. at 877 n.5, 859 P.2d at 1031
n.5 (identical depravity of mind instruction created arguably invalid depravity of mind
aggravating circumstance).
[Headnote 3]
Here too, the jury was not given the limiting instruction of depravity of mind required by
Libby in its interpretation of Robins. Additionally, the jury in the instant case found in the
disjunctive torture, depravity of mind, or mutilation and did not specify which of the three it
found. It therefore might well have based its finding of the aggravating circumstance on
depravity of mind. Since the jury was not instructed that depravity of mind must include
torture, mutilation or other serious and depraved physical abuse beyond the act of killing
itself and since the jury may have found depravity of mind and not torture or mutilation, we
hold that NRS 200.033(8) was unconstitutionally applied in this case.
110 Nev. 1094, 1105 (1994) Smith v. State
[Headnote 4]
The jury found no other aggravating factors and we therefore cannot hold that the
unconstitutional application of NRS 200.033(8) was harmless error nor reweigh the
aggravating and mitigating evidence and thereby uphold the sentences of death. See Canape,
109 Nev. at 877, 859 P.2d at 1031 (1993); Libby, 109 Nev. at 918, 859 P.2d at 1058-59.
Consequently, we vacate the two sentences of death.
Victim impact testimony
[Headnote 5]
During the penalty phase in the instant case, the trial judge, over the objection of defense
counsel, permitted Adrian McEachin, daughter of Judith and half-sister of Wendy and Kristy,
to read a short but powerful statement she had prepared regarding the loss of her mother and
two half-sisters.
4
Smith claims that the district court erred in admitting McEachin's
testimony regarding Wendy and Kristy since it was outside the scope of the victim impact
statute, NRS 176.015.
5
Smith's reliance on NRS 176.015
__________

4
McEachin's testimony included the following:
Okay. I'd like the tell everyone in this courtroom that I don't have a mother any more, nor do my children
have their grandmother. And my sister, Wendy, was one month away from her marriage. And Kristy was
just an innocent 12 year-old who will never be a teenager.
And I hope that none of you present today will ever know what it feels like to have someone come and
tell you that three members of your family are dead and it's not by some accident or twist of what
someone might call fate, but that they were all murdered. Murdered by a man who was disguised as a
loving husband, provider, and father figure.
And I hope that none of you present ever know what it feelsto know what it feels like to go to your
sister's job and tell them that she's dead, or go to your little sister's school and clean out her locker, not
because she's moved away or because she's gone to another school, but because she's dead. Never to be
able to become a teenager. And when I opened that locker, I found things of her adolescence that she will
never, ever have. Her first make-up, little blush thing. And I had to go and clean that out and take that
because she was dead.
. . .
And l hope that none of you present ever have to know what it feels like to have the urge to speak to your
mother so badly that it literally hurts and to know that you can't because she's dead, murdered . . . .

5
NRS 176.015(3)(b) affords the victim an opportunity to appear and [r]easonably express any views
concerning the crime, the person responsible, the impact of the crime on the victim and the need for restitution.
NRS 176.015(5) provides that victim has the meaning ascribed to it in NRS 213.005. In NRS 213.005(2) a
victim is defined as (a) A person against whom a crime has been committed; (b) A person who has been injured
or killed as a direct result of the commission of a crime; or (c) The surviving spouse, parents or children of such
a person.
110 Nev. 1094, 1106 (1994) Smith v. State
reliance on NRS 176.015 is misplaced. This court has held that NRS 176.015 is inapplicable
to first degree murder cases. Hardison v. State, 104 Nev. 530, 534-35, 763 P.2d 52, 55
(1988). Instead, NRS 175.552 governs the admissibility of evidence during the penalty
hearing of a first degree murder case.
[Headnote 6]
NRS 175.552 provides that during the penalty hearing of a first degree murder case,
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.) Questions
of admissibility of testimony during the penalty phase of a capital murder trial are largely left
to the discretion of the trial judge. Milligan v. State, 101 Nev. 627, 636, 708 P.2d 289, 295
(1985), cert. denied, 479 U.S. 870 (1986); see also Guy v. State, 108 Nev. 770, 782, 839 P.2d
578, 586 (1992).
[Headnote 7]
In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597 (1991), the U.S. Supreme Court
overruled its prior cases prohibiting victim impact evidence during the penalty phase of a
capital trial. The Payne court stated, A State may legitimately conclude that evidence about
the victim and about the impact of the murder on the victim's family is relevant to the jury's
decision as to whether or not the death penalty should be imposed. 501 U.S. at 827, 111 S.
Ct. at 2609.
In Homick v. State, 108 Nev. 127, 136-37, 825 P.2d 600, 606 (1992), this court, citing
Payne, concluded that error did not result from the comments of a prosecutor during closing
argument regarding the surviving members of the murdered victims' families. This court
quoted Payne with approval as follows:
[T]he state has a legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family.
108 at 136, 825 P.2d at 606 (quoting Payne, 501 U.S. at 825, 111 S. Ct. at 2608).
Given the decisions in Payne and Homick and the broad language of NRS 175.552, we
conclude that the trial court did not abuse its discretion in allowing McEachin's testimony.
Based on the foregoing, we affirm Smith's convictions on three counts of first degree
murder and one count of attempted murder.
110 Nev. 1094, 1107 (1994) Smith v. State
Additionally, we vacate the twenty-year sentence enhancement for use of a deadly weapon in
the attempted murder of Allen. Finally, we vacate the sentences of death for the murders of
Wendy and Kristy and remand for a new penalty hearing.
____________
110 Nev. 1107, 1107 (1994) Davis v. State
DAMON LAMONTE DAVIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24405
September 28, 1994 881 P.2d 657
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of
robbery with use of a deadly weapon, one count of first-degree kidnapping with use of a
deadly weapon, one count of burglary, one count of battery with intent to commit a crime,
two counts of assault with a deadly weapon, and one count of discharging a firearm from a
motor vehicle. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The supreme court held that: (1) district court was not required to give defendant's
proposed jury instructions on coercion as lesser related or lesser included offense of
kidnapping; (2) there was sufficient evidence to prove beyond reasonable doubt that
defendant used deadly weapon; and (3) dismissal with prejudice was required as to offenses
arising from one incident because victims were advised against discussing case with others,
including defense counsel and investigators.
Affirmed in part; reversed in part.
Haney & McBride and Deborah D. Owen, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Frank J. Coumou, Deputy District Attorney,
1. Criminal Law.
In order to be entitled to jury instruction on lesser related offense, lesser offense must be closely related to offense charged,
defendant's theory of defense must be consistent with conviction for related offense, and evidence of lesser offense must exist.
2. Criminal Law.
Defendant, charged with kidnapping, was not entitled to lesser related offense instruction on coercion, though defendant's crime
involved force or threatened use of force, since coercion is no more closely related to crime of kidnapping
than to host of other crimes, since defendant's theory of defense was not consistent with conviction for
coercion because defendant's only mitigating theory presented by evidence was that crime was committed
with toy gun rather than real gun, and since even if gun was toy, this would not negate charge of
kidnapping or provide reasonable basis for coercion conviction.
110 Nev. 1107, 1108 (1994) Davis v. State
involved force or threatened use of force, since coercion is no more closely related to crime of kidnapping than to host of other crimes,
since defendant's theory of defense was not consistent with conviction for coercion because defendant's only mitigating theory
presented by evidence was that crime was committed with toy gun rather than real gun, and since even if gun was toy, this would not
negate charge of kidnapping or provide reasonable basis for coercion conviction. NRS 200.310, 207.190.
3. Criminal Law.
Merely seeking instruction on assertedly lesser related offense, or arguing for such an instruction, does not without more create
theory of defense for purposes of the three-prong test of Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989) setting out
requirements to be entitled to jury instruction on lesser related offense.
4. Kidnapping.
Even if it were shown that gun that defendant used in carrying away victim was actually a toy, this would not negate kidnapping
charge, since seizing, abducting or carrying away of victim for purposes of first-degree kidnapping may be accomplished by any
means whatsoever[,] including use of weapon which victim falsely believed to be real. NRS 200.310, 207.190.
5. Kidnapping.
Defendant met requirements for being charged with kidnapping when kidnapping is incidental to another crime. Defendant took
victim to the bank and then back to her house, thus engaging in asportation, defendant physically restrained and carried victim away
from her home to area fraught with greater prospects for unexpected, precipitous events, thus increasing risk of harm, because
defendant took victim to bank in dark little shopping center where she feared she was in danger, and kidnapping had independent
purpose and significance since it was essential to accomplishment of robbery because defendant ordered victim to take defendant to
bank automatic teller machine so that victim could get money for defendant. NRS 200.310.
6. Criminal Law.
Trial court was not required to give jury a lesser included offense instruction on theory of coercion in defendant's trial for
kidnapping since there was sufficient evidence, including defendant's own corroboration of victim's testimony, to satisfy all elements
of kidnapping, and defendant failed to cite any evidence tending to reduce offense or which would support conviction for lesser
included or lower degree offense. NRS 200.310, 207.190.
7. Kidnapping; Robbery.
Rational trier of fact could have found beyond reasonable doubt that defendant used deadly weapon in commission of robbery and
kidnapping, though victim testified that she did not know whether it was real gun and defendant claimed it was a toy, where victim
testified that man with cold and heavy metalic-looking gun thrust into her side kidnapped and robbed her. NRS 200.310.
8. Criminal Law.
Dismissal of charges with prejudice was required in prosecution for robbery and other crimes where prosecutor or police officer
violated rule prohibiting prosecutors and police officers from suggesting to witnesses and victims that they refrain from speaking to
defense counsel or investigators about case. Violation of rule was not susceptible to repair upon retrial since prosecutor or
police officer discouraged victims from speaking about the case, and victims thus would not, and continued
to refuse to, speak to defense counsel or defense investigators, and since even if victims were willing to
view pictures of other suspects presented to them by defense, which they refused to do before trial, there
would be natural tendency not to deviate from previous trial testimony even if view of pictures caused
some doubt concerning victim's identification of defendant.
110 Nev. 1107, 1109 (1994) Davis v. State
upon retrial since prosecutor or police officer discouraged victims from speaking about the case, and victims thus would not, and
continued to refuse to, speak to defense counsel or defense investigators, and since even if victims were willing to view pictures of
other suspects presented to them by defense, which they refused to do before trial, there would be natural tendency not to deviate from
previous trial testimony even if view of pictures caused some doubt concerning victim's identification of defendant.
9. Criminal Law.
While prosecutors and police are not required to encourage or advise witnesses to speak with defense counsel, and witnesses may
not be compelled to so so, absent special circumstances, prosecutors and police officers are not to suggest to witnesses and victims that
they refrain from speaking to others about the case in manner which would include defense or tend to discourage witnesses from
cooperating with defense counsel and defense investigators. Principle of access to witnesses applies only to defense counsel and their
investigators, and suggestions by police officers or prosecutors that witnesses refrain from speaking to others, with exception of
representatives of defense, do not violate any public policy.
OPINION
Per Curiam:
On August 12, 1992, eighteen-year-old Damon Lamonte Davis was certified as an adult for crimes committed prior to his eighteenth
birthday. After pleading not guilty, Davis was tried by a jury and convicted of three counts of robbery with use of a deadly weapon, one
count of first-degree kidnapping with use of a deadly weapon, one count of burglary, one count of battery with intent to commit a crime,
two counts of assault with a deadly weapon, and one count of discharging a firearm from a motor vehicle. Davis was sentenced to two
consecutive life terms for the kidnapping with a deadly weapon charge, and to various, mainly concurrent, fifteen, six and four year terms
on the remaining charges.
The convictions which Davis contests herein arose out of criminal conduct involving two victims, Wendy Dombrowski and Michael R.
Sanchez. We conclude that Davis was fairly tried and convicted with respect to the Dombrowski crimes, but that his convictions stemming
from the Sanchez events must be vacated and dismissed with prejudice.
FACTS
The evidence presented at trial concerned three different incidents, only two of which form the basis for Davis's assignments of error on
appeal.
The Dombrowski Incident formed the basis for one of the counts of robbery with use of a deadly weapon and the count
of first-degree kidnapping with use of a deadly weapon.
110 Nev. 1107, 1110 (1994) Davis v. State
counts of robbery with use of a deadly weapon and the count of first-degree kidnapping with
use of a deadly weapon.
The victim, Wendy Dombrowski, testified that at 8:15 p.m. on the evening of March 24,
1992, she had just pulled into the driveway of her Las Vegas home when she was accosted by
an unknown assailant whom she identified at trial as Davis. The assailant pointed a gun at
Dombrowski's face and demanded that she give him her purse; Dombrowski complied. The
victim's wallet contained $40.00 and an ATM card, which prompted Davis to order
Dombrowski to drive him to her bank, threatening to kill her if she disobeyed. With Davis's
gun poking her in the side, Dombrowski drove to a nearby bank, removed $500.00 from the
ATM and handed the cash to Davis. After the machine denied further withdrawals, Davis
instructed Dombrowski to drive back to her home, stating that there better be some money
there. When the two arrived at the victim's house, Dombrowski noticed a nearby car flash its
lights. Davis told Dombrowski not to call police since he knew where she lived and would
return and kill her. Davis then ran towards the car that had flashed its lights as Dombrowski
ran into her home, locked the door, and called 911.
Dombrowski described Davis's gun as a dark-coal colored automatic, and testified that
because of the manner in which he carried it, and because she could feel its coldness and
weight through her t-shirt, she did not believe it to be made out of plastic. Although
Dombrowski testified that she saw that the gun was of metal construction, she admitted on
cross-examination that she could not testify that she knew it was a real gun. On redirect,
however, she stated she had never described the gun as plastic and that at one point, the gun
made a noise like a bullet being placed in the chamber.
Defense counsel stipulated that a positive match was made between Davis's fingerprints
and those found on the vehicle used in the kidnapping. Metro Detective Michael T. Karstedt
testified that he had interviewed Davis regarding this incident after the fingerprint analysis
and a photo line-up indicated that he was a suspect. After being informed of his Miranda
rights, Davis admitted being the perpetrator, but stated that he had committed the crime with
a BB gun, rather than a real gun. No gun was ever recovered.
Davis took the witness stand on his own behalf and corroborated Dombrowski's version of
the events, including his threats to kill her, but testified that the gun he used was a plastic toy
gun which only shot soft rubber BB-size balls. Davis's mother testified that there were several
toy guns in her home, as she had nine grandchildren. Davis's girlfriend testified that she had
seen Davis with "one of them little K-Mart toy guns [that] shot . . . .
110 Nev. 1107, 1111 (1994) Davis v. State
with one of them little K-Mart toy guns [that] shot . . . . [l]ittle red circle caps.
The Sanchez Incident resulted in a charge of two counts of robbery with use of a deadly
weapon, one count of burglary, and one count of battery with intent to commit a crime.
The victim, Michael R. Sanchez, testified that at approximately 8:45 p.m. on the evening
of April 15, 1992, as he pulled into his garage and was exiting his car, he was hit in the face
by an unknown intruder. At trial, Sanchez identified Davis as his assailant. Davis was with
another individual, who had a small gun that looked like a .380. Both individuals
demanded money and Sanchez complied by giving Davis the $6.00 he had in his pocket. The
pair then asked for a bank card, and Sanchez replied that he did not have one, but that his
wife did. The intruders then required that he go into the house with them to retrieve it.
Sanchez led the pair into his home, where his wife and two children were present. The
perpetrator with Davis waived his gun at Sanchez and threatened to shoot him. Sanchez
secured his wife's purse, giving it to the individual with the gun, who in turn handed it to
Davis. The pair then informed Sanchez that they were all going to the bank and accompanied
Sanchez back to the garage. Sanchez's wife went to the door of the garage and told her
husband to let them take the purse and the truck, but not to accompany them. For some
reason, the two men gave up their plan of taking Sanchez to the bank and left with the $36.00
they had taken from Sanchez and his wife.
Sanchez positively identified Davis at trial and indicated that he had earlier picked him out
of a photographic line-up. Mrs. Sanchez likewise testified that she had picked Davis out of a
photographic line-up and that she had no doubt whatsoever concerning her identification of
Davis.
Davis testified that he was not involved in this incident, and that on the evening in
question, he was with his girlfriend Anyana and her son watching movies on the occasion of
the birthday of Anyana's friend, Jessica. Davis also claimed that he had recently hurt his knee
at a basketball tournament and really could not function. The fact that Davis's knee was
injured while he was at the tournament was corroborated by his coach, his mother, his
girlfriend Anyana, and her friend Jessica. Seventeen-year-old Anyana Swan, who testified
that she was Davis's girlfriend and the mother of their nine-month-old child, stated that Davis
was with her at Jessica's house for Jessica's birthday on the evening of April 15, 1992,
watching movies. Jessica corroborated Anyana's testimony.
The jury also heard evidence of a third criminal incident involving Davis which resulted in
his conviction for two counts of assault with a deadly weapon and one count of
discharging a firearm from a motor vehicle.
110 Nev. 1107, 1112 (1994) Davis v. State
of assault with a deadly weapon and one count of discharging a firearm from a motor vehicle.
However, none of Davis's assignments of error on appeal relate to these convictions.
DISCUSSION
Whether the district court erred in refusing to give Davis's proposed jury instructions on
coercion as a lesser related or lesser included offense of kidnapping
Davis challenges the district court's refusal to give certain proposed jury instructions
setting forth the law of lesser included offenses, lesser related offenses, and the elements of
coercion. NRS 207.190 defines coercion, in pertinent part, as follows:
1. It is unlawful for any person, with intent to compel another to do or abstain from
doing an act which such other person has a right to do or abstain from doing, to:
(a) Use violence or inflict injury upon such other person or any of his family, or
upon his property, or threaten such violence or injury;
. . . .
(c) Attempt to intimidate such person by threats or force.
2. Any person who violates the provisions of subsection 1 shall be punished:
(a) Where physical force or the immediate threat of such force is used, 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.
(b) Where no physical force or immediate threat of such force is used, for a
misdemeanor.
Davis argues that coercion is necessarily a lesser included or lesser related offense of
kidnapping and that his theory of the case was that coercion, rather than kidnapping, was the
crime committed in the Dombrowski incident. Moreover, Davis insists that coercion must be
either a lesser included or lesser related offense because in order to commit a kidnapping, a
defendant must compel a victim to do an action they have a right to refuse to do, as occurred
herein.
Coercion as a lesser related offense
[Headnote 1]
In order to be entitled to a jury instruction on a lesser related offense, three conditions
must be satisfied: (1) the lesser offense must be closely related to the offense charged; (2) the
defendant's theory of defense must be consistent with a conviction for the related offense; and
(3) evidence of the lesser offense must exist.
110 Nev. 1107, 1113 (1994) Davis v. State
Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1239 (1989). The first element of these
requirements has been held to exist where, for example, the defendant is charged with
pandering and seeks an instruction on solicitation for prostitution (Stanifer v. State, 109 Nev.
304, 308, 849 P.2d 282, 285 (1993)); or, in the Moore case, where there was evidence to
suggest that the defendant had acted as an accessory after the fact, rather than in conformity
with the charged offense of murder.
[Headnote 2]
Unlike these examples, however, we conclude that coercion is not closely related to the
crime of kidnapping, at least not any more than it is related to a host of other crimes. We
noted in Moore that a defendant has no general right to have the jury presented with a
shopping list of alternatives to the crimes charged by the prosecution. Moore, 105 Nev. at
383, 776 P.2d at 1238-39. In this regard, the problem with the offense of coercion is that it
has potential application as a lesser related offense to virtually every other crime involving
force or the threatened use of force. Thus, to adopt Davis's reasoning on this point would
mean that a coercion instruction would have to be given, whenever requested, not only in the
case of kidnapping, but also in the case of robbery, rape, false imprisonment, child
pornography, child sexual abuse, etc. Frequently, such an instruction would needlessly
confuse jurors in otherwise straight-forward cases.
[Headnote 3]
More importantly, we conclude that the second required element for such an instruction
has not been met. The defendant's theory of the case, as adduced by the evidence presented,
was simply that the crime was committed with a toy gun rather than a real gun. Although
Davis argues on appeal that this was not his actual theory of the case, it is certainly the only
mitigating theory presented by his evidence. Davis's own trial statements essentially
confirmed Dombrowski's testimony in all other particulars. Merely seeking an instruction on
an assertedly lesser related offense, or arguing for such an instruction, does not without more
create a theory of defense for purposes of the Moore three-prong test. See, e.g., Margetts v.
State, 107 Nev. 616, 619, 818 P.2d 392, 394 (1991) (a defendant has the right to have the jury
instructed on defendant's theory of the case as disclosed by the evidence).
[Headnote 4]
Even if the allegation of the toy gun were true, it would not negate the charge of
kidnapping or provide a reasonable basis for convicting under a theory of coercion. NRS
200.310 defines kidnapping, in relevant part, as follows:
110 Nev. 1107, 1114 (1994) Davis v. State
1. Every person who willfully seizes, confines, inveigles, entices, decoys, abducts,
conceals, kidnaps or carries away any person by any means whatsoever with the intent
to hold or detain, or who holds or detains, the person . . . for the purpose of committing
. . . robbery upon or from the person . . . is guilty of kidnaping in the first degree.
(Emphasis added.) Under this statute, even if it were shown that the gun used was actually a
toy, this would not establish justification for a coercion instruction since the seizing,
abducting or carrying away of the victim for purposes of first-degree kidnapping may be
accomplished by any means whatsoever[,] including the use of a weapon which the victim
falsely believed to be real.
[Headnote 5]
Although this court has concluded that where kidnapping is incidental to another crime,
the evidence of kidnapping must include an element of asportation, physical restraint, or
restraint which either increases the risk of harm to the victim or has an independent purpose
and significance, one or more of these additional requirements have been met here. Davis's
actions involved asportation (to the bank and back); physical restraint; a restraint and
asportation of the victim away from her home to an area fraught with greater prospects for
unexpected, precipitous events, thus increasing the risk of harm;
1
and the kidnapping had an
independent purpose and significance, as it was essential to the accomplishment of the
robbery. In Hutchins v. State, 110 Nev. 103, 108, 867 P.2d 1136, 1139-40 (1994), we held:
While the plain language of NRS 200.310(1) does not require asportation, the court
has required it when the kidnapping is incidental to another offense, such as robbery,
where restraint of the victim is inherent with the primary offense. Clem v. State, 104
Nev. 351, 354, 760 P.2d 103, 105 (1988), overruled on other grounds, Zgombic v.
State, 106 Nev. 571, 798 P.2d 548 (1990). However, if the victim is physically
restrained, this, in itself, establishes kidnapping as an additional offense. Clem, 104
Nev. at 354, 760 P.2d at 105. Moreover, the kidnapping is not incidental to the
underlying offense if the restraint increased the risk of harm or had an independent
purpose and significance as [being] essential to the accomplishment of the other
offense. Id.
__________

1
Dombrowski described the area in which the bank was located as a dark little shopping center where she
feared she was in danger of being rape[d] and kill[ed] . . . in the back of the parking lot.
110 Nev. 1107, 1115 (1994) Davis v. State
Coercion as a lesser included offense
[Headnote 6]
We have previously held that a jury instruction on a lesser included offense is mandatory
where there is evidence which would absolve the defendant from guilt of the greater offense
or degree but would support a finding of guilt of the lesser offense or degree. Lisby v. State,
82 Nev. 183, 187, 414 P.2d 592, 595 (1966). However, we also concluded that:
where the elements of the greater offense include all of the elements of the lesser
offense because it is the very nature of the greater offense that it could not have been
committed without the defendant having the intent and doing the acts which constitute
the lesser offense . . . [and where] the prosecution has met its burden of proof on the
greater offense and there is no evidence at the trial tending to reduce the greater
offense, an instruction on a lesser included offense may properly be refused.
Id. at 188, 414 P.2d at 595 (emphasis added).
Following this rationale, in Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966), we
declined to reverse for failure to give an instruction on a lesser included offense as the
evidence clearly showed guilt above the lesser offense. Id. at 194, 414 P.2d at 592.
We conclude that the same rationale applies here and reject Davis's claim that the court's
failure to instruct the jury on coercion was error. As noted above, there was clearly sufficient
evidence, including Davis's own corroboration of the victim's testimony, to satisfy all of the
elements of kidnapping. Thus, a lesser included offense instruction on the theory of coercion
was properly denied.
Davis emphasizes this court's many opinions holding that if there is any evidence at all,
however slight, on any reasonable theory of the case under which the defendant might be
convicted of a lower degree or lesser included offense, the court must, if requested, instruct
on the lower degree or lesser included offense. Lisby, 82 Nev. at 188, 414 P.2d at 595.
However, Davis fails to cite to any evidence presented at trial tending to reduce the offense or
which would support a conviction for a lesser included or lower degree offense. As noted
above, even if it were established that the gun used was not real, this fact would not lessen the
charge or negate the kidnapping conviction.
We conclude that under the circumstances of the instant case, the giving of jury
instructions on lesser related offenses, lesser included offenses, and the offense of coercion,
would have served only to confuse the jurors in a case which clearly supported a finding of
kidnapping.
110 Nev. 1107, 1116 (1994) Davis v. State
only to confuse the jurors in a case which clearly supported a finding of kidnapping.
Whether there was sufficient evidence to prove beyond a reasonable doubt that Davis used a
deadly weapon during the Dombrowski incident
[Headnote 7]
Davis contests his deadly weapon sentence enhancements for robbery and kidnapping on
grounds that the State failed to prove beyond a reasonable doubt that he had used a gun in
connection with the Dombrowski crimes.
The standard of review in a criminal case is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. [Citations omitted.]
The established rule is that it is the jury's function, not that of the court, to assess the
weight of the evidence and determine the credibility of witnesses. Walker v. State, 91
Nev. 724, 726, 542 P.2d 438, 438-39 (1975).
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Viewing Dombrowski's
testimony (that a man with a cold and heavy metallic-looking gun thrust into her side had
kidnapped and robbed her) in the light most favorable to the prosecution, a rational trier of
fact could have found beyond a reasonable doubt that Davis used a deadly weapon in the
commission of this crime.
Davis's bare-boned assertion that the gun in question was a toy was obviously rejected by
the jury. It is not this court's function to reweigh conflicting testimony or to pass on Davis's
credibility. Interestingly, according to Detective Karstedt, Davis initially described the gun as
not a real gun but a BB gun; whereas by the time of trial, Davis had changed his story to
indicate that the gun was even less than a BB gun and was simply a toy gun which shot
rubber BB-like bullets. We will not speculate as to whether, between his initial interrogation
and his trial testimony, Davis had been informed that a BB gun of sufficient caliber can
constitute a firearm for purposes of the enhancement statute. Manning v. State, 107 Nev.
337, 810 P.2d 1216 (1991). Rather, simply viewing the evidence in the light most favorable
to the prosecution, we conclude that there was sufficient evidence to support the jury's finding
that Davis used a deadly weapon in the course of victimizing Dombrowski.
Davis's reliance on Bias v. State, 105 Nev. 869, 784 P.2d 963 (1989), to support his
contentions on this issue is misplaced. Bias involved a toy gun which was retrieved from the
scene of the crime and was shown to be incapable of use as a deadly weapon.
110 Nev. 1107, 1117 (1994) Davis v. State
crime and was shown to be incapable of use as a deadly weapon. Bias did not involve, as in
the instant case, the question of whether the gun was real or a toy. Simply stated, Bias is
inapposite.
Dombrowski complied with Davis's demands and handed him $500.00 because of her
belief that her life was threatened by a deadly weapon directed at her by Davis. He should not
now be heard to complain if the jury was equally convinced concerning the nature of the
weapon. Davis was fairly tried and convicted of the charges pertaining to the Dombrowski
offenses.
Whether the court erred in declining to declare a mistrial because victims Michael R.
Sanchez and his wife were advised against discussing the case with others
[Headnote 8]
Davis complains that he was deprived of a fair trial because the two Sanchez victims were
instructed that they should not discuss the case with anyone. He refers us to the following trial
colloquy in support of his contention:
Q. Mr. Sanchez, did you speak to anybody before you came to court today regarding
this case?
. . . .
A. Some gentleman approached me with a book. Askedhe says could you identify
this at trial and we said, no, we couldn't talk to anybody.
. . . .
Q. Mr. Sanchez, has anyone ever instructed you not to speak to anyone about this case?
A. Yes.
Q. Who was it that instructed you to do that?
A. When I went for the lineup, the officer said that you can't say anything about this. I
can't tell you anything. Just look at these pictures and tell the truth.
Q. Okay. Mr. Sanchez, my question is did anyone either from the District Attorney's
Office or from the police department tell you that you could not either speak to
Damon's attorney or investigator regarding this case?
A. They said I shouldn't speak to anybody.
. . . .
Q. Mr. Sanchez, did a man with a badge identifying himself as someone from my
office approach you outside and ask you to look at pictures?
2

__________

2
The purpose of this request was assertedly to determine whether the Sanchezes would identify another suspect,
rather than Davis, as having been the perpetrator of the crime. The defense theory was that two of Davis's
friends, one of whom was in the standby car during the Dombrowski incident, were the actual perpetrators.
110 Nev. 1107, 1118 (1994) Davis v. State
A. Yes.
Q. And what did you tell him, Mr. Sanchez?
A. We weren't to discuss the case with anybody.
. . . .
The Court. Okay, Okay. Let me ask you this. Did anybody tell you not to speak to the
public defender, the defendant in the case, or investigators from the Public Defender's
Office.
The Witness. He says I can't stop you from talking to anybody, but I suggest you
shouldn'tyou can talk to anybody you want to. I can't tell you who you can talk to or
you can't, but you shouldn't talk to anybody.
. . . .
The Court. . . . who said this to you?
The Witness. The attorney.
Ms. Salvucci. It was an attorney and not a police officer?
The Witness. Right.
Mr. Sanchez also testified as follows:
Q. . . . Now, you testified that someone told you not to talk to anyone?
. . . .
Q. . . . Do you remember who that person was?
A. The officer, when I went to look at the photographs, he says, You shouldn't discuss
the trial with anybody.
Q. Okay.
A. I can't tell you you can or can't, because someone called us and asked us questions
and we said, What do we do? He said, Well, I can't tell you what to do. I can just
suggest.
Q. Do you remember was that Detective Karstedt?
A. I don't recall his name. Detective that talked to me, yes.
Q. Was that the detective that administered the photo lineup to you?
A. Yes.
Detective Karstedt testified as follows:
A. Always I told them and as I would tell any victim and what I suggest to them, I don't
tell them what to do. First of all, I would not tell them not to talk to anybody. What I
suggest to them, I told them is that not to talk to anyone else. However, if they felt it
necessary, they get a hold of the District Attorney's Office or seek legal advice upon
doing so.
Q. Detective Karstedt, my question is did you tell Mr. or Mrs. Sanchez not to discuss
this case with anyone or that they should not discuss this case with anyone?
A. No, I did not.
110 Nev. 1107, 1119 (1994) Davis v. State
Davis sought a mistrial based upon a denial of his right to discovery and its prejudicial
impact on his right to a fair trial. The motion was denied without explanation, thus making it
unclear whether the denial was based on the court's factual finding or on a rejection of Davis's
legal arguments. In any event, it is clear from Mr. Sanchez's testimony and the Sanchezes'
actions that someone, either from the District Attorney's office or the police, discouraged the
Sanchezes from speaking about the case, and that the Sanchezes applied this advice against
representatives of the defendant. Davis now asserts that the district court's denial of his
motion for a mistrial was in error, and claims that the prejudice to him is illustrated by the
Sanchezes' refusal to look at a picture of another suspect which they may have identified as
the true perpetrator.
In support of his position, Davis cites Gregory v. United States, 369 F.2d 185 (D.C. Cir.
1966), where the prosecutor, while not forbidding witnesses to the crime from speaking about
the case, advised them not to speak to anyone outside his presence. When witnesses thus
declined to speak to defense counsel, the defendant sought the court's intervention, which was
refused. On appeal, the Gregory court stated:
Witnesses . . . to a crime are the property of neither the prosecution nor the defense.
Both sides have an equal right, and should have an equal opportunity, to interview
them. Here the defendant was denied that opportunity which, not only [a] statute, but
elemental fairness and due process required that he have. . . .
. . . .
A criminal trial . . . is a quest for truth. That quest will more often be successful if
both sides have an equal opportunity to interview the persons who have the information
from which the truth may he determined. . . . It is not suggested here that there was any
direct suppression of evidence. But there was unquestionably a suppression of the
means by which the defense could obtain evidence. The defense could not know what
the eye witnesses to the events in suit were to testify to or how firm they were in their
testimony unless defense counsel was provided a fair opportunity for interview. In our
judgment the prosecutor's advice to these eye witnesses frustrated that effort and denied
appellant a fair trial.
Id. at 188-89.
In State v. York, 632 P.2d 1261, 1264 (Or. 1981), a case cited to the trial court by Davis,
the court, on a similar set of facts, held that a prosecutor should not improperly interfere
with the effort by the defense to interview prospective witnesses by instructing them not to
talk to the defense attorney or by telling them that 'it would be better if they didn't say
anything.'"
110 Nev. 1107, 1120 (1994) Davis v. State
instructing them not to talk to the defense attorney or by telling them that it would be better
if they didn't say anything.' Although the York court determined that there was no prejudice
to the defendant because the involved witnesses stated they would have declined to speak to
defense counsel in any case, we are persuaded that the underlying rule of York is sound.
[Headnote 9]
As York and the Pennsylvania case relied upon therein both note, prosecutors and police
are not required to encourage or advise witnesses to speak with defense counsel, and
witnesses may not be compelled to do so. Rather, the rule simply recognizes that, given the
respect accorded police and prosecutors by victims and witnesses, when such officials suggest
that a witness not speak to the defense this may have the same practical effect as directly
telling a witness not to do so. Such a course of action violates the policy against
non-interference with a defendant's access to witnesses and with a defendant's legitimate
efforts to prepare a defense.
We conclude that this rule applies in Nevada. Absent special circumstances, prosecutors
and police officers are not to suggest to witnesses and victims that they refrain from speaking
to others about the case in a manner which would include the defense or tend to discourage
witnesses from cooperating with defense counsel and defense investigators.
3
We note,
however, that this principle of access to witnesses applies only to defense counsel and their
investigators. Suggestions by police officers or prosecutors that witnesses refrain from
speaking to others, with the exception of representatives of the defense, do not violate any
public policy.
4

Because of the violation of the rule announced above, we are forced to conclude that
Davis's convictions arising out of the Sanchez incident must be vacated and dismissed with
prejudice, as the harm resulting from the violation is not susceptible to repair upon retrial.
First, the Sanchezes may continue to decline to speak with defense counsel or defense
investigators based upon the earlier advice they received. Second, and more importantly, even
if the victims were willing to view pictures of other sus-
__________

3
We note that there was no apparent need in the present case to conceal witness identities for fear that witnesses
might be intimidated or otherwise made unavailable for trial; nor did it implicate the protections to be afforded
the needs of sensitive witnesses, such as child victims. We do not here address the issue of what is proper
prosecutorial conduct in such other cases involving a showing of exceptional circumstances.

4
There may be occasions where such advice would even be required under the provisions of SCR 179(5).
110 Nev. 1107, 1121 (1994) Davis v. State
pects, there would be a natural tendency not to deviate from previous trial testimony even if a
review of the pictures caused some doubt concerning their earlier identification of Davis. The
prospects for unringing the bell, if indeed the sounds of the first bell were untrue, are
sufficiently slight as to constitute a denial of due process if we were to remand for a new trial.
CONCLUSION
For the reasons stated above, we reverse and vacate all of Davis's convictions relating to
the Sanchez crimes with instructions that the district court dismiss the underlying charges
with prejudice. All of Davis's remaining convictions, and the judgments entered pursuant
thereto, are affirmed.
5

____________
110 Nev. 1121, 1121 (1994) Roberts v. State
JAMES DAVID ROBERTS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23217
September 28, 1994 881 P.2d 1
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of sale of
a controlled substance and one count of trafficking a controlled substance. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
The supreme court held that failure of trial judge to review confidential informant file
before ruling on claim under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) required
remand.
Remanded with instructions.
Martin R. Boyers, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney and Gary Guymon, Deputy District Attorney, Clark
1. Criminal Law.
Trial judge's failure to review confidential informant file before ruling on defendant's claim under Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963), that the file contained material information relevant to entrapment defense and state should have disclosed file,
required remand for in camera review of file to determine whether file contained evidence material to
entrapment defense.
__________

5
The Honorable Mirian Shearing, Justice, did not participate in the decision of this appeal.
remand for in camera review of file to determine whether file contained evidence material to entrapment defense.
2. Criminal Law.
Prosecutor must disclose evidence favorable to an accused when that evidence is material either to guilt or to punishment.
3. Criminal Law.
Proper standard for analyzing whether a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) has occurred after a
specific request for exculpatory information is whether there exists a reasonable possibility that the claimed evidence would have
affected the judgment of the trier of fact, and, thus, the outcome of the trial.
4. Criminal Law.
Entrapment as a matter of law exists where evidence shows that the state furnished an opportunity for criminal conduct to a person
without the requisite intent to commit the crime.
5. Criminal Law.
In case of entrapment, a person's predisposition to commit a crime must be evident before he is targeted, and the authorities must
possess reasonable cause to believe the individual is predisposed to commit the crime.
6. Criminal Law.
Once a defendant puts forth evidence of governmental instigation to support claim of entrapment, the burden of providing
predisposition shifts to state.
7. Criminal Law.
Evidence that would enable effective cross-examination and impeachment may be material and nondisclosure of such evidence
may deprive an accused of a fair trial. U.S. Const. amend. 6.
8. Criminal Law.
If evidence substantiating defendant's entrapment claim and allowing effective impeachment of informer was contained in
confidential informant file, and if defendant was denied access to that information, then he was deprived of a fair opportunity to
present his only legitimate defense, and he was therefore not afforded a fair trial. U.S. Const. amend. 6.
9. Criminal Law.
It is the prosecutor's affirmative duty to present the information required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963) for in camera review once particular evidence has been identified and a specific materiality claim articulated. It should not
matter whether defendant formally requests the in camera review.
10. Criminal Law.
Once an accused states a substantial basis for claiming materiality, it is reasonable to require the prosecutor to respond either by
furnishing the information required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) or by submitting the problem to the
trial judge.
11. Criminal Law.
Once defendant has articulated a substantial basis for claiming materiality in seeking particular evidence under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963), the prosecutor bears the burden of avoiding discovery by seeking in camera review.
12. Criminal Law.
Statutory criminal discovery provisions must yield to the constitutional rule expressed in Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194 (1963) that exculpatory evidence may not be withheld.
OPINION
Per Curiam:
Appellant James David Roberts was convicted after jury trial of three counts of sale of a
controlled substance and one count of trafficking a controlled substance. The state introduced
evidence that Roberts sold cocaine on four occasions to an undercover police officer who had
been introduced to Roberts through a confidential informant (CI). Roberts claimed
entrapment, alleging that the CI pressured him, by fabricating an elaborate story, into selling
cocaine when he had no predisposition to do so.
Roberts moved for a pretrial order compelling the state to disclose the identity of the CI
who arranged the initial buy, and compelling the state to disclose all information in the
possession of the state pertaining to the CI, including specifically the confidential informant
file (CI file) allegedly compiled by and in the possession of the Las Vegas Metropolitan
Police Department (LVMPD). Roberts claimed that the CI file contained information
regarding the CI's background, employment and communications that would support an
entrapment claim.
Although the state disclosed the identity of the CI, one William Albert Noel, it refused to
tender the CI file. After the state refused to produce the CI file, Roberts sought an order
dismissing the grand jury indictment for failure to make discovery and Brady
1
disclosures.
The district court judge denied the motion. The case proceeded to trial. Roberts requested and
received entrapment instructions, but was convicted on the testimony of the officer and the
CI. Roberts now challenges the district court's denial of his pretrial motion to dismiss.
We conclude that once a defendant has articulated a specific basis for claiming materiality
of particular evidence that it seeks, that the prosecutor bears the burden of avoiding disclosure
by seeking in camera review. We therefore conclude that, in the instant case, the judge could
not have ruled correctly on Roberts' Brady claim without having first reviewed the file, which
he did not do. Thus, we remand this case to the district court for the limited purpose of
conducting an in camera review of the CI file to determine whether it contains evidence
material to Roberts' entrapment defense. We further direct the court to make specific findings
of fact and conclusions of law with regard to the material in the CI file, and we direct the
clerk of the district court to certify those findings and conclusions to this court for ultimate
disposition of this appeal.
__________

1
Brady v. Maryland, 373 U.S. 83 (1963) (requiring prosecutor to disclose to an accused favorable evidence
material to either guilt or punishment).
disposition of this appeal. We now address in more detail the factual background of this case
and the legal standard for analyzing claimed Brady violations.
On December 14, 1989, a grand jury indicted Roberts on three counts of sale of a
controlled substance, cocaine, and one count of trafficking a controlled substance, cocaine. At
the grand jury proceeding LVMPD Officer Roy Chandler testified that a confidential
informant introduced Chandler to Roberts on July 10, 1989 at Teddy's, a Las Vegas bar, for
the purpose of buying cocaine. Chandler bought cocaine from Roberts on that occasion and
on three additional occasions in July 1989. The CI was present at only the first meeting.
On April 29, 1991, Roberts moved for an order requiring the state to reveal the identity of
the CI. Roberts supported his motion with an affidavit claiming that the CI had concocted an
elaborate story to pressure Roberts into dealing cocaine to help the CI out of a dangerous
situation. In his affidavit, Roberts swore to the following story: Roberts had moved back to
Nevada from California prior to July 10, 1989 and was living with his mother. A person
believed to be a police confidential informant solicited and begged Roberts to obtain cocaine
for him. Roberts repeatedly refused to become involved with any illegal drug dealing. A few
weeks later the CI again pleaded with Roberts to obtain cocaine because the CI had
misdealt some drugs to a customer of his and the customer had threatened to kill the CI if
the CI did not obtain a replacement supply of cocaine. The customer was allegedly
affiliated with the mafia and the CI was afraid for his life.
Roberts further swore that on July 10, 1989, he was persuaded by the CI to meet the
customer at a Las Vegas bar on Teddy Drive. Roberts also swore that all of [his] actions
during the relevant period were done solely for the benefit of the [CI] and for the protection
of [the CI's] life, and that [o]nly after [Roberts] became convinced by the [CI] that [the CI]
could not apply to the police for protection and that [the CI] would surely be killed by his
drug customer did [Roberts] seek to help the [CI]. Roberts swore that the CI could be
cross-examined on these facts and aid his entrapment claim. Roberts also swore that he had
made a diligent effort to learn the identity of the informant and has been unable to locate
him. Roberts did not reveal that he had known for years the man who introduced him to
Chandler at the bar, and that he knew his name and address, items later revealed in arguing
Roberts' motion before the district court judge.
On May 29, 1991, the district court judge orally granted Roberts' motion, ruling that [t]he
motion to require the state to reveal the identity of the [CI] is granted. He then signed a
written order, which required the state to disclose the true identity of the CI and to
provide all relevant discovery regarding the CI, including his last known address.
written order, which required the state to disclose the true identity of the CI and to provide all
relevant discovery regarding the CI, including his last known address. On June 7, 1991,
Chandler telephoned Roberts to disclose to him the name of the CI, and he disclosed Noel's
name. Neither Chandler nor the district attorney's office provided any additional or written
information.
On June 18, 1991, the district court judge heard arguments regarding the state's failure to
disclose additional information. The judge ruled orally at the close of arguments that, Okay.
The order is this, that you [Roberts] stay away from the [CI] or [the CI's] wife, you
personally, and the order also is that you [the state] give the name and current address that
you have to [Roberts' attorney]. After the judge's oral ruling, there was discussion about
Roberts intimidating the CI, and Roberts' attorney stated, But, in any event, we would like to
have the C.I. file, we would like to have a rap sheet, we would like to have any criminal
involvement that he may have had on or about or surrounding the beginning of this incident.
The judge did not respond to the request, but asked, How long will it take for you to be
ready to go to trial? The judge did not modify his oral order.
The judge then signed a written order on July 2, 1991, prepared by Roberts' counsel,
directing that the District Attorney shall forthwith identify the confidential informant' used
by the police, and provide Defendant's counsel with full discovery of all information in their
files and in the Las Vegas Metropolitan Police Department's files regarding the confidential
informant,' including the file known as the CI' file, and a copy of the confidential
informant's' rap' sheet. The state produced Noel's rap sheet, but refused to produce the CI
file.
On September 12, 1991, Roberts filed a Motion to Dismiss the Indictment for Failure of
the State to Make Discovery and Brady Disclosures. In its opposition, the state noted that the
court had earlier ordered in its oral ruling only the disclosure of the name and address of the
CI, and it noted that it had provided Roberts with the CI's scope (apparently the rap
sheet). The state argued that it should not be required to reveal a file containing information
for all cases that the informant has been involved with whether pending or not which are
included in his [CI] file. Noel had worked for LVMPD for over nine years.
On September 16, 1991, the district court judge heard arguments on Roberts' Motion to
Dismiss and denied it. The following colloquy occurred prior to the judge's ruling:
MR. GOWEN: I wrote [the prosecutor] a letter indicating what I wanted answered,
what we are seeking, what we are trying to learn and I was greeted with a response as
the C.I.
files are not available to the defendant under any circumstances.
THE COURT: Yeah, that's right. The motion to dismiss the indictment is denied . . . .
The district judge did not review the file to determine if it contained information material to
Roberts' defense.
Roberts was tried and Chandler and Noel testified for the state at the trial. Chandler
testified that Noel informed on Roberts for money, and not to work off charges that were
pending or threatened at the time Noel was informing. Chandler further testified as follows:
Noel called Chandler on July 10, 1989 and told Chandler that Roberts could deal in ounces of
cocaine. Noel introduced Chandler to Roberts later that day at The Place, a bar in Las
Vegas on Teddy Drive. After the introduction, Roberts suggested that the men go outside to a
car. The three went to Chandler's car, and Roberts pulled a baggie out of his pocket; Chandler
gave Roberts $350, and Roberts gave Chandler the baggie containing a quarter ounce of
cocaine. Roberts was familiar with drug terminology and, in Chandler's opinion, was
experienced in the type of transaction the two were engaged in. Roberts suggested that he and
Chandler deal with each other directly in the future instead of going through Noel, because
Noel had added $50 to the price of the cocaine for himself, causing Chandler to pay $350
instead of $300 for the amount of cocaine he was buying. After the transaction, Chandler paid
Noel $100 for introducing him to Roberts. Over the following week, and on three separate
occasions, Chandler purchased three quarters of an ounce, an ounce and half an ounce of
cocaine from Roberts for $750, $1,000 and $500, respectively. Roberts called Chandler on
two of these occasions. Noel was not present at any of the later buys, and each of these
transactions was surveilled by the LVMPD surveillance team. After these transactions,
Roberts called Chandler and told him that he suspected him to be a cop or a snitch.
Noel testified that he had known Roberts since 1979, when Roberts recruited Noel to help
Roberts sell Quaaludes. Noel and Roberts lived together as roommates in 1983 or 1984. In
1985, Roberts helped Noel get a job at an adult nightclub, where Roberts was a security
guard. Noel was later fired from this club after overcharging customers in credit card
transactions. In 1989 Noel and Roberts came into contact again and Roberts asked Noel to
help him sell a pound of cocaine. Noel agreed and called Chandler to inform. Noel also stated
that Roberts had sex with Noel's wife when Noel was in the hospital after a car accident,
causing bad blood.
Roberts took the stand and related the story in his affidavit. Roberts was convicted of three
counts of sale of a controlled substance and one count of trafficking a controlled substance.
The judge sentenced Roberts to four concurrent twenty-year terms, plus a minimum $50,000
fine on the trafficking conviction. Roberts now appeals the district court judge's denial of his
motion to dismiss the indictment for failure of the state to make discovery and Brady
disclosures.
2

[Headnote 1]
Roberts sought dismissal of the indictment below, and seeks reversal of his conviction on
appeal, for the failure of the state to make Brady disclosures upon a specific request. Neither
Roberts, the lower court nor this court can know whether Brady material exists, because the
state refused to produce the CI file, it has never been reviewed and it was not made part of the
record. Nonetheless, we set forth the law governing Brady disclosures, because, as we have
indicated, we believe that remand to the district court is necessary to resolve this issue
properly.
In addition, although this court has had occasion to discuss a then-recent United States
Supreme Court decision in this area of the law,
3
this court has not yet determined the
standard of materiality for analyzing a Brady claim under recent conflicting state and federal
decisions. Accordingly, we discuss the conflict in this area of the law and adopt a standard by
which the district court judge, on remand, should evaluate Roberts' claim.
[Headnote 2]
A prosecutor must disclose evidence favorable to an accused when that evidence is
material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963)
(suppression of evidence after specific request); United States v. Agurs, 427 U.S. 97, 110-112
(1975) (failure to disclose in the absence of a request); United States v. Bagley, 473 U.S. 667,
674 (1984) (nondisclosure in absence of request or after broad request).
__________

2
Roberts has not, in his brief before this court, addressed the claimed discovery error allegedly made by the
district court judge. In this case, the judge twice signed orders that differed substantially from his oral rulings.
However, at argument on the motion to dismiss the indictment, the judge was apprised of his prior rulings and, to
the extent they were discovery orders, modified them. Roberts has not presented authority, statutory or
otherwise, for analyzing a claimed discovery error. Therefore, we address only the constitutional Brady claim.

3
See State Bar of Nevada v. Claiborne, 104 Nev. l15, 180-81, 756 P.2d 464, 506-07 (1988) (discussing federal
judge's comments that federal court failed to apply then-applicable federal standard enunciated in United States
v. Bagley, 473 U.S. 667 (1985)).
The Supreme Court of the United States first discussed, in Agurs, 427 U.S. at 103-04, 112,
the three situations that it envisioned under Brady. There it stated:
[Brady] arguably applies in three quite different situations. Each involves the discovery,
after trial, of information . . . known to the prosecution but unknown to the defense.
. . . .
[If] the undisclosed evidence demonstrates that the prosecution's case includes perjured
testimony and that the prosecution knew, or should have known, of the perjury . . . [the
conviction] must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.
. . . .
The second situation, illustrated by the Brady case itself, is characterized by a pretrial
request for specific evidence. . . . A fair analysis of the holding in Brady indicates that
implicit in the requirement of materiality is a concern that the suppressed evidence
might have affected the outcome of the trial.
. . . .
The proper standard of materiality [in cases where no request or a general request has
been made] must reflect our overriding concern with the justice of the finding of guilt. .
. . It necessarily follows that if the omitted evidence creates a reasonable doubt which
did not otherwise exist, constitutional error has been committed.
(Emphasis added.) Lower federal courts and state courts interpreted Agurs to adopt a might
have affected the outcome of trial standard of materiality in specific request cases and
these courts analyzed such cases under that standard. See 2 LaFave & Israel, Criminal Law
19.5 at 539 (noting that courts generally looked to this language in assessing materiality . . .
in request-cases and citing federal and state cases).
The Supreme Court later unified its approach and held that, in all cases except the
prosecutor's knowing use of perjured testimony, evidence is material if there exists a
reasonable probability that, had the evidence been disclosed, the result of the proceeding
would have been different. Bagley, 473 U.S. at 682, 685; Pennsylvania v. Ritchie, 480 U.S.
39, 57 (1986). A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Bagley, 473 U.S. at 678, 685; Ritchie, 480 U.S. at 57. The Court found this
[single] test for materiality sufficiently flexible to cover the no request,' general request,'
and specific request' cases of prosecutorial failure to disclose evidence favorable to the
accused[.]"
disclose evidence favorable to the accused[.] Bagley, 473 U.S. at 682.
Many state courts have acknowledged that Bagley modified or abrogated Agurs in the
federal system. See, e.g., State v. Deitrich, 567 So. 2d 623, 631 (La. Ct. App. 1990);
Commonwealth v. Gallarelli, 502 N.E.2d 516, 519 n.5 (Mass. 1987); State v. Marshall, 586
A.2d 85, 192 (N.J. 1991); People v. Vilardi, 556 N.Y.S.2d 518, 523 (1990); State v. Garrity,
469 N.W.2d 219, 221 (Wis. Ct. App. 1991); Engberg v. Meyer, 820 P.2d 70, 77 (Wyo. 1991).
4
However, several of these courts, on state law grounds, have refused to adopt the single
Bagley test for materiality in cases in which the accused has made a specific request, and the
prosecutor has failed to disclose arguably favorable evidence. See Commonwealth v.
Gallarelli, 502 N.E.2d 516, 519 n.5 (Mass. 1987); State v. Marshall, 586 A.2d 85, 192 (N.J.
1991); People v. Vilardi, 555 N.E.2d 915 (N.Y. 1990).
5
These courts have based their failure
to adopt the federal test, in specific request cases, on the special quality of the prosecutor's
action when he or she is on notice of the type of material requested by the accused but
nevertheless fails to disclose evidence that arguably falls within that request.
6

In Marshall, the New Jersey Supreme Court expressly rejected Bagley in the specific
request situation, and retained the might have affected the outcome test as it had been
interpreted and applied in New Jersey courts. That court recognized that the
might have affected the outcome of the trial test is not translatable into the mere
possibility that the undisclosed information might have helped the defense. . . . There
must be a real possibility that the evidence would have affected the result. In essence,
the might have affected the outcome test requires the application of a harmless error
[beyond a reasonable doubt] analysis.
__________

4
See also, among others, State v. Trumble, 748 P.2d 826, 828 (Idaho Ct. App. 1987); State v. Dery, 594 A.2d
149, 153 (N.H. 1991); People v. Ramos, 558 N.Y.S.2d 784, 786 (Sup. Ct. 1990); O'Rarden v. State, 777 S.W.2d
455, 458 n.3 (Tex. Ct. App. 1989).

5
See also State v. Kaiser, 486 N.W.2d 384, 386 (Minn. 1992) (rejecting federal analysis altogether); State v.
Brisson, 619 A.2d 1099, 1102 (R.I. 1993) (rejecting Bagley/Brady outcome-determinative analysis and instead
applying a sliding-scale analysis based on the blameworthiness of the prosecution).

6
In Gallarelli the Massachusetts Supreme Court rejected Bagley altogether, even with regard to what is an
arguably more favorable standard (to the defendant) that Bagley articulated in the no request and general
request situations. See 502 N.E.2d at 519 n.5 (as a matter of State law deciding instead to adhere to what
[we view as] the more prudent safeguards of defendants' rights now found in [state precedent]).
586 A.2d at 192 (emphasis added) (citations omitted). The court expressly retained this real
possibility standard, which it attributed to Agurs, instead of adopting Bagley. Id.
In Vilardi, the New York Court of Appeals expressly rejected the Bagley test, finding it
inadequate to address the concerns presented by prosecutorial nondisclosure in the face of a
specific request. 555 N.E.2d at 920 (declin[ing] to abandon . . . accepted principles in order
to conform to the lesser protections of Bagley.) Judge Kaye wrote for the court that
suppression, or even negligent failure to disclose, is more serious in the face of a
specific request in its potential to undermine the fairness of the trial, and ought to be
given more weight than as simply one of a number of discretionary factors to be
considered by a reviewing court.
Id. The court stated that it had long emphasized that our view of due process in this area is,
in large measure, predicated both upon elemental fairness' to the defendant, and upon
concern that the prosecutor's office discharge its ethical and professional obligations. Id. at
919 (citations omitted). Instead of adopting the Bagley standard, the Vilardi court approved of
and adopted the lower New York court's test: that nondisclosed evidence is material if there
exists a reasonable possibility that [failure to disclose the material] contributed to the
defendant's conviction.' 555 N.E.2d at 916, 920 (emphasis added).
The Vilardi court recognized (as the Supreme Court had also recognized in Bagley) that
nondisclosure after a specific request reasonably implies to the defendant that the requested
evidence simply does not exist, and that the defendant may then change or abandon trial
strategy in reliance on the prosecutor's nondisclosure. Id. at 918; see also Bagley, 473 U.S. at
682-83.
In Bagley, Justice Blackmun acknowledged this danger, but concluded that a separate
standard was not necessary because under the single standard
the reviewing court may consider directly any adverse effect that the prosecutor's failure
to respond might have had on the preparation or presentation of the defendant's case.
The reviewing court should assess the possibility that such effect might have occurred
in light of the totality of the circumstances and with an awareness of the difficulty of
reconstructing in a post-trial proceeding the course that the defense and the trial would
have taken had the defense not been misled by the prosecutor's incomplete response.
473 U.S. at 682. Justice Stevens, the author of Agurs, bitterly disputed this proposition,
noting that [b]ecause th[e] constitutional duty to disclose [evidence when no request has
been made] is different from the duty described in Brady, it is not surprising that we
developed a different standard of materiality [for no-request cases] in the Agurs context."
tional duty to disclose [evidence when no request has been made] is different from the duty
described in Brady, it is not surprising that we developed a different standard of materiality
[for no-request cases] in the Agurs context. 473 U.S. at 711 (Stevens, J. dissenting)
(emphasis in original). He later stated that
[t]he Court's analysis reduces the significance of deliberate prosecutorial suppression of
potentially exculpatory evidence to that merely of one of [sic] numerous factors that
may be considered by a reviewing court. This is not faithful to our statement in Agurs
that [w]hen the prosecutor receives a specific and relevant request, the failure to make
any response is seldom, if ever, excusable.
Id. at 714 (citation omitted). Apparently, Justice Stevens would have analyzed nondisclosure
after a specific request under the same test used to analyze the harm done by a prosecutor in
knowingly presenting perjured testimony. He stated, Bagley's conviction therefore must be
set aside if . . . there is any reasonable likelihood' that it could have affected the judgment of
the trier of fact. Id. at 713.
The Ninth Circuit, reconsidering Bagley on remand under the new Bagley standard, found
that nondisclosure of evidence that would have been used to impeach the government's key
witnesses in an effective manner undermined confidence in the outcome of Bagley's trial, and
was therefore material under the new standard. See Bagley v. Lumpkin, 798 F.2d 1297 (9th
Cir. 1986).
We note that Roberts claims that the CI file contains certain information that would tend to
establish that Noel was working not only for periodic compensation, but also for leniency in
criminal prosecutions. In addition, he alleges that the CI file will contain information on
Noel's background and specifically the communications between Noel and Chandler, or other
LVMPD investigators, that will corroborate much of Roberts' sworn statement and provide
information that would allow effective impeachment of Noel. If the district court judge
concludes, after reviewing the CI file on remand, that the file contains any such information,
and that such information undermines his confidence in the outcome of trial, it would
certainly require disclosure of the file under Bagley.
However, we also must determine whether Nevada will follow Bagley or will instead
construe the due process clause in the Nevada Constitution, see Nev. Const. art. 1, 8, to
require a standard more favorable to the accused in the specific request situation. Here,
Roberts made a specific Brady request well in advance of trial. The district court judge held
three hearings to determine what information, if any, should be disclosed, and he signed a
formal court order requiring disclosure of the CI file.
signed a formal court order requiring disclosure of the CI file. After all of this, the
prosecution failed to produce the file or to submit it to the court for in camera review.
[Headnote 3]
We conclude that the decisions that preserved, on state law grounds, separate materiality
tests in specific request situations are well-reasoned and take into account, in the standard
itself, the special nature of nondisclosure after a specific request. We therefore adopt for
Nevada a test similar to those of New York and New Jersey, patterned after the language in
Agurs, that reflects the concern that the suppressed evidence might have affected the
outcome of the trial. Agurs, 427 U.S. at 103-04, 112. Like the New Jersey court, we construe
this language not to have been a holding or firm command, but instead a reflection of the
concern underlying the Brady holding that there exist more than the mere possibility that the
undisclosed information might have helped the defense. . . . There must be a real possibility
that the evidence would have affected the result. Marshall, 586 A.2d at 192 (emphasis
added) (citations omitted); see also Bagley, 473 U.S. at 667 & n.12 (noting that the Agurs
Court did not define the standard of materiality applicable in [the specific request situation],
but suggested that the standard might be more lenient to the defense than in the situation in
which the defense makes no request or only a general request). We conclude that the proper
standard for analyzing whether a Brady violation has occurred after a specific request is
whether there exists a reasonable possibility that the claimed evidence would have affected
the judgment of the trier of fact, and thus the outcome of the trial.
[Headnotes 4-7]
In the instant case, Roberts claimed that Noel's CI file contained information on Noel's
employment as an informer and on Noel's communications to Chandler that would bear
directly on Noel's actions and motivations. Roberts sought the information to effectively
cross-examine and impeach Noel. He also maintained that the information would factually
support his entrapment defense.
7
It is well settled that evidence that would enable effective
cross-examination and impeachment may be material and that nondisclosure of such
evidence may deprive an accused of a fair trial.
__________

7
Entrapment as a matter of law exists where the evidence shows that (1) the state furnished an opportunity for
criminal conduct (2) to a person without the requisite intent to commit the crime. See Shrader v. State, 101 Nev.
499, 501, 706 P.2d 834, 835 (1985). In Nevada, a person's predisposition to commit a crime must be evident
before he is targeted, and the authorities must possess reasonable cause to believe the individual is predisposed
to commit the crime. Id. at 501-02. Moreover, once a defendant puts forth evidence of governmental
instigation, the burden of providing predisposition shifts to the state. See id. at 504-05.
tive cross-examination and impeachment may be material and that nondisclosure of such
evidence may deprive an accused of a fair trial. Bagley, 473 U.S. at 676-78 (noting, however,
that failure to disclose such evidence does not implicate the Sixth Amendment Confrontation
Clause); see also Giglio v. United States, 405 U.S. 150, 154 (1972) (When the reliability of
a given witness may well be determinative of guilt or innocence, nondisclosure of evidence
affecting credibility falls within [Brady].) (citation omitted). Other state courts have allowed
discovery of background information on CIs and communications that CIs have made to
police departments when the accused seeks the information for impeachment value and to
substantiate a defense of entrapment. See People v. Perez, 568 N.E.2d 250, 257 (Ill. App. Ct.
1991); People v. Raess, 496 N.E.2d 1186, 1189, 1191 (Ill. App. Ct. 1986). In the instant case,
it cannot be said that the district court judge ruled Roberts' entrapment claim without merit,
for the judge instructed the jury on entrapment, indicating that Roberts presented evidence at
trial sufficient to require an instruction on this theory. Accordingly, relevant impeachment
evidence in Noel's CI file, as it relates to the alleged offense and Roberts' claim of
entrapment, would have been admissible at trial.
Roberts supported his request for the file with an affidavit claiming that Noel recruited
Roberts over a period of weeks. Had the relevant portions, if any, of the CI file corroborated
this, Roberts may have been able to substantiate his claim of entrapment. At trial, Chandler
testified to events that occurred after Noel made a phone call to Chandler on the date of the
initial cocaine buy. Roberts' claim of entrapment concerned events that occurred prior to
that phone call. Thus, information indicating that Noel communicated with Chandler
regarding Roberts over several weeks preceding the buy, and not just on the date of the first
buy, would have been relevant to Roberts' claim that Noel pressured him on several
occasions.
In addition, Chandler and Noel both testified that Noel worked for money only, and not for
leniency in criminal prosecutions. However, Noel was arrested for possession of a controlled
substance on January 4, 1990. Although this arrest occurred six months after the tip, it was
still an offense that was charged before trial. Roberts claimed that Noel was not being
prosecuted for that charge because of his value as a testifying informant. Indeed, two years
later Noel's rap sheet did not show a conviction stemming from that arrest. Chandler only
testified that Noel was not working off charges during the time that Noel was working for
LVMPD as an informant. The file may have confirmed or disproved Roberts' claim that
Noel was not subject to prosecution for providing favorable trial testimony at a later time.
firmed or disproved Roberts' claim that Noel was not subject to prosecution for providing
favorable trial testimony at a later time. Accordingly, the CI file may contain impeachment
evidence favorable and material to Roberts' defense in this regard.
[Headnote 8]
In Bagley, the Court noted that the purpose of Brady was not to displace the adversary
system . . . but to ensure that a miscarriage of justice does not occur. Id. at 675. It further
noted that the prosecutor is not required to deliver his entire file to defense counsel, but only
to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant
of a fair trial. . . . Id. (footnote omitted). We conclude that if evidence substantiating Roberts'
entrapment claim and allowing effective impeachment of Noel is contained in the CI file, and
if Roberts was denied access to that information, then he was deprived of a fair opportunity to
present his only legitimate defense, and that he was therefore not afforded a fair trial. We
therefore remand this case to the district judge for the limited purpose of reviewing the CI
file. Only then can he rule whether matters in the file are favorable and material to Roberts'
defense under the standard we have articulated in this opinion.
[Headnotes 9-11]
The state claims that Roberts may not challenge on appeal the court's failure to conduct an
in camera review of the CI file, because Roberts failed to request that particular procedure
below. For this proposition, it cites Hubbard v. State, 618 P.2d 553, 555 (Wyo. 1980). In the
instant case, however, Roberts is not challenging only the district court's failure to conduct an
in camera review, although he is arguing that such a procedure is appropriate. Roberts'
broader claim is that the state committed a constitutional violation when it failed to disclose
favorable and material impeachment evidence after a specific request for such evidence. The
district court judge could only have ruled properly on this claim if he had viewed the file.
Furthermore, because we conclude that it is the prosecutor's affirmative duty to present the
information for in camera review once particular evidence has been identified and a specific
materiality claim articulated, it should not matter whether the defendant formally requests the
in camera review. As the Supreme Court has stated, once an accused states a substantial basis
for claiming materiality, it is reasonable to require the prosecutor to respond either by
furnishing the information or by submitting the problem to the trial judge. Agurs, 427 U.S. at
106. Accordingly, we conclude that once a defendant has articulated a substantial basis for
claiming materiality in seeking particular evidence, the prosecutor bears the burden of
avoiding discovery by seeking in camera review.
materiality in seeking particular evidence, the prosecutor bears the burden of avoiding
discovery by seeking in camera review.
[Headnote 12]
We have considered the state's arguments that Nevada's statutory criminal discovery
provisions prohibit the disclosure of the CI file. We decline to discuss the state's claims,
however, because we conclude that the statutory provisions, even if they had the effect urged
by the state, must yield to the constitutional Brady rule as articulated herein.
Based on the foregoing, we remand the instant case to the district court for the limited
purpose of conducting an in camera review of the CI filewhether known by that or any
other namecompiled by or in the possession of the LVMPD. In particular, we direct the
district court judge to make specific findings of fact and conclusions of law with regard to the
information contained in the file and whether it is material within the meaning of the standard
adopted in this case. We also direct the clerk of the district court to certify those findings of
fact and conclusions of law to this court for our final resolution of the issue presented by
Roberts.
____________
110 Nev. 1135, 1135 (1994) Lathrop v. State
BOBBY LYNN LATHROP, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23981
September 28, 1994 881 P.2 666
possession of a cheating device. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
The supreme court held that evidence was insufficient to support conclusion that defendant
had dominion and control over, or right to control, the cheating device so as to support
finding of constructive possession of the device.
Reversed.
Morgan D. Harris, Public Defender and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
110 Nev. 1135, 1136 (1994) Lathrop v. State
1. Gaming.
State failed to produce sufficient evidence to establish constructive possession and thus did not show beyond reasonable doubt
defendant's guilt of possessing a cheating device. Record did not contain evidence sufficient to support conclusion that defendant had
dominion and control over, or a right to control, the cheating device.
2. Gaming.
Without more, mere presence in are where contraband is discovered or mere association with person who does control contraband
is insufficient to support finding of possession.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of possession of a cheating device. NRS
465.080. The district court sentenced appellant to serve three years in the Nevada State Prison. The district court suspended the sentence,
and placed appellant on probation for a period not to exceed three years.
During the summer of 1989, appellant was a floorman at the Imperial Palace Hotel. Appellant was accused of being part of a
conspiracy to use cheating devices called chip cups to cheat at gambling, and of possessing such a device. Appellant was convicted only
of possessing the cheating device.
[Headnotes 1, 2]
Based on our review of the record, we conclude that the state failed to produce sufficient evidence to establish beyond a reasonable
doubt appellant's guilt of possessing a cheating device. Specifically, the state admits that appellant never had actual possession of the
cheating device. Rather, the state attempted to prove that appellant had constructive possession of the device. The record, however, is
devoid of evidence sufficient to support the conclusion that appellant had dominion and control over, or a right to control, the cheating
device. See Sheriff v. Shade, 109 Nev. 826, 858 P.2d 840 (1993). Without more, mere presence in the area where contraband is discovered
or mere association with the person who does control the contraband is insufficient to support a finding of possession. See Oxborrow v.
Sheriff, 93 Nev. 321, 565 P.2d 652 (1977).
Accordingly, we reverse the judgment of conviction.
1

__________

1
In light of this determination, we find it unnecessary to address appellant's remaining contention.
____________
110 Nev. 1137, 1137 (1994) Robinson v. State
TERMAINE ROBINSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24349
September 28, 1994 881 P.2d 667
Appeal from judgment of conviction, pursuant to a jury verdict, of one count of sexual
assault. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Minor who was 17 years old when crime was committed, was certified to be tried as an
adult in the district court and was convicted of sexual assault. Defendant appealed. The
supreme court, Springer, J., held that minor certified to stand trial as an adult on charges of
sexual assault was entitled to instruction on lesser included offense of statutory sexual
seduction, even though sexual seduction statute referred to sexual acts committed by person
18 years or older against a person under the age of 16.
Michael R. Specchio, Public Defender, and Jane McKenna, Chief Deputy Public Defender,
and John Reese Petty, Deputy Public Defender, Washoe County, for Appellant.
Attorney, and David Wayment and Gary H. Hatlestad, Deputy District Attorneys, Washoe
Criminal Law; Infants.
Minor certified to stand trial as an adult on charges of sexual assault was entitled to instruction on lesser included offense of
statutory sexual seduction, even though that statute prohibited person 18 years of age or older from having sexual intercourse with
person under age 16. It was unfair to use juvenile-to-adult certification statute to force minor out of juvenile court and into adult court,
yet at the same time deny him important benefit that would have been available to him if he had been the usual, over 18-year-old adult
criminal defendant. NRS 62.080, 200.364(3).
OPINION
Appellant Termaine Robinson was charged with statutory sexual assault of a fourteen-year-old female. Robinson, who was seventeen
years old when the crime was committed, was certified under NRS 62.0S0 to be tried as an adult.
under NRS 62.080 to be tried as an adult. At his trial, Robinson requested an instruction on a
lesser-included offense, statutory sexual seduction, a violation of NRS 200.364(3). The trial
court refused to give the instruction.
There is no question but that Robinson would be entitled to the requested instruction
except for the fact that he was seventeen at the time that the crime was committed, and NRS
200.364(3) prohibits a person 18 years of age or older from having sexual intercourse with
a person under the age of 16 years. (Emphasis added.) The trial judge understandably
reasoned that since Robinson was not a person 18 years or older, he could not legally be
convicted of sexual seduction. Since Robinson could not, under the literal reading of the
statute, be convicted of the crime of statutory sexual seduction, the trial judge refused to give
the requested instruction.
The question presented on this appeal is whether a minor who has been certified to stand
trial as an adult on charges of sexual assault is entitled to an instruction on the lesser-included
offense of statutory sexual seduction. We answer that question in the affirmative.
If Robinson had been a real adult criminal defendant (over eighteen), he would have had
the benefit of a statutory sexual seduction instruction and might have been convicted of this
lesser crime. As it is, Robinson is a synthetic adult criminal defendant (under eighteen), who
has been unwillingly subjected to adult criminal proceedings by virtue of NRS 62.080. It
simply is not fair to use the juvenile-to-adult certification statute to force Robinson out of the
juvenile court and into the adult court, and yet at the same time to deny him an important
benefit that would have been available to him if he had been the usual, over-eighteen adult
criminal defendant.
1

Although the sexual seduction statute refers to sexual acts committed by a person 18
years or older against a person under the age of 16, Robinson is a court-declared adult and
is no longer a child in the eyes of the criminal law. See In the Matter of Seven Minors, 99
Nev. 427, 664 P.2d 947 (1983).
2
The fact that NRS 200.364{2) defines adult in terms of "a
person 1S years or older" and does not specifically apply to a person certified to be an
adult under NRS 62.0S0 should not place Robinson at this serious disadvantage.
__________

1
Although Robinson has not raised an equal protection claim in this appeal, it does appear that the State's
treatment of Robinson would not pass even rational-basis scrutiny.

2
Once in a given case transfer is decided upon . . . the youth is no longer presumed to be a child in the eyes of
the law and no longer entitled to the grace provided by the Juvenile Court Act in that particular case. Seven
Minors, 99 Nev. at 433, 664 P.2d at 951. If Robinson is no longer a child in the eyes of the law and is not
entitled to the grace given to children under our juvenile law, then Robinson should be treated as an adult with
respect to the sexual seduction statute, NRS 200.364(3).
NRS 200.364(2) defines adult in terms of a person 18 years or older and does not
specifically apply to a person certified to be an adult under NRS 62.080 should not place
Robinson at this serious disadvantage. To consider Robinson as an adult in the eyes of the
law and as a person who is competent to violate the sexual seduction statute is reasonable
and does no violence to the meaning of the statute. If the district court is going to transmute
the underaged Robinson into an adult, the court must at the same time turn him into an adult
with the same advantages that would be available to an over-eighteen criminal defendant.
3
If
the court were not in a position to give to this certified adult the same rights and privileges
given to adult defendants, then it should not certify the child for proper criminal
proceedings. NRS 62.080. In summary, Robinson is entitled to the same instructions as other
adults accused of the crime of sexual assault, because he was tried as an adult. The trial court
erred when it refused to give the instruction on the lesser included-offense of statutory sexual
seduction; accordingly, the judgment of conviction is reversed, and the case is remanded for a
new trial.
I respectfully dissent from the majority opinion. The Nevada Legislature has defined
statutory sexual seduction as a crime only applicable to persons over the age of eighteen.
Robinson was seventeen at the time of the sexual attack. The majority concludes that [t]o
consider Robinson as an adult in the eyes of the law' and as a person who is competent to
violate the sexual seduction statute is reasonable and does no violence to the meaning of the
statute.
I could not disagree more fervently. Statutory sexual seduction is an age-based offense.
The age parameters selected by the legislature and inserted into the definitional language of
the statute are at the core of the criminal conduct. The only reason the majority opinion does
no violence to the language of NRS 200.364(3) is because it neglects the language entirely. I
am of the opinion that it is not the business of courts to look beyond the plain and unwavering
meaning of statutory language.
The intent behind a statutory rape law is not to protect persons of tender years from
sixteen- and seventeen-year-old attackers.
__________

3
Of course this reasoning would apply equally to Robinson's possible conviction, on remand, of statutory
sexual seduction. Robinson has been certified as an adult and should receive the benefit of an adult instruction
on statutory sexual seduction. After receiving this benefit, he will not in the future be heard to say that he is not
competent to be convicted of statutory sexual seduction because he was under eighteen at the time the alleged
acts were committed.
persons of tender years from sixteen- and seventeen-year-old attackers. Are we to see the
incomprehensible, a boy of sixteen or seventeen years being convicted of statutory sexual
seduction for assaulting one of his peers? The majority brings the unthinkable to fruition and
creates law.
If this is not enough to shock the conscience, I point to another colossal flaw in the
majority opinion. In accordance with Nevada's adult certification laws, the adult court system
lacks jurisdiction to convict Robinson of statutory sexual seduction. Under NRS 62.080, a
juvenile over the age of sixteen can only be certified to stand trial as an adult when charged
with a crime that would be a felony if committed by an adult.
1
Statutory sexual seduction
committed by a person under the age of twenty-one and over the age of eighteen (Robinson
by the majority's rationale) is a gross misdemeanor. NRS 200.368(2). By its express terms,
NRS 62.080 does not apply to statutory sexual seduction. Therefore, upon remand, the district
court has no jurisdiction to prosecute Robinson for this lesser related offense.
2
As a general
proposition, prosecuting a minor for a misdemeanor charge falls within the scope of the
juvenile court's exclusive jurisdiction. NRS 62.040; see also Robert E. v. Justice Court, 99
Nev. 443, 448, 664 P.2d 957, 960 (1983) (certification as an adult only applies to specific
charge administered in district court).
To get around this jurisdictional dilemma, I presume that the majority is not only
suggesting that Robinson is over eighteen for the purposes of statutory sexual seduction, but
that he is also over the age of eighteen for the purposes of adult certification under NRS
Chapter 62. Yet if this is the case, there was simply no reason for Robinson to have been
certified to stand trial as an adult in the first place. In the alternative, the majority may be
suggesting that Robinson is over the age of twenty-one and, thus, any violation of NRS
200.364
__________

1
1. If a child 16 years of age or older is charged with an offense which would be a felony if committed by
an adult, the juvenile division of the district court, after full investigation, may retain jurisdiction or
certify the child for proper criminal proceedings to any court which would have jurisdiction to try the
offense if committed by an adult . . . .
(Emphasis added.)

2
We have held that where a charge falls outside the exclusive jurisdiction of the juvenile court, the district court
may convict the juvenile of the certified crime and any lesser included offenses. Dicus v. District Court, 97 Nev.
273, 275, 625 P.2d 1175, 1177 (1981). Yet even if the rule in Dicus were applicable, statutory sexual seduction
is not a lesser included crime to sexual assault. Slobodian v. State, 98 Nev. 52, 639 P.2d 561 (1982) (sexual
assault can be committed without necessarily committing statutory sexual seduction; therefore, statutory sexual
seduction is not a lesser included offense).
any violation of NRS 200.364(3) would be a felony without the need for adult certification.
As one can see, this type of mysterious and confusing judicial undertaking not only does no
violence to NRS 200.364(3), it also does no violence to NRS 62.080.
I cannot condone circumventing a specific element of criminal activity and specific
jurisdictional language merely to afford Robinson the benefit of a judicially created
instructional doctrine. See In re Frederick, 604 P.2d 953, 954 (Wash. 1980) (juvenile offender
could not be convicted of first-degree escape because statutory definition specifically required
that individual be an adult); see also State v. Pitts, 714 P.2d 582 (N.M. 1986) (whether or not
a minor can be convicted of a crime hinges upon particular language of applicable statute).
Robinson's argument is with the Nevada Legislature and not this court.
3

If one accepts the majority's rationale, Robinson has miraculously received the benefit of
an additional year of life. He is over eighteen. Perhaps this court should contact government
authorities and inform them that Robinson has failed to register for selective service. In
addition, perhaps Robinson should present the majority's opinion to his local voting authority
and proclaim that he is eligible to vote in the upcoming elections. Although these are absurd
propositions, I submit that the majority opinion rests upon the same footing.
____________
110 Nev. 1141, 1141 (1994) Dawes v. State
EMORY TODD DAWES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24878
September 28, 1994 881 P.2d 670
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of principal
to involuntary manslaughter. Fourth Judicial District Court, Elko County; Thomas L.
Stringfield, Judge.
The supreme court held that: (1) it was unnecessary to define term speed contest within
meaning of anti-racing statute, and (2) defendant's closing argument would not have been
materially different or more effective with benefit of later instruction clarifying term
"speed contest."
__________

3
I can also foresee a scenario where Robinson is convicted of statutory sexual seduction and then files a habeas
corpus petition in federal court, wherein he claims it was a violation of due process to have been convicted by
Nevada's adult court system for a crime it was impossible to commit.
110 Nev. 1141, 1142 (1994) Dawes v. State
rially different or more effective with benefit of later instruction clarifying term speed
contest.
Affirmed.
Frederick B. Lee, Public Defender and Frederick H. Leeds, Chief Deputy Public Defender,
Elko County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Marshall Smith, District Attorney
and John S. McGimsey, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Trial courts have broad discretion in deciding whether terms within instructions should be defined.
2. Criminal Law.
Words used in instruction in their ordinary sense and which are commonly understood require no further defining instructions;
however, when phrase has technical legal meaning, that phrase should be defined so that jury is not misled or confused into applying
plain language as commonly understood.
3. Automobiles.
It is unnecessary to define term speed contest in prosecutions under anti-racing statute, as term speed contest does not have
technical legal meaning and words are sufficiently clear to describe forbidden conduct. NRS 484.377.
4. Criminal Law.
Defendant failed to show that any prejudice resulted from reading of supplemental instruction clarifying term speed contest in
anti-racing statute where, although defendant alleged that he was prejudiced since he was forced to argue his case to jury in closing
argument without benefit of more complete instruction defining speed contest, defendant's closing argument would not have been
materially different or more effective with benefit of clarifying instruction. NRS 484.377.
OPINION
Per Curiam:
Appellant Emory Todd Dawes was charged as a principal to involuntary manslaughter for the death of Jennifer Gail Swett. Swett died
when a truck driven by Dawes' friend, Kevin Neil Jenkins, forced the car in which Swett was riding as a passenger off the road and into a
ditch. Dawes and Jenkins were allegedly racing when the oncoming car containing Swett swerved into the ditch to avoid a head-on
collision. Dawes' charge of principal to involuntary manslaughter, stemming from this accident killing Swett, was based upon reckless
driving in violation of NRS 484.377, Nevada's anti-racing statute.
1

__________

1
110 Nev. 1141, 1143 (1994) Dawes v. State
At his trial, Dawes requested that the judge define the words speed contest within the
meaning of the anti-racing statute. The judge declined, finding the words sufficiently clear.
After deliberations began, the jurors inquired whether there existed a legal definition of
speed contest, and the judge read an instruction proposed by Dawes. The jury found Dawes
guilty. Dawes appeals, claiming that it was prejudicial error to fail initially to give his
proposed instructions and that it was prejudicial error to give the supplemental instruction
further defining and clarifying the term speed contest after closing argument. We conclude
that it was not error to supplement or clarify the instructions, and that Dawes has failed to
articulate prejudice.
As stated, Dawes was charged with the crime of principal to involuntary manslaughter, a
felony as defined by NRS 195.020, 200.070 and 200.090.
2
Testimony at trial showed that
Dawes was racing his friend Jenkins on the Spring Valley Parkway in Elko County. Dawes
was driving a grey or silver pickup truck and Jenkins was driving a black pickup truck.
Paul McGee saw the two trucks speeding on the parkway "bumper to bumper" and he
saw them disappear in a cloud of dust.
__________
Reckless driving; penalty for willful or wanton disregard for safety causing death or substantial
bodily harm.
1. It is unlawful for any person to:
. . . .
(b) Drive a vehicle in an unauthorized speed contest on a public highway. A violation of this subsection .
. . constitutes reckless driving.
We refer to this statute as an anti-racing statute because this is the common term for such a statute, although
various statutes proscribe racing, speed competitions or speed contests. See Annotation, Validity,
Construction, and Application of Criminal Statutes Specifically Directed Against Racing of Automobiles on
Public Streets or Highways (Drag Racing), 24 A.L.R.3d 1286, 1288-89 (1969).

2
NRS 195.020, 200.070 and 200.090, provide, in relevant part, as follows:
195.020 Principals. Every person concerned in the commission of a felony . . . whether he directly
commits the act constituting the offense, or aids or abets in its commission . . . and every person who,
directly or indirectly . . . induces . . . another to commit a felony . . . is a principal, and shall be proceeded
against and punished as such.
200.070 Involuntary manslaughter defined.
1. Involuntary manslaughter is the killing of a human being, without any intent to do so, in the
commission of an unlawful act, or a lawful act which probably might produce such a consequence in an
unlawful manner . . . .
200.090 Punishment for involuntary manslaughter.
1. Every person convicted of involuntary manslaughter shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 6 years . . . or by a fine of not more than $5,000, or by both
fine and imprisonment.
110 Nev. 1141, 1144 (1994) Dawes v. State
bumper to bumper and he saw them disappear in a cloud of dust. From the cloud of dust, he
saw a blue Camaro turn around and pursue the trucks. Richard Traynor, an off-duty reserve
officer with the Elko County Sheriff's Office, testified that he was driving on the Spring
Valley Parkway when he saw two trucks, one silver and one black, travelling alongside each
other occupying the full roadway in his direction. Traynor, who was driving a blue Camaro,
swerved into a ditch to avoid a collision and turned around to follow the two trucks. Traynor
testified that he saw the two trucks passing each other on the parkway.
Shortly thereafter, Traynor saw the black pickup truck in the ditch with a small white car.
He believed the small white car, driven by Greg Molyneux, had swerved into the ditch to
avoid a head-on collision with the black truck. Fifteen-year-old Swett, the passenger in
Molyneux's car, died at Elko County Hospital shortly after the accident. Finally, Carl Johnson
testified that he saw two trucks speeding on the highway, one behind the other, but he did not
see them pass each other.
Jenkins was charged with driving under the influence resulting in the death of another
person, a felony, and alternatively with reckless driving causing the death of another person,
and involuntary manslaughter, both felonies.
3
Dawes was charged in the same Information
charging Jenkins, but the trial judge granted Dawes' motion to sever and Dawes was tried
alone before a jury on the charge of principal to involuntary manslaughter, defined above.
The state proceeded on the theory that Dawes participated in and induced Jenkins to
participate in an illegal speed contest, in violation of NRS 484.377, resulting in an accident
that caused Swett's death.
At trial Dawes proposed two alternative instructions defining speed contest. Proposed
Instruction A read as follows:
Speed contest is defined as the awareness or intent of competition in respect to speed
and distance to prove superiority in performance.
Proposed Instruction B read as follows:
A speed contest is an intentional competition in respect to some phase of locomotion.
The dominant characteristic of a speed contest is the awareness or intent of competition
in respect to speed and distance to prove superiority in performance in some respect.
The judge rejected both instructions and wrote on them that his rejection was "based on
[the] fact that since [the] Nevada Legislature chose not to define 'speed contest', [the]
court finds no such necessity here.
__________

3
Jenkins's charges and plea bargain were the subjects of a separate mandamus action in this court, disposed
of in Jenkins v. District Court, 109 Nev. 337, 849 P.2d 1055 (1993).
110 Nev. 1141, 1145 (1994) Dawes v. State
rejection was based on [the] fact that since [the] Nevada Legislature chose not to define
speed contest', [the] court finds no such necessity here. Also see State v. Turner, 186 S.E.2d
681 (1972). The judge also stated that
there has to be an end to the definitional chain of things because if there's not, you've
got to define the words used in the definition and things never end. I'm certainly open to
giving any instruction that I think would be helpful and fair. This is my feeling is that
the legislature thought that the words speed contest were sufficient in and of itself [sic]
and made no effort to further define it [sic]. In my own experience in life is that those
words have meaning unto themselves. It [sic] is crystal clear and need no further
definition. In fact, they're very common words. Contest obviously means competition
and so forth. I want to point out what would happen here if we gave either A or B, right
now we've got the words speed contest which both the legislature and I believe are
self defined and crystal clear. If I start using these definitions, then what does
superiority in performance mean? I think speed contest is a lot clearer than
superiority in performance. Is it superiority in performance of the engine, of the
overall vehicle, of the driver? Things like this. In other words, to me the definitions
clearly add a vagueness that do not exist in the words speed contest by themselves.
Therefore I believe there is no further need for further definition.
After deliberating a few hours, the foreman of the jury sent a note to the judge that read, Is
there a legal definition of speed contest? The judge then instructed the jury according to
Dawes' original Proposed Instruction B.
The jury found Dawes guilty of the charge of principal to involuntary manslaughter. The
judge sentenced Dawes to six years in the Nevada State Prison. Dawes appeals, claiming that
the judge committed prejudicial error in refusing Dawes' initial proposed instructions and that
the judge compounded the error by clarifying the instruction after closing arguments had
been concluded. We conclude that both of Dawes' arguments are without merit.
Dawes first claims that harm had been irreparably done when the judge initially refused
to instruct the jury as to the legal definition of speed contest. We conclude, however, that
the judge did not err in failing to define speed contest within the meaning of the
anti-racing statute.
[Headnotes 1, 2]
Trial courts have broad discretion in deciding whether terms within an instruction should
be further defined. See Pena v. Ludwig, 766 S.W.2d 29S, 305 {Tex. Ct. App.
110 Nev. 1141, 1146 (1994) Dawes v. State
Ludwig, 766 S.W.2d 298, 305 (Tex. Ct. App. 1989); 75B Am. Jur. 2d Trial 1237 (1992).
Words used in an instruction in their ordinary sense and which are commonly understood
require no further defining instructions. See State v. Smith, 774 P.2d 811 (Ariz. 1989)
(knowingly need not be defined); State v. Barnett, 691 P.2d 683, 685-86 (Ariz. 1984)
(failure to define intentionally not error); 75B Am. Jur. 2d Trial 1237 (collecting
numerous cases holding that gross and willful misconduct, knowingly, corroboration,
deliberately and conspiracy need no definition).
However, when a phrase has a technical legal meaning, that phrase should be defined so
that a jury is not misled or confused into applying the plain language as commonly
understood. See McBride v. Woods, 238 P.2d 183, 186 (Colo. 1951) (unavoidable
accident); see also 75B Am. Jur. 2d Trial 1237 (collecting cases holding that some terms
requiring definition include premeditation and deliberation in first degree murder cases,
mental incapacity, and procedural phrases).
[Headnote 3]
In the instant case, the district court judge implicitly determined that the words speed
contest did not have a technical legal meaning within the anti-racing statute. He
specifically stated, [T]hose words have meaning unto themselves. It [sic] is crystal clear and
need no further definition. In fact, they're very common words. Contest' obviously means
competition and so forth. We agree with the district court judge that the words speed
contest have no technical legal meaning. It was therefore not error for him to have declined
initially to define those terms.
In rejecting Dawes' proposed instructions, the judge relied on a North Carolina case which
expressly held that the words speed competition were perfectly clear and require[d] no
further definition. See State v. Turner, 186 S.E.2d 681, 683 (N.C. Ct. App. 1972). Dawes'
proposed instructions, which the judge ultimately gave to the jury upon the jury's request, are
taken from the leading case in this area, City of Madison v. Geier, 135 N.W.2d 761 (Wis.
1965). In Geier, the court discussed the defendant's contention that racing has five
elements: intent, prior agreement, competition, high speed and distance. Id. at 764. The court
stated that the first three are but shades of the same conceptual notion that a race is an
intentional competition in respect to some phase of locomotion. The dominant characteristic
of a race is the awareness or intent of competition in respect to speed and distance to prove
superiority in performance in some respect. Id. (emphasis added). The Geier court noted that
other courts had interpreted racing within the meaning of anti-racing statutes to mean a
contest of speed or acceleration, and "a contest of speedinvolving the idea of
competitive locomotionin which competition is an essential element."
110 Nev. 1141, 1147 (1994) Dawes v. State
and a contest of speedinvolving the idea of competitive locomotionin which
competition is an essential element. See id.
Thus, we conclude that Geier stands foremost for the proposition that a race within the
meaning of Wisconsin's anti-racing statute is a competition or contest of speed. Nevada's
statute does not use the word race; instead, it uses the words speed contest to describe the
proscribed conduct. These words are sufficiently clear to describe the forbidden conduct. That
is, no drivers shall engage their vehicles in a contest or competition of speed on the highway.
In addition, the issue in Geier was sufficiency of the evidence, not particularity of the
charge to the jury. Id. at 766. The Geier court rejected the classification of racing into discreet
elements (holding the high speed and distance factors not dispositive) and upheld a racing
conviction without requiring that a further definition of racing be read to the jury.
Of all the reported appellate decisions, none has held that a lower court is required to
define further the statutory terms race, speed competition or speed contest. Rather, in
the cases that have provided definitions of all these phrases the courts have defined the terms
in order to analyze whether sufficient evidence had been admitted at trial upon which the jury
could have found the essential factor of competition. Thus, the courts that have examined
their states' statutes have found competition to be the essential factor in violating
anti-racing statutes. We conclude that the word contest in Nevada's statute embodies the
factor of competition and that speed contest embodies the factor of competition in respect
to some phase of locomotion. Accordingly, it is unnecessary to define speed contest in
prosecutions under this statute and the lower court did not err in refusing to give the proposed
instructions.
[Headnote 4]
Dawes next claims that reading the supplemental clarifying instruction compounded the
claimed initial error because Dawes was forced to argue his case to the jury in closing
argument without the benefit of the more complete instruction defining speed contest.
First, we have concluded that the judge did not err when he declined initially to define
speed contest. Second, we conclude that Dawes' closing argument would not have been
materially different or more effective with the benefit of the later instruction, and that he has
therefore failed to show prejudice.
We find no error in the district court judge's rulings and therefore affirm the judgment of
conviction of one count of principal to involuntary manslaughter.
____________
110 Nev. 1148, 1148 (1994) Sheriff v. Streight
SHERIFF, Pershing County, JAMES K. McINTOSH, Appellant, v. RICKY LEE
STREIGHT, Respondent.
No. 25577
September 28, 1994 881 P.2d 1337
Appeal from an order of the district court partially granting a pretrial petition for a writ of
habeas corpus. Sixth Judicial District Court, Pershing County; Jerry V. Sullivan, Judge.
Defendant, charged with possession of controlled substance and with being ex-felon in
possession of firearm filed pretrial petition for writ of habeas corpus. The district court
partially granted petition by dismissing drug charge based upon finding that state had failed to
provide required notice of intent to use expert affidavit in preliminary hearing. State
appealed. The supreme court held that: (1) notice was filed within requisite ten-day period,
and (2) state was not required to give three additional days' notice, in addition to ten-day
notice required for use of expert's affidavit at preliminary hearing.
Belinda Quilici, District Attorney, Pershing County, for Appellant.
Robert A. Grayson, Carson City, for Respondent.
1. Time.
In counting days to determine proper date of service of notice of state's intent to use expert's affidavit at preliminary hearing, date
notice was mailed is not counted, while date of hearing is counted, and thus notice was filed within requisite ten-day period, where
tenth day of notice period was day of preliminary hearing. NRS 50.325, 178.472.
2. Criminal Law; Time.
Computation of time statute adding three days when a party is required to act within a prescribed period after service of a notice by
mail was not applicable so as to add three days to ten-day notice required for use of expert's affidavit at preliminary hearing. Timing of
defendant's demand for expert's presence after receipt of notice was not based on date that he received notice, but rather was required
to be given 96 hours before date of preliminary hearing. NRS 50.325, 178.482.
3. Statutes.
Specific statutory provision governs over general provision.
OPINION
Per Curiam:
FACTS
On the evening of April 25, 1993, a Pershing County deputy sheriff found three bags containing a white powdery substance, as well
as a spoon and two straws, in a vehicle driven by appellant Ricky Lee Streight.
well as a spoon and two straws, in a vehicle driven by appellant Ricky Lee Streight. The
deputy sheriff also discovered two pistols in the vehicle, one of which belonged to Streight.
Laboratory tests identified the white powdery substance in one of the bags as
methamphetamine. Consequently, Streight was charged with violating NRS 453.336,
possession of a controlled substance; he was also charged with being an ex-felon in
possession of a firearm.
A preliminary hearing was scheduled for July 23, 1993, in the justice's court. On July 13,
1993, the state mailed Streight a request to establish the presence of methamphetamine
through an expert's affidavit instead of producing the expert at the preliminary hearing. Ten
days later, on July 23, 1993, the preliminary hearing began. At the hearing, the state presented
the expert's affidavit, and Streight objected to its admission on the basis of insufficient
statutory notice. The justice's court noted that Streight had not demanded the expert's
presence at least ninety-six hours before the preliminary hearing, and the court admitted the
affidavit on the equitable ground that Streight had failed to demand the expert's presence.
The justice's court determined that the state had presented sufficient evidence to support both
charges against Streight, and he was bound over for trial in the district court.
On January 13, 1994, Streight filed a pretrial petition for a writ of habeas corpus. In his
petition, Streight asserted, among other things, that the expert's affidavit was improperly
admitted because he had not received adequate notice. The state opposed Streight's petition
and asserted that its notice was timely served. On February 16, 1994, after a hearing, the
district court entered an order partially granting Streight's petition. Specifically, the court
determined that the state was deficient in providing the required statutory notice and that this
lack of notice violated Streight's Sixth Amendment right to confront the expert witness.
Consequently, the court granted Streight's petition with regard to his methamphetamine
possession charge; however, it allowed his charge of ex-felon in possession of a firearm to
proceed.
DISCUSSION
[Headnote 1]
NRS 50.325 provides, in pertinent part, as follows:
1. If a person is charged with an offense punishable pursuant to chapter 453 or 484
of NRS . . . and it is necessary to prove . . . the existence or identity of a controlled
substance . . . the prosecuting attorney may request that the affidavit or declaration of
an expert . . . be admitted in evidence at the trial or preliminary hearing concerning the
offense.
2. The request must be made at least 10 days before the date set for the trial or
preliminary hearing and must be sent to the defendant's counsel and to the defendant, by
registered or certified mail by the prosecuting attorney.
3. If the defendant or his counsel notifies the prosecuting attorney . . . at least 96
hours before the date set for the trial or preliminary hearing that the presence of the
expert or other person is demanded, the affidavit or declaration must not be admitted.
When the state wishes to use an expert's affidavit at a preliminary hearing, NRS 50.325
requires the state to give notice at least ten days before the hearing date. We conclude that the
state's notice was timely. NRS 178.472, which concerns the computation of time, provides
that
[i]n computing any period of time the day of the . . . event from which the designated
period of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a nonjudicial day, in
which event the period runs until the end of the next day which is not a Saturday, a
Sunday, or a nonjudicial day.
Thus, in counting days to determine the proper date of service, the first day is not counted,
but the last day is counted. Here, counting forward from the date notice was mailed (July 13,
1993), and not counting that day, the tenth day of the notice period was July 23, 1993, the day
of the preliminary hearing. We therefore conclude that the state gave the required ten days'
notice of its intent to use the expert's affidavit.
[Headnotes 2, 3]
According to Streight, the state was required to give three additional days' notice, in
addition to its ten-day notice, under NRS 178.482. NRS 178.482 states that [w]henever a
party has the right or is required to do an act within a prescribed period after the service of a
notice or other paper upon him and the notice or other paper is served upon him by mail, 3
days shall be added to the prescribed period. Here, NRS 178.482 is facially inapplicable: It is
triggered when notice is served on a party by mail and that party is required to act within a
certain period after receiving the notice. Here, however, the timing of Streight's demand for
the expert's presence was not based on the date that he received notice; instead his demand
was due 96 hours before the date of the preliminary hearing. Furthermore, even if NRS
178.482 is construed as a general calendaring rule when service is by mail, NRS 50.325
requires that the state's ten-day notice be served by registered or certified mail.
served by registered or certified mail. A specific statutory provision governs over a general
provision. See Fleischer v. August, 103 Nev. 242, 247, 737 P.2d 518, 521-22 (1987); Laird v.
State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 45, 639 P.2d 1171, 1173 (1982). As NRS
50.325 is the more specific provision, it applies to the exclusion of NRS 178.482.
In light of our conclusion that the state complied with the statutory notice requirement, we
find it unnecessary to address the additional issues raised below. Accordingly, we reverse the
district court's order partially granting Streight's petition, and we remand this case to the
district court for further proceedings.
____________
110 Nev. 1151, 1151 (1994) Independent American Party v. Lau
INDEPENDENT AMERICAN PARTY of the State of Nevada; JASON HOLLOMAN;
LINWOOD TRACY; CAROL RADCLIFFE; FRANCIS GILLINGS; WADE SMITH;
MARY ELLEN SUSIE ROSOFF; PATRICIA LITTLE; GWEN DOTY; DICKSIE
DUKE; JESSE PAUL HOWE; VERONICA ANN HANNERIG; LIBERTARIAN
PARTY of the State of Nevada; GARY WOOD; and ROB PRITCHARD, Petitioners,
v. CHERYL LAU, Secretary of State of the State of Nevada; KATHRYN
FERGUSON, Clark County Registrar of Voters; and MARLENE HENDERSON,
Washoe County Registrar of Voters, Respondents.
No. 25822
September 28, 1994 880 P.2d 1391
Original petition for writ of mandamus compelling the Secretary of State and the
Registrars of Voters in Clark and Washoe Counties to accept the filings of certain
Independent American Party and Libertarian Party candidates for the upcoming November
general election.
Qualified minor parties sought writ of mandamus to compel state officials to accept
candidates' declarations of candidacy and place them on ballot for election, despite fact that
candidates had changed their party affiliation after statutory party affiliation cutoff date. The
supreme court held that only major party candidates, those nominated through election
process, were subject to party affiliation cutoff date.
Petition granted.
Joel F. Hansen, Las Vegas, for Petitioners.
Frankie Sue Del Papa, Attorney General and Kateri Cavin, Deputy Attorney General,
Carson City, for Cheryl Lau, Secretary of State.
Rex Bell, District Attorney and Mary-Anne Miller, Deputy District Attorney, Clark
County, for Kathryn Ferguson, Clark County Registrar of Voters.
Dorothy Nash Holmes, District Attorney and George Campbell, Deputy District Attorney,
Washoe County, for Marlene Henderson, Washoe County Registrar of Voters.
Mona L. Snape, Las Vegas, for Amicus Curiae.
Elections.
Only major party candidates, those nominated through election process, are subject to party affiliation cutoff date. Language of
statute unambiguously refers to candidates for party nomination in any election, contrary construction of coordinate branches of
government was entitled to no deference where statute was unambiguous, and fact that statute excepted candidates of not-yet qualified
minor parties from cutoff date did not imply that qualified minor parties were subject to cutoff date. NRS 293.176(1).
OPINION
Per Curiam:
Petitioners in this original action, the Libertarian Party, the Independent American Party (IAP) and certain of their candidates, seek a
writ of mandamus compelling respondents Cheryl Lau (Lau) (Nevada Secretary of State), Kathryn Ferguson (Clark County Registrar of
Voters), and Marlene Henderson (Washoe County Registrar of Voters) to accept the candidates' declarations of candidacy and place them
on the ballot for the upcoming November general election.
FACTS
The Libertarian Party qualified as a minor party in Nevada in 1976, and the IAP re-qualified as a minor party in Nevada in 1992. On
May 17, 1994, Joel Hansen, attorney for the IAP, wrote a letter to Lau discussing the scope of NRS 293.176(1), which precludes at least
some candidates from changing their party affiliation after September 1 of the year preceding the general election. On or about May 25,
1994, in response to Hansen's inquiry, a representative from the Secretary of State's office orally informed the IAP and the Libertarian Party
that NRS 293.176(1) does not apply to minor party candidates and that therefore, candidates who changed their party
registrations to the IAP or to the Libertarian Party after September 1, 1993, would be permitted to run in the
1994 general election.
therefore, candidates who changed their party registrations to the IAP or to the Libertarian
Party after September 1, 1993, would be permitted to run in the 1994 general election.
Thereafter, on June 1, 1994, Lau changed her position regarding the applicability of NRS
293.176(1) and issued Interpretation Number 94-03. This written interpretation states that
NRS 293.176 applies to minor party candidates as well as major party candidates. Thus, Lau's
position is that minor party candidates cannot file for office and appear on the ballot for the
upcoming general election if they were registered with another party as of September 1, 1993.
Pursuant to Lau's instructions, the Clark County Election Department refused to allow certain
IAP and Libertarian candidates to file for office.
1
Additionally, the Washoe County Registrar
of Voters refused to allow several IAP candidates to file for office.
2

DISCUSSION
Petitioners IAP and the Libertarian Party argue that their candidates who were registered
with a different party as of September 1, 1993, should be permitted to file for office and
consequently appear on the ballot for the upcoming general election. Specifically, they assert
that the party affiliation cutoff date set forth in NRS 293.176(1) does not apply to minor party
candidates. We agree.
3

1. Except as otherwise provided in subsection 2, no person may be a candidate for a
party nomination in any election if he has changed the designation of his political party
affiliation on an official affidavit of registration in the State of Nevada or in any other
state since the September 1 next preceding the closing filing date for the election,
whether or not his previous registration was still effective at the time of the change in
party designation.
__________

1
The IAP candidates are Wade Smith, Mary Ellen Susie Rosoff, Patricia Little, Gwen Doty, Dicksie Duke,
Jesse Paul Howe, and Veronica Ann Hannerig. The Libertarian Party candidates are Gary Wood and Rob
Pritchard.

2
These candidates are Jason Holloman, Linwood Tracy, Carol Radcliffe and Francis Gillings.

3
In an order dated September 6, 1994, we granted this petition and directed the clerk of this court to issue a writ
of mandamus ordering the Secretary of State, the Clark County Registrar of Voters and the Washoe County
Registrar of Voters to accept the individual petitioners' declarations of candidacy and to place these candidates
on the ballot for the November general election. In our order, we explained that this formal opinion, which sets
forth the grounds for our decision, was forthcoming.
2. The provisions of subsection 1 do not apply to any person who is a candidate for
a party nomination of a political party which was not qualified as such on the
September 1 next preceding the closing filing date for the election.
NRS 293.176(1) specifically pertains to candidate[s] for a party nomination in any
election. [W]ords in a statute should be given their plain meaning unless this violates the
spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986).
In addition, no part of a statute should be rendered nugatory, nor any language turned to
mere surplusage, if such consequences can properly be avoided.' Paramount Ins. v. Rayson
& Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (quoting Torreyson v. Board of
Examiners, 7 Nev. 19, 22 (1871)). The plain meaning of the phrase candidate[s] for a party
nomination in any election, giving effect to each word, is that it applies only to those
candidates who are nominated through an election process. Under Nevada's election laws,
major party candidates must be chosen through an election process (the primary election);
minor parties are expressly prohibited from participating in primary elections. See NRS
293.175; NRS 293.1715. In lieu of a primary election, each minor party must provide, in its
constitution or bylaws, a procedure for the nomination of its candidates in such a manner
that only one candidate may be nominated for each office.
4
NRS 293.171(4). Based upon
the plain meaning of NRS 293.176(1), only major party candidates are subject to the statutory
cutoff date, as they are the only candidates required to be chosen through the election process.
Lau urges us to consider the legislative history of NRS 293.176(1). As NRS 293.176(1) is
unambiguous, however, there is no room for construction, and [we] are not permitted to
search for its meaning beyond the statute itself.' Charlie Brown Constr. Co. v. Boulder City,
106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting In re Walters' Estate, 60 Nev. 172,
183-84, 104 P.2d 968, 973 (1940)). We conclude that the plain meaning of NRS 293.176(1)
dictates that only major party candidates, those nominated through the election process, are
subject to the party affiliation cutoff date. As the language in this provision is clear and
unambiguous, we must look no further in determining its meaning.
Lau also claims that her opinion regarding the applicability of NRS 293.176{1), which is
shared by the Attorney General, is entitled to deference.
__________

4
Although minor parties are not expressly forbidden from using the election process to nominate candidates,
NRS 293.1715's prohibition against minor party participation in primary elections strongly suggests that minor
parties cannot use party-wide elections to nominate their candidates. Otherwise, minor parties would have de
facto primary elections.
NRS 293.176(1), which is shared by the Attorney General, is entitled to deference. In
Beenstock v. Villa Borega, 107 Nev. 979, 982, 823 P.2d 270, 272 (1991), we recognized that
if a statute is ambiguous, the construction placed thereon by other coordinate branches of
government is entitled to deference. Here, however, NRS 293.176(1) unambiguously applies
only to major party candidates. Consequently, we afford Lau's opinion, and that of the
Attorney General, no deference.
Finally, Lau argues that, because NRS 293.176(2) excepts candidates of not-yet-qualified
minor parties from the cutoff date, the cutoff date must, by implication, apply to candidates of
minor parties that are qualified as of that date. We find this argument unpersuasive. As set
forth above, NRS 293.176(2) provides that subsection 1 does not apply to any person who is
a candidate for a party nomination of a political party which was not qualified as such on the
September 1 next preceding the closing filing date for the election.
Prior to 1987, NRS 293.176 did not include subsection 2; this subsection was added by the
legislature as a result of our opinion in Long v. Swackhamer, 91 Nev. 498, 538 P.2d 587
(1975). See 1987 Nev. Stat., ch. 318, 3, at 691. In Long, the petitioner was an IAP candidate
who was refused ballot access because he had changed his party affiliation to the IAP after
September 1, 1973. The IAP, however, had not become qualified as a party until 1974. We
concluded that NRS 293.176 has no application at all to a new political party coming into
existence after September 1 of the preceding year. Long, 91 Nev. at 500, 538 P.2d at 589.
We decided Long on the ground that NRS 293.176 cannot apply to any party that is not
qualified as a party on the September 1 cutoff date. Apparently, the legislature simply
codified Long without considering any resulting implication that NRS 293.176(1) could apply
to minor parties that are qualified on the cutoff date. Our holding in Long, however,
demonstrates that NRS 293.176(2) concerns the timing of a party's qualification, not the
method by which its candidates are selected. It in no way makes NRS 293.176(1) applicable
to minor party candidates.
For the foregoing reasons, we conclude that NRS 293.176(1) is inapplicable to minor party
candidates and that respondents have an absolute duty to accept the individual petitioners'
declarations of candidacy.
5
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty and which results from an office, trust or station. NRS
34.160. Accordingly, we grant this petition.
__________

5
In light of our conclusion, which is based on the meaning of NRS 293.176(1), it is unnecessary to consider
petitioners' remaining contentions.
____________
110 Nev. 1156, 1156 (1994) Lane v. State
GERALD CARTER LANE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23825
September 29, 1994 881 P.2d 1358
Appeal from a judgment of conviction pursuant to a jury trial of one count each of first
degree murder, robbery with the use of a firearm, attempted murder and attempted robbery
with the use of a firearm and from a sentence of death. Second Judicial District Court,
Washoe County; Deborah Agosti, Judge.
The supreme court, Shearing, J., held that: (1) statistical survey of 86 murder cases
prosecuted by county district attorney's office was inadequate to support conclusion that
county intentionally sought death penalty in racially discriminatory manner, such that
defendant's equal protection claim failed; (2) aggravating circumstance found by jury during
penalty phase of prosecution, that defendant attempted to kill person other than the person
murdered, was invalid; and (3) jury's finding of invalid aggravating factor constituted
harmless error.
Affirmed.
Springer, J., dissented in part.
Michael R. Specchio, Public Defender, Janet Cobb Schmuck, Deputy Public Defender and
Jane McKenna, Deputy Public Defender, Washoe County, for Appellant.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Defendant who alleges equal protection violation has burden of proving existence of purposeful discrimination and discriminatory
effect. U.S. Const. amend. 14.
Statistical survey of 86 murder cases prosecuted by Washoe County district attorney's office was inadequate to support conclusion
that Washoe County intentionally sought death penalty in racially discriminatory manner in that survey failed to demonstrate that black
and white persons who were similarly situated were treated differently for purposes of defendant's equal protection claim; although
survey tended to show that death penalty had been sought more often for black nonfelons than for white felons, survey failed to take
into consideration relative strengths and weaknesses of those 86 cases, individual characteristics of the offenses, aggravating or
mitigating circumstances in those cases, plea bargains, and individual characteristics and attitudes of each capital defendant. U.S.
Const. amend. 14.
110 Nev. 1156, 1157 (1994) Lane v. State
3. Criminal Law.
Denial of motion for mistrial is within trial court's sound discretion and that ruling will not be disturbed on appeal in the absence
of a clear showing of abuse.
4. Criminal Law.
Defendant was not entitled to mistrial on ground of juror misconduct where juror during deliberations had read from booklet
entitled Citizens' Rule Book, A Jury Handbook to rest of the jury, passage from booklet, which passage may or may not have been
read to rest of the jury, stated that juror has power through single vote of not guilty to nullify every rule or law that is not in
accordance with the principles of natural, God-given, Common, or Constitutional Law, and juror was removed from jury and replaced
with alternate juror. There was no evidence indicating that juror who read from booklet was predisposed to acquitting defendant and
indeed, in issuing its guilty verdict, jury stated that even with juror who read from booklet, it had unanimously found defendant guilty,
and upon questioning, juror stated that they had not been influenced by juror who read from booklet and would follow the law as
instructed.
5. Criminal Law.
Not every incidence of jury misconduct requires granting of motion for new trial.
6. Criminal Law.
New trial on ground of juror misconduct must be granted unless it appears beyond reasonable doubt that no prejudice has resulted
and it is for trial court to determine in the first instance whether juror misconduct has resulted in prejudice to litigant and its judgment
thereon will not be overturned unless abuse of discretion is manifest.
7. Criminal Law.
Views of juror who during deliberations read booklet entitled Citizens' Rule Book, A Jury Handbook to rest of the jury resulted
in no prejudice to defendant since juror was replaced with alternate juror and other jurors were not influenced by him and thus,
defendant was not entitled to new trial.
8. Criminal Law.
Supreme court will not disturb district court's finding regarding voluntariness of confession unless that finding is plainly
untenable.
9. Criminal Law.
In determining whether defendant's confession is voluntary, court will consider effect of totality of the circumstances on will of
defendant and question in each case is whether defendant's will was overborne when he confessed.
10. Criminal Law.
Defendant's will was not overborne and thus, his confession was voluntary. Police officer testified that there were no signs of
intoxication when he questioned defendant and that, aside from occasional yawn, defendant did not demonstrate any signs of
exhaustion, officer testified that defendant was lucid and coherent and that he never requested to speak with attorney, friends or
relatives and that he read defendant his Miranda rights prior to questioning, and Admonition and Waiver of Rights form bearing
defendant's signature was introduced into evidence.
11. Homicide.
Questions of admissibility during penalty phase of capital murder trial are largely left to discretion of trial judge.
110 Nev. 1156, 1158 (1994) Lane v. State
12. Homicide.
District court did not abuse its discretion in admitting, during penalty phase of capital murder prosecution, letter from procurement
coordinator for recovery system describing donor recipients for murder victim's organs and letter from victim's friend describing their
ten-year friendship.
13. Homicide.
Any error in trial court's admitting, during penalty phase of capital murder prosecution, letter from procurement coordinator for
recovery system describing donor recipients for murder victim's organs and letter from victim's friend describing their ten-year
friendship was harmless in light of the five aggravating factors found by the jury. NRS 178.598.
14. Homicide.
Aggravating circumstances found by jury in first-degree murder prosecution, that murder was committed while defendant was
engaged in commission of or flight after robbery and that murder was committed at random and without apparent motive, were not
inconsistent since there was no indication that defendant had to kill victim in order to rob him. NRS 200.033(4), (9).
15. Homicide.
Although aggravating circumstance that defendant committed first-degree murder while attempting to commit robbery and while
engaged in commission or flight after committing robbery and aggravating circumstance that defendant committed murder to receive
money or any other thing of monetary value arose out of the same indistinguishable course of conduct, they could be considered as two
separate aggravating factors. NRS 200.033(4), (6).
16. Homicide.
Aggravating circumstance found by jury in penalty phase of capital murder prosecution, that defendant attempted to kill someone
other than the person murdered or knew that life would be taken, was invalid because it did not comport with the statutory
requirements for this aggravating circumstance, namely that defendant attempted to kill the person murdered. Jury found disjunctively
that defendant attempted to kill someone other than the person murdered or knew that life would be taken and since no evidence was
presented that defendant knew that life would be taken, jury could only find this aggravating circumstance if it found that defendant
attempted to kill the person murdered. NRS 200.033(4).
17. Homicide.
Jury's finding of an invalid aggravating factor, that defendant attempted to kill someone other than the person murdered,
constituted harmless error in light of fact that no mitigating circumstances were found by jury. NRS 200.033(4).
18. Homicide.
Death sentence in capital murder prosecution was not imposed under influence of passion, prejudice or any arbitrary factor and
was not excessive. Jury found four aggravating circumstances and murder was brutal and senseless and was culmination of spree of
violence and attempted robbery during which defendant shot two others, one of whom was seriously injured. NRS 200.033.
110 Nev. 1156, 1159 (1994) Lane v. State
OPINION
On May 22, 1992, Gerald Lane and James Millhouse left a party and headed to downtown
Reno. Lane brought a gun with him. After visiting several casinos, the men separated for
about five minutes. When Millhouse next saw Lane, Lane was talking to Frederick Spruell.
According to Spruell, Lane approached him at approximately 4:00 a.m. and, after asking him
if he was looking for something, asked him how much money he had. Lane then told
Spruell to give it up. When Spruell declined to do so, Lane shot him in the stomach and
fled.
Millhouse testified that he heard a gunshot and that when Lane rejoined Millhouse, he told
Millhouse that he had just shot a man. The two men then ran away. Millhouse was running
ahead of Lane when a bicyclist rode past him. Millhouse heard another gunshot. The man on
the bicycle was William Boone. According to Boone, he was riding home at approximately
5:00 a.m., carrying bags of groceries on his handlebars. He saw Millhouse in the bushes and
rode across the street away from Millhouse. He then saw Lane standing in a driveway. Lane
ran up behind Boone and yelled out to him. Lane then shot Boone in the right hand,
whereupon Boone lost control of his bicycle and his groceries spilled out onto the ground.
Boone stopped and Lane began to approach, but Lane was distracted by something and
quickly ran away.
Millhouse testified that he saw Lane running toward him, yelling for Millhouse to join
him. Millhouse claimed he said no, and went directly toward a cab and begged the cab driver
to take him home. When the cab driver refused, Lane and Millhouse proceeded South on
Virginia Street, stopped at a bar for a while, and eventually entered a different cab. Millhouse
told the cab driver, Raymond Dunham, to drive to the Peppermill. Along the way, however,
Lane told Dunham to drive to the nearby Lakeview Apartments.
When they arrived at the apartments, Millhouse prepared to pay the fare, but Lane pulled
out the gun. Millhouse testified that he ran off at this point and seconds later heard gunshots.
The police found the cab a short time later. Inside the cab was Dunham. He was dead.
Dunham had been shot three times in the head from a position directly behind him.
According to Dorothy Moore, Lane arrived at her apartment, and told her that he had
shot a cab driver in the head three times and taken money.
110 Nev. 1156, 1160 (1994) Lane v. State
and told her that he had shot a cab driver in the head three times and taken money. He
displayed the money to Moore and then went into the kitchen and washed the gun off in the
sink. He then placed the gun in a potato chip bag and hid it underneath the bed until she told
him she did not want it at her apartment.
Lane was arrested and convicted, pursuant to a jury verdict, of one count each of first
degree murder with the use of a deadly weapon, robbery with the use of a firearm, attempted
murder and attempted robbery with the use of a firearm. He was sentenced to death. Lane
appeals from his judgment of conviction and sentence based on five theories.
First, Lane argues that the capital sentencing process was administered in a racially
discriminatory manner in violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Second, Lane claims he was denied a fair trial
because the jury was not impartial. He claims that a juror improperly influenced the jury by
reading certain materials to them, causing prejudice against Lane. Third, Lane asserts that the
district court erred in denying Lane's motion to suppress statements made during interrogation
because the statements were involuntary. Fourth, Lane states that he was denied a fair penalty
hearing because the district court admitted evidence which violated NRS 176.015,
1
and
which was unduly prejudicial. Fifth, Lane argues that he was denied a fair penalty hearing
because the district court allowed duplicative aggravating factors in the instructions given to
the jury. We consider each of Lane's contentions in turn.
I. Equal Protection Challenge
Lane asserts that the imposition of the death penalty denied him equal protection of the
laws as guaranteed by the Fourteenth Amendment to the United States Constitution. He bases
this contention on a survey he has provided to this court indicating that the Washoe County
District Attorney's office has sought the death penalty in eighty percent of the cases involving
a black defendant with no prior felony conviction whereas it has not sought the death penalty
in eighty percent of the cases involving a white defendant with a prior felony conviction.
Lane concludes from this survey that "[i]f accused of murder in Washoe County, it is
better to be a white felon than a black with no prior felony convictions."
__________

1
NRS 176.015 states in pertinent part:
3. Before imposing sentence the court shall afford the victim an opportunity to:
(a) Appear personally or by counsel; and
(b) Reasonably express any views concerning the crime, the person responsible, the impact of the crime
on the victim and the need for restitution.
110 Nev. 1156, 1161 (1994) Lane v. State
from this survey that [i]f accused of murder in Washoe County, it is better to be a white
felon than a black with no prior felony convictions.
[Headnote 1]
A defendant who alleges an equal protection violation has the burden of proving the
existence of purposeful discrimination and a discriminatory effect. McCleskey v. Kemp, 481
U.S. 279, 292 (1987). In McCleskey, the defendant, McCleskey, claimed that Georgia's
capital punishment statute violated the Equal Protection Clause of the Fourteenth
Amendment. 481 U.S. at 291. McCleskey presented a statistical study to demonstrate that
race infected the administration of Georgia's statute in two ways. Id. First, he claimed that
persons who murdered whites were more likely to be sentenced to death than persons who
murdered blacks. Id. Second, McCleskey contended that black murderers were more likely to
be sentenced to death than white murderers. Id.
The United States Supreme Court stated that to prevail under the Equal Protection Clause,
McCleskey had to prove that the decisionmakers in his case acted with a discriminatory
purpose. Id. at 292. The Court further stated that while it had accepted statistics as proof of
intent to discriminate in certain limited contextsfor example, in jury venire-selection and
Title VII casesa prosecutor's decision to seek the death penalty was significantly
distinguishable from these other two contexts. Id. at 293-94. The Court stated:
[T]he policy considerations behind a prosecutor's traditionally wide discretion
suggests the impropriety of our requiring prosecutors to defend their decisions to seek
death penalties often years after they were made. Moreover, absent far stronger proof,
it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged
explanation for the decision is apparent from the record: McCleskey committed an act
for which the United States Constitution and Georgia laws permit imposition of the
death penalty.
Id. at 296-97 (citations omitted).
As in McCleskey, in the case at bar prosecutors who have exercised their discretion in
seeking the death penalty would be required to defend their actions years after these decisions
were made. Additionally, as in McCleskey, the prosecutor in this case had a legitimate and
unchallenged explanation for his decision: Lane committed an act for which the United States
Constitution and Nevada laws permit imposition of the death penalty. In McCleskey, the
Court also stated, Because discretion is essential to the criminal justice process, we would
demand exceptionally clear proof before we would infer that the discretion has been
abused." Id. at 297.
110 Nev. 1156, 1162 (1994) Lane v. State
to the criminal justice process, we would demand exceptionally clear proof before we would
infer that the discretion has been abused. Id. at 297. No such exceptionally clear proof
exists in this case.
[Headnote 2]
Assuming, arguendo, that Lane's statistics are accurate, we must reject his equal protection
challenge because his statistics fail to prove the existence of purposeful discrimination or that
the prosecutor's discretion has been abused. After careful consideration of Lane's claim, we
conclude that the statistical survey of eighty-six murder cases prosecuted by the Washoe
County District Attorney's office is inadequate to support a conclusion that Washoe County
intentionally seeks the death penalty in a racially discriminatory manner. The survey's fatal
flaw is that it fails to demonstrate that black and white persons who are similarly situated are
treated differently.
First, Lane's statistics do not sufficiently narrow the factors which weigh into the
prosecutor's decision to seek the death penalty. While the survey does tend to show that the
death penalty has been sought more often for black non-felons than for white felons, the
survey fails to take into consideration the relative strengths and weaknesses of those
eighty-six cases, the individual characteristics of the offenses, whether aggravating or
mitigating circumstances were present or absent, the nature of the aggravating and mitigating
circumstances, whether plea bargains were offered and accepted, and the individual
characteristics and attitudes of each capital defendant.
Without such vital information, we cannot determine whether or to what extent race may
have been implicated in the capital cases involved in the survey. We therefore have no basis
for holding that there was a racially discriminatory purpose behind the Washoe County
District Attorney's decision to seek the death penalty in this case.
II. Juror Misconduct
During the jury deliberations, the trial judge received a note from several members of the
jury informing the judge that one of the jury members, Tom Lacey, had informed the rest of
the jury that he sells or sold marijuana and that he uses a published booklet as his law and
guidance in persuading his decisions. Directly prior to receiving this note, the trial judge had
been informed by the bailiff that on the evening before, the bailiff had opened the door to the
jury room to inquire if the jury wished to continue deliberating and found a juror reading a
booklet entitled, Citizens' Rule Book, A Jury Handbook to the rest of the jury.
110 Nev. 1156, 1163 (1994) Lane v. State
The district court read a passage from the booklet, part of which stated that a juror has the
power, through a single vote of not guilty, to nullify every rule or law that is not in
accordance with the principles of natural, God-given, Common or Constitutional law. The
record does not indicate what part of the booklet jurors heard. After consulting with the
prosecutor and defense counsel, the district court conducted a hearing outside the presence of
the jury. First, the district court questioned Lacey, who admitted having the booklet and stated
that while he had not read it aloud, other jurors had read it to themselves. After questioning,
the State requested that Lacey be removed from the jury. The defense did not object, and the
request was granted. An alternate juror replaced Lacey.
The district court then questioned each of the remaining jurors separately. Each juror
stated that Lacey had read from the booklet. The jury members also indicated that they were
not influenced by Lacey or the booklet, that they would abide by their oaths as jurors, that
they would follow the law as instructed, and that they would decide Lane's case based upon
the facts and evidence adduced at trial. The district court also questioned the alternate
replacing Lacey, who stated that she had seen the booklet because Lacey was showing it the
day before, but that she had not read it. The alternate juror stated that she was not influenced
by the booklet and would follow the district court's instructions of law.
Lane moved for a mistrial based on juror misconduct. The district court denied his motion
and ordered the jury to start over with deliberations. The jury subsequently informed the
district court that it reached unanimous guilty verdicts on all four counts twice, once with
Lacey and a second time with the alternate juror. Thereafter, at the beginning of the penalty
phase of Lane's trial, Lane moved for a new trial, arguing that Lacey concealed a bias during
voir dire. The district court denied this motion. On appeal, Lane argues that he was denied a
fair trial because the jury was not impartial, and that the district court erred in denying his
motions for mistrial and for a new trial.
[Headnotes 3, 4]
The denial of a motion for a mistrial is within the trial court's sound discretion, and that
ruling will not be disturbed on appeal in the absence of a clear showing of abuse. Owens v.
State, 96 Nev. 880, 883, 620 P.2d 1236, 1238 (1980). Lane contends that the jury expressed
its hostility toward Lacey by convicting Lane; however, there is no evidence in the record
indicating that Lacey was predisposed to acquitting Lane. Indeed, in issuing its guilty verdict,
the jury stated that even with Lacey, it had unanimously found Lane guilty of all four counts.
In light of this and the fact that upon questioning, the jurors stated that they had not been
influenced by Lacey and would follow the law as instructed, we hold that the district court
did not abuse its discretion in denying Lane's motion for a mistrial.
110 Nev. 1156, 1164 (1994) Lane v. State
that upon questioning, the jurors stated that they had not been influenced by Lacey and would
follow the law as instructed, we hold that the district court did not abuse its discretion in
denying Lane's motion for a mistrial.
[Headnotes 5-7]
Regarding the district court's denial of Lane's motion for a new trial, we note at the outset
that not every incidence of jury misconduct requires the granting of a motion for a new trial.
Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721 (1979). However, a new trial must be
granted unless it appears, beyond a reasonable doubt, that no prejudice has resulted. Id. It is
for the trial court to determine in the first instance whether juror misconduct has resulted in
prejudice to a litigant, and its judgment thereon will not be overturned unless an abuse of
discretion is manifest. Id. In the instant case, Lane contends that he was entitled to a new trial
based on the theory that Lacey concealed bias during the voir dire. Lane's contention is
without merit. Since Lacey was replaced with an alternate juror and since the other jurors
were not influenced by Lacey, Lacey's views resulted in no prejudice to Lane. Therefore, the
district court acted within its discretion in denying Lane's motion for a new trial. We hold that
Lane was afforded a fair trial.
III. Admissibility of Lane's Statements
During the trial, the state introduced, through Officer David Jenkins, inculpatory
statements made by Lane during interrogation by police officers. Lane contends that the
statements introduced by Officer Jenkins were involuntary. He states that he had been awake
continuously for twenty-four hours prior to questioning and had been drinking heavily the
previous day, that he was questioned for nearly two hours by three police officers, only
consumed a candy bar and a Coca-Cola while in custody, and that he was not informed during
questioning that he could contact a lawyer or friends.
[Headnotes 8, 9]
This court will not disturb a district court's finding regarding the voluntariness of a
confession unless that finding is plainly untenable. Robertson v. State, 97 Nev. 138, 139, 625
P.2d 565, 565 (1981); Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 109 (1979). In
determining whether a defendant's confession is voluntary, we consider the effect of the
totality of the circumstances on the will of the defendant. Passama v. State, 103 Nev. 212,
213, 735 P.2d 321, 323 (1987). The question in each case is whether the defendant's will was
overborne when he confessed. Id.
110 Nev. 1156, 1165 (1994) Lane v. State
[Headnote 10]
In the instant case, we hold that Lane's will was not overborne and that his statements were
voluntary. During the suppression hearing, Officer Jenkins testified that there were no signs
of intoxication when the officers questioned Lane and that aside from an occasional yawn,
Lane did not demonstrate any signs of exhaustion. Officer Jenkins testified that Lane was
lucid and coherent and that he never requested to speak with an attorney, friends or relatives.
During the hearing and the trial, Officer Jenkins testified that he read Lane his Miranda rights
prior to questioning. The Admonition and Waiver of Rights form bearing Lane's signature
was introduced into evidence. Based on the foregoing, the district court's ruling, made after
listening to testimony and to an audiotaped portion of the interrogation, was not plainly
untenable.
IV. The Penalty Phase
A. Admissibility of Letters
Hazel Dunham, sister of the victim, Raymond Dunham, testified during the penalty phase
of Lane's trial. Through Hazel Dunham, the state introduced two letters into evidence, over
defense counsel's objection. The first letter was from Carol Collins, R.N., the Procurement
Coordinator for Intermountain Recovery System. This letter expressed Collins' condolences
to Hazel Dunham and described the donor recipients for Raymond Dunham's organs. The
second letter was from Raymond Dunham's friend, and described the ten year friendship
between him and Dunham.
Lane argues that these letters were introduced in violation of NRS 176.015 and that they
were unduly prejudicial. Lane's reliance on NRS 176.015 is misplaced. This court has held
that NRS 176.015 is inapplicable to hearings where the death penalty is imposed. Hardison v.
State, 104 Nev. 530, 535, 763 P.2d 52, 55 (1988).
The state argues that the statements were admissible under Payne v. Tennessee, 501 U.S.
808, 111 S. Ct. 2597 (1991), and Homick v. State, 108 Nev. 127, 825 P.2d 600 (1992). In
Payne, the United States Supreme Court overruled its prior cases which prohibited victim
impact evidence during the penalty phase of a capital trial. The Payne court stated: A State
may legitimately conclude that evidence about the victim and about the impact of the murder
on the victim's family is relevant to the jury's decision as to whether or not the death penalty
should be imposed. 501 U.S. at 827, 111 S. Ct. at 2609. It therefore held that the federal
constitution did not bar the admission of victim impact evidence and prosecutorial argument
on that subject.
110 Nev. 1156, 1166 (1994) Lane v. State
and prosecutorial argument on that subject. Id. We lauded the Payne decision in Homick, and
concluded that error did not result from the comments of a prosecutor during closing
argument regarding the surviving members of the victims' families. 108 Nev. at 136-37, 825
P.2d at 606.
While the reasoning of Payne and Homick is relevant, a more specific provision governs
the question of admissibility presented in the instant case. During the penalty phase of a case
in which the death penalty is sought, NRS 175.552 governs the admissibility of evidence
regarding the victim. See Hardison v. State, 104 Nev. 530, 763 P.2d 52 (1988). NRS 175.552
provides that during the penalty hearing of a first degree murder case, 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.)
[Headnotes 11-13]
Questions of admissibility during the penalty phase of a capital murder trial are largely left
to the discretion of the trial judge. Milligan v. State, 101 Nev. 627, 636, 708 P.2d 289, 295
(1985), cert. denied, 479 U.S. 870 (1986). There was not an abuse of discretion in this case.
Moreover, even if admission of the two letters did constitute an abuse of discretion, we hold
that in light of the five aggravating factors found by the jury, any error which resulted from
their admission was harmless. See NRS 178.598.
B. Aggravating Circumstances
In the case at bar, the jury found five aggravating circumstances
2
Lane argues that he was
denied a fair trial because the aggravating circumstances articulated by the district court and
found by the jury were inconsistent and duplicative.
__________

2
The five aggravating circumstances consisted of the following:
1. The murder was committed by Lane who created a great risk of death to more than one person by
means of a weapon or course of action which would normally be hazardous to the lives of more than one
person. NRS 200.033(3).
2. The murder was committed while Lane was engaged in flight after attempting to commit robbery, and
Lane attempted to kill Frederick Spruell; or that he knew or had reason to know that life would be taken
or lethal force used. NRS 200.033(4).
3. The murder was committed while Lane was engaged in the commission or flight after committing
robbery, and Lane killed Raymond Dunham; or that he knew or had reason to know that life would be
taken or lethal force used. NRS 200.033(4).
4. The murder was committed upon one or more persons at random and without apparent motive. NRS
200.033(9).
5. The murder was committed by Lane for himself or another to receive money or other thing of
monetary value. NRS 200.033(6).
110 Nev. 1156, 1167 (1994) Lane v. State
[Headnotes 14, 15]
NRS 200.033 enumerates the circumstances by which murder of the first degree may be
aggravated. Among the five aggravating circumstances found by the jury were that the murder
was committed while Lane was engaged in the commission of or flight after robbery, NRS
200.033(4), and also that the murder was committed at random, without apparent motive.
NRS 200.033(6). Lane argues that these two aggravating circumstances are inconsistent.
However, we have held that if the killing was not necessary to accomplish the robbery or
could have been completed without killing the victim, the two aggravating factors are not
inconsistent. Paine v. State, 107 Nev. 998, 999-1000, 823 P.2d 281, 282 (1991); Bennett v.
State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990), cert. denied, 498 U.S. 925 (1990). In the
instant case, there was no indication that Lane had to kill Dunham in order to rob him;
therefore, Lane's contention is without merit. Lane also asserts that the jury's findings that
Lane committed murder while attempting to commit robbery and while engaged in the
commission or flight after committing robbery, NRS 200.033(4), duplicate its finding that
Lane committed the murder to receive money or any other thing of monetary value. NRS
200.033(6). Lane states that a robbery or attempt to rob cannot be accomplished without
trying to take money or some other thing of monetary value. This contention is also without
merit.
In Guy v. State, 108 Nev. 770, 839 P.2d 578 (1992), cert. denied,
------
U.S.
------
, 113 S.
Ct. 1656 (1993), we rejected a challenge to a jury's finding that the murder was committed
while the person was engaged in the commission of or an attempt to commit robbery and that
the murder was committed to receive money or any other thing of monetary value. We stated
that the evidence supported the aggravating factors: the appellant murdered the victim while
robbing him and also for the purpose of obtaining cocaine, a thing of monetary value. Id. at
781, 839 P.2d at 585.
Additionally, this court has previously rejected an appellant's argument that since the
felonies of burglary and robbery arose out of the same indistinguishable course of conduct,
they could not be stated as two separate aggravating circumstances. Bennett v. State, 106
Nev. 135, 142, 787 P.2d 797, 801, cert. denied, 498 U.S. 925 (1990). We stated that if the
legislature intended to prohibit the use of multiple aggravating circumstances in this context,
it would have provided accordingly. Id. at 143, 787 P.2d at 802. Therefore, we held that if a
defendant can be prosecuted for each crime separately, each crime can be used separately as
an aggravating circumstance. Id. at 142, 787 P.2d at 801.
110 Nev. 1156, 1168 (1994) Lane v. State
In this case, although the two aggravating circumstances arose out of the same
indistinguishable course of conduct, it appears that the legislature intended that they may be
considered as two separate aggravating factors. We therefore find Lane's argument
unpersuasive.
[Headnote 16]
In reviewing death sentences, this court must consider whether the evidence supports the
jury's findings of the aggravating circumstances. NRS 177.055(2)(b). In reviewing each of the
five aggravating circumstances found by the jury, we conclude that one of the five is invalid.
The second aggravating circumstance was found by the jury as follows:
The murder was committed while GERALD CARTER LANE was engaged in flight
after attempting to commit robbery and GERALD CARTER LANE attempted to kill
FREDERICK SPRUELL; or that he knew or had reason to know that life would be
taken or lethal force used.
This finding is based on NRS 200.033(4), which provides:
4. The murder was committed while the person was engaged, alone or with others,
in the commission of or an attempt to commit or flight after committing or attempting
to commit, any robbery, sexual assault, arson in the first degree, burglary, invasion of
the home or kidnapping in the first degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
As is evident, the jury's finding does not comport with the statutory requirements. NRS
200.033(4) requires a finding that the defendant (a) Killed or attempted to kill the person
murdered; or (b) Knew or had reason to know that life would be taken or lethal force used.
The jury found disjunctively that Lane killed or attempted to kill Spruell, or knew or had
reason to know that life would be taken or lethal force used. No evidence was presented that
Lane knew or had reason to know that life would be taken or lethal force used. Therefore,
the jury could only find this aggravating circumstance if it found that Lane killed or
attempted to kill the person murdered, i.e., Dunham. Instead of supporting this aggravating
circumstance with a finding that Lane killed or attempted to kill Dunham, the jury found that
Lane attempted to kill Spruell. Thus, the jury found either an invalid aggravating
circumstance or one that the evidence did not support. Accordingly, we hold that this
aggravator may not stand.
110 Nev. 1156, 1169 (1994) Lane v. State
[Headnote 17]
However, we have carefully reviewed the evidence in this case and conclude that it
supports the jury's finding of each of the remaining four aggravating circumstances. In light of
the fact that no mitigating circumstances were found by the jury, we hold that the jury's
finding of an invalid aggravating factor constituted harmless error. See Clemons v.
Mississippi, 494 U.S. 738 (1990); Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993);
Libby v. State, 109 Nev. 905, 859 P.2d 1050 (1993); see also NRS 200.030(4)(a). Such
reweighing compels us to affirm Lane's death sentence.
In cases in which the death penalty is imposed, this court is also statutorily required to
consider whether the death sentence was imposed under the influence of passion, prejudice or
any arbitrary factor and whether the sentence of death is excessive considering both the crime
and the defendant. NRS 177.055(2).
[Headnote 18]
We conclude that the death sentence was not imposed under the influence of passion,
prejudice or any arbitrary factor, nor was it excessive in this case. The jury sentenced Lane to
death based upon the aggravating circumstances of the murder revealed during the trial. The
jury found beyond a reasonable doubt that Lane killed Dunham by shooting him three times
in the back of the head. This was a senseless and brutal murder, the culmination of a spree of
violence and attempted robbery, during which Lane shot two others, one of whom was
seriously injured. Considering the circumstances of the crime and the nature of Lane's
character, the jury's determination that Lane should be put to death for the murder of Dunham
was not excessive.
Having determined that Lane was fairly tried, convicted and sentenced, we affirm the
district court's judgment of conviction and the sentence of death.
Rose, C. J., and Steffen and Young, JJ., concur.
Springer, J., concurring in part and dissenting in part:
I concur in the affirmance of Lane's conviction for first-degree murder; I dissent from the
affirmance of the death sentence in this case. That sentence is seriously flawed for two
reasons: first, the district attorney charged the wrong aggravating circumstance, and therefore
Lane is not death-eligible; second, Lane has raised a colorable claim that he is the victim of a
racially-based discriminatory policy employed by the Washoe County District Attorney in
death cases. That claim must be given full and proper hearing. I summarize these two points
as follows: 1.
110 Nev. 1156, 1170 (1994) Lane v. State
1. This murder was committed during a robbery. NRS 200.033(4) provides that
murder committed while a person is engaged in robbery is an aggravated murder. Lane
is guilty of this kind of aggravated murder; but, strangely, he was not charged with
committing murder while engaged in robbery. Instead, he was improperly and
inappropriately charged with committing murder while engaged in flight from some
unspecified robbery of some unspecified robbery victim.
2. Lane introduced evidence, which if established as fact, would tend to show that
the Washoe County District Attorney's office seeks the death penalty for black
defendants with no prior felonies four times as often as it seeks the death penalty for
previously-convicted white defendants. Although Lane has not claimed a deliberate
discriminatory purpose on the part of the District Attorney's office, the evidence which
Lane introduced below is troubling. I would remand the case for a hearing and
reconsideration of the question of violation of Lane's right to equal protection of the
law guaranteed to him by our State Constitution.
ABSENCE OF AGGRAVATING CIRCUMSTANCE
EQUALS ABSENCE OF DEATH-ELIGIBILITY
The Majority Opinion in this case tells us that [a]fter careful review of the evidence, we
are convinced that it supports the jury's finding of each of these [five] aggravating
[circumstances]. (Majority Opinion at 11). My careful review tells me just the
oppositethat there are no aggravating circumstances proven in this case. I will get rid of the
easy ones first.
The first aggravator found by the jury, is that the murder was committed by [Lane] who
knowingly created a great risk of death to more than one person. (Instruction No. 9). Neither
the jury instructions nor the jury findings specify who the jury believed to have been at great
risk of death at the time Lane murdered Dunham. The only person other than the victim who
was nearby at the time of the murder was Lane's friend and codefendant, Millhouse. When
Lane pulled out his gun, Millhouse ran away; it thus seems impossible for Millhouse to have
been at any risk of death, for, by the time Lane got around to committing the murder,
Millhouse was not there. The great-risk-of-death aggravator must fail in this case.
The fourth aggravator found by the jury is that the murder was committed upon one or
more persons at random and without apparent motive. (Instruction No. 9). We know that the
murder was not motiveless. We know what the motive was here; it was robbery, pure and
simple. As stated in the Majority Opinion, Dorothy Moore testified that Lane "told her that
he had shot a cab driver in the head three times and taken money."
110 Nev. 1156, 1171 (1994) Lane v. State
Dorothy Moore testified that Lane told her that he had shot a cab driver in the head three
times and taken money. This looks a lot like a robbery to methe motive, obviously, was to
take the cabbie's money. The robbery was not motiveless; at least there is no evidence that
this is the case. I certainly do not disagree with the proposition adopted by this court in Moran
v. State, 103 Nev. 138, 143, 734 P.2d 712, 714 (1987), that a robbery can be committed and
that there can still be an accompanying motiveless killing and, therefore, an aggravated
murder. If the facts here were to have shown that Lane took the cabbie's money and then, for
no apparent reason, shot him, we might have evidence to support the motiveless aggravator.
The facts in this case do not, however, support a finding beyond a reasonable doubt that this
killing was done other than in the course of a robbery. Unfortunately for the State, as I have
said, the district attorney did not charge murder during robbery as an aggravator.
The jury found as the fifth aggravator that the murder was committed by [Lane], for
himself or another, to receive money or other thing of monetary value. (Instruction No. 9).
This aggravating circumstance applies to contract killings, when murderers do their ugly deed
in order to receive money or other thing of monetary value, and it cannot be contorted to fit
a robbery-murder, a special aggravating circumstance which is expressly provided for in NRS
200.033(4). If this aggravating circumstance equates with robbery-murder, then the separate
robbery-murder aggravating circumstance contained in the statutory scheme would be
redundant. Now on to the hard aggravators.
Aggravators 2 and 3 require that Lane have been engaged in flight from a robbery at the
time of the murder of taxi-cab driver Dunham. NRS 200.033(4), the statute that describes the
conditions under which flight might amount to an aggravating circumstance is to me
extremely difficult to decipher, as is the flight instruction given to the jury in which the trial
court tried to define the conditions under which the flight portion of NRS 200.033(4) applies.
For ready reference, and to confirm the complexity of and the difficulty in understanding the
statute and the findings of the jury verdict, I set these out in the margin.
1
The confusion
inherent in the statute and jury findings aside, let me go ahead and see if it is possible to
make any sense out of the "flight" aggravating circumstances that were found by the jury
in this case.
__________

1
4. The murder was committed while the person was engaged, alone or with others, in the commission of
or an attempt to commit or flight after committing or attempting to commit, any robbery, sexual assault,
arson in the first degree, burglary, invasion of the home or kidnaping in the first degree, and the person
charged:
The second and third aggravating factors were found by the jury in this form:
110 Nev. 1156, 1172 (1994) Lane v. State
confusion inherent in the statute and jury findings aside, let me go ahead and see if it is
possible to make any sense out of the flight aggravating circumstances that were found by
the jury in this case. (I must say that I believe this task to be impossible.)
The first flight aggravator found by the jury (as aggravating circumstance 2) is
necessarily based on the language in NRS 200.033(4) that the murder was committed while
[Lane] was engaged . . . in the commission of or an attempt to commit or flight after
committing or attempting to commit, any robbery and that Lane (a) Killed or attempted to
kill the person murdered; or (b) Knew or had reason to know that life would be taken or lethal
force used. Since I cannot understand what this statute says or means, I go on to read the
actual finding of the jury made pursuant to this incomprehensible statutory language. The jury
found that Lane killed the taxi driver, Dunham, while GERALD CARTER LANE was
engaged in flight after attempting to commit robbery[,] and GERALD CARTER LANE
attempted to kill FREDERICK SPRUELL[] or that he knew or had reason to know that life
would be taken or lethal force used. I have tried to make an effort to understand what the
jury was trying to do when it concluded that an aggravating circumstance existed under NRS
200.033(4). The best that I could come up with was that the jury found:
1. Lane murdered Dunham while [Lane] was engaged in flight after attempting to
commit robbery (of some unspecified person); or
2. Lane attempted to kill FREDERICK SPRUELL; or
3. Lane knew or had reason to know that life would be taken or lethal force used.
How in the world is Lane or any one else expected to know just what Lane did to make
him eligible for the death penalty? Is it because he murdered Dunham while he was engaged
in flight after attempting to commit some unspecified robbery?
__________
2. The murder was committed while GERALD CARTER LANE was engaged in flight after attempting
to commit robbery and GERALD CARTER LANE attempted to kill FREDERICK SPRUELL; or that he
knew or had reason to know that life would be taken or lethal force used.
3. The murder was committed while GERALD CARTER LANE was engaged in the commission of or
flight after committing robbery and GERALD CARTER LANE killed RAYMOND DUNHAM; or that
he knew or had reason to know that life would be taken or lethal force used.
(Instruction No. 9). Neither sentence 2 nor sentence 3 makes very much sense to me; certainly, they do not
present cogent or coherent jury findings that would properly support a verdict of death.
110 Nev. 1156, 1173 (1994) Lane v. State
after attempting to commit some unspecified robbery? Or was it because he attempted to
kill Spruell? Or was it because he knew at the time he killed Dunham that a life would be
taken or lethal force [would be] used [by him]? Aside from the impermissible multiplicity of
alternate charges, NRS 200.033(4) does not mention an attempt[] to kill; and it is senseless
to say that Lane committed aggravated murder because he knew that he, Lane, was going to
take a life or use lethal force. This finding of an aggravating circumstance is farcical, and
even if we were willing to isolate out of all the alternate possibilities murder . . . committed
while . . . engaged in flight after attempting to commit robbery, there is no specification as to
what robbery the jury had in mind. Whatever robbery the jury might have been thinking
about, it certainly looks to me as though Lane's robbery-murder of Dunham was an isolated
event, which he did on his own for the usual purpose that motivates robbers. Even, if some
readers are able to make sense out of either NRS 200.033(4) or jury finding 2, and even if we
ignore the multiple possible bases for the finding, absent a specification of whom Lane is
charged with robbing and absent any evidence that Lane was fleeing from another robbery at
the time he robbed and murdered Dunham, a jury finding that, beyond a reasonable doubt,
Lane is guilty of committing this amorphous aggravating circumstance cannot stand.
That no one at the trial of this case could see that the only real aggravating circumstance in
this case is robbery and not flight is a matter of some amazement to me. Under NRS
200.033(4) an aggravating circumstance may be present when the murder was committed
while the person was engaged, alone or with others, in the commission of . . . any robbery. It
is quite clear that the murder here was committed not while Lane was engaged in flight from
a robbery but, rather, in the actual commission of a robbery. Murder committed during a
robbery is the only appropriate aggravating circumstance in this case and the one that should
have been given to the jury.
Strangely, the State did not charge that the murder was committed while Lane was
engaged in the commission of a robbery; rather, the State charged that Dunham's murder was
committed while Lane was engaged in flight from some other, unspecified robbery or
attempted robbery. I cannot even begin to guess why the prosecution did this. It is clear that
Lane committed murder during a robbery. It is equally clear that Lane did not commit murder
during flight. At the time he decided to rob Dunham, Lane and his friend, Millhouse, were
traveling together by taxi on their way to Lakeview Apartments. Lane decided to rob the taxi
driver and then, apparently, to kill him. It is too bad that the State did not charge murder
during the course of a robbery as an aggravator, because such an aggravator is clearly
present here.
110 Nev. 1156, 1174 (1994) Lane v. State
did not charge murder during the course of a robbery as an aggravator, because such an
aggravator is clearly present here.
Finally, with regard to the second flight aggravator, aggravating circumstance number 3,
I confess that I can make no sense of it at all. The jury did find, among other findings in
number 3, that Lane was guilty of a murder . . . committed while [Lane] was engaged in the
commission of or flight after committing robbery. It is hard to distinguish this from number
2 discussed above, and if number 2 were to stand, number 3 should be disallowed as being
duplicitous. The jury made a number of additional findings to support this single aggravating
circumstance, including the finding that [Lane] killed RAYMOND DUNHAM[] or that he
knew or had reason to know that life would be taken or lethal force used. This latter finding
is, of course, of no consequence. Lane cannot, obviously, be punished for both shooting and
killing Dunham and, additionally, for knowing that there was going to be lethal forced used
in his killing of Dunham. The jury instructions and the jury findings result in two
engaged-in-flight aggravators which are terribly confusing and have no support in the
record, much less support beyond a reasonable doubt.
2

__________

2
The two flight aggravators (2 and 3), apparently based on NRS 200.033(4), are a garbled mess. Before
making an attempt to parse the complex sentence which comprises NRS 200.033(4), I want again to point out
that the sentence does provide an understandable description of an aggravating circumstance comprised of a
murder . . . committed while the person was engaged . . . in the commission of . . . any robbery. A person of
ordinary intelligence would probably be able to extract from this compound sentence the idea that if one
commits murder while engaged in the commission of a robbery (or any of the six other predicate crimes listed in
the sentence), that this would be enough to constitute an aggravating circumstance and make a first degree
murderer eligible for the death penalty. This is as far as I can go, however, the rest of the sentence makes no
sense to me.
With regard to the part of the sentence relating to flight, I find it most difficult to read. We know that first
degree murder is aggravated when committed to avoid or prevent a lawful arrest or to effect an escape from
custody NRS 200.033(5); and if there had been evidence here that Lane's flight was directed toward
preventing his arrest, then perhaps the prosecution could have relied on NRS 200.033(5) to establish an
aggravating circumstance. It cannot, however, in my opinion, rely on NRS 200.033(4) because it is too difficult
to understand what the prohibited conduct might be and because whatever the statute was intended to mean,
there is insufficient evidence of the kind of flight that the statute might be trying to describe.
When we extract the only truly intelligible language in NRS 200.033, murder committed while engaged in
robbery (and other listed crimes), here is what we have left:
The murder was committed while the person was engaged . . . in . . . flight after committing or attempting
to commit any robbery, [or the other listed crimes], and the person charged:
110 Nev. 1156, 1175 (1994) Lane v. State
Since there are no properly found aggravating circumstances, I must conclude that Lane is
not death-eligible; therefore I would reverse his death sentence.
THE RACIAL IMPACT STATISTICS
Lane brought a motion in district court to preclude the prosecution from seeking the death
penalty in this case. Lane claims that the Washoe County District Attorney's office, as a
general practice, discriminatorily seeks the death penalty much more frequently when the
defendant in a murder case is black. In support of this charge, Lane presented to the trial court
a survey covering some eighty-six murder cases prosecuted by the Washoe County District
Attorney's office. In approximately eighty-percent of cases involving a white defendant with
at least one prior felony conviction, the district attorney did not seek the death penalty.
__________
After careful reading and diagramming, the best I can do with it is to extract the following meaning: First, to be
aggravated murder under this provision, a murder must be committed by a person engaged in flight after
committing robbery (or one of the other listed offenses). Second, the person fleeing from the robbery (or other
listed crime) scene must either kill or attempt to kill the person murdered, or have reason to know that life
would be taken or lethal force used. With regard to the second element, I imagine that it can be safely said that
Lane killed . . . the person murdered. The victim is dead; so Lane did kill the person murdered. So we have to
inquire only into the part of the statute relating to murder while Lane was engaged in flight. Assuming that a
reader of the statute can extract the meaning that murder is aggravated if committed during flight from the scene
of a previous robbery (or other serious crime), there is no evidence in this record to support proof beyond a
reasonable doubt that Lane engaged in such conduct.
I would comment first that it takes the proverbial Philadelphia lawyer to extract an intelligible flight aggravator
from all of this confusing language. Lane should not be expected to understand what the charge was. What the
jury actually did find is even more confusing than the statutory language. (The murder was committed while
GERALD CARTER LANE was engaged in flight after attempting to kill FREDERICK SPRUELL; or that he
knew or had reason to know that life would be taken or lethal force used.). Even if this were not gibberish, this
kind of disjunctive language violates well established norms of criminal procedure. [A]bsent a statute providing
otherwise, it is fatal for an indictment or information to charge disjunctively in the words of the statute, if the
disjunctive renders it uncertain as to which alternative is intended. 2 Wharton's Criminal Procedure, 266 at
131 (Charles E. Torcia, ed.; 13th ed. 1990) (footnote omitted). See, e.g., The Confiscation Cases, 87 U.S. (1
Wall.) 92 (1874); In Re Bell, 122 P.2d 22 (Cal. 1942). This rule is designed to ensure that a criminal defendant
has adequate notice of the charges being brought against him or her and because neither a conviction nor an
acquittal could be pleaded in bar to a subsequent prosecution on one of the several offenses. The Confiscation
Cases, 87 U.S. at 104. But I am going to leave this aside and simply rest my dissent on the fact that in both of
the findings of aggravating circumstances relating to flight, the findings relate either to Lane's attempting to
commit robbery or to his committing robbery; but there is no accusation as to whom Lane might have robbed
or attempted to rob. Without further accusational specification, I would conclude that the flight aggravator
must fail.
110 Nev. 1156, 1176 (1994) Lane v. State
conviction, the district attorney did not seek the death penalty. By contrast, in approximately
eighty-percent of cases involving a black defendant without prior felony convictions, the
district attorney did seek the death penalty.
The district court held an evidentiary hearing and after considering the defendant's
statistical data, ruled against Lane based on the United States Supreme Court case of
McClesky v. Kemp, 481 U.S. 279 (1986), which requires that a criminal defendant who seeks
to assert a Federal Equal Protection clause violation must prove that the prosecuting
authorities acted with discriminatory purpose in that particular case. Even assuming the
district court's ruling to be correct under federal law, I remain very much concerned that the
Washoe County District Attorney's office seeks the death penalty for only one out of five
white murderers with past felonies and seeks the death penalty for four out of five black
murderers without prior felonies. McClesky may or may not foreclose any avenue of federal
relief for Lane; nevertheless, I do not see how this court can ignore the raw data that four out
of five black non-felons face the death penalty and four out of five white felons do not.
3
If
these facts can be explained, well enough; however, they ought not simply be brushed aside.
Naturally, I understand that prosecutors consider other damning factors than past felonies in
making the decision to seek the death penalty; still, on its face, it does not seem right or even
statistically feasible that four times as many black defendants without felony records would
be deserving of the death penalty.
4

__________

3
Racial impact statistics are receiving increasing attention from legislators and members of the Bar. For
example, the United States Congress is currently considering the Racial Justice Act which addresses racial
disparities in the imposition of the death sentence. A study conducted by the General Accounting Office is also
aimed at ferreting out this pernicious problem. See United States General Accounting Office, Report to the
Senate and House Committees on the Judiciary, Death Penalty Sentencing: Research Indicates Pattern of Racial
Disparities (1990).

4
The prosecutorial decision to seek the death penalty is, by nature, one involving a high degree of discretion.
The major factors in deciding whether one guilty of aggravated murder deserves to be executed are the
aggravated, extra-culpable nature of the killings and the past criminal activity of the murderer. A murderer who
has been guilty of past felonious conduct presents a more death-worthy candidate for execution. A murderer who
has been guilty of past violent felonies is by virtue of this aggravating circumstance eligible for the death
penalty (provided, of course, that the jury is able to make the additional and problematical finding that
mitigating circumstances do not outweigh aggravating circumstances). In any event, a prosecutor's decision to
seek the death penalty is strongly supported by the fact of a defendant's having led a past life of crime. Thus it is
these sorts of distinctions that would need to be explored on remand.
There are two ways that one can look at Lane's actions on the night of this murder. One is to see him as a
drug-crazed maniac who, blindly and without
110 Nev. 1156, 1177 (1994) Lane v. State
In State Farm v. All Electric, Inc., 99 Nev. 222, 224-225, 660 P.2d 995, 997 (1983), this
court declared that [w]e have previously held that the standard for testing the validity of
legislation under the equal protection clause of the state constitution is the same as the federal
standard. The court relied upon Laakonen v. District Court, 91 Nev. 506, 538 P.2d 574
(1975) for this proposition. Laakonen, in fact, contained no express statement of this rule, but
merely applied the two clauses in an identical fashion. Although I dissented in the State Farm
case, I agreed with this analysis of our state equal protection clause because I saw no reason
to depart from that view in the immediate case. State Farm, 99 Nev. at 231, 660 P.2d at
1002 (Springer, J., dissenting) (emphasis added). I now see such a reason.
Nevada's so-called equal protection clause, article 4, section 21, of the Nevada
Constitution, reads quite differently from its federal counterpart: 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. The Fourteenth
Amendment's Equal Protection clause provides: No state shall . . . deny to any person within
its jurisdiction the equal protection of the laws. U.S. Const., Fourteenth Amendment. Given
the plain and significant differences in the language utilized in these respective clauses, it is
reasonable to conclude that the framers of the Nevada Constitution did not intend to mirror
the Federal Constitution. Significantly, the voters of the Territory of Nevada approved the
Nevada constitution in September 1864, some two years before the Fourteenth Amendment
was even proposed. See generally Official Report of the Debates and Proceedings in the
Constitutional Convention of the State of Nevada (Andrew J. March, ed. 1886).
__________
being aware of what he was doing, wandered around shooting at people at random. The other is to see him as a
calculating, cold-blooded murderer who remorselessly killed a taxi driver in order to rob him of a few dollars.
Certainly there is evidence to support the latter perception, and the district attorney cannot be faulted, in this
case, for seeking the death penalty, unless, as a matter of practice, it can be shown that this prosecutor favors
white murderers over black murderers when it comes to deciding whether or not to seek the death penalty. If it
were, for example, to be shown that the prosecutor sought death in all cases of black murderers and in no cases
involving white murderers, one would be forced to listen to a black defendant's complaint that the only reason
that he was singled out for the death penalty was the color of his skin. The same would probably be true if ninety
percent of black defendants faced death and only ten percent of white defendants did. Here we appear to have a
twenty percent, eighty percent, ratio, but we have the added factor that the eighty percent of white defendants
who did not have to face death had past felony records while the eighty percent of black defendants who did
have to face the death penalty did not have felony records. It begins to appear that the black defendants suffer
from this discrepancy because of their race.
110 Nev. 1156, 1178 (1994) Lane v. State
Furthermore, in the long history of this State, the judicial practice of reading article 4, section
21 in lock-step with the Federal Constitution is a relatively recent phenomenon. Compare
State ex re. Ash v. Parkinson, 5 Nev. 15 (1869), and State ex. rel. Clarke v. Irwin, 5 Nev. 111
(1869), with State Farm Fire and Cas. Co. v. All Elec., Inc., 99 Nev. 222, 660 P.2d 995
(1983). Although this court has never before determined the question of whether, like its
federal counterpart, article 4, section 21 requires that a defendant in a criminal case show a
discriminatory purpose on the part of the State, the strong possibility that Lane was treated in
a discriminatory way is too important to brush aside on the authority of the State Farm case.
5

The question that I believe should be addressed is: what does Nevada's constitution require
in terms of equality for its citizens? Under the State Constitution the legislature does not have
the power to pass laws which invidiously discriminate on their face. In its earliest days, this
court held that article 4, section 21 was intended to prevent special parochial laws, designed
to benefit only local interests. See, e.g., Evans v. Job, 8 Nev. 322 (1873). The court did, upon
occasion, define the constitutional mandate in broader, more elastic terms. See Ex Parte
Spinney, 10 Nev. 323, 330 (1875) (the object of [article 4, section 21] was the prevention of
unfair discrimination between citizens, and to secure to every one the enjoyment of the same
privileges which are enjoyed by others similarly circumstanced). But, nonetheless, the vast
bulk of our early cases, like Evans v. Job, address only the question of whether a particular
statute is de jure unequal or not uniform. See State v. Consolidated Va. Mining Co., 16
Nev. 432 (1882); Quilici v. Strosnider, 34 Nev. 9, 115 P. 177 (1911). The more pernicious
problem of facially neutral statutes with discriminatory effects has been, for the most part,
ignored. Spinney, 10 Nev. at 334 (the form of the law, and not its object or purpose, [is] the
test of constitutionality).
The more recent cases involving article 4, section 21, of the Nevada Constitution have
shown this court's willingness to look beyond the facial neutrality of a law to its
discriminatory effect as applied. For example, in Turner v. Staggs, 89 Nev. 230, 235, 510
P.2d 879, 882 (1973), this court overturned on constitutional grounds a statute whose
"stated object" was neutral, but which had "the effect of arbitrarily dividing all
tort-feasors into classes of tort-feasors . . . ."
__________

5
The Majority concludes that there were simply too many factors involved, in the cases which formed the basis
of the statistical survey, for that survey to be compelling. Indeed, a full evidentiary hearing on remand might
prove that to be the case; however, it is clear from the transcript that the district court was focusing on the
relevant federal precedent and, accordingly, did not give the statistics any weight. Otherwise, I am sure the
district court would have explored the basis of the statistics through proper evidence rather than simply relying
on assertions of counsel from memory.
110 Nev. 1156, 1179 (1994) Lane v. State
grounds a statute whose stated object was neutral, but which had the effect of arbitrarily
dividing all tort-feasors into classes of tort-feasors . . . . This should not be a surprising
development since the plain language of our constitution invites this very inquiry through the
phrase, uniform in operation.
No one has, as yet, had occasion to consider whether Nevada's constitution requires proof
of discriminatory purpose before the court will act to remedy a discriminatory effect, or
whether such a purpose can only be shown by proof that a state actor chose a particular action
because of its discriminatory effects rather than in spite of them.
6
I am not convinced that,
under the Nevada Constitution, a criminal defendant cannot claim that he is being
discriminated against unless he can prove that state agents were acting with a formed intent to
discriminate against him or her. As Justice Blackmun recently observed, it is weighty work to
tinker with the machinery of deathwork that should give one pause before choosing to
discard the kind of statistical evidence that Lane has put before the district court. Callins v.
Collins,
------

U.S.
------
, 114 S. Ct. 1127, 1130 (1994) (Blackmun, J., dissenting). Justice
Blackmun further observed that [e]ven under the most sophisticated death penalty statutes,
race continues to play a major role in determining who shall live and who shall die. Callins,
114 S. Ct. at 1135. It appears to me that race may play a major role in Washoe County when
the district attorney makes the decision as to who shall live and who shall die. I would
reverse the case and remand it to the trial court for further examination of whether,
irrespective of the prosecutor's subjective motive or intent, the death penalty is being sought
by Washoe County prosecutors on a racially disproportionate basis in violation of article 4,
section 21 of the Nevada Constitution.
DEATH-SENTENCING PROCESS
Before concluding my dissent, I wish to comment again on the death-sentencing process in
Nevada.
In Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993), this court, against my vigorous
objection, categorized Nevada as a weighing state and approved an instruction that the
death-sentencing jury must determine (a) Whether an aggravating circumstance or
circumstances are found to exist; and (b) Whether a mitigating circumstance or circumstances
are found to exist; and {c) Based upon these findings, whether the defendant should be
sentenced to life imprisonment or death." Id. at S77 n.7, S59 P.2d 1032 n.7 {my
emphasis).
__________

6
Of course I do not suggest that the district court was obligated to perform such a state constitutional law
analysis because Lane limited his motion to the Fourteenth Amendment of the United States Constitution. This
court does not hesitate, however, to consider questions of constitutional magnitude even when they were not
raised below. McCullough v. State, 99 Nev. 72, 657 P.2d 1157 (1983).
110 Nev. 1156, 1180 (1994) Lane v. State
exist; and (c) Based upon these findings, whether the defendant should be sentenced to life
imprisonment or death. Id. at 877 n.7, 859 P.2d 1032 n.7 (my emphasis).
The majority in Canape ruled that it was proper, in accordance with Clemons v.
Mississippi, 494 U.S. 738 (1990), for appellate courts in weighing' States, to consider
whether the evidence is such that the sentencer could have arrived at[
7
] the death sentence
that was imposed. Id. at 882, 859 P.2d at 1034 (emphasis added) (quoting Clemons, 494
U.S. at 748-49). I assume, therefore, that it is safe to say that in a weighing state, the
sentencer arrives at the death sentencing by weighing. As I argue in my Dissent in Canape,
our statutes do not provide that sentencers must arrive at the death decision by way of a
weighing process. The idea that Nevada is a weighing state is a judicial invention by this
court; but, still, even if Nevada is proclaimed by this court to be a weighing state, it is
impossible to tell from reading the Majority Opinion in Canape whether death-sentencers are
supposed to arrive at the death sentence by weighing aggravating circumstances against
mitigating circumstances, or are, instead, first to find the defendant to be death eligible and
then in its discretion . . . [to] consider the sentence of death as an option. Id. at 882, 859
P.2d at 1035.
As I explain in my Dissenting Opinion in Canape, it makes a very big difference as to
whether the sentencer arrives at its life-death decision on the basis of having weighed
aggravating circumstances against mitigating circumstances or engages in discretionary
sentencing after first finding death eligibility.
8

Unlike Richard Canape, Gerald Lane was not subjected to a jury instruction that told his
sentencing jury that based on . . . findings relating to aggravating circumstances, the
sentencing jury must determine . . . whether the defendant should be sentenced to life
imprisonment or death. Id. at 893, 859 P.2d at 1042 (Springer, J., dissenting) (emphasis
added) (quoting NRS 17.554(2)(c)). On the contrary, the Lane jury was correctly instructed
that after a finding of death eligibility, it was free to exercise its discretion on the life or
death issue and was not required to "arrive at" its decision "based upon" any findings
relating to aggravating and mitigating circumstances or by "weighing" these
circumstances against each other.
__________

7
In Dawson v. State, 103 Nev. 76, 80-81, 734 P.2d 221, 223 (1987), this court used similar language indicating
that a death sentencer must weigh[] the mitigating circumstances to arrive at a final decision as to whether the
defendant shall live or die. This is weighing state language and tells the world that in Nevada the death
sentence is arrived at by way of a weighing process.

8
Death eligibility is determined under NRS 200.030 only if one or more aggravating circumstances are
found and if mitigating . . . circumstances . . . do not outweigh the aggravating . . . circumstances. NRS
200.030(4)(a); see Canape, supra (Springer, J., dissenting).
110 Nev. 1156, 1181 (1994) Lane v. State
exercise its discretion on the life or death issue and was not required to arrive at its decision
based upon any findings relating to aggravating and mitigating circumstances or by
weighing these circumstances against each other.
9

CONCLUSION
I would reverse the sentence of death in this case because Lane is not death eligible as a
result of the prosecutor's failure to charge the only aggravator the evidence
supportsrobbery, and because Lane raises a colorable claim that he is the victim of a
racially-based discriminatory policy employed by the Washoe County District Attorney in
death cases.
__________

9
The trial judge made it clear to the jury that it must first find the defendant eligible for the death penalty by
finding (1) that there is at least one aggravating circumstance and (2) that any mitigating circumstances do
not outweigh the aggravating circumstances. (Instruction No. 9). The trial judge went on to define the term
outweigh as denoting a qualitative, not a quantitative, standard and further explained that even if the
aggravating circumstances outnumber the mitigating circumstances you may still elect not to impose the death
penalty. (Instruction No. 15.)
The trial judges's instructions to the jury make it very clear that the jury may impose a sentence of death only if
it finds, beyond a reasonable doubt, that the two death-eligibility conditions (at least one aggravator and a
qualitative judgment that mitigating circumstances do not outweigh aggravating circumstances) are met.
(Instruction No. 9; my emphasis). The trial judge further properly explained to the jury that [u]ltimately, the
discretion of whether to impose the death penalty belongs to the jury. (Instruction No. 9).
The instructions given to the jury in this case make it clear that two death-eligibility conditions must be met
before a jury may exercise its discretion of whether to impose the death penalty. It is eminently clear from
these instructions that the jury is to arrive at a death penalty verdict by using a broad exercise of discretion and
not merely by mechanically putting aggravating circumstances and mitigating circumstances on a scale and
determining which outweighs the other. The jury was, wisely and properly, not instructed that it must weigh
aggravating circumstances against mitigating circumstances and that based on these findings alone it must
arrive at its life-death determination. I commend the trial judge for her perspicacity in giving perhaps the best
possible instructions under a less-than-clearly-worded death sentencing statute. Had the Canape jury been
instructed in this way, I might not have found it necessary to dissent.
____________
110 Nev. 1182, 1182 (1994) Williams v. State
MICHELLE LAVETTE WILLIAMS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23425
November 30, 1994 885 P.2d 536
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of murder
in the first degree. Second Judicial District Court, Washoe County; Mills Lane, Judge.
Defendant accused of abusing her two-and-one-half-year-old daughter, was convicted of
first degree murder following jury trial by the district court. Defendant appealed. The
supreme court held that excluding psychiatric testimony proffered by defense on defendant's
mental condition violated due process, and (2) provision of murder statute defining child
abuse as nonaccidental physical injury to child was not unconstitutionally vague.
Michael R. Specchio, Public Defender, and Janet Cobb Schmuck, Deputy Public Defender,
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Psychiatrist's testimony on mental condition of defendant charged with murder of her two-and-one-half-year-old daughter was
relevant to insanity defense and, thus, excluding testimony violated due process, even though psychiatrist had no opinion as to whether
defendant was legally insane. Defendant was entitled to introduce testimony tending to support theory of defense, even if testimony
was insufficient by itself to overcome presumption of sanity. U.S. Const. amend. 14; NRS 48.015, 200.010, 200.030.
2. Homicide.
Provision of murder statute defining child abuse as nonaccidental physical injury to child was not unconstitutionally vague. Person
of ordinary intelligence would understand that child abuse resulting in death could subject perpetrator to murder conviction and law
enforcement authorities could distinguish between accidental and nonaccidental injuries inflicted upon child. NRS 200.030(6)(a).
OPINION
Per Curiam:
During the evening of July 20, 1991, appellant Michelle Lavette Williams took her two-and-one-half-year-old daughter, Khalelah, to
the cardiac resuscitation room at Washoe Medical Center.
Khalelah, to the cardiac resuscitation room at Washoe Medical Center. According to hospital
reports, Williams initially stated that the child had been playing with some other children and
had fallen on some rocks. The treating physician, Dr. Curtis Brown, determined that Khalelah
was in full cardiopulmonary arrest, meaning that she was not breathing and had no cardiac
activity. Despite the hospital staff's efforts to save the child's life, she was pronounced dead at
7:58 p.m. Dr. Brown later testified that, in his opinion, Khalelah was dead on arrival in the
emergency room.
The child's autopsy revealed seven fresh external injuries and concluded that Khalelah had
bled to death from a massive laceration of her liver. The autopsy also revealed multiple
internal and external injuries of various ages, many of which were classified as severe.
Williams was ultimately indicted and tried for one count of murder in violation of NRS
200.010 and NRS 200.030 and one count of child abuse causing death in violation of NRS
200.508. Williams entered a plea of not guilty and not guilty by reason of insanity on both
counts. The jury heard expert testimony indicating that the severity and multiplicity of
Khalelah's injuries were not consistent with accidental trauma.
Although Williams acknowledged at trial that she had given Khalelah a spanking on the
day in question, she also testified that the child's injuries were the result of accidents, such as
slipping in the tub during the spanking or jumping off of the sink. Officer Jim Duncan of the
Reno Police Department, who interviewed Williams several times after Khalelah's death,
testified that after being confronted with the results of the autopsy, Williams admitted to him
that a more severe punishment occurred on the day the child died. Additionally, the jury heard
evidence that Williams became violent when she consumed alcohol and that she had been
drinking alcohol on the date of Khalelah's death. The jury also heard testimony indicating that
Williams had neglected Khalelah in the past and had treated her harshly. Williams, however,
presented witnesses who contradicted the State's evidence.
On the basis of the foregoing evidence and testimony and other evidence presented during
the course of the four-day trial, Williams was found guilty of one count of murder in the first
degree and was thereafter sentenced to life in prison with the possibility of parole.
DISCUSSION
Williams contends that the district court committed prejudicial error in refusing to admit
expert psychiatric testimony on behalf of the defense. Prior to trial, a hearing was held on
Williams' Motion for Offer of Proof wherein Dr.
Motion for Offer of Proof wherein Dr. Jerry A. Howle, M.D., a psychiatrist, stated that he
was prepared to testify that Williams suffered from: (1) chronic depression; (2) alcohol abuse
disorder; (3) a personality disorder characterized by immaturity, excessive denial, and
passive-dependent traits; and (4) below normal intelligence. However, Dr. Howle was not
prepared to testify whether Williams could appreciate the nature and quality of what she was
doing or whether she knew it was wrong.
[Headnote 1]
Because Dr. Howle had no opinion as to whether Williams was legally insane under the
M'Naughten standard followed in Nevada,
1
the court declined to admit his testimony.
Thereafter, Williams' sought to overturn the ruling by an original petition for a Writ of
Mandamus in this court, which was denied on the basis that the issue could be raised on final
appeal from any conviction. Williams raised the issue once more at trial without success.
Williams now argues that this ruling was in error because, under Clark v. State, 95 Nev.
24, 27, 588 P.2d 1027, 1029 (1979), the question of sanity is one for the trier of fact and the
testimony which Dr. Howle was prepared to provide, though not conclusive, was relevant to
the issue of Williams' sanity. Williams cites in support of this proposition the broad definition
of relevance under NRS 48.015, which states: [R]elevant 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. Mindful of the
statute, Williams contends that testimony of her mental condition would have a tendency to
make the truthfulness of her allegations of insanity more probable than it would be without
this evidence, and thus should have been admitted by the district court.
Williams further argues that depriving her of the right to present evidence relevant to her
defense violated her Sixth Amendment rights, as well as her rights to due process under the
Fourteenth Amendment. In support of this proposition, Williams cites Chambers v.
Mississippi, 410 U.S. 284 (1973). The Chambers Court observed that [f]ew rights are more
fundamental than that of an accused to present witnesses in his own defense. Id. at 302.
Continuing, the Court concluded that it was error for a trial court to exclude hearsay evidence
which evinced persuasive assurances of trustworthiness where such exclusion denied the
accused a trial in accord with traditional and fundamental standards of due process. Id.
Williams also cites to Vipperman v. State, 96 Nev. 592, 596
__________

1
See e.g., Clark v. State, 95 Nev. 24, 27, 588 P.2d 1027, 1029 (1979); State v. Lewis, 20 Nev. 333, 351, 22 P.
241, 247-48 (1889).
State, 96 Nev. 592, 596, 614 P.2d 532, 534 (1980), wherein this court ruled that [t]he due
process clauses in our constitutions assure an accused the right to introduce into evidence any
testimony or documentation which would tend to prove the defendant's theory of the case.
United States v. Nixon, 418 U.S. 683, 711 (1974); State v. Fouquette, 67 Nev. 505, 514, 221
P.2d 404, 409 (1950) [, cert. denied, 341 U.S. 932 (1951), and cert. denied, 342 U.S. 928
(1952)].
We have concluded that Williams is correct. This court has held that in order to be entitled
to a jury instruction on the question of insanity, a defendant need only introduce some
evidence, no matter how weak[,] tending to show his or her insanity. Aldana v. State, 102
Nev. 245, 246, 720 P.2d 1217, 1218 (1986) (citing Roberts v. State, 102 Nev. 170, 717 P.2d
1115 (1986)). Additionally, under Vipperman, Williams should have been allowed to
introduce into evidence testimony which even tended to support her theory of defense. Since
we are unable to view the error as harmless, we are compelled to reverse and remand for a
new trial.
We note, for the sake of clarity, that our decision on this point does not negate or attenuate
Nevada's long-established precedent concerning the presumption of sanity and the basis for
overcoming this presumption. In Lewis, this Court not only followed the M'Naughten
definition of insanity, but also adopted the rule that [t]he presumption of sanity prevails until
it is overcome by a preponderance of evidence showing the defendant's insanity to the
satisfaction of the jury. 20 Nev. at 354, 22 P. at 248-49. In State v. Behiter, 55 Nev. 236,
254-55, 29 P.2d 1000, 1006 (1934), we approved a jury instruction stating that the evidence
of insanity must outweigh and overcome the presumption of . . . sanity in some appreciable
degree, and render it more probable that [a defendant] was insane than that he was sane. . . .
Insanity is not proved or established by simply raising doubt as to whether it exists or not.
Clark also reaffirmed the principle that insanity is not proved simply by raising a doubt as to
whether sanity exists. Clark, 95 Nev. at 27, 588 P.2d at 1029.
In the present case, the district court was likely correct in its assessment that the proposed
testimony of Williams' expert fell short of that which would be required to overcome the
presumption of sanity, and would at most have rais[ed] a doubt as to whether sanity [as
defined by the M'Naughten standard] exist[ed]. Nevertheless, Williams is correct in
asserting that the evidence was relevant to her defense, at least in tending to support her
theory of the case, and as such, the evidence should have been presented to the jury. The jury
could then have weighed Dr. Howle's testimony, together with all other evidence, to
determine whether they, as finders of fact, could decide that which the doctor could not:
whether Williams, at the time of the crime, satisfied Nevada law on the issue of her
insanity.
to determine whether they, as finders of fact, could decide that which the doctor could not:
whether Williams, at the time of the crime, satisfied Nevada law on the issue of her insanity.
[Headnote 2]
Williams also contends that NRS 200.030, the statute under which she was indicted, is
unconstitutionally vague, and therefore void. Although we have already concluded that a new
trial is mandated because of our ruling on the first issue, we have elected to also address the
issue of the constitutionality of NRS 200.030 in order to eliminate uncertainty on the subject
upon retrial. The basis for Williams' contention regarding the statute is that the statutory term
nonaccidental is so vague as to render the statute unconstitutional. NRS 200.030 provides
in relevant part:
1. Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, lying in wait, torture or child abuse, or by any
other kind of willful, deliberate and premeditated killing;
. . . .
2. Murder of the second degree is all other kinds of murder.
3. The jury before whom any person indicted for murder is tried shall, if they find
him guilty thereof, designate by their verdict whether he is guilty of murder of the first
or second degree.
. . . .
6. As used in this section:
(a) Child abuse means physical injury of a nonaccidental nature to a child under
the age of 18 years . . . .
In support of her assertion that the statute is void for vagueness, Williams notes that during
deliberations, the jury requested clarification regarding the statute by submitting the following
question to the trial judge: Your Honor, please define the term non-accidental as it relates to
child abuse. The judge responded by advising the jury that [t]he terms accidental' and
nonaccidental' have no specific relationship to the charge of child abuse. They have their
ordinary meanings. The jurors were apparently satisfied with the court's response, given their
verdict and the lack of any further communications.
Williams' legal argument is based upon the two-part test for unconstitutional vagueness
enunciated by the United States Supreme Court in Papachristou v. City of Jacksonville, 405
U.S. 156, 162, (1972), which held that a vagrancy ordinance was void for vagueness where it:
fail[ed] to give a person of ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617 [{1954)], and . . .
encourage[d] arbitrary and erratic arrests and convictions.
by the statute,' United States v. Harriss, 347 U.S. 612, 617 [(1954)], and . . . encourage[d]
arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 [(1940)];
Herndon v. Lowry, 301 U.S. 242 [(1937)].
Citing Smith v. Goguen, 415 U.S. 566, 574 (1974), Williams maintains that the second
part of the test, the potential for arbitrary enforcement, is the more important prong,
2
and
posits that the present case is analogous to Kolender v. Lawson, 461 U.S. 352 (1983). In
Kolender, the legislature's failure to clarify the terms credible and reliable in a statute which
required loiterers to display credible and reliable identification to police officers, resulted in
the Court declaring the statute void on its face for being unconstitutionally vague.
In contrast, the State insists that the two-prong test for constitutional clarity is satisfied in
the instant case, because section 6(a) of NRS 200.030 provides sufficient notice of the
proscribed conduct as the term nonaccidental is capable of being understood by individuals
of ordinary intelligence. Harriss, 347 U.S. at 617. The State also contends that use of the term
nonaccidental in the statute provides sufficiently explicit standards for those who enforce it,
thus preventing arbitrary or discriminatory enforcement. See Grayned v. City of Rockford,
408 U.S. 104 (l972).
3

We agree with the State. As the United States Supreme Court held in United States v.
Petrillo, 332 U.S. 1, 7-8 (1947) (emphasis added):
The Constitution has erected procedural safeguards to protect against conviction for
crime except for violation of laws which have clearly defined conduct thereafter to be
punished; but the Constitution does not require impossible standards.
__________

2
Goguen 415 U.S, at 574-75, states:
In [non-commercial] cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual
notice, but the other principal element of the doctrinethe requirement that a legislature establish
minimal guidelines to govern law enforcement. . . . Statutory language of . . . a standardless sweep allows
policemen, prosecutors, and juries to pursue their personal predilections.

3
The Grayned opinion explains the second element of the vagueness test as follows:
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application.
Grayned, 408 U.S. at 108-09.
standards. The language here challenged conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices. The
Constitution requires no more.
See also Summers v. Sheriff, 90 Nev. 180, 182, 521 P.2d 1228, 1228 (1974) (quoting Petrillo
and rejecting argument that use of the term lewd caused statute prohibiting lewd or
lascivious acts upon or with the body of a child under the age of fourteen to be
unconstitutionally vague).
In addition, the Ninth Circuit, in determining that the term indecent, as used in
dial-a-porn regulations, was not unconstitutionally vague, stated:
The constitutional proscription against vague laws is a basic principle of due
process. Grayned v. City of Rockford, 408 U.S. 104, 108 . . . (1972). Within this
doctrine is the idea that persons of ordinary intelligence should have a reasonable
opportunity to know what is prohibited and that the standards should be clear enough to
curb the danger of arbitrary or discriminatory enforcement. . . . Nevertheless, even in
the strictest sense, due process does not require impossible standards' of clarity.
Kolender v. Lawson, 461 U.S. 352, 361 . . . (1983) (quoting United States v. Petrillo,
332 U.S. 1, 7-8 . . . (1947)). [W]e can never expect mathematical certainty from our
language. Grayned, 408 U.S. at 110[.]
Information Providers' Coalition v. F.C.C., 928 F.2d 866, 874 (9th Cir. 1991).
We conclude that the word nonaccidental is not an imprecise or difficult term, the
meaning of which persons of ordinary intelligence must guess at in order to know or
understand what conduct is prohibited. If anything, the term is more easily understood and
has a more generally accepted meaning than the terms lewd and indecent upheld in the
cases quoted above. Any person of ordinary intelligence who contemplates causing the
purposeful, or nonaccidental, injury of a child should be readily aware, based upon a plain
reading of NRS 200.030(6)(a), that such conduct constitutes child abuse, and, if the abuse
results in the death of the child, could subject the perpetrator to a conviction of first-degree
murder. Likewise, authorities called upon to enforce the statute should be able to understand
the difference between accidental and nonaccidental injuries inflicted upon a child. The
statute challenged by Williams is not unconstitutionally vague.
We have reviewed the remaining issues raised by Williams and conclude that they are
without merit and need not be addressed.
CONCLUSION
The district court correctly ruled that NRS 200.030 is constitutional. However, in refusing
to allow Dr. Howle to testify on Williams' behalf, the district court erroneously denied
Williams her right to present evidence tending to support her theory of the case. The error
may not be viewed as harmless. Accordingly, we reverse the judgment of conviction and
remand to the district court for a new trial.
____________
110 Nev. 1189, 1189 (1994) Lay v. State
KEVIN LAMAR LAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24097
November 30, 1994 886 P.2d 448
Appeal from a judgment of conviction, entered after a jury trial, of first degree murder
with use of a deadly weapon. Eighth Judicial District Court, Clark County; Addeliar D. Guy,
Judge.
Defendant was convicted of first degree murder with use of deadly weapon in the district
court. Defendant appealed. The supreme court held that: (1) evidence supported conclusion
that defendant had shot and killed victim; (2) prosecutor had committed harmless error, at
worst, by emphasizing fear of witnesses to testify due to defendant's membership in gang; and
(3) prosecution was not required to show grand jury prior statements by witnesses
contradicting their grand jury testimony.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney and Robert G. Lucherini, Deputy District Attorney,
1. Criminal Law.
It is exclusively within province of trier of fact to weigh evidence and pass on credibility of witnesses and their testimony.
2. Homicide.
Evidence was sufficient to convict defendant for murder. Eyewitnesses testified that defendant drove automobile into parking lot
and fired pistol, and that afterwards victim was lying on pavement bleeding from gunshot wound, and there was testimony victim had
died from that wound.
110 Nev. 1189, 1190 (1994) Lay v. State
3. Homicide.
Defendant could be convicted of homicide, after he inflicted gunshot wound on victim, even though he claimed that direct cause
of victim's death was negligent medical treatment; even assuming negligence in treatment, shooting of victim was substantial factor in
bringing about his death.
4. Criminal Law.
Prosecutor committed harmless error, at most, by making repeated references to reluctance of witnesses to testify against homicide
defendant; there was no indication, in testimony or in comments, that reluctance had been motivated by any threats made directly by
defendant and at most showed concern for possible retaliation by defendant's fellow gang members.
5. Criminal Law.
Prosecutor may comment on loss experienced by family of murder victim.
6. Criminal Law.
So long as jury is instructed to consider mitigating circumstances placed before it, it is not error to instruct jury not to be
influenced by sympathy.
7. Criminal Law.
Prosecution could introduce evidence tending to show that homicide defendant was member of gang, over objection that it was
inadmissible character evidence; gang membership tended to show motive for defendant's having shot victim, who was member of
rival gang. NRS 48.045(2).
8. Criminal Law.
Evidence that homicide defendant was member of gang was admissible over objection that it was unduly prejudicial; any prejudice
was outweighed by its probative value, as tending to show motive for shooting of rival gang member. NRS 48.025, 48.035.
9. Criminal Law.
Evidence of affiliation with particular group is only relevant at penalty phase of criminal trial when membership in that group is
linked to charged offense, or is used as other than general character evidence.
10. Homicide.
Evidence brought out in penalty phase of homicide case, concerning prior offenses or acts committed by defendant in connection
with his membership in gang, was relevant at sentencing. Evidence tended to show that defendant had violent disposition. NRS
175.552(3).
11. Homicide.
Evidence that homicide defendant was member of gang was admissible at sentencing phase to show that defendant had killed rival
gang member in retaliation to action taken against defendant's gang, tending to show future dangerousness. NRS 175.552(3).
12. Grand Jury.
Statute requiring that prosecutor reveal to grand jury evidence which will explain away charge against defendant, did not require
that prosecutor disclose that two grand jury witnesses who had identified homicide defendant as perpetrator had earlier informed police
that they could not identify perpetrator; prior inconsistent statement did not explain away charge, as there were variety of reasons why
witnesses could give varying statements at different stages of investigation or proceeding. NRS 172.145.
110 Nev. 1189, 1191 (1994) Lay v. State
In order to warrant dismissal of indictment, defendant must show substantial prejudice such that there was reasonable probability
outcome would have been different absent misconduct.
Dismissal of indictment was not required, following claim by homicide defendant that improper material had been introduced at
grand jury proceeding, including repeated references to and questions of witnesses on gang activity and reference to additional security
at grand jury proceeding. Evidence of defendant's guilt was overwhelming, and if improper material had not been presented, grand jury
result would have been same.
15. Criminal Law.
White improper comments or misconduct of prosecutor alone may not warrant reversal of conviction, such items, taken together
with other errors at trial, may require reversal when effect of such error and conduct is to deprive defendant of fair trial.
16. Criminal Law.
Quantum of evidence against defendant is relevant consideration in determining whether cumulative error has had such prejudicial
effect on defendant as to require new trial.
17. Criminal Law.
Prosecutor's disproportionate focusing on reluctance of witnesses to testify, in homicide trial against defendant who was gang
member, did not have cumulative effect of prejudicing defendant to extent that he was deprived of fair trial; there was eyewitness
testimony and inferences to be drawn from circumstantial evidence providing overwhelming evidence of defendant's murder of victim.
OPINION
Per Curiam:
A jury found Kevin Lamar Lay guilty of the first degree murder of Richard Carter with use of a deadly weapon. The State sought the
death penalty and presented evidence of a single aggravating circumstance, in addition to other sentencing information. The jury found one
aggravating circumstance and fixed the penalty at life without possibility of parole. The judge sentenced Lay to two consecutive life terms
without possibility of parole: one life term for the murder and one life term as an enhancement for use of a deadly weapon. Lay appeals,
claiming a number of errors.
On June 14, 1991, a twenty-two count indictment was filed against Lay. In that indictment, Lay and two co-defendants were charged
with the murder of Carter and with several unrelated crimes that had allegedly been committed over a two-year period including attempted
murder, assault with a deadly weapon, battery with a deadly weapon, trafficking and possession of a controlled substance, grand larceny,
robbery, aiming a firearm at a human being, intimidating a witness to influence testimony, and racketeering.
110 Nev. 1189, 1192 (1994) Lay v. State
human being, intimidating a witness to influence testimony, and racketeering. The
racketeering counts were based on allegedly continuous illegal gang activity. Lay was a
member and leader of the Piru Bloods, a Las Vegas gang patterned after, but not directly
affiliated with, the Los Angeles Bloods. The racketeering counts were dismissed for lack of
adequate evidence adduced at the grand jury proceeding. The count charging the murder of
Carter was severed from the indictment and Lay was tried on that count apart from his
co-defendants. The State sought the death penalty.
The State introduced a number of eyewitnesses who testified that at approximately 11:30
p.m. on June 4, 1990, defendant Lay drove a white Oldsmobile Cutlass into the parking lot of
the AM/PM market at the corner of Martin Luther King Drive and Carey Avenue in North
Las Vegas and shot a gun from the car window. After the shots, Carter lay on the ground
bleeding and subsequently died at the hospital as the result of a gunshot wound. All of the
eyewitness testimony was substantially the same, with several identifying Lay as the driver
and shooter.
[Headnotes 1, 2]
Lay contends there was insufficient evidence adduced at trial to prove that he murdered
Carter. The standard of review on appeal in a criminal case for sufficiency of evidence is
whether the jury, acting reasonably, could have been convinced of the defendant's guilt
beyond a reasonable doubt by the evidence that was properly before it. Kazalyn v. State, 108
Nev. 67, 71, 825 P.2d 578, 581 (1992). This standard has also been articulated as whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Guy v.
State, 108 Nev. 770, 776, 839 P.2d 578, 582 (1992). Moreover, it is exclusively within the
province of the trier of fact to weigh evidence and pass on the credibility of witnesses and
their testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20 (1981). In the instant case, the
jury had before it sufficient evidence such that it could have been convinced beyond a
reasonable doubt that Carter died from a gunshot wound and that the gun was fired by Lay.
[Headnote 3]
Lay argues that the direct cause of Carter's death was negligent medical treatment rather
than the gunshot wound Carter received. Even if the direct cause of Carter's death had been
negligent medical care, the gunshot wound that necessitated the medical care was a
substantial factor in bringing about Carter's death. A defendant will not be relieved of
criminal liability for murder when his action was a substantial factor in bringing about the
death of the victim. See, e.g., Kusmider v. State, 6SS P.2d 957, 959-60 {Alaska Ct.
110 Nev. 1189, 1193 (1994) Lay v. State
when his action was a substantial factor in bringing about the death of the victim. See, e.g.,
Kusmider v. State, 688 P.2d 957, 959-60 (Alaska Ct. App. 1984); People v. Roberts, 6 Cal.
Rptr. 2d 276 (Cal. 1992); State v. Velarde, 734 P.2d 449 (Utah 1986). Therefore, Lay was not
entitled to the requested instruction on the theory that he did not proximately cause Carter's
death.
Lay also claims that there was insufficient evidence to determine who the shooter was, and
that he cannot therefore be found guilty of the first degree murder of Carter. The jury had
before it ample credible evidence that Lay was the shooter. There were a number of
eyewitnesses, many of whom testified consistently that Lay was driving and that Lay shot a
rifle through an open car window. We conclude that the jury had before it sufficient evidence
to find beyond a reasonable doubt that Lay was the shooter.
[Headnote 4]
Lay next contends that the state made repeated, unfounded references to witness
intimidation and threats, and to the general reluctance of witnesses to testify, and that these
comments constituted prosecutorial misconduct requiring reversal. Lay does not argue that
the judge erred in admitting the witnesses' statements regarding these subjects, but that the
prosecutor committed misconduct in seeking to elicit and in arguing evidence of witness
intimidation and reluctance to testify. We note that the testimony reflected a general
reluctance to testify rather than reluctance to testify as a result of threats of intimidation, and
there was substantial credible evidence to support the proposition that witnesses were afraid
or had been confronted.
Federal courts have consistently held that the prosecution's references to, or implications
of, witness intimidation by a defendant are reversible error unless the prosecutor also
produces substantial credible evidence that the defendant was the source of the intimidation.
See, e.g., United States v. Rios, 611 F.2d 1335, 1343 (10th Cir. 1979); United States v. Peak,
498 F.2d 1337, 1339 (6th Cir. 1974); United States v. Hayward, 420 F.2d 142, 147 (D.C. Cir.
1969); Hall v. United States, 419 F.2d 582, 585 (5th Cir. 1969). Federal courts have also
reversed convictions where prosecutors have implied the existence of threats that in the
context of the whole record specifically hint[ed] of violence. See United States v.
Muscarella, 585 F.2d 242, 248-49 (7th Cir. 1978) (citing United States v. Love, 534 F.2d 87
(6th Cir. 1976)); Peak, 498 F.2d at 1337.
We first note that although many of these references were not relevant to any issue in the
case, neither were they direct references to witness intimidation by Lay. Nor was there any
implication that the witnesses were reluctant to testify because they thought Lay himself
might retaliate against them or that Lay had threatened them.
110 Nev. 1189, 1194 (1994) Lay v. State
threatened them. Most of the references appear, rather, to have been attempts to show the
witnesses' reluctance to testify because of the presence in the witnesses' neighborhoods of
Lay's fellow gang members who might retaliate against them for testifying. Although these
references may have been irrelevant to the examination of most of the witnesses, we conclude
that the references are not misconduct requiring reversal.
Lay argues, however, that the prosecutor attempted to put gangs on trial instead of
putting Lay on trial and that this is an improper objective that was designed to distract and
influence the jury and constitutes misconduct requiring reversal. We agree that this is not a
proper objective, and that many of the references were simply not relevant to issues in the
case beyond showing that witnesses were afraid because they lived in a neighborhood beset
with gangs. However, we cannot conclude on this record that the references were intended to
suggest that Lay had threatened or intimidated witnesses.
In addition, at least with respect to witness Haynes, the questions about reluctance and
fright were relevant because Haynes had been impeached on cross-examination when Lay
asked why Haynes had told the investigating officer that he could not describe or identify Lay
as the shooter. Fright or general concern for his safety could have explained to the jury why
Haynes made this prior inconsistent statement.
It is well established that where evidence of guilt is overwhelming, prosecutorial
misconduct may be harmless error. See, e.g., Ybarra v. State, 103 Nev. 8, 16, 731 P.2d 353,
358 (1987). Although we disapprove of some of the prosecutor's references, we conclude that
in light of the entire record, the references, even if they had risen to the level of prosecutorial
misconduct, would have been harmless error.
[Headnote 5]
Lay argues that the prosecutor committed reversible error in delivering the following
portion of closing argument:
On the night of June 4th, 1990, society received a great loss and a life was taken from
us. Richard Carter's family and friends can no longer have the opportunity to see
him[OBJECTION AND OBJECTION OVERRULED].
This court has expressly held that a prosecutor may comment on the loss experienced by the
family of a murder victim. See Homick v. State, 108 Nev. 127, 135, 825 P.2d 600, 605 (1992)
(adopting the holding of Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597 (1991), allowing
prosecutorial comment on and witness testimony of victim impact evidence).
110 Nev. 1189, 1195 (1994) Lay v. State
[Headnote 6]
Lay also argues that the anti-sympathy instruction read to the jury at the penalty phase
unconstitutionally restricted the jury's consideration of mitigating evidence. This court has
previously considered and rejected Lay's argument. See Riley v. State, 107 Nev. 205, 215-16,
808 P.2d 551, 557 (1991); Hogan v. State, 103 Nev. 21, 25, 732 P.2d 422, 424-25 (1987);
Biondi v. State, 101 Nev. 252, 257-58, 699 P.2d 1062, 1066 (1985). In addition, this court
has approved the specific instruction read to Lay's jury. See Howard v. State, 102 Nev. 572,
577-78, 729 P.2d 1341, 1344-45 (1986); Nevius v. State, 101 Nev. 238, 250-51, 699 P.2d
1053, 1060-61 (1985). So long as a jury is instructed to consider the mitigating circumstances
placed before it, it is not error to instruct the jury not to be influenced by sympathy.
1

[Headnote 7]
Lay next contends that the district court erred in admitting gang affiliation evidence at the
trial. Lay does not specify whether he is attacking the introduction of such evidence at the
guilt phase, penalty phase, or both. Accordingly, we consider whether it was error to admit it
at either stage.
The state introduced, among other gang-related evidence, the following items during the
guilt phase of Lay's trial: Lay was the leader of the Piru Bloods; Showmink, a Piru Blood
and friend of Lay, had been killed some time recently before the killing of Carter; Bloods and
Crips were rival gangs; Carter was a Crip; and even seemingly minor altercations could erupt
into gang wars. All of this evidence, as Lay virtually concedes, was offered to show motive
in that it may have explained why Lay and the members of his set shot randomly at a group of
young men. The prosecutor was allowed to elicit evidence of motive, but was not allowed to
inquire into specific prior criminal acts of the gang at the guilt phase.
NRS 48.045(2) provides that [e]vidence of other . . . 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 . . . as proof of motive . . . . Thus, the gang-affiliation evidence was properly
offered and admitted to prove motive.
[Headnote 8]
Lay also asserts, however, that the evidence, even if relevant and probative of motive,
was unfairly prejudicial and should have been excluded.
__________

1
Accord California v. Brown, 479 U.S. 538 (1986); Parks v. Brown, 860 F.2d 1545 (10th Cir. 1989), rev'd
Parks v. Saffle, 110 S. Ct. 1257 (1990), appeal after remand, Parks v. Saffle, 925 F.2d 366 (10th Cir. 1991);
Byrne v. Butler, 847 F.2d 1135 (5th Cir. 1988) (referencing Louisiana law); State v. Ramseur, 524 A.2d 188
(N.J. 1987); State v. Steffen, 509 N.E.2d 383 (Ohio 1987).
110 Nev. 1189, 1196 (1994) Lay v. State
and probative of motive, was unfairly prejudicial and should have been excluded. See NRS
48.025, 48.035. Other state and federal courts have found gang-affiliation evidence relevant
and not substantially outweighed by unfair prejudice when it tends to prove motive. See
United States v. Rodriguez, 925 F.2d 1049, 1053-54 (7th Cir. 1991); United States v.
Silverstein, 737 F.2d 864, 866-67 (10th Cir. 1984); People v. Dominguez, 175 Cal. Rptr. 445,
455-56, (Ct. App. 1981); People v. Connally, 481 N.Y.S.2d 432, 433 (App. Div. 1984). As
stated, the evidence at issue was relevant to prove that Lay had a motive to engage in the
shooting of rival gang members. We conclude that the evidence was not unfairly prejudicial.
At Lay's penalty phase, substantial evidence of his gang membership was admitted as
relevant sentencing information under NRS 175.552(3), which provides that a district court
judge may admit evidence of any . . . matter which the court deems relevant to sentence,
whether or not the evidence is ordinarily admissible.
2
As part of the information offered at
the penalty hearing, the state introduced extensive evidence of Lay's gang membership and
evidence pertaining to the operation of gangs. Lay now claims that his conviction should be
reversed because of the introduction of this evidence.
[Headnotes 9, 10]
Evidence of affiliation with a particular group is only relevant at the penalty phase of a
criminal trial when membership in that group is linked to the charged offense, or is used as
other than general character evidence. See Dawson v. Delaware, 503 U.S. 159, 112 S. Ct.
1093 (1992); Flanagan v. State, 109 Nev. 50, 53, 846 P.2d 1053, 1055-56 (1993). Some items
brought out in the penalty phase concerned prior offenses or acts committed in connection
with the gang and which showed Lay had a violent disposition. This information was
therefore relevant at sentencing. Other items (including photos in which Lay wore gang colors
and stood in front of a graffiti wall with the number 187, referring to the California Penal
Code section for murder) were intended only to show his membership in the gang. The state
introduced evidence sufficient to show that the murder was gang-related and an
indiscriminate retaliation for the killing of a fellow gang member.
[Headnote 11]
In Dawson, the United States Supreme Court stated that evidence of group membership is
admissible to show an individual's future dangerousness to society.
__________

2
In addition to evidence tending to prove aggravating circumstances, which are set forth in a statutory list under
NRS 233.033, a district court judge is authorized under NRS 175.552(3), to admit other relevant information
that goes to sentencing.
110 Nev. 1189, 1197 (1994) Lay v. State
future dangerousness to society. 503 U.S. at 166, 112 S. Ct. at 1098. It illustrated this rule
with the case of Barclay v. Florida, 463 U.S. 939 (1983), in which evidence that the defendant
was a member of the Black Liberation Army (BLA) was relevant at sentencing when the
evidence showed that the defendant had murdered a white woman, and that the purpose of the
BLA was to indiscriminately kill white people to initiate a racial war. Dawson, 503 U.S. at
166, 112 S. Ct. at 1098. See also Flanagan, 109 Nev. at 52, 846 P.2d at 1055. Evidence at
Lay's trial showed that gang retaliation was commonplace at that time in Las Vegas for even
the most minute transgressions upon the turf or dignity of rival gangs (including walking in
rival gang turf or crossing out their graffiti). The evidence supported the state's theory of
motivenamely, that gang members engage in drive-by shootings to retaliate for the murder
of a fellow gang member. Accordingly, evidence of Lay's gang affiliation, under Dawson and
Flanagan, is admissible to show Lay's future dangerousness. Thus, we must reject Lay's
argument.
[Headnote 12]
Lay next claims that the prosecutor abused the grand jury system by failing to disclose
exculpatory evidence to the grand jury. The exculpatory evidence allegedly concealed from
the grand jury consisted of prior statements by grand jury witnesses which contradicted their
grand jury testimony. Specifically, Lay claims that Ricky Lee, Newman, Stewart and Haynes
all told police investigators that they could not identify the shooter, but that these same
witnesses nevertheless identified Lay's photograph at the grand jury proceeding. Only Stewart
and Haynes testified at trial.
Nevada law requires a prosecutor to disclose to the grand jury all exculpatory evidence,
defined as that evidence which will explain away the charge. See NRS 172.145 (the
exculpatory evidence statute);
3
Ostman v. District Court, 107 Nev. 563, 564-65, 816 P.2d
458, 459-60 (1991); Sheriff v. Frank, l03 Nev. 160, 164-65, 734 P.2d l241, 1244-45 (1987).
This precise question, whether a grand jury witness' prior inconsistent statement is
exculpatory evidence within the meaning of the exculpatory evidence statute, has not been
addressed in Nevada.
__________

3
1. The grand jury is not bound to hear evidence for the defendant. It is their duty, however, to weigh all
evidence submitted to them, and when they have reason to believe that other evidence within their reach
will explain away the charge, they shall order that evidence to be produced, and for that purpose may
require the district attorney to issue process for the witnesses.
2. If the district attorney is aware of any evidence which will explain away the charge, he shall submit it
to the grand jury.
110 Nev. 1189, 1198 (1994) Lay v. State
dence statute, has not been addressed in Nevada. Other state courts, however, have rejected
the claim that Lay advances. See, e.g., Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979)
(holding that no burden on prosecutor to develop evidence for defendant by questioning
witness on prior inconsistent description of assailant); Abruska v. State, 705 P.2d 1261,
1272-73 (Alaska Ct. App. 1985) (holding that only evidence which substantially tends to
negate guilt is exculpatory under the statute, and prosecutor had no duty to explore prior
inconsistent statements of witnesses).
We conclude that the prior inconsistent statement of a witness does not explain away [a
criminal] charge within the meaning of the exculpatory evidence statute. There are a variety
of reasons why witnesses give varying statements at different stages of an investigation or
proceeding. These may include a witness' reluctance to involve him or herself in a criminal
investigation or the ability of the reporter taking a later statement to develop the witness'
statement in greater detail. In addition, the loss of memory or the witness' recollection of
additional facts will cause statements to be inconsistent at different times.
Although a criminal defendant is certainly entitled to impeach a witness' credibility and
testimony at trial based upon prior inconsistencies, the simple fact that a witness has
contradicted himself in the past does not tend to explain away the charge, and therefore
make the witness' first statement exculpatory within the meaning of the exculpatory
evidence statute. Accordingly, we reject this argument.
Lay also asserts that improper material was introduced at the grand jury proceeding,
including the fact that the state repeatedly referred to and questioned witnesses on gang
activity and referred to additional security at the grand jury proceeding. He asserts that the
proceeding was thereby contaminated and that the grand jury indictment should have been
dismissed.
[Headnote 13]
Dismissal of an indictment on the basis of governmental misconduct is an extreme
sanction that should be utilized infrequently. Sheriff v. Keeney, 106 Nev. 213, 216, 791 P.2d
55, 57 (1990). In order to warrant dismissal of an indictment the defendant must show
substantial prejudice. Id. (citing Buzbee v. Donnelly, 634 P.2d 1244, 1255 (N.M. 1981)).
Although prejudice was not defined in Keeney, we conclude a defendant shows prejudice
only when there is a reasonable probability that the outcome would have been different absent
the misconduct. See, e.g., Strickland v. Washington, 466 U.S. 688, 694 (1984) (defining
prejudice in the context of an ineffective assistance of counsel claim).
110 Nev. 1189, 1199 (1994) Lay v. State
[Headnote 14]
In the instant case, the grand jury heard overwhelming evidence to support a true bill
during the grand jury proceeding, and we conclude that the information alleged to have
contaminated the proceeding would not have changed that outcome. As a result, Lay cannot
show prejudice sufficient to require dismissal of the indictment.
[Headnotes 15-17]
Finally, Lay claims that the above errors, taken together, require reversal of his conviction
because of their cumulatively negative effect on the trial. While improper comments or
misconduct of a prosecutor alone may not warrant reversal of a conviction, such items, taken
together with other errors at trial, may require reversal when the effect of such error and
conduct is to deprive the defendant of a fair trial. See Sipsas v. State, 102 Nev. 119, 124-25,
716 P.2d 231, 235 (1986). The quantum of evidence against a defendant is a relevant
consideration in determining whether cumulative error had such a prejudicial effect. Id. In the
instant case, although we have determined that the prosecutor focused disproportionately on
the witnesses' reluctance to testify, we note that the eyewitness testimony and inferences to be
drawn from the circumstantial evidence in this case provided overwhelming evidence of Lay's
involvement in and commission of the murder of Carter.
Accordingly, we reject Lay's contentions and affirm the judgment of conviction and
sentences imposed by the trial judge.
____________
110 Nev. 1199, 1199 (1994) Sheriff v. Harrington
SHERIFF, Clark County, Nevada, Appellant, v. THOMAS HARRINGTON, Respondent.
No. 24200
November 30, 1994 884 P.2d 801
Appeal from order granting petition for writ of habeas corpus. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Rex Bell, District Attorney, James Tufteland, Deputy District Attorney, and Christopher
Laurent, Deputy District Attorney, Clark County, for Appellant.
Joseph W. Houston, II, Las Vegas, for Respondent.
OPINION
Per Curiam:
This is an appeal by the State from a district court order granting respondent Thomas
Harrington's second pretrial petition for a writ of habeas corpus. The facts underlying this
appeal as they pertain to the charges filed against Harrington and his first petition for writ of
habeas corpus are fully set forth in Sheriff v. Harrington, 108 Nev. 869, 840 P.2d 588 (1992)
(Harrington I) and need not be repeated here. In summary, the first petition was granted on
grounds that the State had failed to inform the indicting grand jury that a justice of the peace
had concluded at Harrington's preliminary hearing that one of Harrington's prior DUI
convictions was constitutionally infirm for enhancement purposes. On appeal of that order,
this court held in Harrington I that the conclusion reached by the justice of the peace with
reference to the prior DUI charge was not exculpatory evidence wrongfully withheld from the
grand jury; it was simply an opinion on a legal issue and part of the procedural history of the
case. In addition to the essential holding in Harrington I, this court gratuitously commented
in footnote 2 of the opinion:
A second potential issue exists as to whether the district court erred by granting
Harrington's petition purely on the basis that exculpatory evidence had not been
presented. Even if the evidence in question had been exculpatory, the further issue
remained as to whether the failure to present it destroyed the existence of an
independent and informed grand jury. See Sheriff v. Frank, 103 Nev. 160, 166, 734
P.2d 1241, 1245 (1987). We find it unnecessary to reach this issue.
Harrington, 108 Nev. at 871-72, 840 P.2d at 589 (1992).
Following remand in Harrington I, further proceedings took place in the district court
relating to the petition for a writ of habeas corpus. When the district attorney expressed some
confusion as to why the petition was again being considered following this court's reversal in
Harrington I, the district court alluded to the language in footnote 2 of Harrington I and
presumed this court wanted it to decide that potential issue. Accordingly, the district court
ordered the parties to submit briefs on the issue. After the parties submitted their briefs, the
district court, for a second time, granted Harrington's petition for writ of habeas corpus. This
appeal ensued.
With reference to the second order granting the petition for a writ of habeas corpus,
Harrington reiterates the same arguments addressed by this court in Harrington I, asserting
that the district court properly granted his petition because of the infirmity of one of his
earlier DUI convictions and the State's failure to present evidence regarding the infirmity
to the grand jury.
addressed by this court in Harrington I, asserting that the district court properly granted his
petition because of the infirmity of one of his earlier DUI convictions and the State's failure to
present evidence regarding the infirmity to the grand jury. The State maintains that this court
had already resolved those issues and that the district court improperly interpreted this court's
Harrington I opinion as inviting further review.
In accordance with the State's argument, we conclude that this court has already
determined that the grounds on which Harrington petitioned for a second writ of habeas
corpus are without merit. More particularly, this court concluded in Harringron I that the
opinion of the justice of the peace on Harrington's prior DUI charge was not exculpatory
evidence, and that the State, therefore, was not required to present the opinion to the grand
jury. 108 Nev. at 871, 840 P.2d at 589. Moreover, this court determined that the opinion of
the justice of the peace on the prior DUI charge was erroneous. Id. at 870, 840 P.2d at 588
n.1.
Footnote 2 in the Harrington I opinion did not constitute an invitation for revisiting the
aforementioned issues upon remand; rather, footnote 2 simply noted that even if this court
had concluded (which it did not) that the state had failed to present exculpatory evidence to
the grand jury, we nevertheless might have reversed the district court based upon an analysis
of whether the failure to present the exculpatory evidence destroyed the existence of an
independent and informed grand jury. We discussed this two-step analysis to provide
guidance in those cases, unlike the one now before this court, where exculpatory evidence has
been omitted.
Other issues raised by Harrington during oral argument have been fully considered and
determined to be without merit.
For the reasons set forth above, we again reverse the order of the district court granting
Harrington's pretrial petition for a writ of habeas corpus and again remand this case to the
district court for further proceedings consistent with this opinion.
____________
110 Nev. 1201, 1201 (1994) Gibellini v. Klindt
LOUIS GIBELLINI, SHARON GIBELLINI and JANELLE DIETRICH, Appellants, v.
KOLBE K. KLINDT, JUDITH A. KLINDT and FLOYD W. KLINDT, Respondents.
No. 24112
November 30, 1994 885 P.2d 540
Appeal from a final judgment and order awarding respondents damages, attorney's fees
and costs. Seventh Judicial District Court, Eureka County; William P. Beko, Judge.
Plaintiffs brought action to recover for damage done to plaintiffs' property. The district
court entered judgment for plaintiffs and awarded damages, attorney's fees and costs.
Defendants appealed. The supreme court held that: (1) attorney's computer research expenses
were not recoverable costs; (2) photocopying, telephone, and postage costs could not be
recovered in amount charged by law firm, which charged percentage of billable hours rather
than itemizing such costs; (3) trial court erred in awarding interest on judgment at 10 1/2
percent rather than statutory rate; and (4) prejudgment interest on costs should run from time
costs were incurred, not from service of complaint.
Stanley J. Steiber, Reno, for Appellants.
Vaughan & Hull and David D. Loreman, Elko, for Respondents.
District court's findings will not be disturbed on appeal unless they are clearly erroneous and are not based on substantial evidence.
When evidence in record only supports portion of judgment entered, judgment must be reversed to extent that it is unsupported.
3. Costs.
Computer research expenses incurred by party's attorney were not recoverable costs, as expenses were more closely related to
attorney's fee than to kinds of recoverable costs defined by statute. NRS 18.005(16).
4. Costs.
Plaintiffs could not recover costs of photocopying, telephone, and postage expenses in amount determined by plaintiffs' law firm,
where firm did not itemize expenses but charged percentage of billable hours fee; actual costs of such expenses had to be determined.
NRS 18.005.
5. Costs.
Determination of allowable costs is within sound discretion of trial court, but statutes permitting recovery of costs are in
derogation of common law and must be strictly construed.
6. Costs.
Reasonable costs, within meaning of statute awarding reasonable costs to successful litigant, means actual costs that are also
reasonable rather than reasonable estimate or calculation of such costs based upon administrative convenience. NRS 18.005.
7. Damages.
Party seeking damages has burden of proving fact that party was damaged and amount thereof.
8. Interest.
Trial court erred in awarding 10 1/2 percent interest on judgment because interest rate was governed by statute where parties had
no contract governing interest rate. Trial judge did not have discretion to set interest rate. NRS 17.130(2).
9. Interest.
Prejudgment interest is recoverable on costs, as costs are part of judgment. NRS 17.130(1).
10. Interest.
Prejudgment interest on costs should run from time that costs are incurred, not from service of complaint. If party is unable to
prove when costs were incurred, interest on those costs should be awarded only from time of judgment. NRS 17.130.
OPINION
Per Curiam:
Appellants were found liable for damage done to respondents' property. The district court initially entered judgment for respondents on
March 31, 1992, in the amount of $19,370.00 for damage to their building, $5,891.50 for damage to their personal property, and, as the
prevailing party, their costs incurred in the action.
Respondents filed their memorandum of costs and disbursements pursuant to NRS 18.110, requesting $13,936.76. Appellants filed a
motion to retax costs on March 12, 1992, objecting, inter alia, to the Westlaw fee of $464.44, and requesting receipts for photocopy, travel,
and deposition expenses.
On April 16, 1992, respondents filed a reply to appellants' motion to retax costs, providing an itemized statement of travel, deposition,
and other expenses. Additionally, respondents requested that the $660.00 fee for photocopying listed on respondents' previously submitted
memorandum of costs be increased by $677.12 to cover all photocopy, telephone, and postage costs incurred in the action. Respondents'
request was based on their law firm's practice of charging 4 percent of a client's total billable hours fee to cover such expenses, rather than
maintaining individual records.
1
In respondents' case, there were 310.50 hours billed, a total of
$31,928.00 in billable time, which amounted to a bill of $1,277.16 for telephone,
photocopying, and postage charges.
On August 14, 1992, the district court denied appellants' motion to retax costs. Noting that
NRS 18.005 was greatly expanded when subparagraph (16) covering [a]ny other reasonable
and necessary expense incurred was added, the district court found that none of the expenses
listed on respondents' memorandum of costs appeared unreasonable. Accordingly, the court
granted respondents' motion to add $677.12 to the previously listed charge of $660.00 to
cover all photocopy, phone, and postal costs.
__________

1
Attached to the motion was the affidavit of Walter Leberski, office manager of respondents' law firm. Leberski
stated that this method of calculation saved clients money by eliminating administrative costs.
court granted respondents' motion to add $677.12 to the previously listed charge of $660.00
to cover all photocopy, phone, and postal costs.
On April 8, 1992, appellants filed a motion to alter or amend the judgment award for
personal property damages from $5,891.50 to $1,530.00 on the basis that the court had
improperly used page 1 rather than page 3 of Exhibit B to calculate such damages.
2

On August 14, 1992, the district court issued an order to amend the judgment, stating that
certain items which the court had considered to be damage to personal property in its original
order should have been excluded, namely: xeroxing ($15.00), fax copies ($35.00), survey of
lot ($500.00), district court filing fees ($89.00), and the subpoena charge ($8.00), which
totalled $647.00. Thus, the original judgment for damages to personal property was amended
from $5,891.50 to $5,244.50. The district court failed to comment on appellants' contention
that page 3 rather than page 1 of Exhibit B should have been used to calculate personal
property damages, nor did it address the other items which appellants asserted were
improperly considered in calculating personal property damages.
On August 31, 1992, the district court filed an amended judgment, awarding $14,613.92 in
costs, plus interest on the entire judgment at the rate of 10 1/2 percent per annum thereon
from the date of the service of the complaint on October 10, 1989. On October 16, 1992,
appellants filed this appeal from the amended judgment.
Standard of Review
[Headnotes 1, 2]
A district court's findings will not be disturbed on appeal unless they are clearly erroneous
and are not based on substantial evidence. Nevada Insurance Guaranty Association v. Sierra
Auto Center, 108 Nev. 1123, 1126, 844 P.2d 126, 128 (1992). When the evidence in the
record only supports a portion of the judgment entered, however, the judgment must be
reversed to the extent that it is unsupported. See Simpson v. International Community of
Christ, 106 Nev. 458, 462, 796 P.2d 217, 219 (1990).
__________

2
Appellants arrived at this figure by taking the total on page 3 of Exhibit B and subtracting costs for
xeroxing, propane, taxes, cleanup expenses, 80 yards of carpet, pad, and installation, 13 geraniums, survey of
lot, building engineer's report, filing fee, safe repair, and subpoena chargeall of which appellants contended
were not properly allowed as personal property damages.
Costs for Westlaw charges
[Headnote 3]
The district court awarded respondents costs for Westlaw charges in reliance on NRS
18.005(16), which provides for the recovery of reasonable and necessary expense[s] incurred
in connection with the action. This award clearly contradicts this court's opinion in
Bergmann v. Boyce, 109 Nev. 670, 856 P.2d 560 (1993), in which we stated: Construing
NRS 18.005(16) narrowly, we hold that computer research expenses are not recoverable
costs. Id. at 680, 856 P.2d at 567. In so holding, this court reasoned that attorneys incur
computer research expenses as a function of their research of the law, so that the expense is
more closely related to the attorney's fee than to the kinds of recoverable costs defined in
NRS 18.005. Id. Accordingly, we reverse the award of costs for Westlaw charges.
Costs for photocopying, telephone, and postage expenses
[Headnote 4]
The district court allowed respondents to recover a total of $1,277.16 for photocopying,
telephone, and postage expenses based on their law firm's practice of charging 4 percent of
the total billable hours fee for such expenses. The district court noted that the method of
calculation used by respondents' law firm to determine these costs was reasonable, and that
had the respondents been charged with every item separately, the costs would have exceeded
the amount established by the percentage. It is unclear, however, how the district court made
this determination, as nothing in the record appears to list these expenses separately, except
respondents' original memorandum of costs, which lists a $660.00 charge for photocopying,
and page 3 of Exhibit B, which lists a $55.00 charge for xeroxing.
Appellants argue that charging an arbitrary 4 percent of total billings is not an accurate
way to determine costs in any particular case, and is simply an administrative convenience for
respondents' law firm that should not be imposed on appellants when it comes to paying
costs. See Smothers v. Renander, 633 P.2d 556, 564 (Haw. Ct. App. 1981) (unspecified postal
services not recoverable as costs). We agree.
[Headnote 5]
The determination of allowable costs is within the sound discretion of the trial court;
however, statutes permitting recovery of costs are in derogation of common law, and
therefore must be strictly construed. Bergmann v. Boyce, 109 Nev. 670, 679, 856 P.2d 560,
565-66 (1993).
[Headnote 6]
NRS 18.005 specifically defines the term costs to include reasonable costs for
photocopies, long distance telephone calls, and postage. A strict construction of the statute,
however, requires that the phrase reasonable costs be interpreted to mean actual costs that
are also reasonable, rather than a reasonable estimate or calculation of such costs based upon
administrative convenience. Thus, we conclude that the district court erred in awarding
respondents $1,277.16 to cover all photocopying, telephone, and postage expenses without
requiring respondents to show actual expenses incurred.
Accordingly, we reverse this portion of the district court order, and remand for a
determination of actual photocopying, telephone, and postage costs incurred, and for proper
amendment of the judgment.
Personal property damages
Appellants argue that the district court mistakenly awarded the expert witness fee of
$1,902.50 twice, once with the award of personal property damages, and once with the award
of costs. Appellants are mistaken. Respondents requested and were awarded $7,826.25 in
expert witness fees for W. Brown, as listed in their memorandum of costs and disbursements.
In their memorandum in reply to appellants' motion to retax costs, the fees for W. Brown's
engineering report were broken down into two bills, one dated 12-3-91 for $5,923.75, and one
dated 5-3-89 for $1,902.50.
At trial, respondents introduced Exhibit B into evidence to show the personal property
damages that they incurred. This exhibit included a charge of $1,902.50 for a building
engineering report on page 3; however, the district court's personal property damages award
totalled $5,891.50, the exact total of the items listed on page 1 of Exhibit B. The $1,902.50
charge is not listed on page 1, and thus was not included in the personal property damages
awarded by the district court.
Appellants additionally argue that the district court erred in relying on page 1 rather than
page 3 of Exhibit B in calculating respondents' personal property damage, and in awarding
damages unsupported by respondents' testimony. We agree.
[Headnote 7]
The party seeking damages has the burden of proving the fact that he was damaged and the
amount thereof. Mort Wallin v. Commercial Cabinet, 105 Nev. 855, 857, 784 P.2d 954, 955
(1989). Respondents failed to meet this burden.
As appellants argue, according to the clear testimony of respondent Judith Klindt, page 3
of Exhibit B was meant to replace page 1 of the same exhibit. Respondent Judith Klindt
testified that the items set forth on page 1 of Exhibit B were more accurately set forth on
page 3. In fact, the district court noted shortly after this testimony: Page 3 . . . is a more
accurate description of actual damages claimed.
A comparison of the two lists reveals the extent of the district court's error in calculating
personal property damages based on page 1 rather than page 3 of the exhibit. The Antique
Sofa listed on page 1 for $2,500.00 is listed on page 3 at a repair cost of only $400.00. The
four drawer file cabinet is listed on page 1 for $300.00, but on page 3 for only $200.00. The
desk lamp is listed on page 1 for $75.00, but on page 3 for only $40.00.
Additionally, as appellants argue, respondents failed to introduce any evidence of lost
propane. However, page 3 lists a loss of propane valued at $116.00, and page 1 lists a loss of
propane valued at $86.50. Floyd Klindt's undisputed testimony was that no propane had been
lost. In fact, Floyd Klindt testified that he turned the gas off himself right after the collapse.
Thus, the award for personal property damages should not have included any amount at all for
lost propane.
Furthermore, respondents failed to introduce any evidence proving damage to their safe.
Floyd Klindt's clear testimony was that the safe had not been damaged by the collapse. Thus,
the award for personal property damage should not include the $115.00 loss listed on page 3
of Exhibit B for safe repair.
Accordingly, we reverse the personal property damage award and remand to the district
court with instructions to reduce the award to $2,870.00.
3

Interest on the judgment
[Headnote 8]
In its amended judgment, the district court awarded respondents $14,613.92 in costs, plus
interest on the entire judgment at the rate of 10 1/2 percent per annum from the date of the
service of the complaint on October 10, 1989.
__________

3
We arrive at this figure by taking the total of the figures listed on page 3 of Exhibit B and subtracting the
amounts listed for xeroxing, fax copies, survey of the lot, district court filing fees, and the subpoena fee (all of
which the district court properly concluded were not items of personal property damage); subtracting the charges
for the building engineer's report (properly awarded as part of costs for expert witness' fees, not personal
property damages); and subtracting the amounts listed for lost propane and safe repair (which the evidence failed
to support).
Appellants argue that since there was no contract between the parties governing the rate of
interest, it is governed by NRS 17.130.
4

Respondents argue that NRS 17.130(2) expressly allows the district court to set the interest
rate on the judgment, since it provides that if no other interest rate is specified in the
judgment, the rate will be prime rate plus 2 percent. We disagree with respondents'
argument.
First, such language may be intended to cover judgments by confession. Moreover,
respondents' reading of the statute would leave the district court judge with unfettered
discretion to set interest rates on judgments, which was most likely not the intent of the
legislature, and which is at variance with the common law. At common law, no interest was
allowed, and it is only permissible when authorized by statute. See Paradise Homes v. Central
Surety, 84 Nev. 109, 116, 437 P.2d 78, 83 (1968); see also Wilson v. Pacific Maxon, Inc.,
100 Nev. 479, 483, 686 P.2d 235, 237 (1984) (As we have explained, the statutory interest
rate was seven percent (7%). The judgment entered below, therefore, must be modified to
provide for prejudgment interest at the rate of seven percent (7%) instead of twelve percent
(12%).). Statutes in derogation of the common law should be strictly construed. Bergmann
v. Boyce, 109 Nev. 670, 679, 856 P.2d 560, 565-66 (1993).
5

Accordingly, we conclude that the district court erred in awarding 10 1/2 percent interest
on the judgment rather than the statutory rate, and reverse and remand this portion of the
judgment with instructions to amend the award by applying the statutory rate.
Prejudgment interest on costs
Appellants maintain that the district court order can be read to require prejudgment interest
on the award of costs since it provides that interest on the entire judgment should be awarded
from the date of service of the complaint.
__________

4
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the
judgment draws interest from the time of service of the summons and complaint until satisfied . . . at a
rate equal to the prime rate at the largest bank in Nevada as ascertained by the commissioner of financial
institutions on January l or July 1, as the case may be, immediately preceding the date of judgment, plus 2
percent. . . .

5
We note that in the instant case, not only did the district court award a rate different from the statutory rate, it
failed to give any reason whatsoever for this deviation.
[Headnote 9]
First, appellants argue that interest should not be awarded on costs at all. See National
Educators Life Insurance Company v. Apache Lanes, Inc., 555 P.2d 600, 602 (Okla. 1976)
(holding that in the absence of statutory authorization, interest cannot be awarded on costs);
Cajun Electric Power Cooperative v. Owens-Corning Fiberglass Corporation, 616 So. 2d 645,
647 (La. 1993) (holding that costs are not fixed until judgment is entered and interest can
only run on costs when due). We reject this argument based on a plain reading of NRS
17.130, which provides for the recovery of interest on the judgment. NRS 17.130(1) refers
to judgments . . . for any debt, damages or costs. Thus, we conclude that the term
judgment encompasses both damages and costs, so that prejudgment interest is recoverable
on costs. Accordingly, we turn to the time from which the interest on costs should run.
[Headnote 10]
In LTR Stage Lines v. Gray Line Tours, 106 Nev. 283, 289, 792 P.2d 386, 389 (1990), we
noted that NRS 17.130 did not speak to damages that occurred between service of summons
and complaint and judgment. We reasoned that the legislature did not contemplate this
problem, and would not want to permit damages to bear interest from the date that the
complaint was served even though they were actually incurred some time after the service of
the complaint. Id. We further noted that to carry interest, damages must be sustained and
specifically quantified. Id. at 289-90, 792 P.2d at 390. Thus, we held that interest on damages
occurring between service of the complaint and judgment would begin when the damage was
incurred. Id.; accord Keystone Realty v. Glenn Osterhus, 107 Nev. 173, 178, 807 P.2d 1385,
1388 (1991) (Prejudgment interest . . . started to accrue from the date the damages were
actually sustained, and not from the date the complaint was filed or the judgment entered.);
Hornwood v. Smith's Food King No. 1, 107 Nev. 80, 88, 807 P.2d 208, 214 (1991)
(Prejudgment interest on a damage award is only allowed where the damage award is known
or ascertainable at a time prior to entry of judgment . . . .).
Following our reasoning in LTR Stage Lines, we conclude that interest on costs should run
from the time when the costs were incurred. If a party is unable to prove when costs were
incurred, interest on those costs should be awarded only from the time of judgment.
Accordingly, we remand this issue to the district court for a determination of the time
when costs were incurred, and an amendment of the judgment in accordance with such
determination.
____________
110 Nev. 1210, 1210 (1994) Bell v. State
TOMMY RAY BELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24569
November 30, 1994 885 P.2d 1311
Appeal from a judgment of conviction of twelve counts of uttering a forged instrument
entered pursuant to a jury verdict. Second Judicial District Court, Washoe County; James A.
Stone, Judge.
The supreme court, Springer, J., held that: (1) defendant made sufficient showing of
materiality to justify his request for compulsory process of out-of-state witness, and (2) trial
court's decision to deny defendant's motion for compulsory process of out-of-state witness
was reversible error.
Michael R. Specchio, Public Defender, Jane G. McKenna, Chief Appellate Deputy Public
Defender, Washoe County, for Appellant.
1. Witness.
Generally, defendant has right to compel production of witnesses in his or her own behalf; however, right to produce out-of-state
witness is not absolute. U.S. Const. amend. 6; NRS 174.425.
2. Witnesses.
Statute governing summoning of out-of-state witness to testify in state gives trial court discretion to decide whether to issue
certificate summoning out-of-state witness to attend and testify in criminal prosecution in this state based upon its finding that witness
is material to party's case. NRS 174.425.
3. Witnesses.
Witness is not material merely because one party designates that witness as such for purposes of statute authorizing trial court to
issue certificate summoning out-of-state witness to testify in criminal prosecution in the state if witness is material to party's case; for
purposes of the statute, showing of materiality must be made. NRS 174.425.
4. Witnesses.
Possibility that witness may invoke his or her Fifth Amendment privilege against self-incrimination, by itself, does not justify
refusing to secure out-of-state witness' presence. U.S. Const. amend. 5; NRS 174.425.
5. Witnesses.
Fifth Amendment privilege comes into operation only when specific question is asked. U.S. Const. amend. 5.
110 Nev. 1210, 1211 (1994) Bell v. State
6. Witnesses.
In order for claim of Fifth Amendment privilege against self-incrimination to be recognized, it must come from the witness himself
or herself. U.S. Const. amend. 5.
7. Witnesses.
Trial court's belief that out-of-state witness would probably refuse to testify for fear of incriminating himself or herself did not
justify court's refusal to summon witness to testify in defendant's criminal prosecution in the state. Trial court's concern about witness'
possible silence was premature since Fifth Amendment privilege would come into operation only when specific question was asked and
privilege, in order to be recognized, had to come from witness himself or herself and witness had actually, previously offered
exculpatory testimony at defendant's preliminary hearing. U.S. Const. amend. 5; NRS 174.425.
8. Witnesses.
Forgery defendant made sufficient showing of materiality to justify his request for compulsory production of out-of-state witness.
Out-of-state witness had actually, previously offered exculpatory testimony at defendant's preliminary hearing, it was too speculative to
say whether witness would refuse to testify at trial or at what point he might do so, witness' testimony at preliminary hearing was not
inconsistent regarding assertion that defendant did not forge checks and even if witness told conflicting stories, it was important for
jury to see witness' demeanor in order to draw its own inferences about whether witness was the kind of person capable of duping
defendant, and proposed testimony by in-state witnesses that they too had been conned by witness was not effective substitute for
witness' own presence and testimony for he alone could say that defendant had not forged checks. NRS 174.425.
9. Witnesses.
It was too speculative to say that, because out-of-state witness might tell conflicting stories, his testimony was immaterial to
forgery defendant's defense and thus, possible unreliability of witness' testimony did not justify trial court's refusal to compel his
presence at defendant's trial. Witness' testimony at preliminary hearing was not inconsistent regarding assertion that defendant did not
forge checks or think he was doing anything illegal by cashing them, inconsistencies in witness' testimony related to his own behavior,
even if witness told conflicting stories, it was important for jury to see witness' demeanor in order for jury to draw its own inferences
about whether witness was the kind of person capable of duping defendant, and it was crucial that witness appear in court because
defendant's entire defense hinged upon his claim that witness conned him into cashing checks. NRS 174.425.
10. Witnesses.
Proposed testimony of in-state witnesses that they too had been conned by out-of-state witness was not effective substitute for
out-of-state witness' own presence and testimony because fact remained that it was out-of-state witness, and he alone, who could say
that defendant had not forged checks or that defendant did not know that checks were forged and thus, availability of in-state witnesses
did not justify trial court's refusal to compel out-of-state witness' presence at forgery defendant's trial. NRS 174.425.
11. Criminal Law.
Exclusion of witness' testimony is prejudicial if there is reasonable probability that witness' testimony would have affected
outcome of the trial.
110 Nev. 1210, 1212 (1994) Bell v. State
12. Criminal Law.
Supreme court's inquiry as to whether trial court erred when it rejected defendant's motion to compel appearance at trial of
out-of-state witness did not end with determination that witness' testimony was material for court also had to assess whether exclusion
of witness' testimony resulted in prejudice to defendant. NRS 174.425.
13. Criminal Law.
Trial court's decision to deny forgery defendant's motion for compulsory process of out-of-state material witness was reversible
error because exclusion of witness' testimony resulted in prejudice to defendant; only evidence that state presented was that defendant
had cashed checks, that checks were stolen, and that defendant was not the legitimate payee, several witnesses testified that defendant
was normally in company of man who fit witness' description and that defendant had identified himself to cashiers as employee of
witness' trucking company, defendant had only $50 in his pocket at time of his arrest, and testimony placed witness, and not defendant,
at business whose checks were stolen. NRS l74.425.
OPINION
Appellant Tommy Ray Bell (Bell) was convicted, pursuant to a jury verdict, of twelve counts of uttering a forged instrument. Bell
appeals that conviction, asserting that the trial court erred when it rejected his motion to compel the appearance at trial of an out-of-state
witness whom Bell asserted was material to his defense. Bell argues that the trial court's decision denied him his constitutional right to
present witnesses in his own behalf, and thus denied him a fair trial. We agree, and therefore reverse the trial court's decision and remand
this case for a new trial.
On or about October 10, 1992, Bell and another man, Steven Beyers (Beyers), arrived in Sparks and took a room at the Sparks Western
Village Inn under Bell's name. The two men stayed there for about three weeks. During that time, Bell signed and cashed fourteen checks
worth over $10,000.00 at Western Village, all of them drawn on Worthen Equipment and made out to various companies and Bell, as
owner or agent. After the bank returned several of Worthen's checks to Western Village, a Western Village employee notified the Sparks
Police Department of a possible case of forgery. Prior to being contacted by this employee, the Sparks police had received a call from
Worthen's controller reporting that fourteen checks had apparently been stolen from his office. Consequently, the police instructed the
Western Village employee to call if the person cashing Worthen's checks reappeared. Bell was later arrested at Western Village.
A Sparks city police officer testified at trial that, upon arrest, Bell waived his Miranda rights, and said that although he
had cashed the checks, he had done so at Beyers' behest.
110 Nev. 1210, 1213 (1994) Bell v. State
Bell waived his Miranda rights, and said that although he had cashed the checks, he had done
so at Beyers' behest. Bell had told the officer that Bell was working for Beyers' trucking
company, Johnson Trucking. In addition, Bell stated that Beyers had asked him to cash the
checks because Beyers had forgotten to bring identification. Bell also told the arresting officer
that when he cashed the checks, he believed he was acting on behalf of Beyers, his employer,
a person engaged in legitimate business transactions. Bell therefore did not question Beyers
about the checks. Further, Bell denied having forged the documents, and claimed that
someone else had put his name on them.
At Bell's preliminary hearing, Beyers' testimony, though not given under oath,
corroborated Bell's version of the events. Although Beyers' testimony regarding his ownership
and administration of Johnson Trucking Company was often rambling and sometimes
incredible, Beyers nevertheless unequivocally stated that Bell had not altered the checks.
Further, Beyers testified that to his knowledge Bell did not know the checks were forged.
Although such testimony was crucial to Bell's defense, Beyers was not heard at Bell's trial.
By the time Bell's case was presented to a jury, authorities had removed Beyers, a convicted
white-collar criminal, to New Mexico, where he was serving time for another offense. Bell
thus brought a motion pursuant to NRS 174.425
1
to compel Beyers to appear and testify at
Bell's trial. The trial court denied Bell's motion.
Bell was subsequently tried before a jury without the benefit of Beyers' appearance or
testimony. Bell's testimony at trial was consistent with his pre-trial statement described
above. The jury nevertheless found Bell guilty of twelve counts of uttering a forged document
pursuant to NRS 205.090 and NRS 205.110. The district court sentenced Bell to serve twelve
consecutive seven-year sentences.
[Headnotes 1-3]
Generally, a defendant in a criminal action has a right to compel production of witnesses
in his or her own behalf. U.S. Const. art. VI; State v. Fouquette, 67 Nev. 505, 221 P.2d 404
(1950). However, the right to produce an out-of-state witness is not absolute. Id. at 516, 221
P.2d at 410. NRS 174.425 gives the trial court discretion to decide whether to issue a
certificate summoning an out-of-state witness to attend and testify based upon its finding
that a witness is material to a party's case.
__________

1
NRS 174.425, Nevada's enactment of the Uniform Act to Secure the Attendance of Witnesses from Without
the State in a Criminal Proceeding, reads, in pertinent part:
If a person in any state . . . is a material witness in a prosecution pending in a court of record in this state .
. . a judge of such a court may order a certificate under the seal of the court stating these facts and
specifying the number of days the witness will be required.
110 Nev. 1210, 1214 (1994) Bell v. State
trial court discretion to decide whether to issue a certificate summoning an out-of-state
witness to attend and testify based upon its finding that a witness is material to a party's case.
Fouquette, 67 Nev. at 516, 221 P.2d at 410. A witness is not material merely because one
party designates that witness as such. Id., 221 P.2d at 410. Rather, a showing of materiality
must be made. Id., 221 P.2d at 410.
[Headnotes 4-8]
Bell asserts that he made a sufficient showing of materiality to justify his request for
compulsory production of Beyers as an out-of-state witness. We agree. The reasons the trial
court gave for refusing to compel Beyers' presence do not stand up to scrutiny. One of the
principal reasons the trial judge gave for refusing to compel Beyers' appearance at trial was
his belief that Beyers would probably refuse to testify for fear of incriminating himself.
However, the possibility that a witness may invoke his or her Fifth Amendment privilege
against self-incrimination, by itself, does not justify refusing to secure an out-of-state witness'
presence. State v. Schreuder, 712 P.2d 264, 275 (Utah 1985). The Fifth Amendment privilege
comes into operation only when a specific question is asked. Id. (citing State v. White, 671
P.2d 191, 193 (Utah 1983)). Moreover, in order for a claim of privilege to be recognized, it
must come from the witness himself or herself. Id. (citing White, 671 P.2d at 193). For these
reasons, the trial court's concern about Beyers' possible silence was premature. More
importantly, given that Beyers had actually, previously offered exculpatory testimony at Bell's
preliminary hearing, it was too speculative to say whether Beyers would refuse to testify, or at
what point he might do so.
[Headnote 9]
For similar reasons, we do not believe that the possible unreliability of Beyers' testimony
in this case justified the trial court's refusal to compel his presence at trial. On the facts
presented, it was too speculative to say that because Beyers might tell conflicting stories, his
testimony was immaterial to Bell's defense. The record reflects that Beyers' testimony at the
preliminary hearing was not inconsistent regarding the assertion that Bell did not forge the
checks or think he was doing anything illegal by cashing them. Rather, the inconsistencies in
Beyers' testimony related to Beyers' own behavior. Furthermore, we agree with Bell's
assertion that even if Beyers told conflicting stories, it was important for the jury to see
Beyers' demeanor, in order for the jury to have the opportunity to draw its own inferences
about whether Beyers was the kind of person capable of duping Bell. Because Bell's entire
defense hinged upon his claim that Beyers had conned him into cashing the checks, it was
crucial that Beyers appear in court even if, perhaps particularly because, Beyers might
have told conflicting versions of the events.
110 Nev. 1210, 1215 (1994) Bell v. State
into cashing the checks, it was crucial that Beyers appear in court even if, perhaps particularly
because, Beyers might have told conflicting versions of the events.
[Headnote 10]
Finally, the trial court refused to compel Beyers' presence because it said that Bell had an
opportunity to bring forth other witnesses who could testify as to Beyers' conduct, and
perhaps substantiate Bell's claim that Beyers was a skilled con man. Other jurisdictions have
determined that given the availability of in-state witnesses who can supply the needed
testimony, it is not error for a trial court to deny a party's request to compel the presence of an
out-of-state witness. See Com. v. Appleby, 450 N.E.2d 1070 (Mass. 1983); Sanchez v. State,
691 S.W.2d 795 (Tex. 1985). However, such a rule does not apply to the facts of this case.
The testimony that might have been offered by in-state witnesses cannot be characterized as
an effective substitute for Beyers' own presence and testimony. Although Bell may have
called witnesses to testify to the effect that they, too, had been conned by Beyers, the fact
remains that it was Beyers, and Beyers alone, who could say that Bell had not forged the
checks, or that Bell did not know the checks were forged.
[Headnotes 11, 12]
Our inquiry does not end, however, with a determination that Beyers' testimony was
material. We must also assess whether the exclusion of Beyers' testimony resulted in
prejudice to Bell. The exclusion of a witness' testimony is prejudicial if there is a reasonable
probability that the witness' testimony would have affected the outcome of the trial. State v.
Schreuder, 712 P.2d 264, 275 (Utah 1985). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the case. Id. 712 P.2d 264, 275 (citing
Strickland v. Washington, 466 U.S. 668 (1984)).
[Headnote 13]
The evidence presented against Bell at trial was not overwhelming. At trial, the only
evidence the State presented supporting its case was that Bell had cashed the checks, that the
checks were stolen, and that Bell was not a legitimate payee. However, several witnesses,
cashiers at Western Village, testified that Bell was normally in the company of a man who fit
Beyers' description, and that Bell had identified himself to Western Inn cashiers as an
employee of Johnson Trucking Company. Further, it came out at trial that upon his arrest,
Bell had only fifty dollars in his pocket. Although one witness testified that Bell had
accompanied Beyers to the Worthen Equipment office where the checks were apparently
stolen, the testimony placed Beyers, not Bell, at Worthen Equipment on several occasions.
110 Nev. 1210, 1216 (1994) Bell v. State
Worthen Equipment on several occasions. We believe that based upon this record, had Beyers
been allowed to testify, there is a reasonable probability that the outcome of this case would
have been different. We thus conclude that the trial court's decision to deny Bell's motion for
compulsory process of an out-of-state witness was reversible error.
Based on the foregoing, we reverse Bell's conviction and remand this case for a new trial.
I must dissent, recalling the words of Julius Caesar that bad precedents began as
justifiable measures. My colleagues set forth several arguments why Bell should be
permitted to present the testimony of Beyers. These arguments, in my opinion, do not justify
interfering with the sound discretion of the district court. As well, the majority decision
would establish unsound precedent.
In order to compel Beyers to appear, Bell must first demonstrate that Beyers' testimony
would be material. If the testimony is material, the district court, may in its discretion, compel
Beyers to appear as an out-of-state witness. In order to reverse Bell's conviction, it must be
shown that the refusal to compel Beyers' testimony was an abuse of discretion.
The majority maintains that the district court made three errors. First, my colleagues,
relying on Schreuder, conclude that the possibility that an out-of-state witness may invoke a
Fifth Amendment privilege against self-incrimination does not in itself justify refusing to
secure that witness. In response, I submit that the district court considered the possibility of
claiming the privilege as only one factor in determining whether it was a waste of the court's
time and the public's money to compel attendance of an out-of-state witness.
In this case, it is highly probable that Beyers would claim his Fifth Amendment privilege.
The very testimony that my colleagues determine is material to Bell's defense is incriminating
to Beyers. To help Bell's defense, presumably Beyers must testify that it was he, and not Bell,
who had the intent to forge the checks and thereby expose himself to prosecution.
Second, the majority states that the district count erred in concluding that Beyers'
testimony may be unreliable. The district court concluded that Beyers' testimony at the
pretrial hearing was inconsistent. Even the majority states that Beyers' testimony was often
rambling and sometimes incredible. My colleagues argue that it was too speculative to say
that because Beyers might tell conflicting stories, his testimony was immaterial to Bell's
defense."
110 Nev. 1210, 1217 (1994) Bell v. State
might tell conflicting stories, his testimony was immaterial to Bell's defense. However, I
submit that Beyers' testimony was not consistent and thus cast doubt upon his credibility.
Third, the majority states that the district court erred in concluding that Bell had the
opportunity to bring forth other witnesses who could testify. The majority argues this was
error because other witnesses would not have been an effective substitute for Beyers' own
presence and testimony. The assumption that only Beyers could say that Bell did not know
the checks were forged is problematic. Even if Beyers testified, and his testimony was
viewed in the most favorable light toward Bell, it would not be conclusive on the issue
whether Bell knew the checks were forged. Apparently, Beyers could only say that according
to his knowledge, Bell did not know the checks were forged. This manifestly does not rebut
the fact that Bell was aware that he was not the owner or agent of fourteen different
businesses and nonetheless cashed fourteen checks written out to those businesses.
Assuming that the district court concluded that testimony was material, it was
discretionary whether it would compel the presence of an out-of-state witness. The relevant
language of NRS 174.425 states: If a person in any state. . . is a material witness in a
prosecution pending in a court of record in this state . . . a judge of such a court may issue a
certificate under the seal of the court stating these facts and specifying the number of days the
witness will be required. . . . (Emphasis added.)
The majority also argues that failing to require Beyers to appear was prejudicial because
the evidence against Bell was not overwhelming. However, the majority acknowledges that
evidence showed that (1) Bell cashed fourteen checks, (2) the checks were stolen, and (3) Bell
was not the legitimate payee. In addition, the record reveals that Bell's name was on the
checks as owner or agent of several businesses, and Bell was aware that he was not the owner
or agent of those businesses. With Beyers' credibility in question, it is doubtful that his
testimony (that to his knowledge, Bell did not know the checks were forged) would have
overcome the strong evidence against Bell.
I am unwilling to establish what I feel would be bad precedent and restrict the trial court's
discretion to decide whether to compel testimony from Beyers, who was incarcerated in
another state. Accordingly, I respectfully dissent.
____________
110 Nev. 1218, 1218 (1994) City of Reno v. Estate of Wells
CITY OF RENO, Appellant, v. ESTATE OF HOWARD WELLS, Respondent.
No. 24667
November 30, 1994 885 P.2d 545
Appeal from a district court order granting a petition for writ of mandamus and reversing
the Reno City Council's decision to abandon real property. Second Judicial District Court,
Washoe County; James A. Stone, Judge.
Landowner petitioned for writ of mandamus, challenging city council's decision to
abandon right-of-way. The district court granted petition, and city appealed. The supreme
court held that: (1) under statute providing that governing body may abandon property if it is
satisfied that public will not be materially injured by proposed abandonment, district court
improperly focused on benefits of abandonment, rather than any material injury abandonment
might cause, and (2) city council's decision to abandon right-of-way was supported by
substantial evidence.
Reversed and vacated.
Patricia A. Lynch, City Attorney, and Madelyn Shipman, Chief Deputy City Attorney,
Reno, for Appellant.
Prezant, Mollath & Costello, Reno, for Respondent.
1. Municipal Corporations.
Under statute providing that governing body may abandon property if it is satisfied that public will not be materially injured by
proposed abandonment, district court improperly focused on benefits of abandonment, rather than any material injury abandonment
might cause. NRS 278.480(4).
Trial court's finding of public detriment associated with abandonment of right-of-way was insufficient to satisfy statute
providing that governing body may abandon property if it is satisfied that public will not be materially injured by proposed
abandonment. Injury referred to was not existent and could spring into existence, if at all, only if and when landowner decided to
proceed with development of its property, legislature's use of material as modifier of injury implied that mere detriment was
insufficient to defeat proposed abandonment, and district court failed to cite any dispositive facts in support of its remark. NRS
278.480(4).
City council's decision to abandon right-of-way was supported by substantial evidence, as reasonable minds could properly
conclude that abandonment did not result in material public injury. Council was informed that right-of-way did not currently provide
access to any party or emergency vehicles, and that it would not be necessary for any party or emergency vehicles to access
property through right-of-way if property were developed in future, and city had no intention of developing
or using right-of-way.
or emergency vehicles to access property through right-of-way if property were developed in future, and city had no intention of
developing or using right-of-way. NRS 278.480(4).
Substantial evidence supporting city council decision to abandon right-of-way did not have to be voluminous, and could be
inferentially shown by lack of evidence that abandonment would impose material injury on public. NRS 278.480(4).
OPINION
Per Curiam:
This appeal requires us to determine whether the district court erred when it found that the Reno City Council's (Council) decision to
abandon certain real property was an arbitrary and capricious abuse of discretion. NRS 278.480(4) provides that a governing body may
abandon property if it is satisfied that the public will not be materially injured by the proposed abandonment. For the reasons explained
hereafter, we conclude that the district court failed to apply the proper statutory test for abandoning real property, and also failed to
recognize the substantial evidence of record supporting the Council's decision. Accordingly, we reverse the district court's order and vacate
the writ of mandamus.
FACTS
Nonparties Millicent Sandberg and Kathleen Apple (hereinafter Applicants) each own residential property on the east side of Circle
Drive in Reno. Their properties are divided by an unimproved right-of-way that serves as the eastern terminus of Crocker Way.
1
Respondent Estate of Howard Wells (Wells) owns a large parcel of property to the east of
the Applicants' property and the right-of-way. The right-of-way directly abuts Wells' property,
which is accessed by Brown Street to the north.
Sometime during the summer of 1992, the Applicants filed an application for
abandonment of the right-of-way with the Reno Planning Commission.
__________

1
The right-of-way, which was dedicated to the City approximately fifty years ago when the original subdivision
was developed, is described by Reno Planning Commission staff as follows:
[T]his section of Crocker Way is unconstructed and undeveloped. The right-of-way is an existing dirt lot
with an unkempt appearance. The proposed section of the right-of-way to be abandoned does not line up
with the existing street section of Crocker Way. At one time, there may have been plans to connect Circle
Drive with Bret Harte Avenue via Crocker Way. According to City records, the homes located to the east
of this section of right-of-way were built in the 1940's. It was apparently determined during this period
that the road would not be extended. This City has no plans to extend Crocker Way.
application for abandonment of the right-of-way with the Reno Planning Commission. The
Planning Commission held hearings on the application on September 2, September 16, and
October 21, 1992. The Applicants, supported by numerous neighborhood residents, argued
that the right-of-way should be abandoned to them because it served no purpose to the City.
As a collateral matter, the Applicants contended that their use and maintenance of the
right-of-way would confer an aesthetic benefit upon the surrounding neighborhood. Wells
objected to the proposed abandonment because it would tak[e] away potential opportunities
to develop its property into smaller residential lots.
The Planning Commission was informed by staff that the City Fire and Engineering
Departments did not oppose abandonment because the right-of-way did not provide essential
access to emergency vehicles or the public, and because Wells could fully develop its
property by use of the Brown Street access. After some discussion of a private compromise
between the parties, the Commission unanimously recommended that the abandonment
application be approved. Wells thereafter appealed the Commission's recommendation to the
Council.
Wells' primary argument before the Council was that abandonment of the right-of-way
would detrimentally affect its development opportunities, though Wells refused to commit to
developing its property, if at all, within a specified period of time. Wells also contended that
traffic on Brown Street would increase if it were forced to develop its property without use of
the right-of-way, and that emergency vehicle access to the developed property would be
enhanced if the right-of-way was preserved. After lengthy discussions regarding the impact
on Wells' future development, the Council specifically found that the public would not be
materially injured by the abandonment and unanimously adopted the Planning
Commission's recommendation to approve the application for abandonment. Shortly
thereafter, Wells challenged the Council's action by filing a petition for a writ of mandamus
in the district court.
During a short hearing before the district court, Wells argued that the Council erred
because its decision affected both the value and marketability of Wells' property and created
dangers associated with increased traffic on Brown Street and decreased accessibility for
emergency vehicles. Our review of the record indicates that Wells repeatedly emphasized the
lack of public benefit resulting from the Council's decision.
2
The district court was
persuaded by Wells' argument and granted the petition for a writ of mandamus.3 This
appeal followed.
__________

2
As one example, consider the following argument propounded by Wells' counsel:
There is nothing in that record that we can point to that says the
suaded by Wells' argument and granted the petition for a writ of mandamus.
3
This appeal
followed.
DISCUSSION
There are two basic issues requiring resolution on appeal: (1) whether the district court
erred in analyzing the Council's decision in terms of the public benefit it might provide,
rather than the statutorily-prescribed material injury analysis; and (2) whether the Council's
decision is supported by substantial evidence of record.
[Headnotes 1, 2]
In considering the first issue, whether the district court's use of a public benefit analysis
was appropriate, we note that the controlling statute is clear and unambiguous on its face.
NRS 278.480(4) provides that a governing body may abandon property if it is satisfied that
the public will not be materially injured by the proposed abandonment. We have previously
rejected the argument that there is a public purpose component to the abandonment statute.
L&T Corp. v. City of Henderson, 98 Nev. 501, 503, 654 P.2d 1015, 1016 (1982). We
therefore conclude that the district court erred when it focused on the benefits of
abandonment, rather than any material injury the abandonment may cause. The lower court
did mention, without discussion, that it found a public detriment associated with the
abandonment. However, the court's unsupported conclusory remark does not constitute a
well-reasoned finding of material injury to the public for three reasons: (1) the injury the
district court refers to is nonexistent, and may spring into existence, if at all, only if and when
Wells decides to proceed with the development of its property; (2) the legislature's use of
material as a modifier of injury implies that a mere detriment is insufficient to defeat a
proposed abandonment; and {3) the district court failed to cite any dispositive facts in
support of its remark.
__________
abandonment of this road is going to serve the neighborhood in a better fashion, it's going to make traffic
safer, it's going to make the neighborhood better, it's going to be of public good. There is absolutely
nothing in the record.
The only thing they can point to is: Well, it's a vacant lot, it's an eyesore.
That's not to the public benefit. I mean, that is to the benefit of [the Applicants].

3
The following statement reveals the basis for the district court's decision:
I think you have to acquire [sic], or I have to acquire [sic] as to whether any public benefit would be
granted by upholding the City Council's actions. I am unable to find any public benefit. I find private
benefit, but I find no public benefit.
insufficient to defeat a proposed abandonment; and (3) the district court failed to cite any
dispositive facts in support of its remark.
4

[Headnote 3]
Having concluded that the district court erred when it failed to consider the proposed
abandonment in light of the material injury standard prescribed by statute, we must also
evaluate the court's finding that the Council's decision was arbitrary and capricious. In Tighe
v. Von Goerken, 108 Nev. 440, 833 P.2d 1135 (1992), we noted that the essence of the
abuse of discretion, of the arbitrariness or capriciousness of governmental action . . . is most
often found in an apparent absence of any grounds or reasons for the decision,' or in other
words, [w]e did it just because we did it.' Id. at 442-43, 833 P.2d at 1136 (quoting City
Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 371, 372-73 (1986)). Additionally, we have
previously accepted the definitions of arbitrary and capricious, respectively, as baseless or
despotic and a sudden turn of mind without apparent motive; a freak, whim, mere fancy.'
City Council v. Irvine, 102 Nev. 277, 278-79, 721 P.2d 371, 372 (1986) (quoting The
Oxford Universal Dictionary). Our review of the record convinces us that the district court's
finding is erroneous.
[Headnote 4]
Substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion. See, e.g., Ruggles v. Public Service Comm'n, 109 Nev. 36, 40, 846
P.2d 299, 302 (1993). Substantial evidence need not be voluminous; and in this case, it may
be inferentially shown by the lack of evidence that abandonment of the right-of-way would
impose a material injury upon the public. The Council was informed, and we have no reason
to question the evidence on appeal, that the right-of-way does not currently provide access to
any party or emergency vehicles (nor will it be necessary for any party or emergency vehicles
to access the property through the right-of-way if the property is developed in the future), and
the City has no intention of developing or using the right-of-way. In sum, reasonable minds
may properly conclude that the abandonment does not result in a material public injury and
therefore, the Council's decision is supported by substantial evidence.
__________

4
On appeal to this court, Wells' failed to address the district court's error, insisting instead that:
The central issue to be determined in this appeal is whether it was fair and whether substantial evidence
exists to allow Crocker Way to be abandoned for the sole purpose of giving [the Applicants] more yard
and property in light of the documented adverse effects such abandonment has on WELLS' property, the
only property served by Crocker Way.
Council's decision is supported by substantial evidence. That evidence, coupled with the
City's express disinterest in owning and maintaining an unused, unnecessary right-of-way,
requires us to reverse the district court's order.
CONCLUSION
For the reasons discussed above, and given the deferential standard of review accorded to
the actions of municipalities, we reverse the district court's order and vacate the writ of
mandamus.
____________
110 Nev. 1223, 1223 (1994) Paul Steelman, Ltd. v. Omni Realty
PAUL STEELMAN, LTD., a Nevada Professional Corporation,
Appellant/Cross-Respondent, v. OMNI REALTY PARTNERS, a Nevada Limited
Partnership; LCHC, INC., a Nevada Corporation, Respondents/Cross-Appellants, and
CAPITAL HILL REALTY GROUP, LTD., a Foreign Corporation, THE
MANAGEMENT GROUP, INC., a Foreign Corporation; TMG LAS VEGAS
ASSOCIATES, an Illinois Limited Partnership; C.A. BUD CATALDO, an
Individual; CHARLES A. GAVZER, an Individual; ROBERT J. CATALDO, an
Individual; YALE WEXLER, an Individual; FRANK CONSIGLIO, an Individual;
and VICTOR HECKER, an Individual, Respondents.
No. 24617
November 30, 1994 885 P.2d 549
Appeal and cross-appeal from judgment awarding damages and refusing to disregard
corporate entity. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Architectural firm brought suit against limited partnership formed to develop large
commercial venture, the corporate general partner and individual shareholders and limited
partners. The district court refused to pierce general partner's corporate veil and awarded
damages. Architectural firm appealed, and limited partnership and general partner
cross-appealed. The supreme court held that: (1) plaintiff was not entitled to pierce corporate
veil, and (2) trial court abused its discretion in calculating damages.
Affirmed in part; reversed in part.
Kummer, Kaempfer, Bonner & Renshaw, and Georlen K. Spangler, Las Vegas, for
Appellant/Cross-Respondent.
Thomas D. Beatty, Las Vegas; Keck, Mahin & Cate, and Michael J. Dolesh, Chicago,
Illinois, for Respondents/Cross-Appellants.
Frank Consiglio, In Proper Person, Las Vegas, for Respondent.
Victor Hecker, In Proper Person, Las Vegas, for Respondent.
1. Corporations.
Although undercapitalization is one criterion considered by courts in deciding whether to set aside corporate barrier to shareholder
liability for corporate debts, it is usually insufficient ground, of itself, for disregarding corporate entity in absence of fraud or injustice
to aggrieved party.
2. Corporations.
Party seeking to pierce corporate veil must show by preponderance of evidence that financial structure of suspect corporation is
only a sham and caused an injustice.
3. Corporations.
Even if corporation, which was general partner of limited partnership formed to develop large commercial venture, was
undercapitalized, its formative capitalization was not a sham designed to perpetuate fraud or impose injustice upon plaintiff, as
required to pierce corporate veil and impose personal liability upon shareholders.
4. Damages.
In awarding architectural firm damages for breach of contract, trial court abused its discretion assuming facts not in evidence and
disregarding firm's failure to record amount of hours it expended on material revisions.
OPINION
Per Curiam:
At the conclusion of a bench trial, appellant Paul Steelman, Ltd. (Steelman) was awarded a money judgment against respondents
Omni Realty Partners and LCHC in the amount of $420,414.88. Steelman now challenges the district court's refusal to pierce the corporate
veil of LCHC and impose personal liability upon its shareholders. In turn, Omni and LCHC cross-appeal from that part of the award which
is assertedly unsupported by the facts of record. For the reasons explained hereafter, we affirm the district court's decision with regard to
Steelman's attempt to reach the shareholders of LCHC, but reverse as to the calculation of damages by the lower court.
FACTS
Steelman is an architectural firm specializing in casino and entertainment industry design. The respondents and crossappellants are
Omni Realty Partners, {"Omni"), a Nevada limited partnership, LCHC, a Nevada corporation and general
partner of Omni, and various individual limited partners of Omni and shareholders of LCHC.
appellants are Omni Realty Partners, (Omni), a Nevada limited partnership, LCHC, a
Nevada corporation and general partner of Omni, and various individual limited partners of
Omni and shareholders of LCHC. Omni was formed to develop and operate a large
commercial venture in Las Vegas, and LCHC was formed to shield the general partners of
Omni from individual liability. The facts of record indicate that Omni was adequately
capitalized, and that the manner in which LCHC was capitalized is not uncommon for
corporations of its type.
1
It is undisputed that neither Omni nor LCHC currently have the
means with which to satisfy Steelman's judgment.
DISCUSSION
[Headnotes 1, 2]
Steelman's primary argument is that LCHC was intentionally undercapitalized in order to
remain judgment proof, and therefore, adherence to the corporate fiction either sanctions
fraud or promotes an injustice. However, Steelman has now disavowed its earlier argument
that the corporate form should be discarded because LCHC was the alter ego of its small
group of shareholders.
2
Although undercapitalization is one criterion considered by courts in
deciding whether to set aside the corporate barrier to shareholder liability for corporate debts,
it is usually an insufficient ground, of itself, for disregarding the corporate entity in the
absence of fraud or injustice to the aggrieved party. North Arlington Med. v. Sanchez Constr.,
86 Nev. 515, 522, 471 P.2d 240, 244 (1970). Moreover, the party seeking to pierce the
corporate veil must show by a preponderance of the evidence that the financial structure of
the suspect corporation is only a sham and caused an injustice. Id.
[Headnote 3]
Assuming for the sake of argument that LCHC was undercapitalized, we are unable to
conclude that its formative capitalization was a sham designed to perpetuate fraud or impose
an injustice upon Steelman. Indeed, the district court made the following findings regarding
the propriety of LCHC's formation:
The testimony adduced at trial showed that LCHC's undercapitalization derived from
the fact that nearly all of the capital infused into the Omni project came from the
Omni rather than LCHC, Inc.
__________

1
Although LCHC was only capitalized with a $200 receivable, its real value was best measured by the
collective expertise of its shareholders.

2
Steelman's argument that the trial court erred in applying the alter ego doctrine to the facts of this case is
disingenuous and belied by the record. Steelman relied upon the alter ego doctrine below, but now rejects its
applicability on appeal after losing the argument in the district court.
the capital infused into the Omni project came from the Omni rather than LCHC, Inc.
(Chuck Gavzer testified that LCHC, Inc. was capitalized with a receivable in lieu of
cash, a situation not uncommon with a corporate general partner.) According to the
expert testimony at trial, this was done so that the limited partners could receive the tax
benefits from the inevitable losses the project would incur during the development
stage. Clearly this indicates that the capitalization of the project was not designed to
defraud potential creditors, but rather to minimize losses to the investors through tax
benefits. It must be noted that this case does not present the typical piercing case
where one or two insiders benefit from the corporate form to the detriment of their
creditors. In this case none of the project's supporters or backers has profited and many
have incurred substantial losses.
Steelman also cannot show that he was prejudiced by the way the project was
financed. Even if all of the capital contributions had come in through LCHC, Inc., in
the form of paid-in-capital from shareholders, this fact would not have saved the
project or benefitted Steelman because in either scenario, all of the capital was
expended in trying to obtain financing. The fact that Steelman will not be fully paid
does not automatically create an injustice.
It is unfortunate that Steelman's recovery is limited to the assets of two insolvent entities;
but Steelman alone is responsible for not protecting against the eventuality that occurred by
insisting on individual guarantees from shareholders who were financially capable of
satisfying its claims against LCHC. We have long held that we will not disturb a district
court's judgment that is supported by substantial, yet conflicting, evidence. Polaris Indus.
Corp. v. Kaplan, 103 Nev. 598, 601, 747 P.2d 884, 886 (1987). Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion. State Emp.
Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986). Here, substantial
evidence supports the finding of the district court and we refuse to disturb it on appeal.
Having affirmed the district court's decision refusing to disregard LCHC as a corporate
entity, the remaining issue concerns cross-appellants' contention that the district court abused
its discretion in calculating the amount of Steelman's damages. We note initially that a trial
judge is clothed with wide discretion when calculating damages, and only an abuse of that
discretion will compel us to intercede. Parsons Drilling, Inc. v. Polar Resources Co., 98 Nev.
374, 377, 649 P.2d 1360, 1363 (1982).
[Headnote 4]
The agreement between the parties provides that, in addition to the compensation for
specified services, Steelman would be compensated for every hour it expended on material
revisions, subject to a specified hourly rate schedule of $55 per hour for draftsmen, $80 per
hour for the project director, and $100 per hour for a firm principal. It is uncontested that
Steelman performed material revisions at the cross-appellants' request, yet Steelman concedes
that it failed to record the number of hours expended on work attributable to the revisions.
Despite the dearth of evidence, the district court exercised its discretion and awarded $45,000
to Steelman for extras, which it arrived at after finding that Steelman expended 400 hours
at a uniform rate of $125 per hour. Unfortunately, the lower court abused its discretion when
it assumed facts not in evidence and disregarded Steelman's failure to record the amount of
hours it expended on material revisions. Therefore, this segment of the damage award cannot
stand.
We have considered the remaining assignments of error and conclude that they are without
merit and need not be addressed.
CONCLUSION
For the foregoing reasons, we affirm the district court's judgment in refusing to disregard
LCHC as a corporate entity, but reverse and vacate that part of the damages award to
Steelman which, as noted above, is unsupported by substantial evidence.
____________
110 Nev. 1227, 1227 (1994) City of Las Vegas v. 1017 S. Main Corp.
CITY OF LAS VEGAS, a Municipal Corporation; JAN LAVERTY JONES, Mayor; BOB
NOLEN, ARNIE ADAMSEN, SCOTT HIGGINSON, FRANK HAWKINS, JR.,
Councilmen; CITY OF LAS VEGAS DEPARTMENT OF COMMUNITY
PLANNING, an Agency of the City of Las Vegas; and CITY OF LAS VEGAS
DEPARTMENT OF BUSINESS ACTIVITY, an Agency of the City of Las Vegas,
Appellants, v. 1017 SOUTH MAIN CORPORATION, a Nevada Corporation, dba
A-ACTION ADULT AND VIDEO, Respondent.
No. 24786
November 30, 1994 885 P.2d 552
Appeal from district court order enjoining the City of Las Vegas from denying the issuance
of certain business licenses and permits, from enforcing Las Vegas Municipal Code
19.74.040, and from adopting rules and regulations pursuant thereto, and from acting in
an otherwise unconstitutional manner.
permits, from enforcing Las Vegas Municipal Code 19.74.040, and from adopting rules and
regulations pursuant thereto, and from acting in an otherwise unconstitutional manner. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Sexually oriented business brought action against city arguing that city ordinance that
amended manner in which city measured required distance between sexually oriented
businesses and other establishments was unconstitutionally vague, and that city had
selectively enforced code provisions in derogation of business's right to equal protection of
law. The district court enjoined city from denying issuance of certain business licenses and
permits, from enforcing ordinance, and from adopting rules and regulations pursuant thereto.
City appealed. The supreme court held that: (1) term altered in city ordinance prohibiting
nonconforming businesses to alter their use was not unconstitutionally vague; (2) business's
modification of its coin-operated video booths to provide visual access to live nude dancer
changed category in which booths were used and such change was alteration prohibited by
ordinance; and (3) city did not arbitrarily enforce ordinance.
Reversed.
Bradford R. Jerbic, City Attorney, and Larry G. Bettis, Deputy City Attorney, Las Vegas,
for Appellants.
Gentile & Porter and David T. Wall, Las Vegas, for Respondent.
Ordinance is unconstitutionally vague if it either forbids or requires doing of act in terms so vague that person of ordinary
intelligence must necessarily guess at its meaning and differ as to its application.
Ordinance may be void for vagueness if its imprecision is likely to encourage arbitrary and discriminatory enforcement.
Presumption of invalidity against any system of prior restraint did not apply to city ordinance that amended manner in which city
measured required distance between sexually oriented businesses and other establishments, as nude dancing was considered prurient
entertainment only marginally within outer perimeters of First Amendment protection. U.S. Const. amend. 1; Las Vegas Municipal
Code 19.74.040.
Presumptively invalid ordinance authorizing officials to license certain constitutional activity will be upheld if it establishes
precise, narrowly drawn standards to guide and limit enforcement. Zoning regulation with incidental impact upon marginally protected
expression will be upheld if it meets same exacting standards.
Term altered in city ordinance stating that any business made nonconforming by city ordinance that amended manner in which
city measured required distance between sexually oriented businesses and other establishments may not be altered was not so vague
that it provided unfettered discretion in city officials who were charged with its administration, where term conveyed clear meaning
when standing on its own, and when coupled with other words of limitation. U.S. Const. amend. 1; Las Vegas Municipal Code
19.74.040.
6. Zoning and Planning.
Sexually oriented business's modification of its coin-operated video booths to provide visual access to live nude dancer changed
category in which booths were used to that of nude show, and such change was alteration prohibited by city ordinance stating that
any business made nonconforming by city ordinance that amended manner in which city measured required distance between sexually
oriented businesses and other establishments may not be altered. Las Vegas Municipal Code 19.74.040.
Facially valid ordinance may be vehicle for unequal protection of law when applied in arbitrary or discriminatoty manner. U.S.
Const. amend. 14.
8. Zoning and Planning.
City did not arbitrarily enforce city ordinance, stating that any business made nonconforming by city ordinance that amended
manner in which city measured required distance between sexually oriented businesses and other establishments may not be altered,
when it retroactively licensed sexually oriented business, yet denied other business's application to modify its coin-operated video
booths and add live nude dancing. Newly licensed business received zoning approval prior to effective date of ordinance and was
retroactively licensed because of delay in fire inspection and approval. U.S. Const. amend. 14; Las Vegas Municipal Code 19.74.040.
OPINION
Per Curiam:
FACTS
Chapter 19.74 of the Las Vegas Municipal Code (LVMC) regulates the zoning of sexually-oriented businesses. Prior to September
20, 1992, LVMC 19.74.030 prohibited the establishment of sexually-oriented businesses within 1,000 feet of any church, school, park,
playground, or other sexually-oriented business. The distance was measured by the most direct route provided for pedestrian traffic from
the primary public entrance of the proposed establishment to the primary public entrance of any existing church, school, park or playground
or sexually oriented licensed premises.
In July of 1992, the respondent, A-Action Adult and Video (hereinafter A-Action) received business licenses to operate at the same
location a bookstore, video center, and twenty-one coin-operated amusement devices.
operated amusement devices. A-Action intended to sell sexually-oriented books and videos,
and the coin-operated devices were to be used within video booths (e.g., insert money and
view a sexually-oriented video in the privacy of a self-enclosed booth). Nine of the
twenty-one viewing booths were arranged in a rectangle shape so that all faced a small stage
in the center of the rectangle. Because of the nature of its business, A-Action was required to
comply with the distance requirements of LVMC 19.74.030, which it did after changing the
location of its primary entrance.
On September 20, 1992, the City of Las Vegas (City) amended the manner in which it
measured the distance between sexually-oriented businesses and other establishments.
1
Additionally, the following provision was added to LVMC 19.74.040:
(B) Any business existing as of September 16, 1992, that is made nonconforming by the
provisions of [this ordinance] shall be permitted to remain in operation; provided,
however, that:
(1) No such business may be increased, enlarged, extended or altered, except to change
the use to a conforming use; and
(2) If any such business terminates or is abandoned for a period of at least thirty days,
any future use of the property shall conform to the provisions of [this ordinance].
As a result of the September 20, 1992 amending ordinance, A-Action became a
nonconforming business because its property line was within 1,000 feet of Metropolitan
Community Church's property line; therefore, it became subject to the provision that
prohibited the business from being increased, enlarged, extended or altered, except to a
conforming use.
On February 1, 1993, A-Action made application to amend its existing coin-operated
amusement center license for the purpose of removing the video equipment from the nine
viewing booths that formed the rectangular configuration and installing glass panes in order
for patrons to view, after placing money in a coin-operated device, a live nude dancer on the
small stage in front of the booths. The City denied A-Action's application on the basis that
such an alteration would violate the provisions of LVMC 19.74.040(B)(1).
Shortly thereafter, A-Action filed a complaint in the district court in which it argued that
LVMC 19.74.040 was unconstitutionally vague, and that the City had selectively enforced the
code provision in derogation of A-Action's right to equal protection of the law. A-Action's
equal protection complaint resulted from the City's accommodation of Books and Video
Enterprises, an unrelated business doing business as Talk of the Town.
__________

1
Rather than measure from entrance to entrance, the City began measuring from property line to property line.
See LVMC 19.74.030.
City's accommodation of Books and Video Enterprises, an unrelated business doing business
as Talk of the Town. Talk of the Town filed an application with the City on August 13, 1992,
seeking business licenses to operate a bookstore, video center, and coin-operated amusement
machines. Like A-Action, Talk of the Town offered to provide adult-oriented materials and
entertainment to interested patrons. On August 28, 1992, well before the effective date of
amended LVMC 19.74.030, the City entered its decision that Talk of the Town was located in
an area properly zoned for a business of its type. However, delays caused by either the City or
its fire department prevented Talk of the Town from actually receiving its licenses until after
the effective date of LVMC 19.74.030.
It is incontrovertible that Talk of the Town complied with the distance limitation required
by the old LVMC 19.74.030 at the time it received zoning approval for all three licenses on
August 28, 1992; it is equally incontrovertible that after September 20, 1992, Talk of the
Town no longer complied with the distance limitation because its property line was within
1,000 feet of a church's property line. The City issued the licenses retroactive to August 28,
1992, and Talk of the Town was allowed to commence operations as a nonconforming
business.
After a bench trial, the district court found that the word altered as used in LVMC
19.74.040(B)(1) was vague, undefined, and therefore unconstitutional; the court also found
that A-Action and Talk of the Town had received disparate treatment from the City in
violation of A-Action's right to equal protection of the law. This appeal followed.
DISCUSSION
[Headnotes 1, 2]
The City contends that the district court erred in holding that the word altered is
unconstitutionally vague. An ordinance is unconstitutionally vague if it either forbids or
requires the doing of an act in terms so vague that persons of ordinary intelligence must
necessarily guess at its meaning and differ as to its application. Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926). Such an ordinance is void for vagueness and inconsistent
with due process of law. Additionally, an ordinance may be void for vagueness if its
imprecision is likely to encourage arbitrary and discriminatory enforcement. Forsyth County,
Ga. v. Nationalist Movement,
------
U.S.
------
,
------
, 112 S. Ct. 2395, 2403 (1992) (stating
that the First Amendment prohibits the vesting of unbridled discretion in government
officials); Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972); Eaves v. Board of
Clark County Comm'rs, 96 Nev. 921, 924, 620 P.2d 1248, 1250 (1980).
The City argues on appeal that LVMC 19.74.040 is not unconstitutionally vague because it
plainly precludes nonconforming businesses from being increased, enlarged, extended or
altered in any way other than to a conforming use. According to the City, each word of the
foregoing phrase may be susceptible to semantical debate, yet their collective context,
purpose, and effect is clear: a nonconforming business may not be changed in any way. See
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (stating that because we are
condemned to the use of words, we can never expect mathematical certainty from our
language).
[Headnote 3]
A-Action responds by insisting that LVMC 19.74.040 is presumptively invalid because of
constitutional implications prohibiting prior restraint. Indeed, any system of prior restraint is
burdened with a heavy presumption against its constitutional validity. Southeastern
Promotions Ltd. v. Conrad, 420 U.S. 546, 558 (1975). We conclude, however, that the
presumption of invalidity is inapplicable to the instant case.
In Talk of the Town v. City of Las Vegas, 92 Nev. 466, 553 P.2d 959 (1976), an
adult-oriented bookstore challenged the constitutionality of a city ordinance which required it
to procure privileged business licenses and pay for investigations of all those associated
with its management or ownership. Id. at 468, 553 P.2d at 960. Talk of the Town's business
involved the sale of books and other printed material, which are both presumptively
protected by the First Amendment. Id. at 469, 553 P.2d at 961. In contrast, the form of
expression A-Action seeks to protect is that which is conveyed by nude dancing. Despite
A-Action's contention that it is uncontroverted that nude dance performances . . . are
protected expression under the First and Fourteenth Amendments to the United States
Constitution, the United States Supreme Court has strongly indicated that nude dancing does
not rise to the same level as other forms of protected expression. See Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991).
In Barnes, the Glen Theatre supplied adult entertainment consisting of nude and seminude
performances and displays of the female body through glass window panels. In a manner
similar to that planned by A-Action, Glen Theatre patrons sat in private booths and inserted
coins into a timing mechanism that permitted them to observe live nude and seminude
dancers for a specified period of time. Id. at 563. The Glen Theatre proprietors and dancers
objected to a state public indecency law, which required the dancers to wear G-string
panties and pasties on their breasts, on the grounds that the law impeded their First
Amendment rights of freely expressing an erotic message. Id. at 565.
breasts, on the grounds that the law impeded their First Amendment rights of freely
expressing an erotic message. Id. at 565.
The Barnes court conceded that several of the high court's opinions contain language
which suggests that nude dancing is expressive conduct protected by the First Amendment,
but the court made clear its view that such dancing was only a marginally protected form of
expression:
In Doran v. Salem Inn, Inc., we said: [A]lthough the customary barroom' type of nude
dancing may involve only the barest minimum of protected expression, we recognized
in California v. LaRue that this form of entertainment might be entitled to First and
Fourteenth Amendment protection under some circumstances. In Schad v. Mount
Ephraim, we said that [f]urthermore, as the state courts in this case recognized, nude
dancing is not without its First Amendment protections from official regulation. These
statements support the conclusion of the Court of Appeals that nude dancing of the kind
sought to be performed here is expressive conduct within the outer perimeters of the
First Amendment, though we view it as only marginally so.
Id. at 565-66 (citations omitted; emphasis added).
[Headnote 4]
Accordingly, we reject A-Action's invitation to view LVMC 19.74.040 as a form of prior
restraint unable to withstand the heavy presumption of unconstitutionality. Instead, we
consider nude dancing for what it is: prurient entertainment only marginally within the outer
perimeters of First Amendment protection.
2

[Headnote 5]
A-Action's primary complaint with LVMC 19.74.040 is that the word altered is so vague
that it provides an unfettered discretion in City officials who are charged with its
administration. We are not persuaded that the term altered, which in this context connotes
any structural or functional form of modification or change, is beyond the ken of persons of
ordinary intelligence; nor do we see ambiguity in the context surrounding the term altered
(increased, enlarged, extended or altered) that facilitates an opportunity for arbitrary and
discriminatory enforcement. In fact, the phrase is carefully crafted in order to prevent such
discretionary enforcement.
__________

2
In any event, a presumptively invalid ordinance authorizing officials to license certain activity will be upheld
if it establishes precise, narrowly-drawn standards to guide and limit enforcement. North Nevada Co. v.
Menicucci, 96 Nev. 533, 536, 611 P.2d 1068, 1069 (1980) Likewise, a zoning regulation with an incidental
impact upon marginally protected expression will be upheld if it meets the same exacting standards.
such discretionary enforcement. The word altered conveys a clear meaning when standing
on its own, and when coupled with other words of limitation, as it is here, its meaning is not
rationally susceptible to an attack on grounds of vagueness.
Having concluded that LVMC 19.74.040 withstands constitutional challenge, we next
consider A-Action's alternate contention that its nude dancing activity does not constitute an
alteration, and should therefore be viewed as conforming to the ordinance. LVMC
19.74.020 sets forth ten precisely defined categories of sexually-oriented businesses. Of
particular importance to us are the following two categories:
Adult Motion Picture Arcade.
Adult motion picture arcade means any place to which the public is permitted or
invited wherein coin-operated or slug-operated or electronically, electrically or
mechanically controlled still or motion picture machines, projectors, or other
image-producing devices are maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are distinguished or
characterized by an emphasis on depicting or describing sexual conduct or specified
anatomical areas.
Nude Show.
Nude show means any establishment which provides or permits sexual conduct or the
display of specified anatomical areas upon its premises as entertainment or an attraction
for business.
[Headnote 6]
As we understand the record, A-Action's use of twenty-one coin-operated devices to
provide sexually-oriented video falls within the category of an adult motion picture arcade,
which requires still or motion picture machines, projectors, or other image producing
devices that are either electronic, electric, or operated by coin or slug. We fail to see how
nine of those twenty-one coin-operated machines, which are now used to simply open and
close access to glass windows, constitute image producing devices that fall within the
definition of a motion picture arcade. Instead, A-Action's modification of its booths to
provide visual access to a live nude dancer changes the category in which the booths are used
to that of a nude show. Such a change is clearly an alteration prohibited by LVMC
19.74.040. Under the circumstances presented here, we reject A-Action's argument that a
change in what a patron views when using a coin-operated device is not an alteration
prohibited by LVMC 19.74.040.
[Headnote 7]
With respect to A-Action's equal protection argument, we note that a facially valid
ordinance may be the vehicle for unequal protection of the law when applied in an
arbitrary or discriminatory manner.
that a facially valid ordinance may be the vehicle for unequal protection of the law when
applied in an arbitrary or discriminatory manner. Yick Wo v. Hopkins, 118 U.S. 356, 373-74
(1886). More particularly, we have noted that [e]qual protection of the law has long been
recognized to mean that no class of persons shall be denied the same protection of the law
which is enjoyed by other classes in like circumstances. Allen v. State, 100 Nev. 130, 135,
676 P.2d 792, 795 (1984) (emphasis added).
[Headnote 8]
A-Action successfully argued below that the City arbitrarily enforced LVMC 19.74.040
when it retroactively licensed Talk of the Town, yet denied A-Action's application to modify
the nine viewing booths and add live nude dancing. We disagree with the district court's
ruling and conclude that the two establishments presented factually and significantly
distinguishable requests to the City. Talk of the Town received zoning approval prior to the
effective date of LVMC 19.74.030 and was retroactively licensed because of a delay in fire
inspection and approval. Unlike A-Action, Talk of the Town has not attempted to increase,
enlarge, extend or alter the scope of its nonconforming business, and we have no reason to
believe that any such attempt by Talk of the Town would be received favorably by the City.
CONCLUSION
For the reasons discussed above, we conclude that LVMC 19.74.040(B)(1) is not
unconstitutionally vague and that it was not applied in a disparate, discriminatory or
otherwise unconstitutional manner. The order of the district court is in all aspects reversed,
and its injunctive provisions against the City vacated.
____________
110 Nev. 1235, 1235 (1994) City of Las Vegas v. Pursel
THE CITY OF LAS VEGAS, a Municipal Corporation, Appellant, v. JACK J. PURSEL,
Respondent.
No. 24791
November 30, 1994 885 P.2d 557
Appeal from findings of fact, conclusions of law, and judgment entered against City of Las
Vegas. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Pedestrian who slipped and fell on ice that formed on wheelchair ramp of city sidewalk
filed complaint against city claiming negligence. The district court entered judgment for
pedestrian, and city appealed. The supreme court held that city could not be held liable under
its operational duty to assure reasonably safe construction of its public sidewalks,
including wheelchair ramp, in absence of evidence pertaining to construction of ramp on
which plaintiff slipped and fell.
held liable under its operational duty to assure reasonably safe construction of its public
sidewalks, including wheelchair ramp, in absence of evidence pertaining to construction of
ramp on which plaintiff slipped and fell.
Reversed and vacated.
Bradford R. Jerbic, City Attorney, and Stephen G. Jones, Deputy City Attorney, Las
Vegas, for Appellant.
Galatz, Earl, Williams & Bulla, Las Vegas, for Respondent.
Municipal Corporations.
City could not be held liable for injury suffered by pedestrian when he slipped and fell on ice that formed on portion of sidewalk
forming wheelchair ramp, under city's operational duty to assure reasonably safe construction of its public sidewalks, in absence of
evidence pertaining to construction of ramp on which pedestrian slipped and fell.
OPINION
Per Curiam:
FACTS
In February 1982, respondent Jack Pursel slipped and fell on ice that had formed on a City of Las Vegas (the City) sidewalk at the
southwest corner of Third Street and Bridger Avenue. The portion of sidewalk on which Pursel fell was a wheelchair ramp inclining from
the plane of the street to the plane of the sidewalk. In September 1982, Pursel filed a complaint against the City claiming, inter alia,
negligence, and requesting damages for his injuries. Pursel alleged that water at the base of the ramp had splashed onto the ramp by passing
cars and caused to freeze by the cold temperature of that particular February morning.
In May 1986, the district court heard Pursel's case in a one-day bench trial. Evidence established, among other things, that water had
pooled in a pothole or indentation of some sort in the street adjacent to the ramp and had splashed onto the ramp and frozen at some point
prior to the time of Pursel's fall. Moreover, evidence established that the City was not on actual notice of the dangerous conditions that
proximately caused Pursel's fall. At the conclusion of the trial, the district court issued an oral ruling from the bench, finding for Pursel and
against the City. Despite the district court's finding that the City was not on actual notice of any ice build up or other defective condition,
the court concluded that the City cannot keep its eyes closed and simply not be liable in the face of constructive notice, and the City
cannot simply turn a blind eye and some how duck responsibility."
a blind eye and some how duck responsibility. Other peculiar events transpired over the
course of the next six years until the district court finalized the findings of fact, conclusions
of law and judgment for Pursel in 1993;
1
these events, however, are not germane to this
opinion.
DISCUSSION
The City now argues that, pursuant to NRS 41.033, the district court should have ruled
against Pursel based on the district court's factual finding that the City was not on actual
notice of a defective condition at the location of Pursel's fall. Moreover, the City challenges
the sufficiency of the evidence to support the district court's ruling.
The general waiver of state immunity provided by NRS 41.031 is subject to specific
exceptions set forth in NRS 41.033:
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.
2

This court has interpreted the quoted statute to except from its purview defective conditions
actually known to the cognizant governmental authority. See Lotter v. Clark Co. Bd. of
Comm'rs, 106 Nev. 366, 368, 793 P.2d 1320, 1322 (1990); Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985). The City argues, therefore, that because the district court
found that the City was not on actual notice of the hazardous condition, the court should have
held against Pursel as a matter of law.
Pursel counters that, although NRS 41.033 pertains to the failure to inspect or discover a
hazard not created by the City, this is a case where the City created the hazardous condition.
In other words, the construction of the ramp in question implicates an operational duty for
which the City has not waived immunity. See Andolino v. State, 97 Nev. 53, 624 P.2d 7
(1981) (the state may be sued for operational acts but maintains immunity for policy
decisions or discretionary acts); see also State v. Webster, 88 Nev. 690, 693, 504 P.2d 1316,
1319 {1972) {although the State had no duty to construct the freeway, once the decision
to construct the freeway was made, the State was obligated to use due care to assure
that the freeway was constructed so as to be reasonably safe for the traveling public).
__________

1
Judge Thompson was not the judge who presided over the bench trial, heard the evidence, and issued an oral
ruling from the bench.

2
The version of NRS 41.033 applicable to this cause of action was superseded by a revised version in 1993.
Nev. 690, 693, 504 P.2d 1316, 1319 (1972) (although the State had no duty to construct the
freeway, once the decision to construct the freeway was made, the State was obligated to use
due care to assure that the freeway was constructed so as to be reasonably safe for the
traveling public).
In line with Webster, we conclude that the City does indeed have an operational duty to
assure the reasonably safe construction of its public sidewalks, including the wheelchair ramp
in question. We conclude further, however, that Pursel has failed to tender substantial
evidence on the issue of the ramp's construction. The record on appeal, in fact, is completely
devoid of evidence pertaining to the construction of the ramp on which Pursel slipped and
fell. The testimonial evidence of record establishes the general characteristics of the ramp, the
manner in which cars would splash water onto the ramp as they rounded the corner and
displaced water from the street, and the subsequent formation of ice on the ramp. However,
the evidence proves nothing about the condition of the ramp and surrounding street at the
time of construction, or whether conditions causing water to splash onto the ramp (the
pothole adjacent to the ramp in particular), existed at that time. The answers to these
unanswered questions form the basis of Pursel's burden of proof, thus demonstrating that the
hazard resulted from defective construction rather than the development of conditions
occurring sometime subsequent to, and independent of, the construction of the street and
ramp, concerning which the City was unaware and therefore immune under NRS 41.033.
3
In
terms of foreseeability in particular, and negligence in general, evidence pertaining to
conditions prevailing at the time of construction is therefore essential to a finding that the
City failed to exercise reasonable care in the construction of the ramp, and such evidence is
conspicuously absent from the record.
We have carefully considered all other issues raised on appeal, but in light of this
disposition, they need not be addressed.
CONCLUSION
For the reasons discussed above, the judgment entered by the district court is reversed and
vacated.
4

__________

3
See Phipps v. City of McGill, 97 Nev. 233, 627 P.2d 401 (1981) (the State is immune from suit for negligence
with respect to dangerous conditions of which it does not have notice).

4
____________
110 Nev. 1239, 1239 (1994) Parsons v. District Court
DAVID EARL PARSONS, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Nye, and THE HONORABLE
JOHN P. DAVIS, District Judge, Respondents, and THE STATE OF NEVADA, Real
Party in Interest.
No. 23999
November 30, 1994 885 P.2d 1316
Petition for a writ of mandamus or prohibition directing the district court to rescind its
order vacating the sentence imposed by the justice court and remanding the case to justice
court for a preliminary hearing. Fifth Judicial District Court, Nye County; John P. Davis,
Judge.
In felony driving under influence (DUI) prosecution, the justice court granted defendant's
motion to strike one prior conviction, amended complaint to second offense misdemeanor
DUI charge, allowed defendant to plead guilty, and sentenced him. The district court granted
state's petition for writ of certiorari, vacated conviction, and rescheduled preliminary hearing
in justice court. Defendant petitioned for writ of mandamus or prohibition. The supreme court
held that: (1) district court properly entertained state's petition for writ of certiorari; (2) justice
court exceeded its jurisdiction; and (3) double jeopardy did not bar prosecution on felony
DUI charge.
Petition denied.
John G. Watkins, Las Vegas, for Petitioner.
Arthur F. Wehrmeister, District Attorney, and Kirk D. Vitto and Rachel Nicholson, Deputy
District Attorneys, Nye County for Respondents.
1. Mandamus; Prohibition.
Petitions for extraordinary writs are addressed to court's sound discretion, and may issue only when there is no plain, speedy, and
adequate remedy of law. NRS 34.320, 34.330.
2. Criminal Law.
Statute providing that state may appeal to district court from order of justice court granting defendant's motion to suppress
evidence was inapplicable to justice court's action in granting felony driving under influence (DUI) defendant's motion to strike one
prior conviction, amending complaint to second-offense misdemeanor charge, and allowing defendant to plead guilty and, thus, state
had no adequate remedy at law, and district court properly entertained state's petition for writ of certiorari. Justice court's order was not
simply order suppressing evidence, but was final judgment of conviction. NRS 34.020(2), 189.120.
3. Criminal Law.
Justice court, acting prior to preliminary hearing scheduled before it, exceeded its jurisdiction in suppressing felony driving under
influence (DUI) defendant's second prior DUI conviction, amending complaint from felony to misdemeanor, and sentencing defendant
pursuant to guilty plea. There was no statute providing court with jurisdiction over felony DUI charge, defendants are statutorily
precluded from pleading to offenses that are not triable in justice court and, while justice court is statutorily authorized to permit
amendment, it is not allowed to amend complaint of its own accord. NRS 4.370(1), (3), 171.196, 173.095, 484.379, 484.3792.
Statute providing that justice court may permit indictment or information to be amended does not permit court to amend complaint
of its own accord. NRS 173.095.
5. Double Jeopardy.
For defendant to invoke double jeopardy clause of Fifth Amendment as bar to prosecution, defendant must be prosecuted in court
of competent jurisdiction. U.S. Const. amend. 5.
6. Double Jeopardy.
Jeopardy did not attach when justice court sentenced defendant for second-degree misdemeanor driving under influence (DUI)
and, thus, double jeopardy did not bar his prosecution in district court on felony DUI charge based on same facts underlying
misdemeanor conviction. Justice court lacked jurisdiction over felony originally charged and, because state did not agree to amend
felony complaint to misdemeanor complaint, there was no valid complaint charging defendant with misdemeanor. U.S. Const. amend.
5; NRS 484.379, 484.3792.
OPINION
Per Curiam:
Petitioner David Earl Parsons (Parsons) was charged by criminal complaint with one count of felony driving under the influence (DUI).
The justice court granted Parsons' motion to strike one of his prior convictions, amended the complaint to a second-offense misdemeanor
DUI charge, allowed Parsons to plead guilty, and sentenced him. The district court granted the State's petition for a writ of certiorari,
finding that the justice court's actions were in excess of its jurisdiction. Accordingly, the district court vacated Parsons' conviction and
rescheduled the preliminary hearing in justice court. Parsons alleges that the district court erred in granting the State's petition for a writ of
certiorari. For the reasons stated below, we conclude that Parsons' contentions are without merit, and deny his petition.
FACTS
Parsons, who had two prior DUI misdemeanor convictions within seven years, was charged by criminal complaint with one count of
third-offense felony DUI in violation of NRS 484.379 and NRS 4S4.3792.
and NRS 484.3792. A preliminary hearing was scheduled to be held in justice court on April
20, 1992. Immediately prior to the preliminary hearing, however, Parsons' counsel asserted
that the second-offense misdemeanor DUI conviction was constitutionally infirm and argued
that it should be suppressed. The parties conferred off-the-record with the judge, then
commenced the proceeding.
At this time, Parsons' counsel made a motion to have the felony offense stricken down to
a second offense DUI on the basis that the complaint charging Parsons with a
second-offense DUI had been improper because it incorrectly stated that the first offense had
occurred in Las Vegas, Nevada, rather than in Flagstaff, Arizona. Parsons' counsel thus
requested that Parsons be allowed to enter a plea and receive his sentence. The State objected,
arguing that the justice court had no jurisdiction to accept a plea to a felony charge, and could
only determine whether or not to bind Parsons over to the district court.
The justice court noted its opinion that if Parsons had had effective counsel at the time of
his hearing on the second DUI charge the problem with the complaint would have been noted
and the charge could have been dismissed or reduced to a first-offense DUI.
1
The justice
court also noted that the complaint in the instant case listed the prior offenses correctly, but
went on to strike the complaint and allow Parsons to enter a guilty plea to a second-offense
misdemeanor DUI charge. Parsons was sentenced to thirty days in jail, to be served
intermittently, and ordered to pay an $800.00 fine. Parsons subsequently fled the jurisdiction,
and has neither served his sentence nor paid his fine.
The State filed a motion to arrest judgment with the justice court and an appeal of the
judgment with the district court, both of which were denied. The State then filed a petition for
a writ of certiorari in the district court, arguing that the justice court exceeded its jurisdiction
in amending the felony complaint to a misdemeanor and sentencing Parsons.
The district court granted the State's petition, issuing an order nullifying Parsons'
conviction and rescheduling the preliminary hearing in justice court for a determination of
whether or not probable cause existed to bind Parsons over to the district court on the felony
charge.
Parsons filed this petition for a writ of mandamus or prohibition directing the district court
to void its order and vacate the rescheduled preliminary hearing.
__________

1
The justice court based this opinion on its own knowledge, as Parsons had been convicted on a guilty plea for
this second offense in the same justice court in which he appeared in the instant case.
DISCUSSION
Standard of review
[Headnote 1]
Petitions for extraordinary writs are addressed to the sound discretion of the court, and
may issue only when there is no plain, speedy, and adequate remedy at law. State ex rel. Dep't
Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983); NRS 34.330. A writ of prohibition
may issue to arrest the proceedings of a district court exercising its judicial functions when
such proceedings are in excess of the jurisdiction of the district court. NRS 34.320. A writ of
mandamus is available to compel the performance of an act which the law requires as a duty
resulting from an office, trust or station, or to control an arbitrary or capricious exercise of
discretion. NRS 34.160; see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d
534 (1981).
Whether the district court erred in entertaining the State's petition for a writ of certiorari
[Headnote 2]
A writ of certiorari may be granted in all cases when an inferior tribunal, board or officer,
exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer
and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate
remedy. NRS 34.020(2).
Parsons argues that the district court erred in entertaining the State's petition for a writ of
certiorari because the State had an adequate remedy at law pursuant to NRS 189.120
2
to
challenge the justice court's order suppressing one of the alleged prior convictions.
We conclude that Parsons' argument is without merit. NRS 189.120 is inapplicable in the
instant case because the justice court's order was not simply an order suppressing evidence,
but was a final judgment of conviction. The State appealed the justice court's judgment
pursuant to NRS 177.015(1)(a), which provides that in a criminal action, the State or the
defendant can appeal [t]o the district court of the county from a final judgment of the
justice's court. However, the district court, laboring under the assumption that NRS
1S9.120 applied in this case, denied the appeal for being untimely.
__________

2
NRS 189.120 states, in pertinent part:
1. The state may appeal to the district court from an order of a justice's court granting the motion of a
defendant to suppress evidence.
2. Such an appeal shall be taken:
(a) Within 2 days after the rendition of such an order during a trial or preliminary examination.
(b) Within 5 days after the rendition of such an order before a trial or preliminary examination.
assumption that NRS 189.120 applied in this case, denied the appeal for being untimely.
The State's only remedy was to treat the justice court's actions as a discharge of the felony
charge, and to move the district court for leave to file an information by affidavit with the
district court, thus overriding the justice court's decision. See NRS 173.035. On June 26,
1992, the State filed such a motion, but the district court denied it on the basis that no valid
preliminary hearing had been conducted in justice court as required by NRS 173.035.
Accordingly, the State was left without an adequate remedy to contest the justice court's
alleged excess of jurisdiction.
The district court is empowered to entertain petitions for writs of certiorari to prevent the
justice court from exceeding its jurisdiction, which is exactly what the district court did in the
instant case. Accordingly, we hold that the district court did not err in entertaining the State's
petition for a writ of certiorari.
Whether the district court erred in concluding that the justice court exceeded its jurisdiction
[Headnote 3]
Parsons further contends that the district court erred in concluding that the justice court
exceeded its jurisdiction in suppressing Parsons' second DUI conviction and amending the
criminal complaint from a felony to a misdemeanor charge. We disagree.
Justice courts have only the authority granted by statute. See NRS 4.370(1). NRS 4.370(3)
provides, Justices' courts have jurisdiction of all misdemeanors and no other criminal
offenses except as otherwise provided by specific statute. There is no statute providing the
justice court with jurisdiction over a felony DUI charge. Thus, the justice court clearly lacked
jurisdiction over the felony charge against Parsons.
Additionally, NRS 171.196 provides, [w]here the offense is not triable in the justice's
court, the defendant shall not be called upon to plead. Accordingly, the justice court erred in
allowing Parsons to enter a plea. The justice court's only proper course of action given the
felony charge against Parsons was to bind him over to district court or dismiss him based on
an evidentiary evaluation of whether or not there was probable cause that the felony had been
committed. See NRS 171.206.
[Headnote 4]
Moreover, as the district court noted in granting the State's petition for a writ of certiorari,
the justice court had no authority to sua sponte amend a felony complaint to a misdemeanor.
Parsons argues that the justice court had such authority pursuant to NRS 173.095, which
provides in part: 1.
1. The court may permit an indictment or information to be amended at any time
before verdict or finding if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced.
(Emphasis added.) NRS 173.095, however, does not support Parsons' argument. The statute
allows the court to permit an amendment, not to amend the complaint of its own accord. A
sua sponte amendment from a felony to a misdemeanor amounts to the justice court
attempting to charge a defendant absent any authority to do so, as the discretion and power to
charge a defendant belong solely to the attorney general or the district attorney. See NRS
173.045. In the instant case, the State did not agree to the amendment; therefore, there was no
misdemeanor charge pending against Parsons when the justice court permitted him to enter a
plea.
Parsons additionally argues that the justice court had jurisdiction to amend the complaint
despite NRS 4.370, NRS 171.196, and NRS 171.206 because these statutes govern
preliminary hearings, and before any preliminary hearing was conducted, the defense counsel
made an oral motion to suppress one of the prior misdemeanor convictions in accordance
with NRS 174.125.
3
Such an argument fails to address the basic problem inherent in the
justice court's actions. It was within the discretion of the justice court to consider the
constitutional sufficiency of the priors only in the context of making an evidentiary
determination of whether or not probable cause existed to bind Parsons over on the felony
charge. When the justice court determined that a prior conviction was infirm on constitutional
grounds, and that the felony charge accordingly could not stand, the only order that the justice
court was jurisdictionally empowered to enter was a dismissal of the felony charge.
4

In conclusion, we hold that the district court did not err in determining that the justice
court exceeded its jurisdiction in suppressing Parsons' second DUI conviction, amending the
complaint from a felony to a misdemeanor, and sentencing Parsons.
__________

3
Parsons' assertion that his motion was made in accordance with NRS 174.125 is incorrect, as the motion was
not made in writing or with the requisite notice to the State. Thus, the State was in a position where it was
unprepared to rebut the allegation of the constitutional infirmity of the second-offense DUI conviction.

4
In the instant case, however, the justice court improperly relied on its own knowledge in evaluating the
constitutional sufficiency of the second conviction. The justice court's personal knowledge of the circumstances
regarding Parsons' conviction for the second-offense misdemeanor DUI charge was not part of the record, and
the use of this personal knowledge prejudiced the State. Accordingly, in the interests of justice, we recommend
that the rescheduled preliminary hearing occur in a different justice court.
Whether the double jeopardy clause of the Fifth Amendment prevents the State from further
prosecuting petitioner
Parsons argues that jeopardy attached when the justice court sentenced him for a
second-offense misdemeanor DUI, and that the State's attempt to prosecute him on a felony
DUI charge based on the same facts underlying the misdemeanor conviction constitutes a
violation of his Fifth Amendment rights. We disagree.
[Headnote 5]
In order for a defendant to invoke the double jeopardy clause of the Fifth Amendment as a
bar to prosecution, a defendant must be prosecuted in a court of competent jurisdiction. See
Serfass v. United States, 420 U.S. 377, 391-92 (1975) (Both the history of the Double
Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding
begins before a trier having jurisdiction to try the question of the guilt or innocence of the
accused.' (quoting Kepner v. United States, 195 U.S. 100, 133 (1904))); accord State v.
Lujan, 712 P.2d 13, 18 (N.M. Ct. App. 1985) ([T]he jurisdictional exception means that
jeopardy cannot extend to an offense beyond the jurisdiction of the court in which the accused
is tried.); State v. Cockrell, 689 P.2d 32, 36 (Wash. 1984); In re DuBois, 84 Nev. 562, 567
n.3, 445 P.2d 354, 356 n.3 (1969) (noting that a lack of jurisdiction in the municipal court to
convict for the felony with which appellant was later charged may also serve as an
independent basis for denying the claim of former jeopardy); State v. Holm, 55 Nev. 468,
472, 37 P.2d 821, 822 (1935) (stating that the statute barring double jeopardy seems to
contemplate that for a plea of jeopardy to be available it is necessary for the accused to have
been proceeded against in a court of competent jurisdiction).
[Headnote 6]
As discussed above, in this case there was no valid complaint charging Parsons with a
misdemeanor because the State did not agree to an amendment of the felony complaint. Thus,
the only complaint in existence when Parsons was sentenced was one charging a felony, over
which the justice court had no jurisdiction. An acquittal or a conviction by a court having no
jurisdiction is void; therefore it is not a bar to subsequent indictment and trial by a court
which has jurisdiction over the offense. Ex Parte Alexander, 80 Nev. 354, 359, 393 P.2d
615, 617 (1964) (holding that because the failure of the indictment to allege that the crime
was committed in the State of Nevada prevented the district court from acquiring jurisdiction
to try the case, the conviction resulting from trial was void and the petitioner could be
retried). Therefore, Parsons' Fifth Amendment rights would not be violated if the justice court
bound him over to the district court for a trial on the felony charge.
The purpose of the double jeopardy prohibition is to prevent the government from
harassing citizens by subjecting them to multiple suits, or to the expense, embarrassment and
ordeal of repeated trials. Green v. United States, 355 U.S. 184, 187 (1957); State v. Lujan,
712 P.2d 13, 17 (N.M. Ct. App. 1985). In the instant case, Parsons was not subjected to a
trial, but was instead improperly permitted to plead guilty to a reduced charge upon his own
motiona motion having no basis in law. Additionally, Parsons has neither served his
sentence nor paid his fine, and has fled the jurisdiction. Thus, any prejudice to him would be
minimal.
Accordingly, we conclude that Parsons' conviction is void and reject his claim that double
jeopardy prevents the State from holding another preliminary hearing in the justice court on
the felony complaint.
CONCLUSION
Based on the foregoing, we refuse to direct the district court to vacate its order nullifying
Parsons' sentence and rescheduling the preliminary hearing. Parsons' petition is hereby
denied.
____________
110 Nev. 1246, 1246 (1994) Bopp v. Lino
ANDRAE BOPP and MICHELLE BOPP, Appellants, v. JAMES LINO and DANA LINO,
Respondents.
No. 24397
November 30, 1994 885 P.2d 559
Appeal from an order of the district court granting visitation rights to the natural paternal
grandparents of an adopted child. Fourth Judicial District Court, Elko County; Jack B. Ames,
Judge.
After child's natural parents were divorced and child's stepfather adopted child with natural
father's consent, child's paternal grandparents (natural father's parents) petitioned for
visitation rights to child. The district court granted visitation rights. Appeal was taken. The
supreme court held that grandparents lacked standing to petition for, and court lacked
jurisdiction to grant, visitation rights.
Reversed.
Matthews & Wines, Elko, for Appellants.
Gary D. Woodbury, Elko, for Respondents.
110 Nev. 1246, 1247 (1994) Bopp v. Lino
Frankie Sue Del Papa, Attorney General and Nancy Ford Angres, Deputy Attorney
General, Carson City, for Amicus Curiae.
District court's findings of fact will not be set aside unless those findings are clearly erroneous.
If district court's findings of fact are supported by substantial evidence, they will be upheld. Substantial evidence is that evidence
which reasonable mind might accept as adequate to support conclusion.
District court's conclusions of law are reviewed de novo.
4. Adoption.
Paternal grandparents lacked standing to petition for visitation rights with their grandchild, where child's parents divorced, child's
mother remarried, child's stepfather adopted child with approval of child's natural father (grandparents' son), and grandparents did not
petition for visitation rights prior to or at adoption proceedings; after adoption decree was entered, grandparents' legal relationship with
child ceased to exist. NRS 125A.330, 127.171.
5. Adoption.
Trial court lacked jurisdiction to grant child's parental grandparents visitation rights after child's adoption by his stepfather with
consent of child's natural father (grandparents' son), as grandparents did not petition for visitation rights either before or at adoption
proceedings. NRS 125A.330, 127.171.
OPINION
Per Curiam:
This is a case of first impression in Nevada. This case involves visitation rights to three and one-half year old Kyndra Michelle Bopp
(Kyndra). Kyndra's parents were married for a short time and divorced when she was seven months old. Three months later, Kyndra's
mother remarried and Kyndra's stepfather adopted her with the consent of her natural father. Respondents are the parents of Kyndra's
natural father.
Eight months after the adoption, respondents petitioned for visitation rights to Kyndra. After hearing testimony of the parties and
expert witnesses, the district court concluded that visitation would be in Kyndra's best interest, and it granted visitation rights to
respondents.
For reasons stated hereafter, the district court's order granting visitation to respondents is reversed.
FACTS
Respondents James R. Lino and Dana Lino
1
(the Linos) are the natural paternal grandparents of
Kyndra.
__________

1
Respondents James Lino and Dana Lino were previously married and
110 Nev. 1246, 1248 (1994) Bopp v. Lino
natural paternal grandparents of Kyndra. Appellant Michelle Bopp (Michelle) is Kyndra's
mother. Michelle married respondents' son, Robert Lino (Robert), on June 24, 1989. Kyndra
was born to that marriage on July 3, 1990. Shortly thereafter, marital difficulties arose
between Michelle and Robert resulting in their divorce on February 5, 1991. Michelle was
granted physical custody of Kyndra.
Three months later, on May 19, 1991, Michelle married appellant Andrae Bopp (Andy).
Robert continued to have visitation rights with Kyndra until November 20, 1991, when he
relinquished his parental rights so that Kyndra could be adopted by Andy. On November 25,
1991, a decree of adoption was entered.
Eight months after the adoption, on July 17, 1992, the Linos filed a Petition for
Visitation with the district court. The Bopps opposed visitation because they believed that
visitation was not in the best interests of Kyndra. The Bopps also contended that the Linos
did not have standing to pursue visitation rights. Arguments on the petition for visitation were
heard by the district court on February 5, 1993. The district court, in concluding that
visitation was in the best interests of Kyndra, opined:
After listening to the testimony and observing the demeanor of the witnesses, the
court believes that visitation with the [Linos] will not hinder the minor child's adoptive
relationship or harm the child's emotional or physical well being. It is undisputed that
until shortly after the divorce of Robert and Michelle, [the Linos] had a loving and
caring relationship with their granddaughter, Kyndra. That relationship continued even
after the divorce when Robert had visitation and took Kyndra to the homes of the
[Linos]. Michelle testified she gave notice she was terminating the right of [the Linos]
to visit their granddaughter. This court finds that a relationship would still exist
between Kyndra and [the Linos] but for the actions of Michelle.
The Petition filed by the [Linos] to establish a limited visitation appears to this court
to be motivated out of their continuing love and affection for Kyndra. The problems
that have been testified to between the [Linos] and Kathy Lino on one side and Andrea
[sic] and Michelle on the other do not appear to this court to be significant. Those
problems seem to be somewhat magnified by the Bopps' natural fear that Kyndra will
learn of the adoption before they are ready to discuss it with her. . . .
The difficulties of raising a child in today's society are frightening.
__________
currently maintain a friendly relationship. James Lino has been married to his present wife, Kathy, for over 20
years.
110 Nev. 1246, 1249 (1994) Bopp v. Lino
frightening. The ability to interact with people of all ages whether it be with parents,
grandparents or peers is very important. It is the disintegration of the family that has
been blamed for many of society's problems. Courts should attempt, where possible, to
encourage family unity not to destroy it.
Kyndra is most fortunate to have parents that love her dearly. This court believes a
child cannot receive too much love and affection. Knowing that she is loved by the
[Linos] as well as her parents will only enhance Kyndra's security and feeling of well
being.
Therefore, this court finds it is in the best interests of Kyndra that the [Linos] be
granted limited visitation.
The district court went on to grant the Linos visitation rights on the first Wednesday of every
month for two hours during the lunch period.
LEGAL DISCUSSION
[Headnotes 1-3]
The district court's findings of fact will not be set aside unless those findings are clearly
erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590,
591-92 (1990). Accordingly, if the district court's findings are supported by substantial
evidence, they will be upheld. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129,
130, 734 P.2d 1236, 1237 (1987). Substantial evidence is that evidence which a reasonable
mind might accept as adequate to support a conclusion. State Emp. Security v. Hilton Hotels,
102 Nev. 606, 608, 729 P.2d 497, 498 (1986). The district court's conclusions of law,
however, are reviewed de novo. City of Reno v. Van Ermen, 79 Nev. 369, 381, 385 P.2d 345,
351 (1963); see also Great American Airways v. Airport Authority, 103 Nev. 427, 429, 743
P.2d 628, 629 (1987).
Whether respondents had standing to petition for visitation rights
[Headnote 4]
Under common-law principles, grandparents did not have any legal right to visit and
communicate with their grandchildren if visitation and communication were forbidden by the
child's parents. The reasoning behind that rule of law was that any judicial enforcement of
grandparent visitation rights would serve to divide, and to thereby hinder, proper parental
authority. See generally 59 Am. Jur. 2d Parent and Child 36 (1987 & Supp. 1993); see also
Roberts v. Davis, 328 So. 2d 879 (Fla. Dist. Ct. App. 1976) (reversing lower court's grant of
visitation rights to paternal grandparents); Carlson v. Carlson, 55S P.2d S36 {Wash. Ct.
App.
110 Nev. 1246, 1250 (1994) Bopp v. Lino
paternal grandparents); Carlson v. Carlson, 558 P.2d 836 (Wash. Ct. App. 1976) (state law
did not authorize the court to grant visitation rights to maternal grandparent).
In recent years, however, statutes regarding grandparental visitation have been rapidly
shifting emphasis towards whether grandparental visitation is in the best interests of the child.
See, e.g., NRS 125A.330. However, there is a split of authority on grandparental visitation
rights when a child's parents divorce and the custodial parent remarries and the new
stepparent adopts the child with the noncustodial parent's approval. See generally Annotation,
Grandparents' Visitation Rights, 90 A.L.R. 222 (1979 & Supp. 1993). Generally, in the
absence of a statute to the contrary, a natural grandparent has no visitation rights to a
grandchild once that child has been adopted. See Ex parte Bronstein, 434 So. 2d 780 (Ala.
1983) (the consequence of adoption is to divest the natural parent of all legal rights and
obligations to the child; such abrogation of all legal relationship and rights as to a natural
parent must likewise apply to the grandparent of an adopted child); Lipginski v. Lipginski,
476 N.E.2d 924 (Ind. Ct. App. 1985) (adoption removed condition precedent to grandparents'
rights to seek visitation); see also Bond v. Yount, 734 P.2d 39 (Wash. Ct. App. 1987)
(paternal grandparents had no standing to petition for visitation of grandchild who already
had been adopted under strong public policy holding the privacy of adoption to be
sacrosanct).
The Bopps contend that the Linos lacked standing to petition the district court for
visitation rights to Kyndra, because after the adoption Kyndra was no longer a legal relative
of the Linos. In support of this contention, the Bopps cite to NRS 127.160 which, in pertinent
part, provides:
Upon the entry of an order of adoption, the child shall become the legal child of the
persons adopting him, and they shall become his legal parents with all the rights and
duties between them of natural parents and legitimate child. . . . After a decree of
adoption is entered, the natural parents of an adopted child shall be relieved of all
parental responsibilities for such child, and they shall not exercise or have any rights
over such adopted child or his property. The child shall not owe his natural parents or
their relatives any legal duty nor shall he inherit from his natural parents or kindred.
This statute establishes a new legal family for the adopted child and terminates the legal
relationship between the child and her natural kindred. Thus, except as otherwise expressly
provided by the Nevada Revised Statutes, the Linos have no rights with respect to Kyndra,
including visitation with her, subsequent to Kyndra's adoption.
110 Nev. 1246, 1251 (1994) Bopp v. Lino
respect to Kyndra, including visitation with her, subsequent to Kyndra's adoption.
1. In a proceeding for the adoption of a child, the court may grant a reasonable right
to visit to certain relatives of the child only if a similar right had been granted
previously pursuant to NRS 125A.330.
2. The court may not grant a right to visit the child to any person other than as
specified in subsection 1.
This statute provides an exception to the termination of legal rights of certain relatives to a
child who is the subject of adoption proceedings. Prior to the entry of a decree of adoption,
certain relatives continue to have a legal relationship with the child. Because of that legal
relationship, certain relatives may petition in the adoption proceeding for an order granting
visitation rights, but only if that right had previously been granted to them under NRS
125A.330. In the instant case, it is undisputed that visitation rights had not previously been
granted pursuant to NRS 125A.330. The Linos did not petition for visitation rights prior to or
at the adoption proceedings. After the adoption decree was entered, the Linos' legal
relationship with Kyndra ceased to exist. Nevada does not have a statute permitting
ex-relatives to petition for visitation.
2
Accordingly, the Linos had no standing to petition for
visitation.
Whether the district court has jurisdiction to grant visitation rights after a decree of adoption
has been granted
[Headnote 5]
The final issue in this case is whether the district court had jurisdiction to grant visitation
rights to the Linos after Kyndra was adopted by her stepfather. Several statutes are controlling
on this issue. In pertinent part, NRS 125A.330 provides:
__________

2
In the district court, the Linos relied primarily on this court's decision in Morse v. Daly, 101 Nev. 320, 704
P.2d 1087 (1985). In Morse, this court held that it was within the proper exercise of the district court's equitable
powers to condition an adoption decree by reserving jurisdiction to consider possible future requests for
visitation privileges by the child's step grandmother (respondent Daly was married to the child's natural
grandfather). This court further stated 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. Morse, 101 Nev. at 323, 704 P.2d at 1089.
However, the Linos' reliance on Morse is misplaced. Morse was decided before NRS 127.171 was enacted. That
statute precludes the district court from granting visitation rights to anyone who had not previously been granted
visitation under 125A.330. It is undisputed that the Linos were not granted visitation rights prior to or at the
adoption proceedings.
110 Nev. 1246, 1252 (1994) Bopp v. Lino
1. . . . [I]f a parent of an unmarried minor child is deceased or divorced or separated
from the parent who has custody of the child, or his parental rights have been
relinquished or terminated, the district court . . . may grant to the grandparents, parents
and other children of either parent of the child a reasonable right to visit the child
during his minority, if the court finds that the visits would be in the best interests of the
child.
. . . .
3. Rights to visit a child may be granted:
(a) In a divorce decree;
(b) In an order of separate maintenance; or
(c) Upon a petition filed by an eligible person after a divorce or separation or after
the death of the parent to whom the person was related, or upon the relinquishment or
termination of a parental right.
(Emphasis added.) Under this statute the primary determination for the district court to make
is whether visitation is in the best interests of the child. Once that determination is made,
visitation can be granted at three distinct times: (1) in a divorce decree; (2) in an order for
separate maintenance; or (3) upon a petition filed by an eligible person after a divorce or
separation, or upon the relinquishment of parental rights. Utilizing the maxim of statutory
construction expressio unius est exclusio alterius, those three times are the only times when
visitation can be granted under NRS 125A.330. In the instant case, visitation was not granted
until eight months after Kyndra was adopted by Andy.
In regards to visitation rights in adoption proceedings, NRS 127.171 provides:
1. In a proceeding for the adoption of a child, the court may grant a reasonable right
to visit to certain relatives of the child only if a similar right had been granted
previously pursuant to NRS 125A.330.
2. The court may not grant a right to visit the child to any person other than as
specified in subsection 1.
This statute expands upon NRS 125A.330 and provides a fourth time for granting visitation
rights (at the adoption proceeding). However, NRS 127.171(2) expressly limits the district
court to granting visitation rights to those persons who had been granted a similar right
previously pursuant to NRS 125A.330. The district court interpreted NRS 127.171 to only be
a restriction on granting visitation rights during an adoption proceeding, not before or after
the adoption proceeding.
An adoption completely abrogates the legal relationship between a child and his natural
parents. NRS 127.160 Likewise, an adoption completely abrogates the legal relationship
between a child and his natural grandparents.
110 Nev. 1246, 1253 (1994) Bopp v. Lino
an adoption completely abrogates the legal relationship between a child and his natural
grandparents. Ex parte Bronstein, 434 So. 2d 780 (Ala. 1983). However, NRS 127.171 also
extends visitation rights to close relatives who possessed those rights before the grandchild
was adopted. In addition, NRS 127.171 serves as a statute of limitations on the right of a
grandparent to petition for visitation rights to a grandchild.
The district court's interpretation of NRS 127.171 is convenient to the decision that
resulted. However, that interpretation renders the statute nugatory. NRS 127.171 clearly and
unambiguously limits visitation rights to the subject of an adoption to those persons who had
previously obtained similar rights pursuant to NRS 125A.330, and under no other
circumstances. If the district court already had unfettered jurisdiction to grant visitation rights
after an adoption, the Nevada Legislature would not have enacted NRS 127.171. Moreover,
the Nevada Legislature would not have limited visitation rights to those already possessing
that right if it had intended the district court to be able to create visitation rights after an
adoption.
CONCLUSIONS
An adoption severs the legal relationship between a child and her natural kindred. Once an
adoption is entered, a grandparent lacks standing to petition for visitation rights. NRS
127.171 serves as a jurisdictional requisite for a grandparent to petition for visitation rights to
a natural grandchild. The Linos did not petition for visitation rights until eight months after
Kyndra was adopted. Thus, the Linos' petition for visitation was untimely and the district
court lacked jurisdiction to grant visitation. Accordingly, the district court's order granting
visitation is reversed.
____________
110 Nev. 1253, 1253 (1994) Jones v. Jones
KIMBERLY ANN JONES, Now Known as KIMBERLY ANN PORTER, Appellant, v.
MICHAEL S. JONES, Respondent.
No. 24876
November 30, 1994 885 P.2d 563
Appeal from an order of the district court refusing to allow a parent to remove a minor
from Nevada to California. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Mother petitioned for removal of minor children from State over noncustodial father's
objection. The district court denied petition. Mother appealed. The supreme court held that:
(1) mother met threshold showing for removal of children that move was to actual
advantage of herself and children and also met other factors of balancing test, and {2)
failure to consider possibility of reasonable alternative visitation schedule was abuse of
discretion.
110 Nev. 1253, 1254 (1994) Jones v. Jones
mother met threshold showing for removal of children that move was to actual advantage of
herself and children and also met other factors of balancing test, and (2) failure to consider
possibility of reasonable alternative visitation schedule was abuse of discretion.
Robin Wright, Reno, for Appellant.
Lynn G. Pierce, Reno, for Respondent.
1. Divorce.
Divorced mother's desire to move to California to provide children with better living and growing conditions in more rural
lifestyle, to pursue expanded career opportunities and to pursue serious relationship met actual advantage threshold requirement for
removing children from jurisdiction where they lived. NRS 125A.350.
In determining whether removal of child from state should be permitted, court must first find whether custodial parent has
demonstrated that actual advantage will be realized by both child and custodial parent in moving to location so far removed from
current residence that weekly visitation by noncustodial parent is virtually precluded. NRS 125A.350.
In meeting threshold showing for removal of child from state that actual advantage will be realized by both child and custodial
parent in moving to location which precludes weekly visitation by noncustodial parent, custodial parent need not prove tangible
economic or career advantage, as such issues are subfactors to be considered in balancing test employed by court after custodial parent
meets actual advantage requirement. NRS 125A.350.
In assessing requirement for custodial parent's removal of child from state that out-of-state move would be to actual advantage of
both child and custodial parent, courts are not free to ignore noneconomic factors likely to contribute to well-being and general
happiness of custodial parent and child. NRS 125A.350.
Actual advantage to be realized by both child and custodial parent in move precluding weekly visitation by noncustodial parent
need not be substantial but must be based on sensible good faith reason for move, which means one that is not designed to frustrate
visitation rights of noncustodial parent. NRS 125A.350.
Once custodial parent satisfies threshold showing for removal of child from state that actual advantage to child and custodial
parent will be realized by move out of state, court must consider extent to which move will improve quality of life for both child and
custodial parent, whether custodial parent's motives are honorable and not designed to frustrate noncustodial parent's visitation rights,
whether custodial parent will comply with substitute visitation order issued by court, whether noncustodial parent's motives are
honorable in resisting motion for permission to remove, and whether, if removal is allowed, there will be realistic opportunity for
noncustodial parent to maintain visitation schedule that will adequately foster and preserve parental relationship.
110 Nev. 1253, 1255 (1994) Jones v. Jones
ule that will adequately foster and preserve parental relationship. NRS 125A.350.
7. Divorce.
Improvement in quality of life afforded by rural environment and economic advantages of move, divorced mother's consistent
efforts to strengthen father's relationship with children, mother's willingness to submit to state jurisdiction over custody matters and
work out satisfactory visitation schedule, father's less than active parenting role and failure to exercise all existing visitation rights, and
feasibility of reasonable alternative visitation met balancing test for evaluating removal of children from state. NRS 125A.350.
In determining, for purposes of antiremoval statute, whether removal of child from state will improve child's quality of life, court
should consider such subfactors as whether positive family care and support will be enhanced, whether housing and living conditions
will be improved, whether educational advantages will result for child, whether custodial parent's employment and income will
improve, whether special needs of child will be better served, and whether, in child's opinion, circumstances and relationships will be
improved. NRS 125A.350.
For purposes of balancing test under antiremoval statute, reasonable alternative visitation'' is visitation that will provide adequate
basis for preserving and fostering child's relationship with noncustodial parent if removal is allowed. NRS 125A.350.
When contemplated out-of-state move with child by custodial parent is to location so close that expensive air travel is unnecessary
and even weekly visitation would be possible with extra effort, order by district court for reasonable alternative visitation should
always be possible barring exceptional circumstances. NRS 125A.350.
11. Divorce.
Passive acceptance of divorced father's statement that he did not want children to move, with no attempt to fashion alternative
visitation schedule, and weight given under antiremoval statute balancing test to speculative conclusion that father's timidity would
prevent his continuing relationship with children were abuse of discretion warranting reversal of denial of permission for mother to
move out of state with children. NRS 125A.350.
Custodial parent seeking permission for removal of child under antiremoval statute does not need to show significant economic or
other tangible benefit to meet threshold showing of actual advantage to child and parent from move. If custodial parent shows
sensible, good faith reasons for move, district court should evaluate other factors enumerated in balancing test, focusing on possibility
of reasonable alternative visitation, and if reasonable alternative visitation is possible, burden shifts to noncustodial parent to show
concrete, material reasons why move is inimical to best interests of child. NRS 125A.350.
OPINION
Per Curiam:
Appellant Kimberly Ann Porter (Porter) and respondent Michael S.
110 Nev. 1253, 1256 (1994) Jones v. Jones
Michael S. Jones (Jones) have joint legal custody of their two sons; however, Porter is the
primary physical custodian, while Jones has weekly visitation. Porter wishes to move to
Chico, California, with the two boys. Pursuant to NRS 125A.350, Nevada's anti-removal
statute, Porter sought permission from Jones to move the boys out of the state. When Jones
denied her request, Porter petitioned the district court for removal, and was again denied.
Porter appeals. For the following reasons, we reverse the order of the district court and
remand with instructions to grant Porter's petition.
FACTS
Porter and Jones were divorced in 1989. Porter, a full-time nurse, has been the primary
custodian for her two sons, ages seven and nine, for the past five years. Porter testified that
she has been considering leaving Nevada for some time. After the divorce, she desired to
return to the San Francisco Bay Area where her family lived but did not do so because of the
expense, the potential trauma the move may cause the boys, and the fact that she felt the area
was too crowded to be a good environment for the children.
Porter also desires to leave Nevada to seek expanded opportunities in nursing. During her
eleven-year career as a registered nurse, Porter has worked at all of the local hospitals in the
Reno-Sparks area. She testified that she had topped out in her career here. Porter hopes to
obtain her masters and achieve higher earning capacity elsewhere.
Porter testified that four years after the divorce, she began looking for a good area in which
to raise the boys and seek expanded career opportunities for herself. In 1992, in the midst of
her search, Porter met Russell James (James), who resides in Chico, California. The couple
became acquainted through their mutual involvement in hot air ballooning. Porter and James
were friends for a year before they began a romantic relationship.
James resides on a farm in Chico, California, near the Sacramento River. Porter and the
boys began spending weekends with James in Chico in February of 1993, and plan to live
with James if they move to Chico. Porter testified that though she and James have discussed
marriage, they are not engaged and currently have no plans to get married, having decided
that they both want to wait for a while before making such a big decision. She also testified
that James is good with her boys, is never violent, and is a divorced father who also spends a
lot of time with his own two children.
After a few months of interviewing in Chico, Porter was offered a position at Chico
Community Hospital, with the same general hours she had at her job in Reno and a slightly
higher wage.
110 Nev. 1253, 1257 (1994) Jones v. Jones
wage. In contrast to her position in Reno, where nurses working for twenty years longer than
Porter were making only two dollars an hour more, there was a structure in place for
advancements and pay increases. Additionally, Porter testified that Chico Community
Hospital hoped to use her as a labor and delivery consultant as they expanded that
department. Porter stated that she could also obtain her masters degree from California State
University in Chico.
Porter testified that, having weighed everything, she felt Chico was a better environment
for the children because it is a rural community offering more outdoor activitieshorseback
riding, pack trips, fishing, and farm activitiesthan Porter can provide for the boys in the
Reno/Sparks area. Before accepting the nursing position in Chico, however, Porter discussed
the move with her sons, who told her on more than one occasion that they wanted to move.
Jones, the boys' father and joint legal custodian, does not want Porter to move the boys to
Chico and refuses to grant her the requisite permission. Jones testified that he is concerned
about the cost of gas for the drive to Chico to pick up the boys.
1
Additionally, Jones does not
feel that it is a good moral example for Porter to live with James without being married.
Lastly, Jones testified that the move would make adequate visitation impossible.
Currently, Jones has the boys every other weekend from Friday afternoon until Tuesday
morning. On off weeks, Jones has the boys on Monday night. Jones testified, however, that he
has never taken more than two weeks out of the possible six weeks of summer visitation.
Jones stated that this is because he has only two weeks paid vacation, and he is unable to
afford to pay for four weeks of day care during the summer when he is working. Porter
testified that Jones has never attempted to work out an arrangement with her to abate support
payments during this time. Also, Jones did not exercise his full visitation rights for over a
year when he dropped his weeknight visitation, asserting that it was inconvenient to pick
the kids up in Stead, where they were living at that time. Additionally, despite Porter's
encouragement to do so, Jones has never spent more than his accorded time with the boys.
2

__________

1
Jones, who has been a field engineer at National Cash Register for twelve years, testified that after he pays
child support and health plan costs for himself and the boys, he has just enough money to live on.

2
Porter testified that during the year following the divorce, Jones usually refused her requests to take the boys
on unscheduled weekends when she needed extra help or had a conflict with work. It was not until Jones'
attorney sent him a letter in early 1992 encouraging him to take advantage of such opportunities to spend more
time with the boys that Jones began to occasionally take the boys on times that were not scheduled.
110 Nev. 1253, 1258 (1994) Jones v. Jones
In a letter to Jones explaining her reasons for the move, Porter outlined a revised visitation
schedule in which she suggested that Jones could have the boys during regularly scheduled
holidays, during their spring break, for two weeks at the beginning of summer and two weeks
at the end, and for any three-day weekend that he wanted. Porter also promised that Jones
could see the boys any time she visited the area. She suggested that for transportation for
weekend visits, they could meet halfway in Quincy, California, or alternatively, the receiving
parent could go the distance to pick up the boys. Porter suggested that Jones make any
changes he felt were necessary to her proposed visitation schedule and offered to meet with
him in order to discuss the move.
3
Additionally, at the removal hearing, Porter's counsel
stated that Porter was open and flexible to increase her proposed visitation to whatever the
district court or Jones deemed appropriate to allow her to move with the boys.
The district court did not issue any written findings of fact or conclusions. At the end of
the removal hearing, the district court stated that there were no physical advantages to Chico
over Reno and that there was no economic advantage in the move to Chico. The district court
further stated:
The mother wants to go to Chico to pursue a relationship with a man. Which I think is a
good reason. . . . What is the problem here, is the father doesn't want the children to go,
and this relationship is a short one. Now, I feel like I have got to weigh that against the .
. . situation of the father. . . . The children are entitled to, and certainly benefit from a
continuation of what is an exemplary, everything considered, visitation schedule. [T]hat
brings me to the other factor here. . . . This move, in my opinion, will causewill have
a negative impact on this father's relationship with the children because of his economic
condition and becausebecause he's a timid man. And I do not believe he will make
the extra effort to continue the relationship with his children given the roadblock of
whatever miles it is. It seems like it's hard enough for him to do it now. And maybe it's
time he gets a little more aggressive, but I consider these factors to be the balancing
point here. Whether or not the advantage to the move that will come from pursuing this
relationship outweighs the risk of the loss of the father's company.
The day after the hearing, the judge contacted the parties' counsel by phone and informed
them that Porter's removal petition was denied.
__________

3
Jones refused to meet with Porter alone: instead he requested that the two meet with a mediator. Porter agreed
to mediation, but they were unable to work out an agreement.
110 Nev. 1253, 1259 (1994) Jones v. Jones
DISCUSSION
Porter argues that the district court erred in weighing the evidence, thus making an
improper determination under Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991).
She contends that the district court gave undue weight to Jones' timidity and to its speculation
that Jones would not continue his relationship with the children if they were allowed to move,
thus placing too great a burden on her to show the advantages of the move. Porter also asserts
that the district court improperly found that Jones' visitation had been exemplary,
mischaracterized her relationship with James as a short one, and failed to consider the
possibility of reasonable, alternative visitation. We agree.
In Schwartz, a case of first impression and the only case to date on NRS 125A.350, we
interpreted Nevada's anti-removal statute.
4
We concluded that the overall purpose of NRS
125A.350 is to preserve the rights and relationship of the noncustodial parent with respect to
his or her children. Schwartz, 107 Nev. at 382, 812 P.2d at 1270 (citing Holder v. Polanski,
544 A.2d 852, 855 (N.J. 1988)). We further concluded that the proper calcultion in
determining whether to grant the custodial parent permission to move the children involves a
balancing between the custodial parent's interest in freedom of movement as qualified by
his or her custodial obligation, the State's interest in protecting the best interests of the child,
and the competing interests of the noncustodial parent.' Schwartz, 107 Nev. at 382, 812
P.2d at 1270 (quoting Holder, 544 P.2d at 855).
[Headnotes 1, 2]
In determining the issue of removal, the district court must first find whether the
custodial parent has demonstrated that an actual advantage will be realized by both the
children and the custodial parent in moving to a location so far removed from the current
residence that weekly visitation by the noncustodial parent is virtually precluded. Schwartz,
107 Nev. at 382, 812 P.2d at 1271.
5

__________

4
NRS 125A.350 provides:
If custody has been established and the custodial parent or a parent having joint custody intends to move
his residence to a place outside of this state and to take the child with him, he must, as soon as possible
and before the planned move, attempt to obtain the written consent of the other parent to move the child
from the state. If the noncustodial parent or other parent having joint custody refuses to give that consent,
the parent planning the move shall, before he leaves the state with the child, petition the court for
permission to move the child. The failure of a parent to comply with the provisions of this section may be
considered as a factor if a change of custody is requested by the noncustodial parent or other parent
having joint custody.

5
Porter argues that because a move to Chico, California, does not neces-
110 Nev. 1253, 1260 (1994) Jones v. Jones
It is not clear in this case whether the district court found that Porter made this threshold
showing. Jones argues that the only showing Porter made of any kind of advantage was that
the move would allow Porter to pursue a relationship with Jamesa relationship
characterized by both Jones and the district court as short and relatively insignificant. We
conclude that such a characterization is not supported by the facts. Porter's testimony reveals
that the relationship is one based on friendship that has evolved over many months.
Additionally, the record indicates that Porter's desire to move to Chico is the result of much
thought and research regarding career opportunities and lifestyle choices, rather than a mere
whim to pursue a frivolous, short-term romance.
6

[Headnote 3]
In assessing whether Porter's desire to move to Chico to provide her children with a more
rural lifestyle, to pursue expanded career opportunities, and to pursue a serious relationship, is
enough to meet the actual advantage threshold requirement of Schwartz, we note that the
custodial parent need not prove a tangible economic or career advantage in meeting this
burden, as such issues are subfactors to be considered in a balancing test employed by the
court after the custodial parent makes the threshold showing.
[Headnote 4]
Moreover, in assessing the actual advantage requirement, courts are not free to ignore
noneconomic factors likely to contribute to the well-being and general happiness of the
custodial parent and children. See Gruber v. Gruber, 583 A.2d 434 (Pa. Super.
__________
sarily preclude weekly visitation, the factors delineated in Schwartz may not be applicable to this case. We reject
this argument, as realistically, a move to Chico would preclude weekly visitation. Additionally, NRS 125A.350
applies if a custodial parent intends to move his residence to a place outside of this state and to take the child
with him, making no reference to the distance of the move. We note, however, that the statute does not preclude
moves within the state, no matter how far and how disruptive of visitation. The only justification for this
distinction seems to be a concern that Nevada retain jurisdiction over the children.

6
Attempting to portray Porter as a woman who unthinkingly goes from one man to the next without
consideration for her children, Jones asserts: [T]his is Ms. Porter's third relationship with a man between her
divorce in November, 1989, and when she brought this action in June, 1993, a period of a little more than three
and one-half years. We reject this characterization of Porter. The testimony and evidence in the record shows
that Porter is a mature woman who has always put her children before her personal life. Porter testified that she
broke up with the two men she had dated since her divorce because they did not consider her children important,
stating that she and the boys were a package deal. Porter's refusal to move without court permission further
demonstrates her devotion to her children.
110 Nev. 1253, 1261 (1994) Jones v. Jones
Super. Ct. 1990). We recognize that what is in the best interest of the children cannot be
addressed without considering the best interest of the other members of the household in
which they live. See Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. Ct. 1992). The custodial
parent's right to pursue another relationship is integrally connected to the health and
well-being of the custodial parent. Certainly, the best interests of the children cannot be
considered in a vacuum without looking at the well-being of the custodial parent.
[Headnote 5]
Additionally, we note that:
The advantage . . . need not be a substantial advantage but one based on a sincere and
genuine desire of the custodial parent to move and a sensible good faith reason for the
move.
Cooper v. Cooper, 491 A.2d 607, 613 (N.J. 1984). A good faith reason means one that is
not designed to frustrate the visitation rights of the noncustodial parent. Holder v. Polanski,
544 A.2d 852, 856-57 (N.J. 1988). Accordingly, we conclude that Porter's desire to move to
Chico, California, to enhance her employment opportunities, provide better living and
growing conditions for her children, and pursue her relationship with James, meets the
actual advantage threshold requirement of Schwartz.
[Headnotes 6, 7]
The inquiry under Schwartz, however, does not end here. Once the custodial parent
satisfies the threshold showing of an actual advantage, the district court must consider: (1)
the extent to which the move is likely to improve the quality of life for both the children and
the custodial parent; (2) whether the custodial parent's motives are honorable, and not
designed to frustrate the noncustodial parent's visitation rights; (3) whether the custodial
parent will comply with substitute visitation orders issued by the court; (4) whether the
noncustodial parent's motives are honorable in resisting the motion for permission to remove;
and (5) whether, if removal is allowed, there will be a realistic opportunity for the
noncustodial parent to maintain a visitation schedule that will adequately foster and preserve
the parental relationship with the noncustodial parent. Schwartz v. Schwartz, 107 Nev. 378,
382-83, 812 P.2d 1268, 1271 (1991).
[Headnote 8]
Jones argues that Porter made no showing that the quality of life of the children would be
in any way enhanced by a move to Chico. In determining whether the move will improve the
quality of life, the court should consider subfactors, such as: whether positive family care
and support will be enhanced, whether housing and living conditions will be improved,
whether educational advantages will result for the children, whether the custodial
parent's employment and income will improve, whether special needs of a child will be
better served, and whether, in the child's opinion, circumstances and relationships will be
improved. Id. at 3S3, S12 P.2d at 1271.
110 Nev. 1253, 1262 (1994) Jones v. Jones
of life, the court should consider subfactors, such as: whether positive family care and support
will be enhanced, whether housing and living conditions will be improved, whether
educational advantages will result for the children, whether the custodial parent's employment
and income will improve, whether special needs of a child will be better served, and whether,
in the child's opinion, circumstances and relationships will be improved. Id. at 383, 812 P.2d
at 1271.
Jones argues that family care and support would not be enhanced since Porter has no
relatives in Chico, and that the boys' housing and environment would be diminished rather
than improved because currently the boys have their own room, but would have to share a
bedroom in Chico at James' house. He states that the activities available to the boys in Chico
are equally available to them in Reno, and that there is no educational advantage to Chico
over Reno. Jones also maintains that the boys' opinions do not support removal: though
Porter testified that the boys had told her they were excited about the move, she also admitted
that they had vacillated back and forth and expressed concerns and reservations about moving
away from their friends.
7
Jones further asserts that there would be no improvement in
Porter's employment, because Porter's twenty-one cent per hour raise does not take into
account California state income tax, which would reduce Porter's income.
Porter, however, testified that more rural activities, such as backpacking and horseback
riding, would be available to the boys in Chico, as well as farm activities not available to
them here. Additionally, though Porter's income may not improve from a raise in salary, other
career opportunities, such as consulting, will be available. Also, by living with James and not
being the sole head of household anymore, her general living expenses will decrease so that
she will incur an economic advantage.
Certainly, the record shows that the boys' and Porter's quality of life will not decrease. The
custodial parent should not bear the burden of showing a drastic improvement in quality of
life. A more rural area for those who enjoy outdoor activities, or a different career
opportunity, rather than one bringing a big pay increase, should be taken into account in
evaluating quality of life. And certainly, equal levels of education and family support should
not in themselves tilt the scale against a custodial parent seeking to move. Thus, we reject
Jones' contention that Porter failed to demonstrate any improvement in quality of life.
__________

7
The district court, despite Jones' request, decided not to speak with the children about the move based on the
fact that they had already been questioned intensively by a mediator and by both parents.
110 Nev. 1253, 1263 (1994) Jones v. Jones
The second factor for consideration under Schwartz, the honorableness of the custodial
parent's motives, also weighs in favor of Porter. Jones admits that there was no showing that
Porter's move was in any way motivated by a desire to frustrate Jones' visitation rights.
Moreover, the record shows that Porter has consistently made efforts to strengthen Jones'
relationship with the boys.
The third factor for consideration under Schwartz is likewise in Porter's favor, as Jones
admits that there is no reason to believe that Ms. Porter would not comply with a visitation
schedule ordered by the Court. In fact, Porter has indicated that she would submit to Nevada
jurisdiction over custody matters even after the move and has demonstrated several times her
willingness to work out a visitation schedule that satisfies both Jones and the district court.
The fourth criterion is whether the noncustodial parent's motives are honorable in resisting
the motion for permission to move. The record reveals that Jones obviously cares about his
children and does not want his existing visitation schedule to be disrupted. He has, however,
according to his own testimony as well as Porter's, not taken an especially active role in
parenting and not exercised all of his visitation rights. Thus, we conclude that the district
court's characterization of Jones' visitation as exemplary is an overstatement.
Jones asserts that the fifth factor for consideration under Schwartz, whether there will be a
realistic opportunity for a visitation schedule that will adequately foster and preserve the
parental bond, is not met in this case. We disagree. The move would no doubt make the
maintenance of the current visitation schedule impossible; however, we conclude that
reasonable, alternative visitation exists.
[Headnote 9]
Reasonable, alternative visitation is visitation that will provide an adequate basis for
preserving and fostering a child's relationship with the noncustodial parent if the removal is
allowed.' Schwartz v. Schwartz, 107 Nev. 378, 385 n.5, 812 P.2d 1268, 1272 n.5 (1991)
(quoting Cooper v. Cooper, 491 A.2d 606, 614 (N.J. 1984)) In Schwartz, we rejected the
mother's concerns about the cost involved in seeing her children and the inadequacy of the
time to be spent with the childrenfinding that one month per summer was adequate time to
preserve the maternal bond.
Additionally, as another court has noted:
If either is to sacrifice in this respect, there is indeed less reason to demand the sacrifice
to be made by the custodial parent since it is she in the end who must arrange her life in
a manner consistent with the day-to-day burdens of simultaneously raising a child
and pursuing a career.
110 Nev. 1253, 1264 (1994) Jones v. Jones
manner consistent with the day-to-day burdens of simultaneously raising a child and
pursuing a career.
Helentjaris v. Sudano, 476 A.2d 828, 832 (N.J. Super. Ct. App. Div. 1984); see also In Re
Marriage of Zamarippa-Gesundheit, 529 N.E.2d 780, 783 (Ill. App. Ct. 1988) (stating that
although the father would prefer consistent day-to-day contact with the child, this preference
was insufficient to chain the mother to the State of Illinois); Auge v. Auge, 334 N.W.2d 393,
397-98 (Minn. 1983) (removal may not be disallowed solely to maintain the existing
visitation patterns).
In the instant case, we conclude that the alternative visitation schedule Porter conveyed to
Jones in the letter explaining the move is reasonable. Moreover, Porter has indicated that she
is willing to forego support payments for the four weeks that the boys are with Jones during
the summer, thus relieving his financial concerns. Additionally, Porter is willing to decrease
support payments by $100.00 a month to defray the travel expenses, alleviating Jones'
concern regarding the cost of gas.
[Headnotes 10, 11]
We take special note of the fact that Chico is only three hours away. Though the drive may
be burdensome, it is certainly not impossible and is not financially prohibitive. When a
contemplated move is to a location so close that expensive air travel is unnecessary, and even
weekly visitation would be possible with extra effort, an order by the district court for
reasonable, alternative visitation should always be possible barring exceptional
circumstances.
8
The record shows that the district court in this case did not attempt to
fashion a reasonable, alternative visitation schedule, but instead passively accepted Jones'
assertion that he did not want the children to move. We conclude that this failure to fashion
an alternative visitation schedule constitutes an abuse of discretion under Schwartz.
Additionally, the district court abused its discretion by speculatively concluding that given
Jones' timidity, he would not make the extra effort to continue the relationship with his
children if they moved to Chico. The evidence does not support this conclusion: Jones,
despite his testimony that he is intimidated by Porter, has thus far maintained a relationship
with the boys.
Moreover, such speculation by the district court is not encompassed within the factors
enunciated in Schwartz, for reasons which this case makes clear.
__________

8
This is especially so given that under NRS 125A.350 a custodial parent could move the children to a much
more remote location within Nevada, making visitation nearly impossible, without the need to obtain any
permission at all.
110 Nev. 1253, 1265 (1994) Jones v. Jones
which this case makes clear. In making Jones' timid personality a major balancing point in its
evaluation, the district court placed an unfair burden on Porter. No matter what advantages
she had shown, Jones' timid personality and the speculation that Jones would not continue a
relationship with his children if they moved, could be used by the district court to deny the
move based on the children's best interests. This type of evaluation places an unfair burden
on the custodial parent.
Porter urges us to modify Schwartz to acknowledge a presumption in favor of removal.
Such a standard would entail a presumption that the custodial parent has the best interests of
the children in mind in deciding to move, and shift the burden to the other parent to show that
the move would make reasonable visitation impossible and that it would be inimical to the
best interests of the children. Such an argument is in line with decisions in other jurisdictions.
See, e.g., Holder v. Polanski, 544 A.2d 852 (N.J. 1988).
What these decisions really do, however, is refine the actual advantage standard and
focus on the availability of reasonable, alternative visitation, rather than actually setting up a
presumption in favor of the custodial parent. In Holder, for example, the New Jersey
Supreme Court stated:
Short of an adverse effect on the noncustodial parent's visitation rights or other aspects
of a child's best interests, the custodial parent should enjoy the same freedom of
movement as the noncustodial parent. . . .
Id. at 856 (citations omitted). The court further stated:
Once the court finds that the custodial parent wants to move for a good-faith reason [i.e.
not to thwart the other's visitation rights], it should then consider whether the move will
be inimical to the best interests of the children or adversely affect the visitation rights of
the noncustodial parent. Not every change in a visitation schedule will prejudice those
rights, particularly if the noncustodial parent has not exercised them . . . . If the move
will not substantially change the visitation rights, then the court should determine
whether the move would be inimical to the best interests of the children.
Id. at 856-57. We agree with such reasoning.
[Headnote 12]
Here, we retain the factors outlined in Schwartz, as we do not feel it is necessary to modify
or overrule Schwartz in order to fairly allocate burdens in a removal decision. In this decision,
however, we note that a custodial parent seeking removal does not need to show a
significant economic or other tangible benefit to meet the threshold "actual advantage"
showing.
110 Nev. 1253, 1266 (1994) Jones v. Jones
however, we note that a custodial parent seeking removal does not need to show a significant
economic or other tangible benefit to meet the threshold actual advantage showing. If the
custodial parent shows a sensible, good faith reason for the move, the district court should
evaluate the other factors enumerated in Schwartz, focusing on whether reasonable,
alternative visitation is possible. If reasonable, alternative visitation is possible, the burden
shifts to the noncustodial parent to show that the move is not in the best interests of the
children. Such a showing must consist of concrete, material reasons why the move is inimical
to the children's best interests. Arguments that the children have expressed hesitancy to leave
their friends or that the children may have to share a room instead of having separate rooms
are not enough to show that the move is not in their best interests.
We feel that this allocation of burdens is consistent with the evaluation process enunciated
in Schwartz and is the most equitable way of balancing the interests of the children and the
noncustodial parent, while giving the custodial parent the right to reasonable freedom to
pursue his or her life.
CONCLUSION
We conclude that the district court erred under the balancing test enunciated in Schwartz in
denying Porter's petition to move to Chico, California, in order to raise her children in a more
rural environment, seek expanded career opportunities, and pursue a relationship. We hereby
reverse the order of the district court and remand with instructions to grant Porter's petition
for removal.
____________
110 Nev. 1266, 1266 (1994) Coker Equip. v. Great Western Capital
COKER EQUIPMENT, INC., STANLEY I. COKER, and MARLANE COKER, Appellants,
v. GREAT WESTERN CAPITAL CORPORATION, Respondent.
No. 24923
November 30, 1994 885 P.2d 1321
Appeal from an order granting summary judgment in favor of respondent, Great Western
Capital Corporation. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Lessor sued lessee and its guarantors for amount it claimed lessee owed under lease
agreement. The district court entered summary judgment for lessor, and lessee and guarantors
appealed. The supreme court held that genuine issue of material fact as to whether account
stated in lease modification agreement was mistake of fact precluded summary judgment.
Ward & Maglaras, Ltd., Las Vegas, for Appellants.
Robison, Belaustegui, Robb & Sharp and Susan Ball Rothe, Reno, for Respondent.
1. Judgment.
Summary judgment is only appropriate where, absent genuine issues of material fact, one party is entitled to judgment as matter of
law.
2. Judgment.
Genuine issue of material fact, for summary judgment purposes, is one where evidence is such that reasonable trier of fact could
return verdict for nonmovant.
3. Judgment.
Genuine issue of material fact as to whether account stated in lease modification agreement was mistake of fact precluded
summary judgment in lease dispute; while lessee alleged that mistake of fact existed regarding amount lessee owed lessor at time of
modification agreement, lessor claimed that account stated reflected accumulated interest and attorney's fees.
4. Account Stated.
Account stated is unenforceable if there was fraud or mistake in stating of account.
5. Account Stated.
Debtor may overcome presumption of correctness of account stated by meeting burden of proving fraud, mistake or error.
OPINION
Per Curiam:
This is an appeal from summary judgment in favor of Great Western Capital Corporation. The district court ruled, as a matter of law,
that a contract was formed between Coker Equipment, Inc. and Great Western Capital Corporation despite allegations of a mutual mistake
of fact. We reverse the district court's order granting summary judgment.
Respondent Great Western Capital Corporation (Great Western) and appellant Coker Equipment, Inc. (Coker) are parties to a lease
agreement entered into in August 1982. The agreement provided that Coker would pay a total sum of $812,445.60 for the use of certain
equipment. In addition, Stanley and Marlane Coker, owners of Coker Equipment, signed an absolute guaranty of payment.
In May 1990, Great Western and Coker entered into a modification agreement which allowed Coker additional time to repay the
outstanding balance. Coker alleged before the district court that the sole purpose of the modification agreement was to extend the time for
payment, not to renegotiate the amount due. The parties explicitly agreed that Coker's outstanding balance at that time was $276,930.
In district court Coker alleged that this amount was incorrect according to an in-house
audit it conducted approximately one year after the parties entered into the modification
agreement. Coker's audit revealed that it had paid $66,024.72 more than it owed Great
Western under the original debt. After submitting its reconciliation and copies of its cancelled
checks to Great Western, Coker requested a full accounting from Great Western. When Great
Western declined to provide such an accounting, Coker ceased making further payments.
According to Great Western and the terms of the 1990 modification agreement, Coker's
outstanding balance at the time it ceased making payments was $158,850. Great Western
filed a complaint against Coker Equipment and its guarantors, Stanley and Marlane Coker
(the Coker defendants), for this amount. The Coker defendants filed an answer and a
counterclaim for the $66,024.72 they claimed Coker had overpaid.
The district court granted summary judgment in favor of Great Western against Coker and
its guarantors in the full amount of the outstanding balance alleged by Great Western plus
interest. In addition, the district court entered summary judgment in favor of Great Western
on Coker's counterclaim.
On appeal, the Coker defendants claim that summary judgment was improper because
material issues of fact exist regarding (1) whether the modification agreement was based on a
mistake of fact; (2) whether the guaranty was supported by valid consideration; and (3)
whether Coker Equipment had overpaid and is entitled to judgment on its counterclaim.
[Headnotes 1, 2]
Summary judgment is only appropriate where, absent genuine issues of material fact, one
party is entitled to judgment as a matter of law. American Federal Savings v. Washoe County,
106 Nev. 869, 871, 802 P.2d 1270, 1272 (1990). A genuine issue of material fact is one
where the evidence is such that a reasonable trier of fact could return a verdict for the
non-moving party. Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d 1278, 1282 (1989).
This court is required to determine whether the trial court erred in concluding that an
absence of genuine issues of material fact justified its granting of summary judgment. Bird
v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
It is undisputed that the outstanding balance that Coker and Great Western agreed to in the
modification agreement was an account stated. This court has defined an account stated as
an agreement based upon prior transactions between the parties with respect to the items
composing the account and the balance due. Old West Enterprises v. Reno Escrow Co., 86
Nev. 727, 729, 476 P.2d 1, 2 (1970).
[Headnotes 3-5]
On appeal, Coker asserts that there was a mutual mistake regarding the account stated. An
account stated is unenforceable if there was fraud or mistake in the stating of the account.
Davis & Cox v. Summa Corp., 751 F.2d 1507 (9th Cir. 1985). A debtor may overcome the
presumption of the correctness of an account stated by meeting the burden of proving fraud,
mistake or error. Robert C. Malt & Co. v. Kelly Tractor Co., 518 So. 2d 991 (Fla. 1988).
Coker has submitted a balance sheet and copies of its cancelled checks into evidence to
support its argument. Furthermore, Coker has supplied an affidavit of its accountant which
verifies the balance sheet.
Great Western asserts that there was no mistake of fact regarding the account stated. It
maintains that the amount Coker agreed to in the 1990 modification agreement included
accumulated interest and attorney's fees which increased the total due under the original
contract. Great Western's only supporting documentation is an affidavit from its assistant vice
president in which she asserts that she relied upon representations from Coker's accountant to
determine the amount of the account stated.
Coker and Great Western's arguments and supporting documentation clearly demonstrate
that genuine issues of material fact existed at the time the district court granted summary
judgment in favor of Great Western. Whether there was a mistake of fact regarding the
amount Coker Equipment owed Great Western at the time of the modification agreement, as
alleged by Coker, or whether the account stated reflected accumulated interest and attorney's
fees, as alleged by Great Western, is a question for resolution by the trier of fact. Thus, the
district court wrongly concluded that no genuine issues of material fact existed and erred in
granting summary judgment against Coker Equipment and its guarantors, Stanley and
Marlane Coker. Accordingly, we reverse judgment in favor of Great Western, and we remand
this matter to the district court for further proceedings consistent with this opinion.
____________
110 Nev. 1270, 1270 (1994) Schneider v. Continental Assurance Co.
MICHAEL SCHNEIDER and KAREN SCHNEIDER, Appellants, v. CONTINENTAL
ASSURANCE COMPANY, a Foreign Corporation Conducting Business in the State
of Nevada, CNA INSURANCE COMPANIES, and JAMES R. TATUM,
Respondents.
No. 25125
November 30, 1994 885 P.2d 572
Appeal from a district court order granting a motion to dismiss. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Insured brought suit against disability insurer which declared policy void more than four
and one-half months after insured submitted claim for disability. The district court entered
dismissal order, and insured appealed. The supreme court held that: (1) district court erred in
granting motion to dismiss after considering materials outside pleadings; (2) supreme court
would review dismissal order as if it were summary judgment; and (3) material issues of fact,
including whether insurer in good faith would not have issued policy had it known that
insured had other disability coverage, precluded summary judgment.
Fitzgibbons & Anderson, Las Vegas, for Appellants.
Thorndal, Backus, Armstrong, & Balkenbush and Brian K. Terry, Las Vegas, for
Respondents.
Trial court erred in granting motion to dismiss after considering materials outside pleadings.
Supreme court was not obliged to reverse, but could simply review dismissal order, which was improvidently granted after district
court considered matters outside pleadings, as if dismissal order were summary judgment.
3. Judgment.
Genuine issues of material fact, including whether disability insurer in good faith would not have issued policy had it known that
insured had other disability coverage, precluded summary judgment in disability insurer's favor; other issues included effect of
insurer's alleged participation limits and whether insurer was estopped from raising defense. NRS 687B.110(3).
4. Judgement.
District court erred in relying on inadmissable evidence in granting summary judgment where moving party's additional materials
were neither sworn to or certified and moving party did not submit affidavits in support of motion. NRCP 56(e).
OPINION
Per Curiam:
On June 1, 1990, appellant Michael Schneider (Schneider), purchased a disability
insurance policy from respondent Continental Assurance Company (CNA), through CNA's
agent, respondent James R. Tatum (Tatum). About nine months later, Schneider ruptured his
left achilles tendon and became disabled.
More than four and a half months after Schneider submitted a claim for his disability,
CNA declared the insurance policy void because Schneider had incorrectly stated on his
application that he had no other disability coverage. Schneider and his wife sued CNA and
Tatum for negligence, breach of contract, bad faith, and infliction of emotional distress.
Schneider claimed his incorrect statement had been unknowing and immaterial and that CNA
was using it as a pretext to deny him benefits.
CNA moved to dismiss or in the alternative for partial summary judgment. The district
court granted the motion to dismiss on September 24, 1993. We now reverse because the
district court made several errors.
[Headnote 1]
The first question on appeal is whether the district court improperly granted CNA's motion
to dismiss rather than treating it as a motion for summary judgment. If matters outside the
pleading are presented to and not excluded by the court, a motion to dismiss for failure to
state a claim upon which relief can be granted shall be treated as one for summary judgment
and disposed of as provided in Rule 56. NRCP 12(b). A district court must treat a motion to
dismiss as one for summary judgment [w]here materials outside of the pleadings are
presented to and considered by the district court. Thompson v. City of North Las Vegas, 108
Nev. 435, 438, 833 P.2d 1132, 1134 (1992).
The district court's written decision did not exclude matters outside the pleadings; rather, it
shows that the court considered exhibits which CNA submitted in support of its motion to
dismiss. Thus the district court erroneously granted the motion to dismiss after considering
materials outside the pleadings.
[Headnote 2]
This error is not necessarily reversible error. When a district court errs in failing to
expressly consider respondent's motion as one for summary judgment, this court is not
obliged to reverse, but simply review[s] the dismissal order as if it were a summary
judgment. Thompson, 108 Nev. at 438-39, 833 P.2d at 1134.
A district court shall grant summary judgment if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law. NRCP 56(c). A litigant has the right to trial whenever the slightest doubt as
to remaining issues of fact exists. Roy v. Lancaster, 107 Nev. 460, 462, 814 P.2d 75, 76
(1991) (citing Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079
(1983)).
[Headnote 3]
CNA asserted in its pleadings that per its underwriting policy it would not have insured
Schneider had it known of his other coverage. Citing NRS 687B.110(3),
1
the district court
concluded that Schneider's incorrect statement that he had no other disability coverage
prevented recovery under the policy because CNA in good faith would not have issued
Schneider the policy if it had known the true facts.
However, Schneider disputed whether this was true. In an affidavit accompanying his
opposition to CNA's motions, he alleged that CNA's later position that it had participation
limits directly contradict[ed] what its agent Tatum told him when selling him the policy. He
claimed that Tatum had assured him that CNA would provide coverage of $1,500.00 a month
even if he had other coverage. His affidavit also recounted in some detail the great difficulty
he had for several months in getting a straight answer from CNA regarding his claim; it also
indicated that after learning of Schneider's other coverage, CNA waited some two months
before rescinding the policy on that ground. Schneider's allegations thus raised some doubt as
to whether CNA in good faith would not have issued the policy originally if it had known of
Schneider's other coverage.
__________

1
NRS 687B.110 provides:
All statements and descriptions in any application for an insurance policy or annuity contract, by or in
behalf of the insured or annuitant, shall be deemed to be representations and not warranties.
Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery
under the policy or contract unless either:
1. Fraudulent; or
2. Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
3. The insurer in good faith would either not have issued the policy or contract, or would not have issued
it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would
not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been
made known to the insurer as required either by the application for the policy or contract or otherwise.
Schneider raised a second genuine issue of material fact. His affidavit alleged that his state
disability benefits did not start until six months after his injury and that they paid as little as
$50.00 a month. These allegations raised an issue as to whether CNA's alleged participation
limits required something less than complete rescission of Schneider's policy.
Schneider also argues that an issue of fact remains as to whether CNA was estopped from
denying him coverage because of the alleged misrepresentation made by CNA's agent, Tatum,
in selling him the insurance. CNA asserts that estoppel cannot apply here because NRS
687B.110 controls. This assertion simply ignores the issue of whether statements by an
insurer's agent can equitably estop an insurer from invoking the statutory protections.
CNA points to no language in NRS 687B.110 which would preclude insured persons from
raising estoppel against insurers. Violin v. Fireman's Fund Ins. Co., 81 Nev. 456, 458, 406
P.2d 287, 288 (1965), indicates estoppel could apply in cases of this kind: [A]bsent factors
favoring the application of the doctrines of waiver or estoppel, an insurer is not bound by an
insurance contract that he was induced to make by the fraudulent misrepresentations of the
insured.
The district court therefore erred in not recognizing that genuine issues remained as to
several material facts: whether CNA in good faith would not have issued the policy if it had
known the true facts, the effect of CNA's alleged participation limits, and whether CNA
should be estopped from raising a defense under NRS 687B.110(3).
[Headnote 4]
Schneider also contends that the district court improperly relied on CNA's unverified
factual allegations in granting CNA's motion. In addition to its pleadings and points and
authorities for its motions, CNA filed five exhibits with the district court. These appear to be
portions of a copy of Schneider's insurance policy, a copy of his insurance application, a copy
of his amendment to that application, a copy of a letter from Schneider's personnel director,
and some information on the state's disability insurance plan. None of these materials were
sworn to or certified, and neither CNA nor Tatum filed any affidavits in support of their
motions.
Evidence introduced in support of or opposition to a motion for summary judgment must
be admissible evidence. See NRCP 56(e). Collins v. Union Fed. Savings & Loan, 99 Nev.
284, 302, 662 P.2d 610, 621 (1983). Affidavits supporting or opposing a motion for summary
judgment shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.
shall be made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or parts thereof referred to
in an affidavit shall be attached thereto or served therewith.
NRCP 56(e).
The district court thus erred in relying solely on inadmissible evidence to grant summary
judgment.
For the reasons set forth above, we reverse the district court's order granting the motion to
dismiss and remand this case for trial.
2

____________
110 Nev. 1274, 1274 (1994) Morris v. Bank of America Nevada
WILLIAM W. MORRIS, Appellant, v. BANK OF AMERICA NEVADA, a Nevada Banking
Corporation fka VALLEY BANK OF NEVADA, a Nevada Banking Corporation,
Respondent.
No. 22881
November 30, 1994 886 P.2d 454
Appeal from summary judgment and order dismissing counterclaims. Eighth Judicial
District Court, Clark County; Nancy Becker, Judge.
Bank sued maker to collect on promissory note. The district court entered summary
judgment for bank, and maker appealed. The supreme court, Springer, J., held that: (1) trial
court properly dismissed maker's fraud and conspiracy counterclaims against bank, but (2)
maker's other counterclaim stated prima facie case for breach of implied covenant of good
faith and fair dealing.
Young, J., and Rose, C. J., dissented.
Patrick Clary, Las Vegas, for Appellant.
Jones, Jones, Close & Brown and Gary R. Goodheart, Las Vegas, for Respondent.
__________

2
Our resolution of these issues makes it unnecessary to address Schneider's remaining assignment of error, that
the district court erroneously denied his request for time for additional discovery before ruling on CNA's
motions.
1. Banks and Banking; Conspiracy.
Trial court properly dismissed maker's fraud and conspiracy counterclaims against bank that sued maker to collect on promissory
note. Fraud counterclaim failed to aver any specific misrepresentation of fact, and conspiracy counterclaim failed to allege that bank
conspired to do some identifiable unlawful act.
2. Banks and Banking.
Maker's counterclaim against bank that sued to collect on promissory note, taken at face value, stated prima facie case for breach
of implied covenant of good faith and fair dealing, where counterclaim alleged that bank provided maker with irrevocable letter of
credit naming second bank as beneficiary and agreed to honor any drafts drawn upon letter of credit by second bank, and that bank
then refused to honor drafts tendered by second bank on three separate occasions, thereby causing maker to default on loan from
second bank and to lose prospect of obtaining further financing from second bank.
3. Contracts.
Whether breach of the letter of contract exists or not, implied covenant of good faith is obligation independent of consensual
contractual covenants.
OPINION
This case began as a simple collection matter on a promissory note, which was filed against William Morris by Bank of America
Nevada (Bank), successor to Valley Bank of Nevada, which was successor to Security Bank of Nevada. Morris counterclaimed against
the Bank, claiming fraud, conspiracy, securities fraud, RICO violations and breach of the implied covenant of good faith and fair dealing.
Morris later voluntarily dismissed, without prejudice, the securities fraud and RICO claims.
With regard to the summary judgment entered against Morris on the Bank's note collection claim, Morris did not deny execution of the
note or nonpayment; rather, he contended that he signed the note under duress and that he was entitled to a set-off based upon the
allegations set forth in his counterclaim.
Summary judgment is only appropriate when, after a review of the record in a light most favorable to the non-moving party, there
remain no genuine issues of material fact and it is determined that the moving party is entitled to judgment as a matter of law. Caughlin
Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993) (citation omitted). We have reviewed the record and
pleadings of the parties and conclude that Morris' opposition to the Bank's summary judgment motion was so inadequately and unartfully
presented by Morris' counsel as to provide to the district court no articulable, genuine issues of material fact. We are, therefore, compelled
to deny Morris' appeal as to the bank's judgment on the promissory note and to affirm summary judgment against
Morris.
appeal as to the Bank's judgment on the promissory note and to affirm summary judgment
against Morris.
[Headnote 1]
With regard to the various counterclaims filed by Morris, we conclude that the trial court
acted correctly in dismissing Morris' counterclaims for fraud and conspiracy.
1
In spite of all
of the procedural derelictions which were committed by Morris' counsel, Patrick Clary (see
footnote 1 supra), we, nevertheless, decide that Morris should be allowed to proceed in the
trial court on his counterclaim against the Bank for breach of the implied covenant of good
faith and fair dealing. We reverse the trial court's order dismissing Morris' bad faith claim and
remand for a trial on this claim.
[Headnote 2]
Dismissal under NRCP 12(b) is only appropriate where the allegations in the counterclaim,
taken at face value,'. . . [and] construed favorably in the [counterclaimant's] behalf, fail to
state a cognizable claim for relief. Edgar v. Wagner, 101 Nev. 226, 227-28, 699 P.2d 110,
111-12 (1985) (citation omitted).
__________

1
The district court dismissed Morris' counterclaims for fraud, conspiracy and breach of the implied covenant of
good faith and fair dealing. With regard to the fraud counterclaim, the Bank correctly argues that Morris failed
to state a claim, principally because Morris' counsel failed to aver any specific misrepresentation of fact. See
Sanguinetti v. Strecker, 94 Nev. 200, 206, 577 P.2d 404, 408 (1978); see also Brown v. Kellar, 97 Nev. 582,
636 P.2d 874 (1981). The appellate brief prepared by Morris' counsel is entirely conclusory on this point, saying
only that [a]n examination of the common-law fraud counterclaim shows that it was stated with particularity,'
as required by Rule 9(b) of the Nevada Rules of Civil Procedure and that [t]he specifics required to plead
fraud, namely averments as to the time, place, and the identity of the parties involved and the nature of the
fraudare all set forth in said counterclaim. Inspection of the fraud counterclaim reveals that it contains only
vague charges that counterdefendant had fraudulently refused to honor Landmark's requested draws and
references to unspecified wrongful and fraudulent conduct of the counterdefendant. No actual false
representations of any kind by counterdefendant are identified in the fraud counterclaim; thus, it quite clearly
fails to state a claim upon which relief can be granted.
In addition, Morris' conspiracy counterclaim fails to allege that the Bank conspired to do some identifiable
unlawful act. An actionable conspiracy consists of a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage
results from the act or acts. Sutherland v. Gross, 105 Nev. 192, 196, 772 P.2d 1287, 1290 (1989) (citation
omitted). Morris' counterclaim fails to identify any combination between two or more persons and fails even to
identify the supposed parties to the conspiracy. The required unlawful objective is similarly not stated in the
pleading; therefore, the conspiracy counterclaim also fails to state a claim upon which relief can be granted.
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 [or her] to relief. Id. at 228, 699 P.2d at 112 (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).
Contrary to the Bank's assertions on appeal, a close reading of Morris' amended
counterclaim reveals sufficient factual allegations, which if taken at face value, as is
required on appeal from a dismissal under NRCP 12(b), state a prima facie case for breach of
the implied covenant of good faith and fair dealing. Specifically, Morris alleges that he had a
contract with the Bank and that pursuant to that contract, Morris paid to the Bank the sum of
$20,000.00, in exchange for which the Bank agreed to provide Morris with an irrevocable
$1,000,000.00 commercial letter of credit naming Lloyds Bank as beneficiary. The contract
between the Bank and Morris expressly notes that Morris was obtaining the irrevocable letter
of credit as one of the conditions of a $20,000,000.00 loan that Morris had obtained from
Lloyds on behalf of the Landmark Hotel and Casino, of which Morris was the sole
shareholder. Morris also avers that Lloyds was the lead bank in Morris' efforts to obtain
further financing for the Landmark. The contract states: One of the conditions of the [Lloyds
loan] is that [Morris] post a clean' letter of credit in the amount of $1,000,000.00. The Bank
and Morris executed the contract, and pursuant to the contract, the Bank issued an
irrevocable $1,000,000.00 letter of credit in favor of Lloyds. By the terms of the letter of
credit, the Bank promised to honor any drafts drawn upon the letter of credit by Lloyds.
The Bank honored Lloyds' first draft on the irrevocable letter of credit but refused to honor
Lloyds' second draft in a timely fashion. Morris avers that on three separate occasions, the
Bank refused to honor drafts tendered by Lloyds upon the irrevocable letter of credit. These
drafts were to be allocated to interest payments on the $20,000,000.00 loan from Lloyds to
Morris. Morris further avers that the Bank's failure to honor the irrevocable letter of credit
and refusal to pay on the requested drafts in a timely fashion resulted in Lloyds losing faith in
Morris and caused Morris to lose Lloyds' assistance in obtaining additional financing for the
Landmark.
[Headnote 3]
If we accept Morris' averments as true, which we must, we get a picture which may
support a bad faith action against the Bank. Morris claims that, after first honoring Lloyds'
demand on the letter of credit, it commenced a whole series of actions which culminated in
Morris defaulting on his loan from Lloyds and failing in his attempt to obtain further
financing for the Landmark.
mark. According to Morris, the Bank delayed and denied payments that the Bank was clearly
obliged to make, while it tried to coerce additional security out of Morris. One might even
read the pleading to say that the Bank deliberately disrupted the loan. There is enough here to
put the Bank on notice of a claim upon which relief can be granted.
2

Where one party to a contract deliberately countervenes the intention and spirit of the
contract, that party can incur liability for breach of the implied covenant of good faith and fair
dealing. Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919,
922-23 (1991). Taking Morris' allegations as true, we must consider the Bank to have been
put on notice by the pleadings of Morris' claim that the Bank unwarrantedly delayed payment
on Lloyds' demands on the letter of credit and engaged in improper coercive actions against
Morris and that, in bad faith, it countervened the spirit of its contract with Morris by
wrongfully refusing to honor Lloyds' draft on the letter of credit and by forcing Morris to
provide additional collateral under the threat of litigation.
Morris' pleadings identify the contract which is the basis for Morris' implied covenant
claim (the agreement providing for the LOC). Further, Morris' pleadings identify the Bank's
conduct which he claims to constitute the breach of the covenant. Finally, Morris has averred
that the Bank's breach of the implied covenant of good faith and fair dealing caused him
damage {principally causing him to default on the Lloyds' loan and to lose the prospect of
obtaining any future financing through Lloyds).
__________

2
Although it is certainly arguable that Morris had a viable action against the Bank for breach of its contract
with Morris to issue and maintain an irrevocable letter of credit, Morris' counsel failed to plead such a breach,
either as a defense to the Bank's note collection suit or as a counterclaim. We do not believe that this failure
precludes Morris from prosecuting a bad faith action for contract damages and perhaps tort damages. We said in
Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 808 P.2d 919 (1991), that even though there was no
breach of contract, a plaintiff may still be able to recover damages for breach of the implied covenant of good
faith and fair dealing. Id. at 232, 808 P.2d at 922. Whether a breach of the letter of the contract exists or not,
the implied covenant of good faith is an obligation independent of the consensual contractual covenants. The
covenant of good faith and fair dealing is implied into every commercial contract . . . . Ainsworth v. Combined
Insurance Co. of America, 104 Nev. 587, 592 n.1, 763 P.2d 673, 676 n.1 (1988) (citation omitted). Under the
implied covenant, each party must act in a manner that is faithful to the purpose of the contract and the justified
expectations of the other party. Hilton, 107 Nev. at 234, 808 P.2d at 923. Morris' allegations that the Bank first
refused and then postponed and delayed payment in such a way as to cause Morris to default on the Lloyds' loan
presents at least a colorable claim of a course of bad faith even though all of the drafts presented by Lloyds to
the Bank were eventually paid by the Bank. Morris avers that these unwarranted delays damaged his credibility
with Lloyds and eventually caused him to default on the $20 million Lloyds' loan and lose the opportunity for
obtaining further financing through Lloyds.
covenant of good faith and fair dealing caused him damage (principally causing him to
default on the Lloyds' loan and to lose the prospect of obtaining any future financing through
Lloyds). These allegations, when taken as true, present a claim for breach of the implied
covenant of good faith and fair dealing against the Bank, because they tend to show that the
Bank deliberately refused to live up to the spirit of its obligation to honor the irrevocable
letter of credit in favor of Lloyds.
Although we do not consider materials outside the pleadings in reaching our decision in
this case (for we need not), nevertheless, it is interesting to note that materials outside the
pleadings, but in the record on appeal, especially Morris' affidavits and the letters written by
Lloyds' counsel to the Bank, show that the Bank understood all along the consequences of its
refusal to honor its obligations to Morris.
3
The Bank was aware of a potentially huge loss to
Morris in the event the Bank dishonored the letter of credit because it knew of the
indispensability of the letter of credit to the success of Morris' loan transaction with Lloyds.
In spite of this knowledge, the import of Morris' counterclaim pleading is that although the
Bank had issued an irrevocable letter of credit, it arbitrarily, and for no justifiable cause,
refused to honor the irrevocable letter of credit and its contractual obligation to Morris. The
Bank may be able to show justification for its actions in refusing to honor the irrevocable
letter of credit, but there are certainly issues of fact relating to such justification for a jury to
decide in the court below. Although Morris' pleadings are less than ideal, we conclude that a
claim has been stated for which relief can be granted, based upon the Bank's alleged breach of
the implied covenant of good faith and fair dealing.
4

__________

3
The two letters from Lloyds' counsel, one to the Bank expressing Lloyds' concern about the Bank's failure to
honor the second draft on the letter of credit, and the other letter to Morris in which Lloyds states that it
considers the Valley Bank dishonor wholly unwarranted in light of the terms of the Guarantor LOC [letter of
credit], show the prejudice which the Bank's actions caused Morris. Furthermore, the Bank's actions appear to
have been willful, as evidenced by a letter written by the Bank's counsel to Lloyds which concludes that it was
not in Valley's best interest, to honor the draft.

4
We do not rule in this opinion on the availability to Morris of a tort remedy, the so-called contort discussed
in K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987). In Hilton Hotels v. Butch Lewis Productions,
107 Nev. 226, 234, 808 P.2d 919, 923 (1991), we stated that when a person performs a contract in a manner
that is unfaithful to the purpose of the contract, damages may be awarded. Because the Hilton case involved a
commercial contract without a special element of reliance or fiduciary duty, we explained that only contract
damages would be recoverable. Id. at 232-33, 808 P.2d at 923. An action in tort for breach of the implied
covenant arises only when there are special relationships between the tort-victim and the tort-feasor. K Mart,
103 Nev. at 49, 732 P.2d at 1370. We do not reach the question of whether Morris and the Bank had the type of
special
Morris' counsel admits to making many mistakes in this case.
5
It is largely because of
the mistakes and procedural derelictions on the part of Mr. Clary that we have found it
necessary to allow judgment to stand on the Bank's collection claimfor some $150,000.00,
plus an additional $50,000.00 in attorneys fees. Although he managed to make some
conclusory statements in opposition to the Bank's motion for summary judgment, Morris'
counsel simply did not adduce the facts necessary to withstand such a motion. With regard to
Morris' claim against the Bank for breach of the implied covenant of good faith, however, we
are most reluctant to allow Morris' claim to be lost because of his counsel's derelictions. We
have construed this one counterclaim with some liberality, but it seems rather clear to us that
a claim for relief has been stated.
Advocacy on this appeal has also been close to useless. The brief filed by Mr. Clary
provides this court with only seven pages of argument, mostly meaningless, conclusory
drivel; the opening brief contains less than one page of argument on the issue of dismissal of
Morris' counterclaim for breach of the implied covenant. It contains no case authority on this
question and barely constitutes what could be fairly called an argument at all, presenting us
only with the generalization that the extensive allegations of misconduct by the Bank
contained in the Amended Counterclaims are replete with breach after breach of Valley
Bank's obligations under the document which the Bank sought to enforce in its Complaint.
No reference is made as to what these extensive allegations might be or where they might
be found or what they might allege. This kind of statement in a brief is of no use to the court.
Because of the injustice inherent in the imminent denial to Morris of his day in court, we did
take the trouble to examine the pleading, searching for "allegations of misconduct by the
Bank" which might support a bad faith claim.
__________
relationship we found in K Mart to be sufficient to establish the basis for a bad faith tort claim. A decision on
the availability of a tort remedy must be made by the trial court after it has heard the evidence in this case.

5
As Morris' counsel, Patrick Clary, told us during oral argument, this case has unfortunately been replete with
a number of mistakes, many of which are attributable to [Clary]. Morris' counsel may be credited, at least, with
disarming candor when he admits to making mistakes in this case. Morris' counsel failed to appear for the
hearing on Morris' motion to amend his counterclaims, and failed even to present the trial judge with a proposed
amended counterclaim so as to preserve that issue for appeal. Counsel failed to appear for the hearing on the
Bank's summary judgment motion, which was subsequently granted. Clary included a mere one-and-one-quarter
pages of argument in opposition to the Bank's motion for summary judgment; and counsel failed to oppose
meaningfully the Bank's motion to dismiss Morris' counterclaims. As noted above, Clary's second application for
an extension of time in which to file an opposition was dismissed when he failed to show up at the hearing.
trouble to examine the pleading, searching for allegations of misconduct by the Bank which
might support a bad faith claim. In doing this we were able, with no assistance from Morris'
counsel, to discern allegations which do state a claim for relief based on a breach of the
implied covenant of good faith and fair dealing. We refuse to deny Morris his day in court
just because he was so badly served by his lawyer.
In conclusion, given the state of the record before the district court and the failure of
Morris' counsel to appear and argue in opposition to the Bank's motion for summary
judgment, we are required to rule that the district court properly granted summary judgment
in favor of the Bank. We disagree, however, with the district court's ruling that Morris'
allegations in this counterclaim, when taken as true, fail to state a claim against the Bank for
breach of the covenant of good faith and fair dealing. We therefore reverse the judgment of
the district court on that issue alone and remand this matter to the district court for further
proceedings.
Steffen and Shearing, JJ., concur
Young, J., with whom Rose, C. J., agrees, dissenting:
Respectfully, I dissent from the majority's conclusion that Morris should be permitted to
proceed to trial on his counterclaim against the Bank for breach of the implied covenant of
good faith and fair dealing. Unlike the majority, upon a close reading of Morris' amended
counterclaims, I am unable to conclude that Morris pleaded a cause of action sufficiently
enough to allow this case to continue.
Arguably, the record (which includes matters not in the pleadings) shows that Morris may
have a valid claim against the Bank for breach of the implied covenant of good faith and fair
dealingand perhaps even a tort action. However, these matters were not pleaded; and in
reviewing an appeal from a decision on a motion under NRCP 12(b)(5), we should consider
only the pleadings as they arenot as they might have been or could be. The majority
purports not to have considered materials outside the pleadings in reaching its decision.
Nevertheless, for the edification of inquiring readers, the majority goes on to elaborate at
some length (including an enlightening footnote) on materials in the record that show that the
Bank understood all along the consequences of its refusal to honor its obligations to Morris.
As American humorist Kin Hubbard once said, When a fellow says it hain't the money but
the principle o' the thing, its th' money.
I am of the opinion that our decision must be guided by the pleadings alone in this case,
which, after all, are the subject of this issue on appeal.
pleadings alone in this case, which, after all, are the subject of this issue on appeal. This court
has held that on appeal from an order granting an NRCP l2(b)(5) motion to dismiss, the only
issue is whether the complaint states a claim for relief. Breliant v. Preferred Equities, 109
Nev. 842, 845-46, 858 P.2d 1258, 1260 (1993). In this case, the lower court based its decision
on the pleadings alone. Apparently Morris made no effort to change these pleadings when the
allegations were presented for judicial scrutiny. On appeal, our court does not redraft
pleadings, it does not bolster defective pleadings by viewing them through the spectacle of
facts found elsewhere in the record. We consider pleadings as they have been drafted, not as
they might have been drafted, and in reviewing the trial court's judgment, we consider only
errors of law. See Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 858 P.2d 380 (1993)
(on reviewing motions to dismiss, court must accept all factual allegations as true). In reading
the pleadings, I cannot conclude that the district court erred in ordering dismissal.
The charging allegations do not disclose whether Morris is asserting a contractual or tort
claim or merely a contract claim based upon the implied covenant. The pertinent
counterclaim alleges only, in the most general terms, that the counter defendant and
additional defendants on the counterclaim breached the implied covenant of good faith and
fair dealing. Even combing through the factual allegations set out in the first part of the
amended counterclaims, which are incorporated into the bad faith claim, I can find no facts to
support Morris' general averment that the Bank breached the implied covenant. Further, I can
find nothing that would put the Bank on notice that it was being charged with betraying
Morris by being unfaithful to the purpose of Morris' contract with the Bank or that the Bank
betrayed justified expectations which Morris relied upon in his dealings with the Bank.
I am also troubled by the majority's admitted construing of this claim with some
liberality. The majority writes that it is most reluctant to allow Morris' claim to be lost
because of his counsel's derelictions. It is not our job to salvage cases irretrievably damaged
or lost by the actions or inaction of counsel. We cannot create one standard of review for
parties with efficient counsel and another, more liberal, standard for parties with less than
efficient counsel. Such inefficiency on the part of counsel should not be remedied by liberal
construction of pleadings, but rather by actions between the parties and their counsel.
While it is clear that Morris' counsel has served his client in a far from stellar manner, I
cannot agree with the majority's conclusion. The end may be justified by the means only
when the means are consistent with our law.
As Cardozo once wrote, One of the most fundamental social interests is that the law shall
be uniform and impartial. There must be nothing in its action that savors of prejudice or favor
or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to
precedent. Benjamin N. Cardozo, The Nature of the Judicial Process 112 (1921).
____________
110 Nev. 1283, 1283 (1994) Thomas v. Riverside Resort and Casino
KATHARINE THOMAS, Appellant, v. RIVERSIDE RESORT AND CASINO, Respondent.
No. 25018
November 30, 1994 885 P.2d 575
judgment. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Plaintiff brought suit against operator of resort and casino to recover for injuries she
sustained when a bellman ran over her with a baggage cart. The district court entered
summary judgment in favor of defendant, and plaintiff appealed. The supreme court held that
evidence raised genuine issue of material fact whether bellman was in the employ of an
independent contractor, precluding summary judgment.
Murphy & Munhall, Las Vegas, for Appellant.
Bell & Young, Las Vegas, for Respondent.
Judgment.
Evidence in suit against hotel seeking to recover for injuries sustained by plaintiff when bellman ran over her with a baggage cart
raised genuine issue of material fact as to whether hotel assumed liability for negligence of bellman's employer which was under
contract to provide bell and porter services to hotel, precluding summary judgment in favor of hotel on ground that bellman was in the
employ of an independent contractor.
OPINION
Per Curiam:
Appellant Katharine Thomas sued the Riverside Resort and Casino because of injuries she sustained when a bellman ran over her with
a baggage cart. Riverside contends that it is not liable for the bellman's allegedly negligent conduct because the bellman was in the employ
of an independent contractor.
110 Nev. 1283, 1284 (1994) Thomas v. Riverside Resort and Casino
Riverside contracted with Valet American, Inc., the bellman's employer, to provide bell
and porter services to the hotel. Citing Wells, Inc. v. Shoemake, Riverside contends that
because it had retained the services of Valet American, an independent contractor, it is not
liable for the negligence of Valet American's employee. 64 Nev. 57, 177 P.2d 451 (1947).
The trial court accepted Riverside's argument and granted summary judgment to Riverside on
the ground that Riverside was insulated from liability because of Valet American's status as
an independent contractor.
Summary judgment is only appropriate when, after review of the record in a light most
favorable to the nonmoving party, there remain no genuine issues of material fact. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).
In this case, we hold that the district court erred when it granted summary judgment
because the contract between Riverside and Valet American contains language whereby
Riverside appears to have expressly assumed liability for the negligence of Valet American's
employee at the hotel. Specifically, Paragraph 4 of the Concession Agreement presents an
issue of material fact:
Hotel shall be responsible for all public liability, bodily injury, property damage, and
medical expenses applicable to the total operations and functions of Hotel including the
activities of Concessionaire [Valet America] hereunder, and may insure against all
liability therefor . . . . Concessionaire shall be responsible for and shall hold Hotel free
and harmless from all such liability arising from operations and functions of
Concessionaire hereunder, to the extent of the deductible portion of Hotel's insurance
coverage not to exceed one thousand dollars.
If, as the contract says, the Hotel agreed to be responsible for all public liability . . .
applicable to hotel operations and functions of the hotel, including the activities of
Concessionaire and if, as appears to be the case, Riverside has agreed to be liable for the
activities of the Concessionaire, Riverside certainly is not entitled to summary judgment in its
favor.
We reverse the district court's order granting summary judgment in favor of Riverside and
remand the matter to the district court.
____________
110 Nev. 1285, 1285 (1994) McNair v. District Court
SHARON J. McNAIR, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
GERARD J. BONGIOVANNI, District Judge, Respondents, and MARK
BRANDELL and JANET BRANDELL, Real Parties in Interest.
No. 25374
November 30, 1994 885 P.2d 576
Petition for a writ of prohibition or alternatively for a writ of mandamus to prohibit the
district court from holding the petitioner in contempt. Eighth Judicial District Court, Clark
County; Gerard J. Bongiovanni, Judge.
Hearing was held in the district court requiring judgment debtors to appear and answer
concerning satisfaction of judgment. Accountant for debtors was held in contempt for refusal
to answer certain questions about her clients, and accountant sought writ of prohibition or
mandamus. The supreme court held that: (1) accountant-client privilege was not to be broadly
construed; (2) questions asked of accountant did not seek confidential communications; (3)
information sought was not protected by privilege, as accountant failed to show that
information sought was confidential and not accessible to public; (4) clients' tax returns were
discoverable; and (5) accountant could be compelled to produce relevant documents.
Petition denied.
Robert M. Apple & Associates and Michael F Bohn, Las Vegas, for Petitioner.
Thomas C. Naylor, Las Vegas; Charles O. Morgan, Jr., San Francisco, California, for
Real Parties in Interest.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Amicus Nevada
State Board of Accountancy.
1. Witnesses.
Accountant-client privilege is not to be broadly construed. NRS 49.185.
2. Witnesses.
Questions asked of accountant during hearing on clients' failure to satisfy judgment did not solicit confidential communications''
protected by accountant-client privilege, as most questions sought answers requiring simple yes-or-no response or general factual
information. NRS 49.155, 49.185.
3. Witnesses.
Information sought from accountant at hearing on clients' failure to satisfy judgment, regarding preparation of financial statements,
nature and extent of accounting work, banking services, preparation of accounts receivable, identity of
stockholders, and sale of assets, was not protected by accountant-client privilege, absent showing by
accountant that information was confidential and not accessible to public.
and extent of accounting work, banking services, preparation of accounts receivable, identity of stockholders, and sale of assets, was
not protected by accountant-client privilege, absent showing by accountant that information was confidential and not accessible to
public. NRS 21.280, 49.185.
4. Witnesses.
Burden was on accountant to establish that information requested from accountant at hearing on clients' failure to satisfy judgment
was within accountant-client privilege. NRS 21.280, 49.185
5. Execution.
Tax returns of judgment debtors were discoverable for purpose of hearing on debtors' failure to satisfy judgment, as returns could
be relevant in identifying assets and collecting judgment and information regarding assets was apparently otherwise unobtainable,
where debtors refused to appear and answer questions concerning their property. NRS 21.280.
6. Execution.
Accountant could be compelled to produce documents in her possession regarding property of clients, for purpose hearing on
clients' failure to satisfy judgment, since clients themselves could be compelled to produce such documents. NRS 21.280, 21.310.
OPINION
Per Curiam:
On January 28, 1992, the district court confirmed an arbitration award in favor of Mark Brandell and Janet Brandell (the Brandells) for
$435,066.82. United Productions, Inc. (UP) and Harry R. Jones (Jones) failed to pay this judgment. Accordingly, the district court issued a
writ of execution, which remains unsatisfied. The district court also issued an order of examination pursuant to NRS 21.280,
1
requiring both UP and Jones to appear and answer concerning their property. Neither has ever
appeared.
In an attempt to execute the judgment, the Brandells subpoenaed Sharon J. McNair
(McNair), who has worked as an accountant for both UP and Jones for fifteen years. Pursuant
to NRS 21.310,
2
the district court ordered McNair to appear and testify regarding UP's and
Jones' assets.
__________

1
After the issuing of an execution against property, and upon proof by affidavit of a party or otherwise, to
the satisfaction of the court or of the judge thereof, that any judgment debtor has property which he
unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may by an order
require the judgment debtor to appear at a specified time and place before such judge, or master
appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the
application of the property of the judgment debtor toward the satisfaction of the judgment as are provided
upon the return of an execution.

2
Witnesses may be required to appear and testify before the judge or
regarding UP's and Jones' assets. During her examination, McNair answered certain
background questions, but refused to answer twenty-one other questions on the basis that the
questions required the divulgence of information protected by the accountant-client privilege.
3

The district court noted that it thought that the questions were general in nature, and
ordered McNair to answer them. McNair refused and was held in contempt, with the order
stayed pending the outcome of this petition. For the following reasons, we deny McNair's
petition.
McNair argues that the accountant-client privilege applies to the questions at issue and
asserts that the district court exceeded its authority in issuing the contempt order. We
disagree.
[Headnote 1]
An interpretation of the accountant-client privilege delineated in NRS 49.185 is an issue of
first impression in Nevada.
4
Relying on Ashokan v. State, Dep't of Ins.,
__________
master conducting any proceeding under this chapter in the same manner as upon the trial of an issue.

3
Those questions were:
1. In the course of your duties as an accountant for [UP] did you prepare tax returns?
2. What type of work did you do for [UP] from the mid 1980's to the present?
3. What type of accountant work did you do for [Jones] from 1980 to the present?
4. Do you have any tax returns for [UP]?
5. Have you prepared tax returns for [UP] from the mid 1980's to the present?
6. Do you have in your possession tax returns for [UP] from the mid 1980's to the present?
7. What is the most recent tax return you prepared for [UP]?
8. What is the most recent tax return you have prepared for [Jones]?
9. Do you handle the banking for [UP]?
10. Do you handle the banking for [Jones]?
11. What documents do you have in your possession regarding accounting records of [UP]?
12. Have you ever prepared any accounts receivable for [UP]?
13. Have you ever prepared any accounts receivable ledgers for [UP]?
14. Have you ever prepared any accounts receivable ledgers for [Jones]?
15. Do you have in your possession any documents reflecting the sale of any assets of [UP]?
16. Within the last five years to your knowledge has [UP] sold any of its assets?
17. Is [UP] still in existence to your knowledge?
18. Is Jackie Do Los Reyes still a stockholder of [UP]?
19. Who are the stockholders of [UP]?
20. Have you ever prepared any financial statements for [UP]?
21. Have you ever prepared any financial statements for [Jones]?

4
on Ashokan v. State, Dep't of Ins., 109 Nev. 662, 856 P.2d 244 (1993), McNair argues that
the accountant-client privilege should be interpreted broadly by this court. In Ashokan,
however, we noted:
Privileges should be construed narrowly. United States v. Nixon, 418 U.S. 683, 710
(1974) (Whatever their origins, these exceptions to the demand for every man's
evidence [i.e., privileges] are not lightly created nor expansively construed, for they are
in derogation of the search for truth.).
Id. at 668, 856 P.2d at 247.
Additionally, there is little policy support for concluding that the accountant-client
privilege should be broadly construed. In Gearhart v. Etheridge, 208 S.E.2d 460 (1974), the
Supreme Court of Georgia stated:
The purpose of the accountant-client privilege is to insure an atmosphere wherein the
client will transmit all relevant information to his accountant without fear of any future
disclosure in subsequent litigation. Without an atmosphere of confidentiality the client
might withhold facts he considers unfavorable to this situation thus rendering the
accountant powerless to adequately perform the services he renders.
Id. at 461. However, as one commentator has noted:
Communications to accountants are privileged in perhaps a third of the states. This
privilege is most closely analogous to that for attorney-client, though the social
objective to be furthered is arguably a distinguishable and lesser one.
1 Charles T. McCormick, McCormick on Evidence 76.2, at 288 (4th ed. 1992)
(footnotes omitted). Accordingly, we conclude that neither Nevada law nor general policy
reasons support McNair's argument that we should broadly construe the accountant-client
privilege.
[Headnote 2]
Furthermore, we reject McNair's argument that the questions solicit "confidential
communications.
__________
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 accountant or his accountant's representative.
2. Between his accountant and the accountant's representative.
3. Made for the purpose of facilitating the rendition of professional accounting services to the client, by
him or his accountant to an accountant representing another in a matter of common interest.
solicit confidential communications.
5
As the district court's comment that the questions
were general in nature implies, McNair failed to show how any type of confidential
communications were implicated by the questions. Most of the questions asked of McNair
sought answers requiring a simple yes or no response or general factual information. As such,
the questions did not necessarily implicate any confidential communications that may have
taken place between McNair, UP, and Jones.
[Headnotes 3, 4]
In Cheyenne Construction v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986), we held:
[A]cts or services performed by an attorney for his client in the course of employment
and which are accessible to others or to the public do not fall within the privilege
because no private communication is involved.
Id. at 312, 720 P.2d at 1226 (citing Arkansas Nat. Bank v. Cleburne County Bank, 525
S.W.2d 82, 84 (Ark. 1975)). McNair asserts that the preparation of financial statements, the
nature and extent of accounting work, banking services, and the preparation of accounts
receivable all involve acts and services that are not accessible to others. McNair also asserts
that the identity of stockholders and sale of assets is information which would be obtained
from privileged communications and therefore may not be disclosed. McNair, however, fails
to cite any authority whatsoever for these assertions. As the burden is on McNair to establish
that the requested information comes within the privilege, her failure to make any showing
that the information was confidential and not accessible to the public leads us to reject her
argument. See Liew v. Breen, 640 F.2d 1046, 1049 (9th Cir. 1981); Delaney v. Superior
Court, 789 P.2d 934 (Cal. 1990).
[Headnote 5]
Lastly, we reject McNair's argument that regardless of the accountant-client privilege, tax
returns themselves are privileged, thus relieving her of any duty to answer questions
regarding her work on UP's and Jones' tax returns. In support of this argument, McNair cites
Clark v. District Court, 101 Nev. 58, 692 P.2d 512 (1985) and Schlatter v. District Court, 93
Nev. 189, 561 P.2d 1342 (1977). These cases rely upon Matchen v. McGahey, 455 P.2d 52
{Okla.
__________

5
NRS 49.155 defines a confidential communication as follows:
A communication is confidential if it is not intended to be disclosed to third persons other than those to
whom disclosure is in furtherance of the rendition of professional accounting services to the client or
those reasonably necessary for the transmission of the communication.
P.2d 52 (Okla. 1969), wherein the Supreme Court of Oklahoma stated:
We adopt the majority view, and hold that this evidentiary rule [relevancy] should be
construed in concert with the prevalent discovery statutes. The court may allow the
production of income tax records and their inspection in proper cases.
Id. at 56. Accordingly, Clark and Schlatter do not hold that tax returns are privileged
information, but instead conclude that tax returns must be relevant to be discoverable, and
may not be discoverable in the absence of a showing that the information is otherwise
unobtainable. Clark, 101 Nev. at 64, 692 P.2d at 516; Schlatter, 93 Nev. at 192, 561 P.2d at
1343.
In the instant case, the district court issued a writ of execution on the unsatisfied judgment.
Information contained in the tax returns may be relevant in identifying assets and collecting
the judgment. It appears that information regarding UP's and Jones' assets may be otherwise
unobtainable, as the Brandells have been unsuccessful thus far in their efforts to discover
such information, despite the expenditure of much time and money. In contravention of the
district court's order, both UP and Jones have refused to appear and answer questions
concerning their property. Additionally, UP has apparently discontinued operations in
Nevada. Accordingly, the tax returns sought by the Brandells should be discoverable.
[Headnote 6]
Further, since both UP and Jones could be compelled pursuant to NRS 21.280 to produce
documents regarding their property, McNair should be compelled to produce the relevant
documents in her possession.
6
See Arkansas Nat. Bank v. Cleburne County Bank, 525
S.W.2d 82, 85 (Ark. 1975) (stating that an attorney may be required to produce papers
belonging to her client where the knowledge of their existence is accessible to others or
where the client might be compelled to produce them).
Accordingly, we conclude that the district court did not exceed its authority in issuing an
order holding McNair in contempt. McNair's petition is denied.
__________

6
Additionally, NRS 21.310 specifically allows a judgment creditor to require witnesses with knowledge of the
judgment debtor's property to appear and testify on the issue.
____________
110 Nev. 1291, 1291 (1994) Valladares v. DMJ, Inc.
CARLOS A. VALLADARES and ONDY VALLADARES, Appellants/Cross-Respondents,
v. DMJ, INC. dba SOUTHWEST ENGINEERING, Respondent/Cross-Appellant.
No. 24647
November 30, 1994 885 P.2d 580
Appeal and cross-appeal from an order denying a motion to amend the memorandum of
costs, from the district court's calculation of damages, and from findings of fact, conclusions
of law and judgment. Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
Property owners brought breach of contract action against engineering company which
was to survey, parcel, and water map property, in connection with delays in company's
services. Company counterclaimed for nonpayment. The district court entered judgment for
property owners and dismissed counterclaim. Property owners appealed from denial of
motion to amend memorandum of costs, and company cross-appealed. The supreme court
held that: (1) refusal to allow owners to file amended memorandum of costs was not abuse of
discretion in light of owners' lack of diligence; (2) owners were entitled to include as
damages amount that owners paid toward contract; and (3) necessity that owners would have
to drill additional well on property as result of company's delays was foreseeable, so expenses
arising from additional well were recoverable.
Affirmed as modified and remanded.
A. Bryce Dixon, Las Vegas, for Appellants/Cross-Respondents.
R. Steven Young, Las Vegas, for Respondent/Cross-Appellant.
1. Costs.
Trial court did not abuse its discretion in denying plaintiff's motion to amend memorandum of costs, although plaintiff did not
receive bill from expert witness until after judgment had been filed, as statute provided that memorandum was to be filed within five
days of entry of judgment and plaintiff's failure to file motion to amend until 29 days after receiving bill constituted lack of diligence.
NRS 18.110(1).
2. Damages.
Property owners who established that engineering company breached its contract with owners were entitled to include in
calculation of damages amount that owners paid toward contract for services that were never rendered.
On appeal, supreme court will not disturb district court's findings of fact unless those findings are clearly erroneous.
4. Damages.
Necessity that property owners would be required to drill additional well on property was foreseeable as result of engineering
company's failure to expeditiously submit water rights application in accordance with contract, thus, owners could recover cost of
additional well as damages for breach of contract. Company took over one year to prepare application which normally took 60 days to
prepare, and company would have been aware of fact that water regulations in area were often changing in connection with population
growth.
OPINION
Per Curiam:
FACTS
In 1989, appellants/cross-respondents Carlos A. and Ondy Valladares Valladares owned a five-acre parcel of land in northwest Las
Vegas. Desiring to subdivide the property into eight lots, Valladares enlisted respondent/cross-appellant DMJ, Inc. dba Southwest
Engineering (Southwest) to survey, parcel and water map the land. The two parties signed a contract in February 1989, calling for a
maximum price of $4,500.00 with an initial retainer of $1,000.00. The contract provided for Southwest to complete the work in as
expedient and rapid [a] manner as possible. This was the second such project Southwest had agreed to perform for Valladares, the first
having gone smoothly.
Southwest filed a certificate of land division in May 1989. However, the record indicates that in April 1989, following a Southwest
staff meeting, a hold was put on Valladares' project. John Rinaldi, an engineer with Southwest, testified that he was directed to stop work
on the project due to a problem of nonpayment from Valladares. However, Rinaldi did not notify Valladares of Southwest's cessation of
work on the project.
Valladares testified that he was never delinquent in his payments to Southwest. He paid an initial retainer of $1,000.00 and then
payments totalling an additional $1,000.00 thereafter. Valladares also testified that Southwest never notified him of a need for additional
documents or deeds to continue the project.
It was not until March 15, 1990, more than one year after the project had begun, that Southwest finally submitted a water rights
application. Prior to this, on March 2, 1990, an order from the state engineer's office took effect limiting the number of gallons that could
be taken from a well. Prior to this order, one well would have sufficed for all eight lots. However, the new order necessitated the drilling of
an additional well, the cost of which was $21,436.71 for Valladares.
Valladares testified that he had inquired as to the progress of the project in early 1990 and
was given no satisfactory explanation for the delay. Accordingly, he terminated Southwest's
services and hired another engineer to complete the project for $6,500.00. Valladares then
filed this action against Southwest for breach of contract and damages for the cost of an
additional well. Southwest counterclaimed for nonpayment.
A one-day trial was held after which the district court dismissed Southwest's
counterclaims. The district court found for Valladares and awarded him $25,636.71 in
damages. The court calculated the damages by combining the cost of the additional well
($21,436.71) with the difference between the Southwest contract price of $4,500.00 and the
second contract price of $6,500.00. The court also subtracted $300.00 for the value of the
certificate of land division that Southwest had obtained for Valladares. In addition, the court
awarded Valladares $2,500.00 for the diminution in value of one lot due to the additional
well.
Prior to the filing of the findings of fact, conclusions of law and judgment on March 24,
1993, Valladares filed a memorandum of costs on March 19, 1993, wherein he claimed
witness fees of $216.00. On May 7, 1993, Valladares filed a motion to amend the
memorandum to add expert witness fees in the amount of $2,090.00. In his motion,
Valladares claimed that he had not received a bill from his expert witness at the time he had
filed his first memorandum of costs. The district court denied the motion on the ground that
NRS 18.110 does not permit such amendments beyond the five-day limit for filing the
memorandum of costs. Valladares appeals and Southwest cross-appeals. Valladares argues
that the district court erred by denying his motion to amend the memorandum of costs and
that the district court erred in calculating damages. Southwest argues that the district court
erred by concluding that damages from drilling an additional well were foreseeable.
DISCUSSION
[Headnote 1]
Valladares contends that the district court abused its discretion in denying his motion to
amend the memorandum of costs in light of the fact that he did not receive a bill from his
expert witness until after the district court's judgment had been filed. We disagree. NRS
18.110(1) provides that a memorandum of costs must be filed within five days of entry of
judgment, or such further time as the court or judge may grant. (Emphasis added.)
Accordingly, an abuse of discretion standard applies. In this case, judgment was entered on
March 24, 1993. Valladares received the bill from his expert witness on April S, 1993, but
did not file an amended memorandum of costs until April 21, 1993, thirteen days later.
the bill from his expert witness on April 8, 1993, but did not file an amended memorandum
of costs until April 21, 1993, thirteen days later. Further, Valladares did not file a motion to
amend until May 7, 1993, twenty-nine days after receiving the bill. In view of this lack of
diligence, we cannot conclude that the district court abused its discretion in denying
Valladares' motion.
[Headnote 2]
Valladares also appeals the district court's calculation of damages, arguing that the court
erred in failing to take into account the $2,000.00 he paid toward the Southwest contract for
services that were never rendered. We agree, noting that evidence was presented at trial as to
Valladares' remittance of $2,000.00 toward the contract. However, in calculating damages,
the district court merely subtracted the $4,500.00 contract price from the $6,500.00
Valladares was forced to pay another engineer, without taking into account Valladares'
payments to Southwest. Accordingly, we modify the district court's calculation of damages to
add the $2,000.00 Valladares paid toward the contract for services that were never rendered.
[Headnote 3]
Southwest cross-appeals, arguing that the district court erred in holding that the damages
incurred by Valladares in the form of drilling an additional well were foreseeable.
Specifically, the district court held that Valladares' damages were a foreseeable result of
Southwest's negligence and its breach of contract. We have held that in general, foreseeability
is a question of fact. Daniel v. Hilton Hotels, 98 Nev. 113, 115, 642 P.2d 1086, 1087 (1982).
On appeal, this court will not disturb a district court's findings of fact unless those findings
are clearly erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796
P.2d 590, 591-92 (1990).
[Headnote 4]
In the instant case, Southwest is a company that has performed numerous projects such as
the Valladares project. Therefore, Southwest would, of course, be familiar with the need to
proceed in as expedient a manner as possible in submitting a water rights application.
Valladares' expert witness, Patrick Beebe, a professional engineer, testified that it normally
takes approximately sixty days to prepare and submit a water rights application. In this case,
Southwest took over one year to do so. Such a length of time could hardly be considered to be
proceeding expediently as required under this contract. It is well known in the Las Vegas area
that water regulations are often changing to answer the needs of the city's ever-increasing
population. A company such as Southwest would be well aware of this fact.
Southwest would be well aware of this fact. Further, it would be inequitable for Valladares to
be forced to pay for the results of Southwest's extreme lack of diligence in completing the
contract. Accordingly, we conclude that the district court did not err in finding that damages
resulting from the necessity of an additional well were foreseeable as a result of Southwest's
delay in completing this contract.
We have carefully considered Southwest's additional arguments on appeal and conclude
that they are meritless. We hereby modify that portion of the district court's order calculating
damages and add $2,000.00. We remand to the district court for the purpose of modifying the
judgment accordingly.
____________
110 Nev. 1295, 1295 (1994) Foley v. Kennedy
JOSEPH FOLEY, Appellant, v. JAMES C. KENNEDY, MARTHA PAULINE KENNEDY,
RALF N. ROST, S. PATRICIA ROST, TYRONE C. PARKER, SALLY PARKER,
LAREE BATES, and the Clark County Registrar of Voters, DEBORAH WEST,
Respondents.
No. 24284
PATRICK C. CLARY, FRED E. CASE, HAZEL L. CASE, BARBARA LYNN HORN,
PAMELA R. TARKANIAN, and DANNY J. TARKANIAN,
Appellants/Cross-Respondents, v. CAROLYN M. SPARKS,
Respondent/Cross-Appellant, and Clark County Registrar of Voters, DEBORAH
WEST, Respondent/Cross-Respondent.
No. 24285
November 30, 1994 885 P.2d 583
Appeal and cross-appeal from district court orders following a bench trial directing
registrar of voters to take no further action on appellants' recall petition and denying the
cross-appellant's request for costs. Eighth Judicial District Court, Clark County; William P.
Beko, Judge.
Petition to recall university regent was found to be invalid due to deficient number of
signatures, the Registrar of Voters was directed to take no further action on petition, but
regent's request for costs was denied by the district court. Cross-appeals were taken. The
supreme court held that: (1) general election preceding filing of petition for recall was
relevant election when determining number of signatures required by state constitution; (2)
equitable estoppel did not require state to accept a deficient recall petition; and {3)
regent was entitled to award of costs.
equitable estoppel did not require state to accept a deficient recall petition; and (3) regent was
entitled to award of costs.
Affirmed in part, reversed in part.
Foley & Jones, Las Vegas, for Joseph Foley.
Rex Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark
County, for Clark County Registrar of Voters.
Carolyn M. Sparks.
Daniel J. Albregts, Las Vegas, for Kennedy, Rost, Parker, and Bates, and for
Appellants/Cross-Respondents.
1. Officers and Public Employees.
General election preceding filing of petition for recall of public officers, rather than election preceding filing of notice of intent to
recall, is used for determining number of signatures for recall petition required by state constitution. Const. art. 2, 9; NRS
306.020(2)(b).
Constitution may not be construed according to statutes.
Statutes must be construed consistent with constitution and, where necessary, in manner supportive of their constitutionality.
4. Estoppel.
Equitable estoppel did not apply to require the Registrar's office or state to accept university regent recall petition and to go
forward with recall election, despite contention that petitioners relied upon erroneous advice from Registrar's office concerning number
of signatures required for valid recall petition. State cannot be estopped from cancelling illegal election and estoppel could not be
applied to university regent who was blameless target of recall petition. Const. art, 2, 9.
5. Costs.
Hearing on sufficiency of petition to recall university regent was special proceeding under statute mandating award of costs to
prevailing party. NRS 18.020(4).
6. Costs.
University regent who was target of recall petition was prevailing party under statutes mandating award of costs when petition
was declared invalid due to inadequate number of signatures required for valid recall petition. Const. art. 2, 9; NRS 18.020(1)-(3),
(5).
OPINION
Per Curiam:
This is an appeal from a judgment finding a petition filed by a citizens group seeking to recall a member of the Board of Regents
legally insufficient and an order directing the Registrar of Voters to take no further action on the recall petition.
to take no further action on the recall petition. There is also a cross appeal from an order of
the district court denying the subject of the recall effort his request for costs.
1

FACTS
Appellants The Citizens to Recall Carolyn M. Sparks (hereinafter the Citizens)
organized a petition drive to recall respondent Carolyn M. Sparks (Sparks) from her
position as a University of Nevada Regent. The following events are relevant to the resolution
of this appeal: (1) on November 2, 1992, the Citizens, pursuant to NRS 306.015, filed the
notice of intent to circulate a petition to recall Sparks; (2) on November 3, 1992, a general
election was held, at which time 90,881 registered voters cast ballots in the geographical area
comprising University Regent Section 2, Subdistrict B (Sparks' district); and (3) on December
31, 1992, the Citizens submitted the recall petition to the Clark County Registrar of Voters,
which, according to the district court's judgment, contained 12,887 valid signatures.
On January 22, 1993, the Clark County Registrar of Voters, represented by the Clark
County District Attorney's Office, filed a petition for a hearing to determine the sufficiency of
the recall petition. At the time, NRS 306.040 required the Registrar to automatically submit
the matter to the district court for a sufficiency hearing. After an evidentiary hearing, the
district court, having first announced its ruling in open court, filed its findings of fact,
conclusions of law and judgment on February 19, 1993.
The lower court determined that the organizers of the recall drive had relied upon the
erroneous advice of the assistant registrar of voters indicating that 10,301 signatures were
essential for the presentation of a valid petition. This figure was based upon twenty-five
percent of the vote for the specific office of Regent in the 1990 election. However, the district
court determined that Article 2, section 9, of the Nevada Constitution provided that
twenty-five percent of the votes cast in the relevant geographical area (the district that elected
the officer) in the general election preceding the filing of the petition constituted the requisite
number of signatures to be included in the recall petition. Utilizing the vote tallies from the
November 3, 1992 election, the district court found that under the constitutional formula,
22,720 signatures were necessary to a valid petition for Sparks' recall.
__________

1
The Sparks case has been consolidated with another appeal and cross appeal involving an attempted recall
petition (the Foley case). The appeal in the Foley case was dismissed by this court on January 6, 1994. However,
the Foley cross appeal remained pending in the transmuted form of an appeal. The only remaining issue in the
Foley (cross) appeal had to do with Foley's request for costs; the same issue is present in the Sparks cross appeal.
We therefore elected to address them together in this consolidated appeal.
Although other issues regarding the sufficiency of the recall petition had been raised,
2
the
court ultimately ruled that based on the deficient number of signatures, the recall petition was
legally insufficient.
3
Accordingly, the court directed the Registrar of Voters to take no
further action regarding the recall petition.
Based upon the district court's ruling, Sparks sought to recover the legal costs incurred in
her successful attempt to contest the sufficiency of the petition. Relying on NRS 18.020(4),
4
Sparks contended that the sufficiency hearing was a special proceeding and that she was
entitled to an order requiring the losing party to pay her legal costs as the prevailing party.
Appellants countered that such an order would, in effect, constitute a tax on the exercise of
the constitutional right to recall elected officials and would have a chilling effect on future
individuals legitimately seeking to improve their government. The court eventually granted
appellants' motion to retax or strike Sparks' memorandum of costs.
The Citizens appeal on the legal questions of (1) whether the court applied the proper
election in determining the number of required signatures and (2) whether they were
reasonably entitled to rely upon the advice received by the Registrar as to the required number
of signatures. Sparks filed a cross appeal from the district court's order granting the motion to
retax or strike her memorandum of costs.
DISCUSSION
[Headnote 1]
The Citizens contend that the district court selected the wrong election as the
determinant of the minimum number of signatures required for their recall petition.
__________

2
For example, at the conclusion of the hearings, the district court announced that the petition sufficiently
provided a basis for verifying the identity and residence of each of the signatories to the petition. In addition, the
Findings of Fact, Conclusions of Law and Judgment incorporated the determination that there was substantial
compliance with the laws of the State of Nevada notwithstanding petitioners' failure to consecutively number the
pages of the petition.

3
The petition to recall Foley, initiated on the same date as the Sparks petition, was likewise found by Judge
Beko to contain an insufficient number of signatures. Judge Beko also concluded that the Foley petition was
legally insufficient due to other deficiencies as well and that it would have contained an inadequate number of
signatures even if the earlier election results had been utilized.

4
Cases in which costs allowed prevailing party. Costs must be allowed of course to the prevailing party
against any adverse party against whom judgment is rendered, in the following cases:
. . . .
4. In a special proceeding.
election as the determinant of the minimum number of signatures required for their recall
petition. They insist that the proper election to be referenced was the general election
preceding their filing of notice of intent to seek recall.
Article 2, section 9, of the Nevada Constitution provides, in pertinent part:
Sec. 9. Recall of public officers: Procedure and limitations. Every public officer
in the State of Nevada is subject, as herein provided, to recall from office by the
registered voters of the state, or of the county, district, or municipality, from which he
was elected. For this purpose a number of registered voters not less than twenty-five
per cent (25%) of the number who actually voted in the state or in the county, district,
or municipality electing said officer, at the preceding general election, shall file their
petition, in the manner herein provided, demanding his recall by the people; they shall
set forth in said petition, in not exceeding two hundred (200) words, the reasons why
said recall is demanded. . . . If he shall not resign within five (5) days after the petition
is filed, a special election shall be ordered to be held within twenty days (20) after the
issuance of the call therefor, in the state, or county, district, or municipality electing
said officer, to determine whether the people will recall said officer.
(Emphasis added.)
We conclude that the district court correctly found this language unambiguous as it says
nothing concerning the filing of the notice of intent to recall. According to the referenced
constitutional provision, twenty-five percent of the persons who actually voted in the relevant
political division in the preceding general election shall file their petition for recall. Thus,
twenty-five percent of the persons who voted in the general election preceding the filing of
the petition must sign the recall petition.
The procedure for initiating and carrying out a recall petition is further specified by
Chapter 306 of the Nevada Revised Statutes, and it is upon this Chapter that the Citizens
claim support for their position. NRS 306.015 provides for the filing of a notice of intent to
circulate a recall petition. NRS 306.015(2) mandates that this notice:
(a) Must be signed by three registered voters who actually voted in the state or in the
county, district or municipality electing the officer at the last preceding general election.
(b) Must be signed before a person authorized by law to administer oaths that the
statements and signatures contained in the notice are true. . . .
NRS 306.015(3) requires the petition to be submitted within sixty days of the filing of the
notice.
NRS 306.015 does not require the notice to contain a statement of the number of
signatures required to be on the petition; however, NRS 306.020(2)(b) specifies that the
petition itself must contain a statement of the required number of signatures. The latter
subsection of the statute provides:
2. The petition must, in addition to setting forth the reason why the recall is
demanded:
. . . .
(b) Contain a statement of the minimum number of signatures necessary to the
validity of the petition[.]
The Citizens allude to the impossible task of filing a notice less than 60 days prior to a
general election and using the allotted 60 days to collect signatures (thus collecting signatures
beyond the new election) in compliance with these statutes. They observe that no one can
divine twenty-five percent of the persons who actually voted in a future election.
Consequently, Citizens argue that it must be that the election preceding the filing of the
notice is the relevant election for determining the required number of signatures.
[Headnotes 2, 3]
Citizens' reasoning is contrary to general rules of statutory and constitutional construction,
placing, as it does, greater interpretive effect upon one section of a statute than upon the plain
terms of the constitution. The constitution may not be construed according to a statute
enacted pursuant thereto; rather, statutes must be construed consistent with the constitution
and, where necessary, in a manner supportive of their constitutionality. As this court has
previously stated:
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 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).
Sheriff v. Luqman, 101 Nev. 149, 154-55, 697 P.2d 107, 111 (1985). By contrast, an adoption
of the Citizens' position would require the untenable ruling that constitutional provisions
are to be interpreted so as to be in harmony with the statutes enacted pursuant thereto;
or that the constitution is presumed to be legal and will be upheld unless in conflict with
the provisions of a statute.
require the untenable ruling that constitutional provisions are to be interpreted so as to be in
harmony with the statutes enacted pursuant thereto; or that the constitution is presumed to be
legal and will be upheld unless in conflict with the provisions of a statute. This is contrary to
the clear rules of statutory and constitutional construction.
5

For the reasons specified, we affirm the district court's ruling and conclude that the plain
and unambiguous language of the constitution is determinative of the issue of which election
is relevant in calculating the required number of signatures on a recall petition: namely, the
election immediately preceding the filing of the petition.
Estoppel
[Headnote 4]
The Citizens also seek relief on grounds that they reasonably and detrimentally relied upon
advice they received from the Registrar's office concerning the number of signatures required
for a valid recall petition. Accordingly, Citizens argue that the principle of equitable estoppel
applies to require the Registrar (or the state) to accept their recall petition and go forward
with the recall election. We reject Citizens' argument.
We consider the following reasoning of the Arizona Supreme Court to be persuasive:
Elections are political matters to be decided by the electorate, but the legality of
holding an election is a judicial question to be decided according to the requirements
of the constitution. State v. Osborn, 14 Ariz. 185, 125 P. 884 (1912). . . .
Preliminarily . . . we are met by the claims of several of the real parties in interest,
who are candidates certified to appear on the recall ballot, that it is not necessary for the
court to resolve the conflicting provisions of the state constitution applicable to this
situation because the state is estopped from cancelling the election.
__________

5
Our ruling is consistent with an Attorney General's Opinion addressing the constitutional and statutory
provisions at issue here. Specifically, an Opinion of the Attorney General explained that Article 2, Section 9, of
the Nevada Constitution is self-executing, and, therefore, to the extent that NRS 306.020, subsection 1 would
conflict with the provisions of the constitution, Article 2, Section 9 [of the constitution] should be followed and
not the provisions of NRS 306.020, subsection 1. Op. Nev. Att'y Gen. No. 80-17 (May 21, 1980). Although the
referenced opinion did not address the direct issue confronting us in the instant appeal, the Attorney General's
Opinion also stated that the term the preceding general election' refers to the general election immediately
preceding the filing of a recall petition. Continuing, the opinion concludes that filing officers must determine if
a recall petition contains a number of signatures equal to 25 percent of the number of voters who voted at the
immediately preceding general election.
court to resolve the conflicting provisions of the state constitution applicable to this
situation because the state is estopped from cancelling the election. The candidates
contend that they, as well as many voters, justifiably relied to their detriment upon the
Secretary of State's order calling the special election and the Attorney General's opinion
stating that the election shall be held even if the Governor later resigns or is removed
from office prior to the election date. Ariz. Atty. Gen. Op. I88-015 (January 21, 1988).
. . .
Ordinarily, a claim of equitable estoppel is made out when a person justifiably relies
on the conduct of another to their detriment. Heltzel v. Mecham Pontiac, 152 Ariz. 58,
730 P.2d 235 (1986). Generally, however, the defense of estoppel does not apply
against the state in matters affecting governmental or sovereign functions. Mohave
County v. Mohave-Kingman Estates, 120 Ariz. 417, 586 P.2d 978 (1978). Nor may the
state be estopped by the unauthorized acts of its officers or employees. Freightways,
Inc. v. Arizona Corporation Commission, 129 Ariz. 245, 248, 630 P.2d 541, 544
(1981). . . .
. . . .
[W]e point out that the state is not estopped from cancelling an illegal election. The
provisions of the constitution control in such matters, and although the candidates may
have relied in good faith upon the Attorney General's opinion, that opinion cannot
negate the provisions of the constitution nor the authority of this court to interpret it.
Green v. Osborne, 758 P.2d 138, 140-41 (Ariz. 1988) (emphasis added). Likewise, we reject
the argument that equitable estoppel may apply to require the holding of an otherwise
unconstitutional election.
Moreover, it has been held that [e]stoppel is an equitable doctrine[] [which] will not be
applied against one who is blameless. Ricciardi v. Los Angeles County, 252 P.2d 773, 779
(Cal. Ct. App. 1953). This principle has been utilized to prevent the application of equitable
estoppel against the target of a recall petition who had nothing to do with erroneous advice
given the recall organizers by a state official. See Wilcox v. Enstad, 176 Cal. Rptr. 560,
568-69 (Ct. App. 1981) (school trustee target of recall election could not be prevented under
theory of equitable estoppel from seeking to compel county clerk to comply with law by
recall petitioners' asserted reliance on clerk's earlier representations as to how law would
operate). Similarly, we conclude that the registrar's erroneous advice does not require the
registrar (or the state) to accept the Citizens' recall petition and go forward with the recall
election.
the state) to accept the Citizens' recall petition and go forward with the recall election.
Legal Costs
In its findings of fact, conclusions of law and judgment, the district court ruled as follows:
IT IS . . . ORDERED that a hearing on a recall petition is not a special proceeding
within the contemplation of NRS 18.020(4), and therefore, no costs are awarded to Mr.
Foley or Ms. Sparks under this statute; and
IT IS FURTHER ORDERED that even if an award of costs was within this Court's
discretion, no costs would be awarded in this type of matter.
Cross-appellant Sparks contests the district court's denial of recovery of costs. She argues
that the hearing on a recall petition is a special proceeding and consequently, that NRS
18.020(4)
6
mandates recovery of the prevailing party's costs. We agree.
[Headnote 5]
NRS 18.020(1)-(3) and (5)
7
mandates an award of costs to the prevailing party in the
actions specified therein, which are fairly all-encompassing, including actions concerning
property and actions for money damages. NRS 18.020(4) provides for an award of costs to
the prevailing party in any special proceeding. We have recognized this statute's mandatory
language dealing with special proceedings. See, e.g., Day v. West Coast Holdings, Inc., 101
Nev. 260, 264, 699 P.2d 1067, 1070 (1985) (costs are mandatory to the prevailing party in an
action falling under NRS 1S.020).
__________

6
Cases in which costs allowed prevailing party. Costs must be allowed of course to the prevailing party
against any adverse party against whom judgment is rendered, in the following cases:
1. In an action for the recovery of real property or a possessory right thereto.
2. In an action to recover the possession of personal property, where the value of the property amounts to
more than $2,500. The value must be determined by the jury, court or master by whom the action is tried.
3. In an action for the recovery of money or damages, where the plaintiff seeks to recover more than
$2,500.
4. In a special proceeding.
5. In an action which involves the title or boundaries of real estate, or the legality of any tax, impost,
assessment, toll or municipal fine, including the costs accrued in the action if originally commenced in a
justice's court.

7
Id.
under NRS 18.020). Since Sparks ultimately prevailed against Citizens in their effort to
effectuate her recall, the issue concerning her entitlement to costs involves a determination as
to whether the proceedings against her fall within the purview of a special proceeding.
8

It may be said generally that any proceeding in a court which was not under the
common-law and equity practice, either an action at law or a suit in chancery, is a special
proceeding. Schmaling v. Johnston, 54 Nev. 293, 301, 13 P.2d 1111, 1113 (1932) (quoting
In re Central Irrigation Dist., 49 P. 354, 356 (Cal. 1897)) aff'd on rehearing, 55 Nev. 164, 27
P.2d 1059 (1934). The following language from Avelar v. Superior Court, 9 Cal. Rptr. 2d 536
(Ct. App. 1992), albeit in a context other than costs, explains the term special proceeding:
The difference between an action and a special proceeding, as defined by the
statutes, is in the remedy sought. (See Agricultural Labor Relations Bd. v. Superior
Court (1983) 149 Cal. App. 3d 709, 714, 196 Cal. Rptr. 920.) A special proceeding is
confined to the type of case which was not, under the common law or equity practice,
either an action at law or a suit in equity. (Tide Water Assoc. Oil Co. v. Superior Court
(1955) 43 Cal. 2d 815, 822, 279 P.2d 35 [emph. supp.].) . . . .
. . . .
. . . . By describing a special proceeding as any remedy not available in an
action, the Legislature must have meant to create and recognize two roughly
equivalent levels of independent procedures to be directed towards the attainment of
different, but similarly final remedies.
Id. at 539-40.
[Headnote 6]
The hearing at issue was held pursuant to the former version of NRS 306.040,
9
which
required the Registrar, upon the filing of a recall petition, to automatically submit the petition
to the district court for a public hearing on the petition's sufficiency. Nevertheless, Sparks and
the organizers of the recall petition were deemed the real parties in interest in
__________

8
This court has determined that a pre-probate will contest is a special proceeding. Gavin v. Rhoden, 97 Nev.
147, 625 P.2d 571 (1981) (citing Wainwright v. Bartlett, 51 Nev. 170, 271 P. 689 (1928), in which a will contest
was held to be a special proceeding). However, this court did not elucidate the defining characteristics of a
special proceeding in these opinions.

9
The statute has since been amended to require a hearing on the sufficiency of the petition only when it is
challenged by the filing of a complaint. See 1993 Nev. Stat., ch. 576 7 at 2408-09.
the real parties in interest in the Registrar's filing, and both parties hired attorneys to represent
their divergent interests at the hearing. Because the mechanism (judicial hearing) for
determining a recall petition's sufficiency is strictly a creature of statute, underived from the
panoply of remedies traditionally available in actions at law or suits in equity where one party
has sued the other, we conclude that the proceeding was a special proceeding. Since Sparks
prevailed in the proceedings below, we hold that Sparks is entitled to her mandatory award of
costs under NRS 18.020(4). (Foley is entitled to his costs under the same reasoning.) We thus
reverse the lower court's ruling as it relates to costs.
In ruling as we have, we are not unmindful of the competing constitutional interests
affected by this decision, i.e., the property interest held by the challenged elected official in
the office to which he or she has been elected, and the right of individuals to legitimately seek
recall of officials who are viewed as having failed in their public trust. See Crowe v. Lucas,
595 F.2d 985, 993 (5th Cir. 1979); Brown v. Perkins, 706 F. Supp. 633, 634 (N.D. Ill. 1989).
Under today's ruling, it is apparent that accessing and asserting the referenced constitutional
rights will ultimately redound to the financial detriment of the losing party.
Despite our ruling, and in view of the potential problems and consequences that may result
therefrom, we strongly invite the Legislature to address these issues. The legislative
laboratory is well-suited to entertain the study, debate and public input necessary for a wise
and fair resolution of the various ramifications and results of this decision. Of primary
concern is the chilling effect the statutes, as interpreted here, may have on citizens
legitimately trying to exercise their constitutional rights. Specifically, well-meaning citizens
who fail in their attempt to exercise their constitutional right to recall an elected official are
subject to an award of costs. Of perhaps equal concern is the chilling effect spurious recall
efforts could have on the willingness of public officials to subject themselves to substantial
cost awards in the event the recall effort is successful. In the latter case, public officials
unendowed with an abundance of personal financial resources, could simply find the
alternative of resignation more palatable than the prospect of a costly and perhaps unavailing
defense. This alternative could have special attraction to a public official subjected to
irresponsible, concentrated media efforts to promote the recall.
CONCLUSION
For the reasons discussed above, we affirm the district court's ruling that the general
election immediately preceding the filing of the petition is relevant for determining the
required number of signatures on a recall petition.
signatures on a recall petition. In addition, we reverse the district court's ruling as to costs on
the grounds that the statutorily mandated judicial hearing is a special proceeding which
requires an award of costs to the prevailing party. Accordingly, both Sparks and Foley are
entitled to their costs, and these matters are remanded to the district court for the limited
purpose of determining the amount of the cost award to Sparks and Foley, respectively, and
the entry of judgment thereon.
____________
110 Nev. 1306, 1306 (1994) Duff v. Foster
TYRONE GEORGE DUFF, Appellant, v. YOLANDA FOSTER, Respondent.
No. 25043
November 30, 1994 885 P.2d 589
Appeal from a district court order awarding attorney's fees and costs. Second Judicial
District Court, Washoe County; Scott T. Jordan, Judge.
Following mother's successive defense of father's charges of alleged sexual molestation of
children by mother's husband, mother filed motion for attorney fees. The district court
awarded mother attorney fees, and father appealed. The supreme court held that there was no
statutory basis upon which award of attorney fees could have been made.
Reversed.
Martin G. Crowley, Reno, for Appellant.
A. Stanyan Peck, Reno, for Respondent.
Divorce.
Father had reasonable grounds upon which to initiate motion for change of custody based on belief that mother's husband sexually
molested children and, therefore, mother was not entitled to award of attorney fees even though she successfully defended charges, in
view of evidence that father did not file for protective order or for custody until he observed sexual behavior in his children and had
them evaluated by doctor, that county department of social services identified mother's husband as suspected perpetrator, and that
father did not know before trial that children may have been molested by older cousin.
OPINION
Per Curiam:
FACTS
Appellant Tyrone Duff (Tyrone) observed inappropriate sexual behavior in his two minor children.
110 Nev. 1306, 1307 (1994) Duff v. Foster
sexual behavior in his two minor children. Tyrone had the boys evaluated by Dr. Peterson
who determined that they had been sexually molested. Dr. Peterson then notified the Washoe
County Department of Social Services and that department called the police. During this time
and for the preceding year, Tyrone's ex-wife, respondent Yolanda Foster (Yolanda), had
primary physical custody of the boys. On the belief that Yolanda's husband, William Foster
(William), may have molested the boys, Tyrone moved for a protective order for the
children and for a change of custody. On November 15, 1990, the district court temporarily
granted Tyrone's requests.
The district court held hearings on the matter on December 21, 1990, January 30, 1991,
and February 4, 1991. During these hearings both parties were represented by counsel.
Subsequently, a Master's Report and Recommendation was presented to the district court by
Scott T. Jordan, who was then Court Master.
1
The reasoning behind the Master's Report and
Recommendation was as follows:
Based on the testimony and evidence presented, I am satisfied that [the children] have
been the victims of sexual molest [sic]. . . .
. . . .
. . . Mr. Foster has an extensive criminal record. His five felony convictions include
attempted homicide, aggravated assault, battery causing substantial bodily harm, and
drug charges. Mr. Foster has also been charged with sexual offenses in the past, but the
charges were not pursued.
. . . .
While there is minimal direct evidence that Mr. Foster molested the Duff children,
there is no evidence which is inconsistent with such a conclusion. . . . Clearly, there is
insufficient evidence to conclusively prove that Mr. Foster is the perpetrator. However,
considering all the evidence presented, he is still the most likely suspect. This
conclusion is supported by Detective Overton's testimony that Mr. and Mrs. Duff have
cooperated fully with his investigation, which [sic] Mr. and Mrs. Foster have been
uncooperative.
On February 22, 1991, the district judge, based on Master Jordan's recommendation,
extended the November 15 protective order.
From July 5 to July 8, 1993, the district court held a trial involving a consolidated hearing
on Tyrone's motion to change custody and/or whether the protective order should be
extended.
__________

1
Scott T. Jordan, almost two years later, became the district judge who awarded attorney's fees and costs in this
case.
110 Nev. 1306, 1308 (1994) Duff v. Foster
During the course of this three-day trial, Tyrone represented himself.
Upon conclusion of the trial, the court determined that Mr. Duff has failed to meet his
evidentiary burden in proving by a preponderance of the evidence that the allegations of
sexual abuses and/or that the best interest of the children would be served by his retaining
custody. The court then gave Yolanda full custody of both children, suspended Tyrone's
visitation rights, and limited Tyrone's communication with the children.
The court apparently based its custody findings on the sound economic status and the good
mental health of Yolanda. The court concluded that Tyrone was not financially secure and
had some psychological disorders. The court also concluded that the charges of sexual assault
against William were unfounded because (1) William was incarcerated for an extended period
of time and therefore had very limited contact with the children; and (2) there was no
evidence that William ever perpetrated any child abuse or that he fit the profile of a
pedophile.
Subsequently, Yolanda moved to receive attorney's fees and to be indemnified for
expenses paid to Dr. Richard Lewis, the court-appointed psychologist. On September 10,
1993, the district court awarded Yolanda $23,325.00 in attorney's fees and ordered that
Tyrone indemnify Yolanda for all the fees she paid to Dr. Lewis.
Although the court did not specifically refer to a statute or state upon which facts it based
its award of attorney's fees and its indemnification of Yolanda, the court stated that it
generally relied upon Yolanda's motion, Tyrone's opposition, and the entire record before it.
It should be noted that the facts above are only a small part of the litigation that has
occurred between these two parties since their divorce in 1988. However, the issues
considered on this appeal are limited to Yolanda's successful defense of Tyrone's charges of
sexual molestation and her subsequent award of attorney's fees.
DISCUSSION
The decision of the district court to award attorney's fees was in error because there is no
statutory basis upon which such an award could have been made. The only statute considered
by the district court that could have served as a possible basis for the award is NRS
18.010(2)(b). This statute permits a district court to award attorney's fees to a prevailing party
when the court finds that the claim . . . of the opposing party was brought without
reasonable ground or to harass the prevailing party. (Emphasis added.)
110 Nev. 1306, 1309 (1994) Duff v. Foster
The district court determined that Tyrone Duff
made allegations of sexual misconduct against William and Yolanda Foster that was
not supported at the time made nor at any time thereafter . . . .
. . . .
. . . Mr. Duff has deliberately attempted to impair Mrs. Foster's relationship with the
children by speaking derogatorily about Mr. & Mrs. Foster in front of the children and
before third parties; that such conduct was in direct contravention of express Court
Orders; that such included brain-washing' [one child] into believing allegations of
sexual misconduct/abuse by Mr. & Mrs. Foster which Mr. Duff had reason to believe
were false . . . .
(Emphasis added.) The court apparently based these conclusions on its finding that as early as
1990 the Duff boys had reported to Dr. Peterson that they were sexually assaulted by an older
cousin and that Tyrone and his current wife, Linda Duff, were informed of the alleged abuse
by the cousin.
Although Tyrone did not succeed on the merits of his claim at trial, there is evidence that
he had reasonable ground upon which to initiate such a claim. If an action is not frivolous
when it is initiated, then the fact that it later becomes frivolous will not support an award of
fees. State of Florida, Dep't of Health and Rehabilitative Services v. Thompson, 552 So. 2d
318, 319 (Fla. Ct. App. 1989) (citation omitted).
First, Tyrone did not file for a protective order or for custody until he observed sexual
behavior in his children and had them evaluated by Dr. Peterson. Second, the Washoe County
Department of Social Services identified William as the suspected perpetrator. Third, after
Tyrone filed his motions and initiated this suit, the Master's Report and Recommendation,
based on three days of hearings, found that William was the most likely suspect.
Lastly, there is no support in the record for the district court's finding that Mr. Duff knew
his claim was false based on his knowledge of sexual abuse by a cousin. In fact, this is
directly contradicted by the Master's Report and Recommendation where Master Jordan
stated, The boys admitted to the sexual play reported by the Duffs, and [one child] told Dr.
Peterson that Respondents [Mr. and Mrs. Foster] had molested him. The boys also reported
fear of Respondent William Foster. Tyrone claims that the information regarding
molestation by an older cousin as reported to Dr. Peterson was concealed in a confidential
report that was not disclosed until the July trial. This was more than two years after Tyrone
initiated this action. However, there is no indication in the record on appeal that at any time
before trial, Tyrone had actual knowledge that the boys were molested by an older cousin.
110 Nev. 1306, 1310 (1994) Duff v. Foster
Tyrone had actual knowledge that the boys were molested by an older cousin. This court
simply cannot imply facts to sustain an award of attorney's fees. See Trident Construction v.
West Electric, 105 Nev. 423, 429, 776 P.2d 1239, 1243 (1989) (citing Pease v. Taylor, 86
Nev. 195, 467 P.2d 109 (1970)).
For the reasons enumerated above, Tyrone had reasonable ground upon which to bring this
action. Thus, the award of attorney's fees pursuant to NRS 18.010(2)(b) was erroneous.
Had there been a statutory basis to award attorney's fees, it should be noted that the motion
for attorney's fees was substandard. Yolanda's motion for attorney's fees was based in part on
hearings held March 12 and March 24, 1993. These were completely separate hearings
considering a different claim for which Yolanda had already been awarded attorney's fees and
costs. In addition, Yolanda's attorney supplied no itemized breakdown of services rendered
and simply claimed $23,325.00 in fees.
Lastly, the authority considered by the district court provided no basis upon which to order
Tyrone to indemnify Yolanda for her share of expenses paid to Dr. Lewis.
Accordingly, the judgment awarding attorney's fees and indemnifying Yolanda is reversed.
____________
110 Nev. 1310, 1310 (1994) Wiley v. Redd
KENDALL WILEY, Appellant, v. W.F. REDD and ALARMCO, INC., a Nevada
ALARMCO, INC., Cross-Appellant, v. W.F. REDD, MARILYN S. REDD, BALLY
GAMING, INC., Cross-Respondents.
No. 24931
November 30, 1994 885 P.2d 592
Appeal and cross-appeal from district court orders of summary judgment. Eighth Judicial
District Court, Clark County; Nancy A. Becker, Judge.
Police officer brought action against property owner and security company for their
alleged failure to warn of dogs present on property at time officer was dispatched to
investigate activated burglar alarm leased to property owner by security company. The district
court entered summary judgment against police officer, and police officer appealed. The
supreme court held that: (1) firefighter's rule did not prevent police officer from pursuing
negligence claims against property owner or security company, and {2) security company
had no duty to warn of vicious dogs on property.
110 Nev. 1310, 1311 (1994) Wiley v. Redd
and (2) security company had no duty to warn of vicious dogs on property.
Affirmed in part; reversed in part and remanded; cross-appeal dismissed.
Easterly & Armstrong, Elko, for Appellant.
Pico & Mitchell and Thomas A. Ericsson, Las Vegas, for Respondent and
Cross-Respondents Redd.
Cohen, Lee, Johnson & Day and David L. Riddle, Las Vegas, for
Respondent/Cross-Appellant Alarmco.
1. Detectives; Negligence.
Firefighter's rule which operates to bar tort recovery by firefighters, police officers, and other public officers did not prevent
police officer from pursuing negligence claims against property owner and security company which leased alarm to property owner
based on their failure to warn of vicious dogs, where activated burglar alarm and security company's telephone call to police
department were events which produced police officer's presence at scene of her injury, rather than any failure to warn. NRS 41.139.
2. Judgment.
Material issue of fact as to whether property owner acted reasonably under circumstances in failing to warn or otherwise assuring
that police officer was warned of presence of vicious dogs when responding to activated burglar alarm, precluding summary judgment
in police officer's action against owner for injuries sustained when dog bit her on wrist, was supported by evidence that police officer
and partner whistled and banged on fence to see if dogs were on premises, that, when no dogs responded, police officer and partner
climbed fence enclosing backyard to commence their security check, and that police officer and partner were charged by two dogs that
had apparently been concealed behind some bushes. NRS 41.139.
3. Negligence.
To prevail on negligence theory, plaintiff generally must show that defendant owed duty of care to plaintiff; defendant breached
that duty; breach was legal cause of plaintiff's injuries; and plaintiff suffered damages.
4. Judgment.
In order to justify summary judgment relief, moving defendant must show that one of elements of plaintiff's prima facie case is
clearly lacking as matter of law.
5. Negligence.
Law does not impose general affirmative duty to warn others of dangers.
6. Detectives.
There was no sufficient relationship between police officer responding to activated burglar alarm and security business which
leased alarm to property owner to warrant imposition of duty on business to warn of dangerous dogs on property.
110 Nev. 1310, 1312 (1994) Wiley v. Redd
OPINION
Per Curiam:
Appellant, police officer Kendall Wiley, appeals from orders of summary judgment
entered against her on claims of negligence against W.F. Redd
1
and Alarmco, Inc. Alarmco
has cross-appealed an order of summary judgment in favor of Redd et al., as to Alarmco's
cross-claim and third-party complaint. At issue are the common law firefighter's rule, which
operates to bar tort recovery by firefighters, police officers, and other public officers
(hereinafter safety officers), NRS 41.139, which limits the common law rule's scope, and
Alarmco's duty at common law. The act of negligence Wiley alleges against Redd and
Alarmco is the failure to warn of dogs present on Redd's property at a time when Wiley was
dispatched to investigate an activated burglar alarm leased to Redd by Alarmco.
For reasons set forth hereafter, we affirm the order of summary judgment entered in favor
of Alarmco against Wiley, reverse the order of summary judgment favoring Redd against
Wiley, and remand accordingly. Alarmco's cross-appeal is rendered moot by this disposition.
FACTS
On July 5,1989, Wiley and her partner were summoned to the Redd residence to
investigate an activated burglar alarm. Neither Redd nor his wife were home at the time.
Redd had leased the burglar alarm system from Alarmco, who, as part of its service, notified
the police when the alarm sounded. Alarmco alerted the police to the sounding alarm on the
day in question and also dispatched an Alarmco employee to the Redd residence to
investigate.
Wiley and her partner were the first to arrive at the scene. They proceeded to investigate
and noticed a dog pen and dog house in the backyard. Wiley claims that she and her partner
then whistled and banged on the fence to see if dogs were on the premises. When no dogs
responded, Wiley and her partner climbed the fence enclosing the back yard to commence
their security check. Shortly thereafter, they were charged by two Rottweiler dogs that had
apparently been concealed behind some bushes. Wiley's partner escaped over the fence, but
Wiley was bitten on her wrist by one of the dogs.
__________

1
Redd has indicated in his answering brief that Wiley mistakenly filed suit against W.F. Redd as appears in
the record and in the caption to this appeal. The caption should read W.S. Redd.
110 Nev. 1310, 1313 (1994) Wiley v. Redd
Wiley filed a complaint against both Redd and Alarmco alleging negligent failure to warn
of the dogs. Alarmco filed a cross-claim and third-party complaint against Redd seeking
indemnification or contribution.
2
On June 15, 1992, Redd filed a motion for summary
judgment against Wiley, contending that the common law firefighter's rule and NRS 41.139
barred Wiley's complaint as a matter of law. Alarmco joined in Redd's motion for summary
judgment, adopting Redd's arguments and the additional argument that Alarmco owed no
duty to Wiley as a matter of law. The district court granted summary judgment in favor of
both Redd and Alarmco against Wiley and in favor of Redd in Alarmco's cross-claim and
third-party complaint. This appeal ensued.
DISCUSSION
Standard of review
Summary judgment is appropriate only when a review of the record in a light most
favorable to the non-moving party reveals no genuine issues of material fact and judgment is
warranted as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
(1985). In determining whether summary judgment is proper, the non-moving party is entitled
to have the evidence and all reasonable inferences to be drawn therefrom accepted as true.
Wiltsie v. Baby Grand Corp. 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). Accordingly, a
district court may not grant summary judgment if a reasonable jury could return a verdict in
favor of the non-moving party. Oehler v. Humana, Inc., 105 Nev. 348, 350, 775 P.2d 1271,
1272 (1987). On appeal, this court is required to determine whether the trial court erred in
concluding that there were no genuine issues of material fact and that summary judgment was
justified as a matter of law. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18
(1981). Our review of an order granting summary judgment is de novo. Tore, Ltd. v. Church,
105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
The firefighter's rule
Both Redd and Alarmco contend that the common law firefighter's rule bars Wiley's
negligence claims.
__________

2
Alarmco named W.F. Redd in the cross-claim and W.F. Redd, Marilyn S. Redd (William's wife), and Bally
Gaming, Inc. in the third-party complaint. Bally was named in the third-party complaint on the belief that on the
date of Wiley's injury it was the actual owner of the Redd residence. Bally apparently did not participate in the
proceedings below, did not file briefs on appeal and has not otherwise participated in this matter. Where the
context applies, Redd will hereafter denote all parties against whom relief was sought by Alarmco in its
cross-claim and third-party complaint.
110 Nev. 1310, 1314 (1994) Wiley v. Redd
fighter's rule bars Wiley's negligence claims. This court first addressed the firefighter's rule in
Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981), and more recently, in Moody v.
Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994). In Steelman we concluded:
A public safety officer . . . cannot base a tort claim upon damage caused by the very
risk that he is paid to encounter and with which he is trained to cope.
Such officers, in accepting the salary and fringe benefits offered for the job, assume
all normal risks inherent in the employment as a matter of law and thus may not recover
from one who negligently creates such a risk.
. . . .
Whether the negligently created risk which results in a fireman's or policeman's
injury is the reason for his being at the scene in his professional capacity determines the
applicability of the rule.
97 Nev. at 427-28, 634 P.2d at 667 (citations omitted). In Moody, we affirmed that, as
modified by the 1985 enactment of NRS 41.139, the firefighter's rule still applies in Nevada,
and that its scope is limited to those instances where the negligent act which injures the safety
officer is the same act which required the safety officer's presence. 110 Nev. at 328, 871 P.2d
at 940.
[Headnote 1]
In the present case, the alleged acts of negligence were Redd and Alarmco's respective
failures to warn Wiley of vicious dogs on Redd's property as Wiley responded to a call to
investigate a sounding alarm. Clearly, the activated burglar alarm and Alarmco's telephone
call to the police department were the events which produced Wiley's presence at the scene of
her injury, rather than any failure to warn. We conclude, therefore, that the firefighter's rule
would not prevent Wiley from pursuing negligence claims against Redd or Alarmco.
3

__________

3
As noted above, the common law firefighter's rule has been modified by the 1985 enactment of NRS 41.139.
NRS 41.139 reads in relevant part:
1. [A] peace officer, fireman or emergency medical attendant may bring and maintain an action for
damages for personal injury caused by the willful act of another, or by another's lack of ordinary care or
skill in the management of his property, if the conduct causing the injury:
(a) Occurred after the person who caused the injury knew or should have known of the presence of the
peace officer, fireman or emergency medical attendant . . . .
In Moody, we commented, with reference to the legislative history behind NRS 41.139, that the purpose of NRS
41.139 is to limit the application of the common law firefighter's rule. Apropos to the point, we stated:
110 Nev. 1310, 1315 (1994) Wiley v. Redd
[Headnote 2]
Our ruling requires reversal of the summary judgment entered in favor of Redd as there
remains a genuine issue of material fact relating to whether Redd acted reasonably under the
circumstances in failing to warn or otherwise assuring that Wiley was warned of the presence
of vicious dogs on Redd's property. See Moody, 110 Nev. at 333, 871 P.2d at 943 (We
conclude that all persons in this society have an obligation to act reasonably and that an
owner or occupier of land should be held to the general duty of reasonable care when another
is injured on that land.).
Our conclusion regarding Redd is not dispositive of Alarmco's contention that it owed
Wiley no duty, as a matter of law, to warn of Redd's animals.
Alarmco's duty
[Headnotes 3, 4]
To prevail on a negligence theory, a plaintiff generally must show that: (1) the defendant
owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was
the legal cause of the plaintiff's injury; and (4) the plaintiff suffered damages. Doud v. Las
Vegas Hilton Corp. l09 Nev. 1096, 1100, 864 P.2d 796, 798 (1993) (citing Perez v. Las
Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991)). In order to justify summary
relief, a moving defendant must show that one of the elements of the plaintiff's prima facie
case is clearly lacking as a matter of law. Id. Therefore, if Alarmco owed no duty to Wiley,
summary judgment should be affirmed.
[Headnote 5]
This court has recently indicated a move from status-based tort analysis to that of a
general
__________
An examination of the legislative history of NRS 41.139 leads us to the inescapable conclusion that the
statute was intended as a limitation on the firefighter's rule and not as a codification of the rule.
The legislative hearings . . . indicate that the Legislature specifically contemplated that the rule would
continue as set forth in Steelman. . . . Rather than expanding the firefighter's rule to preclude recovery
from those occasions where the injury was not related to the public servant's purpose for being present,
NRS 41.139(1) was intended to narrow the firefighter's rule to permit recovery in instances where
recovery was previously precluded. Although not explicitly stated in NRS 41.139(1), the legislative
history of the statute clearly indicates the Legislature only intended the statute to apply where the injury
was caused by the event giving rise to the public servant's presence.
Id. at 325-26, 871 P.2d at 938-39 (citations omitted). The parties to this appeal raise issues pertaining to NRS
41.139; nevertheless, in light of our discussion in Moody, these issues are misplaced as NRS 41.139 operates as
a statutory limitation only when the common law firefighter's rule bars recovery, which, as concluded above, is
not the case here.
110 Nev. 1310, 1316 (1994) Wiley v. Redd
analysis to that of a general duty of reasonable careat least in the domain of owners and
occupiers of land. In Moody, where a duty may have been lacking at one time as a matter of
law, this court, as noted above, concluded that all persons in this society have an obligation
to act reasonably, and remanded the issue of the reasonableness of the defendants' actions for
a factual determination. Moody, 110 Nev. at 333, 871 P.2d at 943; see also Turpel v. Sayles,
101 Nev. 35, 692 P.2d 1290 (1985). It is equally apparent, however, that the law does not
impose a general affirmative duty to warn others of dangers. Specifically, in failure to warn
cases, defendant's duty to warn exists only where there is a special relationship between the
parties, and the danger is foreseeable. Sims v. General Telephone & Electronics, 107 Nev.
516, 521, 815 P.2d 151, 154 (1991).
[Headnote 6]
Although Wiley asserts various theories of relationship from which Alarmco's duty to
warn could be derived, we conclude that no sufficient relationship exists between Alarmco
and Wiley to warrant the imposition of such a duty. The concept of legal duty necessarily
reflects considerations of social policy, and we perceive no sound basis for extending the
reach of duty to include Alarmco under the circumstances of this case. See Turpel, 101 Nev.
at 39, 692 P.2d at 1292 (1985) ( [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. . . . . ' ) (quoting Clark v.
O'Conner, 435 F.2d 104, 106 (D.C. Cir. 1970) (quoting Dean Prosser)). Alarmco calls the
police each time a client's alarm sounds, not unlike any other citizen who calls the police to
report a burglary or other social disturbance. Without question, there is at least a germ of
relationship between Alarmco and the police department, as Alarmco benefits economically
from the police response to its alarms. We nevertheless do not perceive a sound advancement
in social policy by imposing a legal duty to warn on Alarmco.
4
If we were to recognize such
a duty, a reasonable standard of conduct against which a breach of that duty would be judged
would arguably embrace a plethora of obligations including awareness, the obligation to
become aware, and foreseeability that would adversely impact the ability of alarm companies
to provide services at reasonable cost to the public. The burdens associated with imposing
such a duty on Alarmco and those similarly situated are obvious and appear to us to be
socially undesirable.
__________

4
We nevertheless see propriety in the thought that Alarmco would be well advised to alert law enforcement
authorities of hazardous conditions known by Alarmco to exist on their clients' premises.
110 Nev. 1310, 1317 (1994) Wiley v. Redd
We have considered Alarmco's cross-appeal and all other issues on appeal and conclude
that they have been rendered moot, lack merit, or need not be addressed in light of this
disposition.
CONCLUSION
For the reasons discussed above, we reverse the summary judgment in favor of Redd and
against Wiley, and affirm the summary judgment entered against Wiley and in favor of
Alarmco, and remand for further proceedings consistent with this opinion.
____________
110 Nev. 1317, 1317 (1994) Sheriff v. Encoe
SHERIFF, Washoe County, Nevada, Appellant, v. CATHY ENCOE, Respondent.
No. 24888
November 30, 1994 885 P.2d 596
Appeal from an order of the district court granting a pretrial petition for writ of habeas
corpus. Second Judicial District, Washoe County; Steven R. Kosach, Judge.
After newborn child tested positive for amphetamines and methamphetamines, state filed
criminal complaint against the mother charging her with child endangerment, and mother
filed pretrial petition for writ of habeas corpus. Relief was granted by the district court and
sheriff appealed. The supreme court held that statute criminalizing child endangerment does
not apply to pregnant woman's ingestion of illegal substances and resulting transmission of
substances to child through umbilical cord.
Affirmed.
Attorney, Bruce C. Hahn and Gary H. Hatlestad, Deputy District Attorneys, Washoe County,
for Appellant.
Michael R. Specchio, Public Defender and John Reese Petty, Chief Appellate Deputy
Public Defender, Washoe County, for Respondent.
1. Infants.
Statute criminalizing child endangerment does not apply to pregnant woman's ingestion of illegal substances and resulting
transmission of those substances to child through umbilical cord, including transmission during period between birth of the child and
severing of the umbilical cord. NRS 200.508.
2. Statutes.
Proper construction of statute is legal question rather than factual question.
Due process prohibits court from interpreting criminal statutes in unforeseeable or unintended manner. U.S. Const. amend. 14.
4. Criminal Law.
Person may not be punished for crime unless her acts fall clearly within the language of the statute.
OPINION
Per Curiam:
This is a question of first impression in the state of Nevada. The issue is whether NRS 200.508, a statute criminalizing child
endangerment, applies to a mother's prenatal substance abuse which results in the transmission of an illegal substance to her child through
the umbilical cord during the time after the child leaves the womb and the time the umbilical cord is severed. Respondent Cathy Encoe
(Encoe) was charged with a violation of NRS 200.508 after her child tested positive for methamphetamines shortly after his birth. The
district court granted her pretrial petition for writ of habeas corpus, and the state appealed. We conclude that NRS 200.508 does not apply
to the transmission of illegal substances from mother to newborn through the umbilical cord and affirm the district court's order.
Encoe gave birth to her child in December 1992 at the Washoe Medical Center. She completed a prenatal questionnaire stating that she
had used marijuana during her pregnancy. The hospital, per its protocol, took a urine sample from the infant for the purpose of performing
a routine drug screen. The sample tested positive for amphetamines and methamphetamines.
The state then filed a criminal complaint against Encoe, alleging one count of Willfully Endangering A Child as the Result of Child
Abuse in violation of NRS 200.508. Based on evidence adduced at the preliminary hearing, Encoe was bound over for trial. She entered a
plea of not guilty at her arraignment.
Thereafter, Encoe filed a pretrial petition for writ of habeas corpus. Following a hearing on the matter, the court below issued an order
granting relief. The state appeals, contending that the lower court erred in granting Encoe's petition.
[Headnote 1]
Encoe was charged with the crime of willfully endangering a child pursuant to NRS 200.508, which reads in pertinent part:
Any person who . . . [w]illfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental
suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer
physical pain or mental suffering as the result of abuse or neglect . . . is guilty of a gross misdemeanor
unless a more severe penalty is prescribed by law for an act or omission which brings about the abuse,
neglect or danger.
mental suffering as a result of abuse or neglect or to be placed in a situation where the
child may suffer physical pain or mental suffering as the result of abuse or neglect . . . is
guilty of a gross misdemeanor unless a more severe penalty is prescribed by law for an
act or omission which brings about the abuse, neglect or danger.
NRS 200.508(1).
Although the state concedes that a fetus cannot be considered a child for the purposes of
NRS 200.508, it maintains that Encoe violated the statute from the moment her child left the
womb to the moment the umbilical cord was severed. During that brief period, the state
argues, Encoe administered methamphetamine to her child through the umbilical cord.
According to the state, this was an act of endangerment proscribed by the statute.
[Headnotes 2-4]
The proper construction of a statute is a legal question rather than a factual question.
Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984). This court has
noted that:
Penal statutes should be so clear as to leave no room for doubt as to the intention of the
legislature, and where a reasonable doubt does exist as to whether the person charged
with a violation of its provisions is within the statute, that doubt must be resolved in
favor of the individual.
Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975). In Ex Parte Deidesheimer, 14
Nev. 311, 317-18 (1879), this court recognized that due process prohibits courts from
interpreting existing laws in an unforeseeable or unintended manner. Applying these rules of
statutory construction, we conclude that prosecuting a mother for the delivery of a controlled
substance to her child through the umbilical cord is a strained and unforeseen application of
NRS 200.508. To interpret this section to cover a mother's ingestion of illegal substances
prior to the birth of her child would be a radical incursion upon existing law. A person may
not be punished for a crime unless her acts fall clearly within the language of the statute. The
specific language of NRS 200.508 does not allow the strained construction advanced by the
state.
To hold otherwise would ascribe to the legislature the intent to criminalize the conduct of
women who ingest any substance that has the potential to harm a fetus. This would open the
floodgates to prosecution of pregnant women who ingest such things as alcohol, nicotine, and
a range of miscellaneous, otherwise legal, toxins. As stated recently and persuasively by the
Kentucky Supreme Court in a case factually similar to this one:
If the statutes at issue are applied to women's conduct during pregnancy, they could
have an unlimited scope and create an indefinite number of new 'crimes.'
pregnancy, they could have an unlimited scope and create an indefinite number of new
crimes.' In short, the District Attorney's interpretation of the statutes, if validated,
might lead to a slippery slope' whereby the law could be construed as covering the full
range of a pregnant woman's behaviora plainly unconstitutional result that would,
among other things, render the statutes void for vagueness.
Commonwealth v. Welch, 864 S.W.2d 280, 283 (Ky. 1993) (citation omitted).
Courts in other jurisdictions have also held that the respective criminal statutes did not
apply to the passage of harmful substances from a mother to her child through the umbilical
cord. See, e.g., Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993); Johnson v. State, 602
So. 2d 1288 (Fla. 1992); State v. Gray, 584 N.E.2d 710 (Ohio 1992); People v. Hardy, 469
N.W.2d 50 (Mich. Ct. App. 1991). These cases address statutes similar in effect to the one at
issue here in Nevada. All of these courts concluded that, properly construed, the statutes
involved do not intend to punish an expectant mother's drug use which is potentially injurious
to her child. Each court reasoned that such a construction renders the statute impermissibly
vague. These courts also held that if their respective state legislatures intended to include a
pregnant woman's drug use among the type of conduct that is criminally prohibited, they
would have done so expressly.
The legislature is an appropriate forum to discuss public policy, as well as the complexity
of prenatal drug use, its effect upon an infant, and its criminalization. Hardy, 469 N.W.2d at
53. Because the issue involves many competing societal, economic, and policy
considerations, the legislative procedures and safeguards are well equipped to the task of
fashioning an appropriate change, if any. Hinegardner v. Marcor Resorts, 108 Nev. 1091,
1096, 844 P.2d 820, 804 (1992). The Nevada legislature apparently debated a bill which
would have allowed for the criminal prosecution of prenatal substance abuse. In the 1991
session, the Assembly Health and Welfare Committee discussed Assembly Bill 729 (A.B.
729) providing for the mandatory testing of newborn babies for the presence of alcohol or
controlled substances. However, that bill went no further than the committee. A.B. 729 read
in pertinent part:
4. If the baby is suffering from congenital drug addiction or the fetal alcohol
syndrome, the local health officer of the county or city within which the baby or the
mother of the baby resides shall report the condition to the district attorney for that
county for evaluation of the appropriateness of invoking protective services and
custody pursuant to chapter 432B of NRS and of prosecuting the mother for child
abuse or neglect.
invoking protective services and custody pursuant to chapter 432B of NRS and of
prosecuting the mother for child abuse or neglect.
The proposed bill created the possibility of prosecution of a mother for causing her child to
suffer congenital drug addiction or fetal alcohol syndrome. In committee, several members
voiced their concern over the intent of A.B. 729 to incarcerate mothers who had caused their
children to have alcohol or controlled substances in their blood. One member stated that she
did not think it served any useful purpose to prosecute and she would be more inclined to
put the women in some type of program to rehabilitate them.
1
Two other spokespersons
stated that prenatal addiction should be perceived of as a health, child protection and family
preservation issue in Nevada rather than a criminal prosecution issue.
2
They advocated that
Section 4 of A.B. 729 be deleted or amended so that mothers would not be charged.
A.B. 729 never passed beyond the Health and Welfare Committee. It is evident from the
hearing transcript that the legislators were concerned with the criminal prosecution aspect of
prenatal drug use. We conclude that the legislature's examination of this issue and its
subsequent silence indicates that prenatal drug use not be criminally prosecuted. At the very
least, the introduction of A.B. 729 shows that the legislature did not believe that the existing
child endangerment statute, NRS section 200.508, covered prosecution of pregnant mothers
for drug use.
Furthermore, we reject the state's policy argument that charging women with child
endangerment for the transmission of illegal substances through the umbilical cord provides a
strong deterrent against unlawful drug use by pregnant women and encourages them to seek
drug treatment. The legislators debating A.B. 729 indicated that the prosecution of these
women would likely have the opposite effect. A woman may abort her child or avoid prenatal
care or treatment out of fear of prosecution. By failing to enact A.B. 729, the legislators
apparently found that the state's interest is better served by making treatment programs
available to pregnant addicts rather than by driving them away from treatment by criminal
sanctions and thus further endangering the life and health of the child.
NRS 200.508 does not apply to a pregnant woman's ingestion of illegal substances and the
resulting transmission of these substances to her child through the umbilical cord.
__________

1
Minutes of the Nevada Assembly Committee on Health and Welfare, 66th Sess., 1046 (June 6, 1991)
(remarks of Mrs. C. Freeman, Vice Chairperson).

2
Liz Breashers, Chief, Bureau of Alcohol and Drug Abuse and Janine Hansen, President, Nevada Eagle Form.
Minutes of the Nevada Assembly Committee on Health and Welfare, 66th Sess., 1049 (June 6, 1991).
stances to her child through the umbilical cord. We conclude that if the Nevada legislature
intended to criminalize prenatal substance abuse, it would have enacted a statute to that
effect. Thus, the district court properly granted respondent Encoe's petition for writ of habeas
corpus because her conduct is not subject to prosecution under NRS section 200.508.
____________
110 Nev. 1322, 1322 (1994) Armstrong v. State
LINDA JOYCE ARMSTRONG, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22234
November 30, 1994 885 P.2d 600
embezzlement. Second Judicial District Court, Washoe County; Mark Handelsman, Judge.
Defendant was convicted in the district court of embezzlement, and she appealed. The
supreme court, Springer, J., held that requisite hearing regarding admission of prior bad act or
collateral offense evidence must be conducted on record so as to provide supreme court with
meaningful opportunity to review district court's exercise of discretion, and, following
hearing, district court must state on record its findings of fact and conclusions of law.
Shearing and Young, JJ., dissented.
Michael R. Specchio, Public Defender and Jane G. McKenna, Chief Appellate Deputy
Public Defender, Washoe County, for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Requisite hearing regarding admission of prior bad act or collateral offense evidence must be conducted on record so as to provide
supreme court with meaningful opportunity to review district court's exercise of discretion, and, following hearing, district court must
state on record its findings of fact and conclusions of law.
2. Courts.
New rule requiring that hearing regarding admission of prior bad act or collateral offense evidence must be conducted on record so
as to provide supreme court with meaningful opportunity to review district court's exercise of discretion was
prospective only, as it was not role of constitutional law.
provide supreme court with meaningful opportunity to review district court's exercise of discretion was prospective only, as it was not
rule of constitutional law.
OPINION
Appellant was convicted of one count of embezzlement after allegedly taking money from her employer, Dr. Vincent D'Ascoli.
Appellant, as D'Ascoli's bookkeeper, admitted that she altered entries in the office payment ledgers. Appellant, however, argued that she did
so at D'Ascoli's command and that D'Ascoli took the cash from the office. D'Ascoli testified that he did not take the cash. D'Ascoli believed
that appellant must have stolen the money from the office.
During the jury trial, the district court permitted appellant's former employer, Dr. Timothy Fraser, to testify that appellant embezzled
money from his office. Appellant contends that the district court abused its discretion in admitting Dr. Fraser's testimony. Because the
district court failed to conduct a Petrocelli hearing on the record, we are unable to adequately review appellant's contention.
The use of uncharged bad acts to convict a defendant is heavily disfavored in our system of criminal justice. Such evidence is likely to
be prejudicial or irrelevant, and forces the accused to defend [herself] against vague and unsubstantiated charges. . . . Evidence of
uncharged misconduct may unduly influence the jury, and result in a conviction of the accused because the jury believes [she] is a bad
person. . . . The use of specific conduct to show a propensity to commit the crime charged is clearly prohibited by Nevada law . . . and is
commonly regarded as sufficient grounds for reversal. Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144, 1145-46 (1988) (citations
omitted).
[Headnotes 1, 2]
In Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), we concluded that before admitting evidence of a prior bad act or collateral
offense, the district court must conduct a hearing outside the presence of the jury. During the hearing, the state must present its justification
for admission of the evidence, the state must prove by clear and convincing evidence that the defendant committed the collateral offense,
and the district court must weigh the probative value of the proffered evidence against its prejudicial effect. We now hold that the
Petrocelli hearing must be conducted on the record so as to provide this court with a meaningful opportunity to
review the district court's exercise of discretion.
be conducted on the record so as to provide this court with a meaningful opportunity to
review the district court's exercise of discretion.
1
We also hold that following the Petrocelli
hearing, the district court must state on the record its findings of fact and conclusions of law.
Accordingly, we reverse the judgment of conviction and remand this matter to the district
court for a new trial.
Shearing, J., with whom Young, J. joins, dissenting:
The majority holds that appellant Linda Armstrong's conviction for embezzlement must be
reversed because the trial court conducted a hearing on the admissibility of evidence off the
record. The reversal is unnecessary. The trial judge made specific findings as to his reasons
for the ruling, and these findings, in conjunction with evidence adduced at trial, provide this
court with sufficient information to review and uphold the trial judge's ruling.
The evidence in question was the testimony of Armstrong's former employer that he
believed that Armstrong embezzled money from him and that she was dishonest. This
evidence was admitted after Armstrong testified that she experienced no problems working
for this former employer and that he had recommended her to her present employer.
Armstrong also proffered a number of character witnesses who testified that she was honest.
There is no dispute that the admission of uncharged bad acts against a criminal defendant
is disfavored in our system of criminal justice. See NRS 48.045(2).
1
However, there is also
no dispute that our law recognizes that under certain circumstances it is appropriate to admit
such evidence. The State argued that evidence regarding Armstrong's performance at her prior
employer's office was admissible on the issue of intent, knowledge of bookkeeping
procedures, and similarity of the plan or scheme. If this were the only reason for its
admission, whether the probative value outweighed the prejudicial effect would have been
difficult to determine without a transcript. However, an additional factor exists: Armstrong
specifically testified that she experienced no problems at her prior employment and was
never charged with any misconduct.
__________

1
We note that this case announces a new rule of law. The application of the rule is prospective only because it
is not a rule of constitutional law. See Gier v. District Court, 106 Nev. 208, 212, 789 P.2d 1245, 1248 (1990).

1
48.045(2) states:
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.
additional factor exists: Armstrong specifically testified that she experienced no problems at
her prior employment and was never charged with any misconduct. Introducing the former
employer's testimony to rebut this assertion was a proper other purpose under NRS
48.045(2).
In United States v. Lara, 956 F.2d 994, 997 (10th Cir. 1992), the court was faced with a
similar situation and testimony regarding another prosecution to be admitted, stating:
Evidence of the other prosecution was not introduced to show the defendant's bad
character. Rather, it was used to challenge the truthfulness of his testimony. Rule
404(b) [similar to NRS 48.045(2)] shields a defendant from unfair prejudice but it is
not a license to give misleading or false testimony. Under the circumstances, the use of
this evidence for impeachment was a permissible other purpose under Rule 404(b).
Cf. United States v. Stockton, 788 F.2d 210, 219 n.15 (4th Cir.) (Impeachment may
qualify as a permissible use of prior bad acts under Rule 404(b)), cert. denied, 479 U.S.
840, 107 S. Ct. 147, 93 L. Ed. 2d 89 (1986).
Nor was the admission of this evidence an abuse of the court's discretion under Rule
403 [similar to NRS 48.035]. A district court has broad discretion in determining
whether the probative value of relevant evidence is substantially outweighed by the
danger of unfair prejudice. Fed. R. Evid. 403; United States v. Martinez, 938 F.2d 1078,
1082 (10th Cir. 1991). The district court's determination will not be disturbed absent an
abuse of that discretion.
The trial judge acknowledged his duty to hold a Petrocelli hearing outside the presence of
the jury to determine whether there was clear and convincing evidence that Armstrong
committed the prior bad act, and whether the evidence was more probative than prejudicial.
Unfortunately, he held that hearing off the record. While it is desirable that such a hearing be
held on the record, where the pertinent facts for reviewing the trial judge's finding are before
this court, reversal of this case is not warranted. After the hearing, the trial judge stated on the
record:
The trial court has weighed the probative value of the evidence against the potential
prejudicial impact and enters the following finding:
The defense introduced evidence concerning a prior working relationship between the
Defendant, Linda Armstrong, and Dr. Timothy F. Fraser. The State now wishes to rebut
certain potential inferences from the testimony of Ms. Armstrong concerning her
working relationship with Dr. Fraser.
The State will allow that testimony in rebuttal from Dr. Fraser relating to his working
relationship with Ms. Armstrong insofar as he may testify as to his opinion of her
general and specific character as well as general irregularities he feels existed during
their working relationship with regard to her services as a financial manager or assistant
within his office.
No specific checks, vouchers, ledger cards, day sheets or the like are to be presented to
Dr. Fraser for testimony specifically concerning the same.
Although we have no record of what evidence or offer of proof was made to the trial judge
at the Petrocelli hearing, we may reasonably infer that the judge had at least the testimony of
the former employer before him. The former employer testified at trial that after Armstrong
left his employ, he reviewed the books and found an excessive number of write-offs for
patients who were recorded as not having paid their bills. The patient records showed that
there was no reason for the write-offs, except that in all instances the patients paid with cash,
and that money did not appear on the deposit slips or go into the business. The employer
further testified that Armstrong was responsible for handling the money, and that he was a
hundred percent certain that Armstrong kept the money. This testimony is enough to support
the finding by the trial judge by clear and convincing evidence that Armstrong embezzled
money from her former employer. See Tellis v. State, 84 Nev. 587, 590, 445 P.2d 938, 940
(1968).
The trial judge found that the probative value of the employer's testimony outweighed its
prejudicial effect. The admission of evidence after the trial judge has balanced its probative
value against its potential for undue prejudice is committed to the trial court's sound
discretion and will not be disturbed in the absence of an abuse of that discretion. Sein v.
State, 95 Nev. 89, 97, 590 P.2d 1152, 1157 (1979).
The record amply supports the trial judge's finding that the probative value outweighed the
potential prejudicial impact. First, as the trial judge noted, the defendant herself injected the
issue of her character into the trial by calling numerous character witnesses and by testifying
that she was honest and had never had any problem at her prior employment. Therefore, the
jury would have been misled had the trial judge not permitted Armstrong's former employer
to testify that this was not true. Additionally, Armstrong's testimony reveals that she knew
when she testified that her prior employer had made accusations against her. Armstrong
testified as follows:
Q: Were there some accusations levied at you regarding your employment there?
A: No, only the ones I have heard recently.
. . . [H]e even said, If I had something, I'd hire you right now, and I did hear of
Dr. D'Ascoli. So, he knew I was going to apply to Dr. D'Ascoli.
Q: Do you know if he provided a reference for you?
A: On the phone, he did. I didn't have a
Q: How do you know that?
A: Dr. D'Ascoli told me he called him. . . .
Q: And when you left that employment, you were never aware of any problems;
correct?
A: No.
Q: Were you ever charged with any misconduct
A: No.
Q: regarding your employment then?
A: Never.
Thus, Armstrong herself injected the issue of her character into the trial by denying any
misconduct in her prior employment and saying her prior employer recommended her. Her
prior employer's testimony was admissible to challenge the truthfulness of her testimony. It
would be unfair to the State to allow her testimony to go unrebutted.
2
After all, the principal
purposes for restrictions on the use of character evidence at trial are to prevent the dangers of
unfair prejudice and of misleading the jury. See NRS 48.035(1). Thus, on the information
before us, it is clear that the trial judge did not abuse his discretion in allowing the prior
employer's testimony regarding the defendant's performance while in his office.
If it was error not to record the Petrocelli hearing, the error was harmless. Based on the
foregoing analysis, the judgment of the district court should be affirmed.
__________

2
Armstrong's former employer testified as follows:
Q: Is Linda Armstrong an honest person?
A: I believe that she cannot be honest with herself, and she cannot be honest with others. . . .
Q: Did you ever recommend Linda Armstrong as an employee to Dr. D'Ascoli?
A: No, he called and asked me. I talked to him about it. I told him that she knew what she was doing.
Q: Did you tell him anything else?
A: Yes, I told him to watch the cash.
____________
110 Nev. 1328, 1328 (1994) Marshall v. State
JEFFREY TYRONE MARSHALL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24851
November 30, 1994 885 P.2d 603
County; J. Charles Thompson, Judge.
Prisoner who had been convicted of controlled substance offenses petitioned for habeas
corpus. Petition was denied without evidentiary hearing by the district court and prisoner
appealed. The supreme court held that: (1) ruling on direct appeal that evidence was sufficient
to support trafficking and manufacturing charges was law of the case; (2) delays in
arraignment and trial were lawful and appropriate and trial counsel was not ineffective for
failing to move to dismiss charges on speedy trial grounds; but (3) evidence was insufficient
to sustain possession charges and appellate counsel was ineffective for failing to raise the
issue on appeal.
Reversed in part, affirmed in part.
Jeffrey Tyrone Marshall, In Proper Person, Ely, for Appellant.
1. Criminal Law.
When petition for post-conviction relief raises claims supported by specific factual allegations which, if true, would entitle
petitioner to relief, petitioner is entitled to evidentiary hearing unless those claims are repelled by the record.
2. Courts.
Ruling of supreme court on direct appeal that state presented sufficient evidence to support charges of trafficking and
manufacturing of controlled substance was law of the case in subsequent habeas corpus proceeding.
3. Criminal Law.
Appellate counsel acted reasonably in not raising issue of state's failure to provide defendant with notice of grand jury
proceedings, where proceedings occurred prior to decision in Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989) requiring such
notice. U.S. Const. amend. 6.
4. Habeas Corpus.
Contention of habeas petitioner, that appellate counsel should have contended district court failed to initially instruct grand jury
that failure of person to exercise right to testify must not be considered in decision whether to return indictment, was
properly rejected without evidentiary hearing where petitioner failed to support contention with specific
factual allegations.
whether to return indictment, was properly rejected without evidentiary hearing where petitioner failed to support contention with
specific factual allegations. NRS 172.095(1)(d).
5. Criminal Law.
Delay in arraigning defendant for over two months was reasonable where he was being lawfully held for violating parole. NRS
178.556.
6. Criminal Law.
Delay in trial because counsel withdrew with defendant's consent on eve of trial was lawful under speedy trial statute and thus trial
counsel was not ineffective for failing to move to dismiss charges. U.S. Const. amend. 6; NRS 178.556.
Defendant has constructive possession of controlled substance only if he maintains control or right to control contraband, but
possession may be imputed when contraband is found in location which is immediately and exclusively accessible to accused and
subject to his dominion and control.
Evidence that defendant frequented apartment that was rented to his brother and stored some of his personal belongings in the
apartment was not sufficient to establish that defendant, rather than one of numerous other persons who frequented the apartment,
possessed cocaine and marijuana found there.
9. Criminal Law.
Appellate counsel was prejudicially ineffective for failing to raise on appeal issue of sufficiency of evidence to sustain convictions
for possession of cocaine and marijuana, where the evidence was in fact insufficient. U.S. Const. amend. 6.
OPINION
Per Curiam:
FACTS
A grand jury convened on August 3, 1989, to hear evidence concerning a police investigation of appellant Jeffrey Tyrone Marshall. An
undercover police officer testified that appellant had shown him and another undercover officer how to convert powder cocaine into rock
cocaine. This officer testified further that appellant had purchased a kilogram of cocaine from him.
The grand jury also heard evidence that the police had searched an apartment located at 1500 East Karen Street which appellant had
left immediately prior to his arrest. The police found numerous documents in appellant's name and several photographs of appellant
throughout the apartment. The police also found cocaine sitting near a scale and a small quantity of marijuana in the master bedroom. The
grand jury indicted appellant on one count of trafficking in a controlled substance, one count of manufacturing a controlled substance and
two counts of possession of a controlled substance for the cocaine and the marijuana found in the apartment.
sion of a controlled substance for the cocaine and the marijuana found in the apartment.
Appellant was tried on these charges before a jury. The state presented the undercover
police officer's testimony concerning the trafficking and manufacturing charges. Other police
officers corroborated the undercover officer's testimony. The state also showed the jury a
video tape recording of the sting operation during which appellant purchased the kilogram of
cocaine.
The police officer who conducted the search of the apartment on Karen Street repeated his
testimony concerning the documents in appellant's name the police found. The police officer
indicated that only one of the documents bearing appellant's name listed 1500 East Karen
Street as appellant's address. The remaining documents listed either appellant's sister's or his
mother's address. The police officer testified further that the police recovered numerous other
documents from the apartment in at least five other persons' names. The police also found
photographs of people other than appellant in the apartment.
The state attempted to link appellant to the Karen Street apartment by presenting testimony
that the police had observed appellant leave the apartment on Karen Street nine days prior to
appellant's arrest. Police experts testified that they recovered a latent fingerprint of appellant
in the apartment from a plate sitting next to the scale and the cocaine. The police also
recovered a cellular telephone from the apartment which appellant had borrowed from his
step brother.
The defense presented testimony that appellant did not live at the Karen Street apartment.
Appellant's sister testified that appellant had lived with her and her boyfriend at 2850 South
Maryland Parkway. The boyfriend and appellant's mother corroborated this testimony.
Appellant's sister and her boyfriend both testified that they had rented the apartment at 1500
East Karen for appellant's brother George because George had a bad credit history. The
boyfriend asserted further that he and appellant went to the apartment on Karen Street three
times a week to lift weights.
The jury found appellant guilty of all four drug related offenses. The district court
sentenced appellant to a term of life imprisonment in the Nevada State Prison for
manufacturing, a concurrent term of life and a fine of $250,000 for trafficking, a concurrent
term of nine years for possession of cocaine, and a concurrent term of four years for
possession of marijuana.
Appellant appealed from his conviction to this court. Appellant's sole contention on appeal
was that the state failed to present sufficient evidence of appellant's guilt on the trafficking
and manufacturing offenses. We disagreed and dismissed appellant's direct appeal.
direct appeal. Marshall v. State, Docket No. 21162 (Order Dismissing Appeal January 24,
1992).
On January 30, 1993, appellant petitioned the district court for a writ of habeas corpus.
Appellant asserted numerous instances of ineffective assistance of counsel before the grand
jury, at trial and on appeal.
1
The district court denied appellant relief without appointing
counsel or conducting an evidentiary hearing. This appeal followed.
DISCUSSION
[Headnotes 1, 2]
When a petition for post-conviction relief raises claims supported by specific factual
allegations which, if true, would entitle the petitioner to relief, the petitioner is entitled to an
evidentiary hearing unless those claims are repelled by the record. Hargrove v. State, 100
Nev. 498, 686 P.2d 222 (1984). Appellant contended below that appellate counsel was
ineffective for failing to contest the sufficiency of the evidence presented to the grand jury
and at trial supporting the trafficking and manufacturing charges. We ruled in appellant's
direct appeal that the state presented sufficient evidence to support the trafficking and
manufacturing charges. Our ruling on these contentions is the law of the case. Hall v. State,
91 Nev. 314, 535 P.2d 797 (1975). Accordingly, the district court properly rejected these
contentions.
[Headnote 3]
Appellant contended that appellate counsel should have argued that the state failed to
provide appellant notice of the grand jury proceedings as required under Sheriff v. Marcum,
105 Nev. 824, 783 P.2d 1389 (1989). This court ruled in Gier v. District Court, 106 Nev. 208,
789 P.2d 1245 (1990), that Marcum only applies prospectively. Marcum was decided on
December 20, 1989. Because the grand jury proceedings occurred prior to the decision in
Marcum, appellate counsel acted reasonably in not raising this issue.
[Headnote 4]
Appellant contended further that counsel should have contended that the district court
failed to initially instruct the grand jury that the failure of a person to exercise his right to
testify . . . must not be considered in their decision of whether or not to return an indictment.
NRS 172.095(1)(d). Appellant presented no evidence supporting his contention that the
grand jury was not properly instructed.
__________

1
Appellant raised in his petition each of the arguments which he alleges counsel should have raised on appeal.
Because these arguments could have been raised on direct appeal, the district court properly rejected these
contentions. NRS 34.810(1)(b)(2).
no evidence supporting his contention that the grand jury was not properly instructed. The
district court properly rejected this contention without an evidentiary hearing because
appellant failed to support his contention with specific factual allegations. Hargrove v. State,
100 Nev. 498, 502, 686 P.2d 222, (1984).
[Headnotes 5, 6]
Appellant contended further that his trial counsel was ineffective for failing to move to
dismiss the charges because appellant was denied a speedy trial. See NRS 178.556. The grand
jury indicted appellant on August 4, 1989. Appellant was not brought before a magistrate to
answer the grand jury indictment until October 5, 1989. Appellant's trial began on January 22,
1990.
The delay in bringing appellant to answer the charges was reasonable. Although appellant
was not arraigned for over two months, he was being lawfully held for violating his parole.
Appellant's trial was properly delayed because counsel withdrew with appellant's consent on
the eve of trial. These delays were lawful and appropriate. Appellant has identified no
prejudice resulting from the delays. See State v. Fain, 105 Nev. 567, 779 P.2d 965 (1989).
The district court properly rejected this contention without conducting an evidentiary hearing.
Appellant also contended that counsel should have challenged several irregularities that
occurred before the grand jury and at trial. Appellant contended that counsel should have
challenged: (1) inconsistent testimony at the grand jury and at trial; (2) the state's violation of
the best evidence rule as is provided for in grand jury proceedings under NRS 172.135(2); (3)
the admission at trial of an inaccurate drawing of the room where appellant was arrested; (4)
the admissibility of testimony of several police officers concerning routine practices of drug
dealers; and (5) several instances of prosecutorial misconduct in which the prosecutor
vouched for witnesses and commented on matters not admitted into evidence. We have
reviewed these contentions and find them to be meritless.
[Headnote 7]
Appellant also contended that appellate counsel should have attacked the sufficiency of the
evidence presented to the grand jury and at trial supporting the possession charges. A
defendant has constructive possession of a controlled substance only if she [he] maintains
control or a right to control the contraband.' Sheriff v. Steward, 109 Nev. 831, 835-36, 858
P.2d 48, 51 (1993) (quoting Glispey v. Sheriff, 89 Nev. 221, 223, 510 P.2d 623, 624 (1973)).
In addition, possession may be imputed when the contraband is found in a location which
is immediately and exclusively accessible to the accused and subject to her [his] dominion
and control.'"
exclusively accessible to the accused and subject to her [his] dominion and control.' Id. at
836, 858 P.2d at 51 (quoting Glispey, 89 Nev. at 223, 510 P.2d at 624).
[Headnotes 8, 9]
In this case, the state presented no evidence that appellant had control of, or a right to
control the contraband the police found in the Karen Street apartment. Appellant presented
evidence that he did not live at the apartment on Karen Street. In addition, several persons
had access to the apartment. Appellant thus did not have exclusive access to the contraband.
At most, the state presented evidence that appellant frequented an apartment that was
rented to his brother and that appellant stored some of his personal belongings in the
apartment. This evidence is not sufficient to establish that appellant, rather than one of the
numerous other persons who frequented the apartment, possessed the cocaine and the
marijuana the police found. Appellate counsel was ineffective for failing to raise this issue on
appeal and counsel's failure prejudiced appellant. Warden v. Lyons, 100 Nev. 430, 683 P.2d
504 (1984), cert. denied, 471 U.S. 1004 (1985). The district court erred in refusing to provide
appellant an evidentiary hearing on this issue and in denying appellant relief.
Because the record on appeal establishes that appellant was improperly convicted of the
possession charges, we reverse appellant's judgment of conviction on these charges and we
vacate the sentences imposed with respect to those convictions. We do not disturb appellant's
convictions for trafficking and manufacturing. Because of our decision to grant appellant
relief on the possession convictions, we need not review appellant's remaining challenges to
these convictions. In all other respects, we affirm the order of the district court denying
appellant's petition for post-conviction relief.
____________
110 Nev. 1333, 1333 (1994) Salman v. Newell
A.R. SALMAN, Trustee of the Tuesday Company and Wednesday Company, Appellant, v.
LUCINDA NEWELL, Executrix of the Estate of Wilma Winters, Deceased, Respondent.
No. 26053
November 30, 1994 885 P.2d 607
Proper person appeal from an order of the district court dismissing appellant's complaint in
a quiet title action. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Trustee of two trusts filed complaint to quiet title against executrix of estate. The district
court granted motion to dismiss, and trustee appealed. The supreme court held that purported
trustee who was not an attorney could not represent trusts in either district court or supreme
court, and trusts could not proceed in proper person in supreme court.
Appeal dismissed.
A.R. Salman, In Proper Person, Reno, for Appellant.
Jenkins & Frey, Reno, for Respondent.
Although person is entitled to represent himself or herself in district court, no rule or statute permits a person who is not an
attorney to represent any other person, company, trust, or any other entity in district courts or in the supreme court. SCR 44, 77; NRS
7.285.
Purported trustee of trusts, who was not an attorney, could not represent trusts in either district court or the supreme court;
moreover, trusts could not proceed in proper person in supreme court. SCR 44, 77; NRS 7.285.
OPINION
Per Curiam:
On March 21, 1994, A.R. Salman, Trustee of the Tuesday Company and Wednesday Company, filed a complaint to quiet title against
Lucinda Newell, executrix of the estate of Wilma Winters. The complaint was signed by A.R. Salman Trustee of the Tuesday Company
and the Wednesday Company. On April 13, 1994, Newell, through her attorney, filed a motion to dismiss the complaint. Salman opposed
the motion. On April 28, 1994, Newell filed a reply to Salman's opposition. Newell argued that the complaint must be dismissed because
the action was frivolous and nothing more than an end run around the judgment entered [in a different district court action.] Newell also
argued that the complaint should be dismissed because neither of the plaintiff companies are legitimate Nevada corporations and neither are
legitimately qualified, as foreign corporations, to do business in this state. Newell further argued that the complaint must be dismissed
because Washoe District Court Rule 23(5) prohibits corporations from appearing in proper person and because Salman, who is not a
lawyer, may not represent the corporations.
In response, Salman filed a notice of clarification. In this notice, Salman claimed that the Tuesday Company and Wednesday
Company are not corporations, but rather are trusts. Salman claimed that because the companies are trusts he could
represent them, even though he is not an attorney.
claimed that because the companies are trusts he could represent them, even though he is not
an attorney. On August 3, 1994, the district court granted Newell's motion to dismiss. This
appeal followed.
The Tuesday Company and Wednesday Company are not represented by counsel in this
appeal. On September 8, 1994, we issued an order which stated the following:
It appears that A.R. Salman has attempted to appear in this appeal in proper person as
the representative of the Tuesday Company and the Wednesday Company. In a court of
law, only a licensed attorney may represent a client. See Martinez v. District Court, 102
Nev. 561, 729 P.2d 487 (1986). Neither a corporation nor a trust may proceed in proper
person. Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20 (2d Cir. 1983).
Accordingly, the Tuesday Company and the Wednesday Company shall have thirty
(30) days from the date of this order within which to retain counsel to represent them in
this appeal, and to enter counsel's appearance with the clerk of this court. See NRAP
46(a). . . . We caution the Tuesday Company and the Wednesday Company that their
failure to comply with this order may result in the immediate dismissal of this appeal.
On September 20, 1994, we received Salman's response to our order. Salman objects to
our statement that he is appearing in proper person and insists that he is appearing as
trustee, not in proper person. Salman also objects to our statement that [i]n a court of law,
only a licensed attorney may represent a client. Salman suggests that this conclusion is
incorrect because it is premised on NRS 7.285, and that statute was never passed by the
legislature. Salman requests that we rescind our order and allow him, as trustee, to file written
briefs and papers in this action.
Salman is not authorized to represent the Tuesday Company or the Wednesday Company,
either in the district court or in this court. NRS 7.285 provides that [n]o person shall practice
law in this state unless he is an active member of the State Bar of Nevada pursuant to the
rules of the supreme court. The statute further provides that any person who practices law
who is not an active member of the State Bar of Nevada is guilty of a misdemeanor. Contrary
to Salman's assertion, NRS 7.285 was enacted by the legislature. See 1963 Nev. Stat., ch. 229,
5 at 385. Further, SCR 77 provides that, with certain inapplicable exceptions, no person
may practice law as an officer of the courts in this state who is not an active member of the
state bar.
The public interest . . . requires that in the securing of professional advice and
assistance upon matters affecting one's legal rights one must have assurance of
competence and integrity and must enjoy freedom of full disclosure with complete
confidence in the undivided allegiance of one's counsellor in the definition and assertion
of the rights in question."
professional advice and assistance upon matters affecting one's legal rights one must have
assurance of competence and integrity and must enjoy freedom of full disclosure with
complete confidence in the undivided allegiance of one's counsellor in the definition and
assertion of the rights in question. Pioneer Title v. State Bar, 74 Nev. 186, 189-90, 326 P.2d
408, 410 (1958); see also Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20 (2d Cir.
1983).
[Headnote 1]
Although a person is entitled to represent himself or herself in the district court, see SCR
44 ([n]othing in these rules shall be so construed as to prevent any person from appearing in
his own behalf in any court in this state except the supreme court), no rule or statute permits
a person to represent any other person, a company, a trust, or any other entity in the district
courts or in this court.
[Headnote 2]
We conclude that Salman may not represent the Tuesday Company or the Wednesday
Company in either the district court or this court. We further conclude that neither the
Tuesday Company nor the Wednesday Company may proceed in proper person in this court.
Because the Tuesday Company and the Wednesday Company refuse to obtain counsel to
represent them, we dismiss this appeal.
1

__________

1
We offer no opinion as to the validity of the Tuesday Company and Wednesday Company trusts. See NRS
163.004 (A trust may be created for any purpose that is not illegal or against public policy.).
____________
110 Nev. 1336, 1336 (1994) Greene v. State
GEORGE LEARY GREENE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26080
November 30, 1994 885 P.2d 609
County; Gerard J. Bongiovanni, Judge.
The supreme court held that plea agreement providing that defendant would be eligible for
parole after serving five years did not mislead defendant so as to render his guilty plea
involuntary.
Affirmed.
George Leary Greene, In Proper Person, Ely, for Appellant.
Criminal Law.
Plea agreement providing that defendant sentenced to 30 years would be eligible for parole after serving five years did not mislead
defendant so as to render his guilty plea involuntary. Defendant was sentenced pursuant to first-degree kidnapping statute which
specifies that eligibility for parole begins when minimum of five years has been served where kidnapped person suffers no substantial
bodily harm. Another statute providing that, except as limited by statute for certain specified offenses, prisoner may be paroled when
he has served one-third of the period of time for which he has been sentenced was inapplicable to determine defendant's eligibility for
parole. NRS 200.320(2), 213.120.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas
corpus.
On September 21, 1993, the district court convicted appellant, pursuant to a guilty plea, of one count of first degree kidnapping. The
district court sentenced appellant to serve a term of thirty years in the Nevada State Prison. The district court ordered the sentence to run
consecutively to a term imposed in another case. No direct appeal was taken.
On March 23, 1994, appellant filed in the district court a post-conviction petition for a writ of habeas corpus. On April 20, 1994, the
district court summarily denied appellant's petition. This appeal followed.
In his petition, appellant contended he should be permitted to withdraw his guilty plea because his plea was not knowingly and
voluntarily entered. Specifically, appellant argued that his plea agreement provided that he would be eligible for parole from his thirty year
sentence after serving five years of the sentence and that he has now discovered that he is not eligible for parole until he serves one-third, or
ten years, of his sentence. Therefore, appellant argues, his plea was not knowingly entered because he was misled as to when he would be
eligible for parole.
NRS 200.320(2) (emphasis added) provides the following:
Where the kidnaped person suffers no substantial bodily harm by reason of such kidnaping, the person found guilty of such
kidnaping shall he punished by imprisonment in the state prison for life or for a definite term of not less than 5
years.
state prison for life or for a definite term of not less than 5 years. Under either sentence,
eligibility for parole begins when a minimum of 5 years has been served.
Pursuant to NRS 200.320(2), appellant is eligible for parole after serving five years of his
thirty year sentence. The plea agreement correctly reflects the statutory mandate of when
appellant is eligible for parole. Appellant was not misled as to when he would be eligible for
parole. Accordingly, appellant's contentions concerning the voluntariness of his plea lack
merit.
Documents submitted by appellant in support of his petition suggest that the Board of
Parole Commissioners erroneously believes that appellant must serve one-third, or ten years,
of his sentence before he is eligible for parole. Presumably the Board has relied on NRS
213.120 in making that determination. NRS 213.120 (emphasis added) provides that
[e]xcept as otherwise provided in NRS 213.1213 and as limited by statute for certain
specified offenses, a prisoner may be paroled when he has served one-third of the definite
period of time for which he has been sentenced pursuant to NRS 176.033, less good time
credits. Because appellant was sentenced pursuant to NRS 200.320, which defines a specific
term for parole eligibility, NRS 213.120 is inapplicable to appellant's eligibility for parole. If
the Board of Parole Commissioners continues to insist that appellant serve ten years of his
sentence before considering appellant eligible for parole, appellant's remedy is to petition the
district court for a writ of mandamus to compel the Board to conduct a hearing.
Having reviewed the record on appeal, we conclude that the district court properly
concluded that appellant's plea was knowingly and voluntarily entered. We conclude that
appellant cannot demonstrate error in this appeal, and that briefing and oral argument are
unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert.
denied, 423 U.S. 1077 (1976).
1

__________

1
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We have received
appellant's proper person opening brief.
____________
110 Nev. 1339, 1339 (1994) Snyder v. Viani
SHAUNA SNYDER, as the Special Administrator of the Estate of DANIEL PATRICK
LOVETT, Decedent, Appellant, v. JOSEPH VIANI, Individually and dba JOE'S
TAVERN; TOMMY JO MONTOYA; TAMMY ADAMS; MINERAL COUNTY
SHERIFF'S OFFICE, a Political Subdivision; JOHN MADRASO, JR., in His Official
Capacity as Sheriff and Individually; JOHN LEONHARDT, in His official Capacity
as Sheriff and Individually, Respondents.
No. 23726
November 30, 1994 885 P.2d 610
Appeal from an order of the district court granting a motion to dismiss. Fifth Judicial
District Court, Mineral County; John P. Davis, Judge.
Executor of underage drinker's estate brought negligence and contract action against tavern
and sheriff's department based on tavern's serving drinker and department's alleged
implementation of policy that required deputies not to ask for identification of tavern patrons.
The district court dismissed, and executor appealed. The supreme court, Young, J., held that:
(1) executor's allegations fell within common-law rule that consumption rather than sale is
proximate cause of alcohol-related injuries; (2) executor did not plead viable claim against
sheriff's department; and (3) allegations regarding signs that tavern would not serve underage
drinkers did not establish formation of contract between tavern and drinker.
Affirmed.
Steffen and Springer, JJ., dissented.
Kenneth J. McKenna, Reno, for Appellant.
Erickson, Thorpe & Swainston, Reno; Bradley & Drendel, Reno, for Respondents.
1. Intoxicating Liquors.
Executor of underage drinker's estate did not plead viable claim for negligence against tavern by alleging that tavern employees
served drinker alcoholic beverages despite knowing that he was underage and that he planned long-distance trip on same evening. As
with injuries to third parties, consumption rather than sale was proximate cause of alcohol-related injuries to drinker, and common-law
rule exempts taverns from liability for such injuries.
2. Sheriffs and Constables.
Executor of underage drinker's estate did not plead viable negligence claim against sheriff's department based on allegations that
department had implemented policy that required deputies not to ask for identification of tavern patrons.
identification of tavern patrons. Under statute, law enforcement agency and its officers are not liable for negligent acts or omissions
unless victim detrimentally relied on agency's of officers' representations or officers affirmatively caused harm to victim, and there
were no allegations that would bring claim within purview of statute. NRS 41.0336.
Executor of underage drinker's estate did not plead viable claim by alleging malice on part of tavern in serving drinker alcoholic
beverages knowing he was underage or malice on part of sheriff's deputies in failing to ask for tavern patrons' identification.
Executor alleged no facts suggesting that defendants acted with ill-will or deliberate intent to injure drinker.
Executor of underage drinker's estate did not plead viable breach of contract claim against tavern by alleging that tavern signs
stating that underage patrons would not be served established contract between tavern and public and that tavern breached its
contractual duty by selling drinker alcoholic beverages. Executor's allegations were insufficient to establish contract formation between
tavern and drinker.
OPINION
FACTS
On July 12, 1990, Daniel Patrick Lovett was twenty years and nine months old. At about 11:45 that night, he visited Joe's Tavern in
Hawthorne, Nevada, and was served alcoholic beverages. Lovett remained at Joe's Tavern until approximately 1:15 a.m. on the morning of
July 13, 1990, when he went to the El Capitan Hotel/Casino. Lovett stayed at the El Capitan until approximately 6:00 a.m., at which time
he got into his vehicle and began driving to Sacramento, California. At approximately 6:30 a.m., Lovett crossed over the center line of
Highway 95 north of Schurz, Nevada, and collided head-on with a motorhome. The motorhome's four occupants, along with Lovett, were
killed. At the time of the accident, Lovett had a blood alcohol level of 0.187 percent.
On March 30, 1992, Shauna Snyder, the special administrator of Lovett's estate, brought an action for negligence, malice and breach of
contract against respondents. In her complaint, Snyder alleged that even though employees at Joe's Tavern knew that Lovett was not yet
twenty-one years old and that he planned to drive to Sacramento, they negligently and maliciously served him alcoholic beverages. In
addition, Snyder asserted that the Sheriff's Department acted negligently and with malice in implementing a policy that required deputies
not to ask for the identification of patrons at Joe's Tavern. Finally, Snyder alleged that various signs at Joe's Tavern, stating that
alcoholic beverages would not be served to underage patrons, established a contract between Joe's Tavern and
the public.
signs at Joe's Tavern, stating that alcoholic beverages would not be served to underage
patrons, established a contract between Joe's Tavern and the public. According to Snyder, by
serving Lovett alcoholic beverages, Joe's Tavern breached its contractual duty to refuse to sell
him such beverages. On August 27, 1992, pursuant to NRCP 12(b)(5), the district court
entered an order granting respondents' motion to dismiss Snyder's action.
DISCUSSION
[Headnote 1]
Snyder asserts that the district court erred in dismissing her action because it is
distinguishable from prior Nevada cases. In particular, Snyder contends that her action
involves the sale of alcohol to an underage drinker, not to an inebriated person, and injury to
the drinker, not a third party. Snyder also argues that there is a direct nexus here between the
sale of alcohol and the death of Lovett, and that this case is not based on the violation of any
criminal statutes.
In reviewing an order granting a motion to dismiss, this court must determine whether or
not the challenged pleading sets forth allegations sufficient to make out the elements of a
right to relief. Edgar v. Wagner, 101 Nev. 226, 227, 699 P.2d 110, 111 (1985) (citations
omitted). We conclude that Snyder's complaint failed to state a claim upon which relief could
be granted and that the district court properly granted respondents' motion to dismiss.
The issue of tavern keeper liability for alcohol-related injuries was first addressed by this
court in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969). In Hamm, we
adopted the common law rule that consuming alcoholic beverages, and not furnishing them, is
the proximate cause of third party alcohol-related injuries. In addition, we determined that a
tavern keeper's violation of a criminal statute prohibiting the sale of alcohol to inebriated
persons does not constitute negligence per se. Further, we concluded that if civil liability were
imposed on tavern keepers, such liability would have to be established by legislative act
after appropriate surveys, hearings and investigations[.] Id. at 101, 450 P.2d at 359.
During the next thirteen years, we followed Hamm, to varying degrees, in five published
opinions. See Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 (1982) (concluding that
proximate cause of injuries brought about by underage drunken driver was driver's
consumption of alcohol, not vendor's sale of alcohol); Bell v. Alpha Tau Omega, 98 Nev.
109, 642 P.2d 161 (1982) (ruling that violation of criminal statute prohibiting sale of
alcoholic beverages to persons under the age of twenty-one does not constitute negligence
per se); Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 {19S1) {holding
that sale of alcoholic beverages to underage drinkers does not constitute "willful or
wanton misconduct"); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 {1979) {reiterating
that violation of law prohibiting provision of liquor to inebriated persons does not
constitute negligence per se and concluding that alcohol provider's willful or wanton
misconduct may, in some situations, proximately cause alcohol-related injuries); Mills v.
Continental Parking Corp.,
constitute negligence per se); Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d
1220 (1981) (holding that sale of alcoholic beverages to underage drinkers does not constitute
willful or wanton misconduct); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979)
(reiterating that violation of law prohibiting provision of liquor to inebriated persons does not
constitute negligence per se and concluding that alcohol provider's willful or wanton
misconduct may, in some situations, proximately cause alcohol-related injuries); Mills v.
Continental Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970) (ruling that parking lot operator
who returned keys to inebriated driver was not liable for subsequent injuries to third party).
Most recently, in Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), we
considered a situation similar to that presented here. In Hinegardner, an underage drinker,
who had consumed alcoholic beverages at several drinking establishments, drove his car on a
Nevada highway and collided with another vehicle, injuring its occupants. One of the injured
third parties filed a complaint against the tavern keepers, alleging causes of action for
negligence and negligence per se. The district court subsequently granted the tavern keepers'
motion to dismiss. Id. at 1092-93, 844 P.2d at 801.
On appeal, the injured party maintained that the modern trend is to allow third party
claims of negligence and negligence per se against tavern keepers, and that this court was an
appropriate forum for a change in the law. We considered whether we should modify existing
Nevada law to recognize third parties' claims for relief against tavern keepers who furnish
alcoholic beverages to an underage drinker, but concluded that any modern trend was not
significant enough to justify the abrogation of our long line of decisions denying negligence
claims against tavern keepers. We also reiterated that the violation of a penal statute
prohibiting the sale of alcohol to an underage person is not negligence per se and concluded
that only legislative mandate should create civil liability for vendors who serve alcohol to
minors. Id. at 1095-96, 844 P.2d at 803.
Based upon our prior cases, and, in particular, our recent opinion in Hinegardner, we
conclude that Snyder failed to set forth allegations sufficient to establish a viable claim
against any of the respondents. With regard to Snyder's negligence claim against the tavern
keeper, we have previously adopted the common law rule exempting tavern keepers from
liability for alcohol-related injuries:
At common law, courts refused to recognize a cause of action arising out of the
sale or furnishing of intoxicating beverages. . . .
action arising out of the sale or furnishing of intoxicating beverages. . . . [T]he common
law considers the act of selling the intoxicating beverage as too remote to serve as the
proximate cause of an injury resulting from the negligent conduct of the purchaser of
the drink. Nevada subscribes to the common law rule.
Id. at 1093, 844 P.2d at 802. Our continued adherence to the bright-line common law rule
necessitates our conclusion that, as with injuries to third parties, consumption is the
proximate cause of alcohol-related injuries to the drinker.
Furthermore, we have recognized that permitting third-party negligence claims against
commercial alcohol vendors would require us to answer . . . a sundry of . . . multifarious
questions for the flood of injured litigants that [would] inevitably crowd the Nevada courts.
Id. at 1096, 844 P.2d at 804. First-party claims, like third-party claims, would flood our
courts with a multitude of questions that are better addressed by the legislature. Where, as
here, the issue involves many competing societal, economic, and policy considerations, the
legislative procedures and safeguards are well equipped to the task of fashioning an
appropriate change, if any, to the settled rule. 108 Nev. at 1096, 844 P.2d at 804. We find it
noteworthy that following our decision in Hinegardner, the 1993 Nevada legislature chose
not to enact legislation that would impose civil liability on tavern keepers for the sale of
alcoholic beverages to underage drinkers. This choice not to extend liability supports our
decision in Hinegardner and our decision here.
[Headnote 2]
Snyder's remaining claims are also insufficient. With regard to her negligence claim
against the Sheriff's Department and its officers, NRS 41.0336 provides that a law
enforcement agency and its officers are not liable for negligent acts or omissions unless the
victim detrimentally relied on the agency's or officers' representations or the officers
affirmatively caused harm to the victim. Here, Snyder has made no allegations that would
bring her claim of negligence within the purview of NRS 41.0336.
[Headnotes 3, 4]
Further, Snyder's allegations that respondents acted with malice do not set forth any
right to relief. A plurality of this court has previously defined malice, in the context of our
punitive damages statute (NRS 42.010), as hatred and ill-will and the deliberate intent to
injure. Craigo v. Circus-Circus Enterprises, 106 Nev. 1, 9, 786 P.2d 22, 26 (1990). Here,
Snyder has alleged no facts suggesting that any of the defendants acted with ill-will or a
deliberate intent to injure Lovett.
with ill-will or a deliberate intent to injure Lovett.
1
Finally, as Snyder has not alleged facts
necessary to establish contract formation between the tavern and Lovett, her breach of
contract claim necessarily fails. We therefore affirm the district court's order granting
respondents' motion to dismiss.
Rose, C. J., and Shearing, J., concur.
Steffen, J., with whom Springer, J. concurs, dissenting:
For reasons detailed in my dissent in Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844
P.2d 800 (1992), I am compelled to dissent in the instant case.
Unfortunately, the facts of this case are even more egregious and tragic than those in
Hinegardner. Here, the intoxicated driver, Daniel Patrick Lovett, only twenty years of age,
was drinking alcoholic beverages from about 11:45 p.m. until approximately 1:15 a.m. while
at Joe's Tavern in Hawthorne, Nevada. Allegedly, the tavern employees knew that Lovett was
under the lawful age for consuming alcoholic beverages and that he planned to drive to
Sacramento, California. After leaving Joe's Tavern, Lovett went to the El Capitan
Hotel/Casino where he stayed until his departure for Sacramento at 6:00 a.m. The intoxicated
youth had no way of knowing that he had only one-half hour of life left and that in the
process of killing himself he would also be an instrument of doom for four innocent people
who were moving rapidly toward a rendezvous with a lethal combination of steel and alcohol.
Lovett's death machine crossed over the center line of Highway 95 north of Schurz,
Nevada, and crashed head-on with a motorhome carrying four occupants. Lovett and his
victims were all killed at approximately 6:30 a.m. on the morning after Lovett's night of
drinking. Tests demonstrated that Lovett had a blood alcohol level of 0.187 percent at the
time of the collision.
Once again, the majority places greater emphasis on economic concerns than on human
life. The rationale for the majority's position is the old bromide that under the common law, it
is the consumption of alcoholic beverages rather than the furnishing of such beverages
that is the proximate cause of third party alcohol-related injuries.
__________

1
Furthermore, we have held that knowingly furnishing or selling alcohol to an underage person, even if done
more than once, does not constitute willful or wanton misconduct. See Van Cleave, 97 Nev. at 416, 633 P.2d
at 1221. Contrary to Snyder's assertion that her district court action is not based on the violation of any criminal
statutes, Snyder's claim of malice is grounded, in part, on respondents' alleged violati[on] [of] state statutes
enacted to protect minors. We have previously held that the violation of a criminal statute regarding the sale of
alcohol to a minor does not constitute negligence per se. See Hinegardner, 108 Nev. at 1095-96, 844 P.2d at
803; Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 (1982). Such a violation, in and of itself, certainly
does not suggest malice.
consumption of alcoholic beverages rather than the furnishing of such beverages that is the
proximate cause of third party alcohol-related injuries. In Hinegardner it was noted:
It is instructive to note the development of the common law in its response to the
growing menace of inebriated drivers on the highways. Justice Erickson, writing for the
Supreme Court of Colorado in Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986),
recounted:
The modern era of dramshop liability began in 1959, when two courtsthe Seventh
Circuit in Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir. 1959),
cert. denied, 362 U.S. 903, 80 S. Ct. 611, 4 L. Ed.2d 554 (1960), and the New Jersey
Supreme Court in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959)held that a
third party injured by an intoxicated person may bring a negligence action against the
commercial vendor who sold liquor to the intoxicated person. Both decisions rejected
the defendants' contention that the sale or service of an alcoholic beverage could not, as
a matter of law, be the proximate cause of injury to a third party. The Rappaport court
said: Where a tavern keeper sells alcoholic beverages to a person who is visibly
intoxicated or to a person he knows or should know from the circumstances to be a
minor, he ought to recognize and foresee the unreasonable risk of harm to others
through action of the intoxicated person or the minor. 156 A.2d at 8. The court
concluded that the danger was particularly evident in current times when traveling by
car to and from the tavern is so commonplace and accidents resulting from drinking are
so frequent. Id.
The Largo court recognized the clear foreseeability of injury resulting from drivers
whose abilities and judgment are impaired by intoxicants. Moreover, the court
described as outdated and ill-reasoned, the old common law rule that the person who
consumed alcohol became a superseding cause of the injury and broke the causal
relation between the vendor's conduct and the plaintiff's injuries. Id. at 1103.
Hinegardner v. Marcor Resorts, 108 Nev. 1091, 1098, 844 P.2d 800, 805 (1992) (Steffen, J.,
dissenting).
As I previously observed in Hinegardner, the majority's position would place them in solid
dissent with the landmark ruling of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y.
1916), on grounds that liability in the manufacture and sale of products, including
automobiles, would be limited to those comparatively few instances where there was
contractual privity between the manufacturer and the purchaser of the product.
manufacturer and the purchaser of the product. See id. at 1097, 844 P.2d at 804 (Steffen, J.,
dissenting). Thus, the interpositioning of the retailer between the manufacturer and the
consumer who would ultimately use and be injured by the defective product, would generally
leave the consumer without a remedy for his or her injuries. See MacPherson, 111 N.E. at
1053-54. Likewise, in negligent entrustment cases, the majority's reasoning would eliminate
the cause of action on grounds that it is the action of the party to whom the instrumentality of
harm is negligently entrusted who causes the harm rather than the one who negligently
entrusts the instrumentality to someone unsuited to the trust.
As I observed in dissent in Hinegardner,
[t]he role of alcohol in the death and maiming of countless numbers of men, women
and children each year is well and indisputably attested. The shattered concourses of
victims of alcohol-related accidents have combined with a restive and angry society to
create a responsive, solid majority of courts that have recognized a cause of action
against negligent vendors of alcohol.
108 Nev. at 1097, 844 P.2d at 805.
Since the majority once again spurns the opportunity to join the overwhelming majority
of courts [that] have abandoned the old common-law rule and allowed negligence actions
against commercial vendors of alcoholic beverages (Largo, 727 P.2d at 1101) by ceding the
task to the Legislature, I must again register my protest in the strongest of terms.
Given the fact that Nevada has a singularly strong financial dependence upon segments of
the state economy that dispense alcohol as a significant inducement to other forms of business
activity, it is both unrealistic and irresponsible to espouse the fantasy that the Legislative
branch of government will effectively consider and adopt dramshop legislation. Although we
can hardly fault our legislators for shunning such an act of self-immolation, there is no excuse
for the non-political judicial branch of government doing the same. I realize the unfortunate
fact that judges, including the members of this court, are elected in this state, but that
constitutes no valid excuse for this court's failing to respond to the clear and increasing
demands of our society to give relief to the growing number of victims who fall prey to
inebriated drivers on our highways. Despite the apparent need to substantially finance judicial
elections with contributions from segments of our state economy that are purveyors of
alcoholic beverages, biting the hand that feeds you should never be a consideration in the
judicial process.
The overwhelming majority of courts have advanced the common law to meet the
conditions of our present society because it should be clear to all that if vendors of alcoholic
beverages are factored into the liability equation, there will be fewer intoxicated drivers, like
Lovett, to continue the highway carnage that truly has become such a national disgrace and
tragedy. Fewer intoxicated drivers translates into fewer victims. Depreciating inebriated
drivers results in the veneration of human life. Placing greater value on human life than
economic advantage, lifts society to a higher plane. Conversely, emphasizing commercial
advantage over human life and suffering degrades society and lowers the quality of its
civilization.
The majority would have us believe that there are so many problems and nuances of
problems involved in placing negligent vendors of alcohol in the liability equation, that these
problems and the difficulties inherent in their resolution outweigh the substantial attenuation
of human misery and death that would result from the implementation of solutions. I suggest
that the majority's fears are as unjustified as its priorities.
Quoting again from my dissent in Hinegardner, consider the vision and pervasive impact
of the venerable Judge Cardozo who, writing for the MacPherson court, said:
Precedents drawn from the days of travel by stagecoach do not fit the conditions of
travel to-day. The principle that the danger must be imminent does not change, but the
things subject to the principle do change. They are whatever the needs of life in a
developing civilization require them to be.
. . . .
If the nature of a thing is such that it is reasonably certain to place life and limb in peril
when negligently made [such as an intoxicated human ready to operate a high-speed
vehicle], it is then a thing of danger. If to the element of danger there is added
knowledge that the thing will be used by persons other than the purchaser, and used
without new tests, then, irrespective of contract, the manufacturer of this thing of
danger is under a duty to make it carefully.
Hinegardner, 108 Nev. at 1097, 844 P.2d 804-05 (quoting MacPherson, 111 N.E. at 1053).
Moreover, concerning the problems that are of such paramount concern to the majority, I
refer again to my dissent in Hinegardner where, quoting from the Colorado Supreme Court in
Largo, that court instructed:
[A]s to the consequences of imposing such a burden upon tavern owners, we reject
Largo's claim that civil liability for the negligent sale of alcohol would impose
insurmountable proof problems on tavern owners. Whatever problems of proof exist,
the plaintiff will be confronted with the same obstacles in reconstructing the facts,
and the plaintiff, not the defendant, will bear the burden of proving a breach of
duty."
proof exist, the plaintiff will be confronted with the same obstacles in reconstructing
the facts, and the plaintiff, not the defendant, will bear the burden of proving a breach
of duty.
Hinegardner, 108 Nev. at 1099, 844 P.2d at 806 (quoting Largo, 727 P.2d at 1103).
As reflected by the positive response of an overwhelming majority of the common law
courts of this nation, there is a compelling need for the judiciary of this state to provide its
citizens and the users of its highways with relief from the growing menace of intoxicated
drivers. We can realistically look to no other source. This court must recognize the fact that
irresponsible and negligent vendors of alcoholic beverages are priming people for roles as
drunken drivers who kill and maim the innocent travelers on Nevada's highways. Entire
families are wiped out and destroyed by this menace. This court will have only so many
opportunities to address the issues raised in the instant case. Each time we fail to act, we
assure the proliferation of needless human death and suffering. Since, in my humble opinion,
we have far too long perpetuated a condition that cries out for principled remedies, partial
though they may be, I am again forced to dissent from the majority's most unfortunate act of
judicial forfeiture.
____________
110 Nev. 1348, 1348 (1994) Firouzabadi v. District Court
RASOUL FIROUZABADI, ZAHRA FIROUZABADI and NEMATOLLAH
FIROUZABADI, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for Carson City, and THE HONORABLE MICHAEL
R. GRIFFIN, District Judge, Respondents, and UNITED APPAREL
CORPORATION, a New Jersey Corporation, Real Party in Interest.
No. 25318
November 30, 1994 885 P.2d 616
Petition for a writ of mandamus compelling the district court: (1) to vacate its order
granting the motion of the real party in interest to quash service of process for lack of
personal jurisdiction; and (2) to assume jurisdiction over the real party in interest. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Buyer of clothing sued seller for breach of contract. The district court granted motion to
quash service of process for lack of personal jurisdiction. Buyer petitioned for writ of
mandamus.
The supreme court held that seller had availed itself of opportunity to do business in state of
Nevada by offering its clothing at trade show, so as to permit suit in Nevada on contract claim
arising out of purchases made at show.
Petition granted.
Dyer, McDonald & Lawrence, and James W. Penrose, Carson City, for Petitioners.
Ohlson & Springgate, Reno, for Real Party in Interest.
1. Mandamus.
As no appeal lies from order quashing service of process, petition for writ of mandamus is proper means by which to challenge
order.
2. Courts.
As state long-arm statute has been construed to extend to outer reaches of due process, inquiries as to whether statutory and due
process considerations have been met may be collapsed into one. U.S. Const. amend. 14; NRS 14.065.
3. Courts.
General personal jurisdiction exists when defendant's activities in forum state are so substantial or continuous and systematic
that it may be deemed present in forum state and hence subject to suit over claims unrelated to its activities there. U.S. Const. amend.
14; NRS 14.065.
4. Courts.
Specific jurisdiction may be exercised over nonresident defendant when defendant purposefully avails itself of privilege of
serving market in forum or enjoying protection of laws of forum, or when defendant purposefully establishes contacts with forum state
and affirmatively directs conduct toward forum state and cause of action arises from that purposeful contact with forum or conduct
targeting forum. U.S. Const. amend. 14; NRS 14.065.
5. Courts.
While defendant's contacts with forum, asserted as basis of establishing specific jurisdiction, must be more than random,
fortuitous, or attenuated, it is quality of contacts and not quantity that confers jurisdiction. U.S. Const. amend. 14; NRS 14.065.
6. Courts.
California buyer of clothes could sue New Jersey seller in Nevada, based upon contract entered into at trade fair conducted in that
state. Seller had purposefully availed itself of opportunity to do business in Nevada by attending trade fair, even though it claimed it
was not specifically targeting Nevada customers, and dispute over quality of items sold arose directly out of trade fair activities.
OPINION
Per Curiam:
Rasoul Firouzabadi of Zahra's Gifts, a California general partnership, attended a trade show in Las Vegas where he entered into two
written contracts and paid the full purchase price for apparel from United Apparel Corporation {UAC), a New
Jersey corporation.
two written contracts and paid the full purchase price for apparel from United Apparel
Corporation (UAC), a New Jersey corporation. A dispute subsequently arose regarding
UAC's performance under the contract. When petitioners filed an action in the First Judicial
District Court, UAC moved to quash on the basis that it was not subject to personal
jurisdiction in Nevada. The district court issued an order granting UAC's motion to quash.
The petitioners seek to have this order vacated, and to compel the district court to exercise
jurisdiction over UAC. For the reasons stated below, we grant their petition.
FACTS
At the time of the events giving rise to this litigation, petitioners were the partners in
Zahra's Gifts, a California general partnership with its principal place of business in
Sacramento County, California. Real party in interest, UAC, is a New Jersey corporation with
its principal place of business in Lodi, New Jersey.
In August, 1992, petitioner Rasoul Firouzabadi (Firouzabadi) traveled to Las Vegas on
behalf of Zahra's Gifts to attend the Associated Surplus Dealers/Associated Merchandise
Dealers (ASD/AMD) trade show. UAC was a vendor at the show. During the course of the
show, Firouzabadi met Ken and Larry Manus, representatives of UAC.
While at the show, Firouzabadi and UAC negotiated and entered into two written contracts
for the purchase of apparel. Under the first of these, dated August 17, 1992, Firouzabadi
agreed to purchase 18,000 gauze shirts from UAC for a total purchase price of $18,000.00.
Under the second contract, dated August 19, 1992, Firouzabadi agreed to purchase 10,000
rugby shirts from UAC for $14,500.00. The purchase price for both contracts was paid in full
by Firouzabadi at the time the contracts were signed at the show. Both contracts provided that
the shirts would be shipped from Lodi, New Jersey, to Zahra's Gifts' place of business in
Sacramento County, California.
A dispute subsequently arose regarding UAC's performance under the contracts and
regarding representations allegedly made by Larry Manus at the trade show. Petitioners
brought a breach of contract claimalleging that UAC did not ship the full quantity of gauze
shirts ordered, that some of the gauze shirts received were unmarketable, that UAC has failed
to deliver any of the rugby shirts, and that UAC has failed to refund any portion of the
$14,500.00 purchase price paid for the rugby shirts. Additionally, petitioners brought claims
for misrepresentation based upon Larry Manus' assurances that all of the shirts purchased
were in UAC's inventory and ready to be shipped.
Initially, petitioners retained counsel and filed suit against UAC in the Superior Court of
California for Sacramento County. UAC appeared specially in the California action and
moved successfully to quash service of process, arguing that it lacked any contacts with
California sufficient to support the exercise of personal jurisdiction by a California court.
Subsequently, petitioners commenced this action in the First Judicial District Courtthe
nearest Nevada district court to petitioners' principal place of business. UAC moved to quash
on the basis that it did not conduct business in Nevada and had not made use of the laws or
protections of this state, and that its activities at the trade show were directed solely to those
in attendance at the show and not generally to residents of this state.
In response, petitioners filed a motion for leave to conduct discovery limited to the
jurisdictional issues raised by UAC. Petitioners asserted by way of affidavit that UAC had
participated in approximately twenty ASD/AMD trade shows in Nevada during the past ten
years.
1

The district court entered an order denying petitioners' motion to conduct discovery and
granting the motion to quash. The district court concluded that UAC had not purposefully
availed itself of the privilege of serving a market in Nevada or affirmatively directed
conduct toward this state by participating in the ASD/AMD trade show. Additionally, the
district court concluded that Nevada had no significant interest in adjudicating the dispute
between the parties, reasoning:
If either party had significant business interests or involvement in our state, this action
may have been appropriately brought in this court. However, the State of Nevada's
interest in deciding a dispute between two businesses whose only tie to its jurisdiction
is their coincidental presence in Las Vegas for a trade show is very negligible.
Petitioners filed a petition for a writ of mandamus with this court, requesting that we direct
the district court to vacate its order quashing jurisdiction, and to assume jurisdiction.
DISCUSSION
Nature of the remedy
[Headnote 1]
As no appeal lies from an order quashing service of process, a petition for a writ of
mandamus is the proper means by which to challenge such an order.
__________

1
Petitioners' counsel stated that this information was based on a phone conversation which he had with a
representative of ASD/AMD trade show. The representative volunteered that UAC had been a vendor at
ASD/AMD trade shows twice each year in Las Vegas for the past ten years.
challenge such an order. Orme v. District Court, 105 Nev. 712, 782 P.2d 1325 (1989); Davis
v. District Court, 97 Nev. 332, 629 P.2d 1209 (1981); Jarstad v. National Farmers Union, 92
Nev. 380, 552 P.2d 49 (1976).
Whether the district court abused its discretion in determining that Nevada lacked personal
jurisdiction over UAC
In Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993), this court discussed the
burden of proof to be met by the plaintiff in overcoming a challenge to jurisdiction. Where, as
here, the jurisdictional issue is decided without a full evidentiary hearing, the plaintiff need
only make a prima facie showing of jurisdiction. Id. at 692-94, 857 P.2d at 743-44.
[Headnote 2]
The exercise of personal jurisdiction over a nonresident defendant must be based on a
showing: (1) that the requirements of [Nevada's] long-arm statute have been satisfied, and
(2) that due process is not offended by the exercise of jurisdiction. Trump, 109 Nev. at 698,
857 P.2d at 747. Because Nevada's long-arm statute, NRS 14.065, has been construed to
extend to the outer reaches of due process, the two inquiries . . . may be collapsed into one.
Trump, 109 Nev. at 698, 857 P.2d at 747.
To be consistent with the requirements of due process, the exercise of jurisdiction requires
sufficient minimum contacts between the defendant and the forum state so that the suit does
not offend notions of fair play and substantial justice. International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945); see also Trump, 109 Nev. at 698, 857 P.2d at 747; Mizner v.
Mizner, 84 Nev. 268, 439 P.2d 679, cert. denied, 393 U.S. 847 (1968). The defendant's
contacts with the forum state must be such that the defendant should reasonably anticipate
being haled into court there.' Trump, 109 Nev. at 699, 857 P.2d at 748 (quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
[Headnote 3]
Personal jurisdiction may be general or specific. General personal jurisdiction exists where
the defendant's activities in the forum state are so substantial or continuous and systematic
that it may be deemed present in the forum and hence subject to suit over claims unrelated to
its activities there. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16
(1984); see also Trump, 109 Nev. at 699, 857 P.2d at 748; Budget Rent-A-Car v. District
Court, 108 Nev. 483, 485, 835 P.2d 17, 19 (1992). In the absence of general jurisdiction,
specific personal jurisdiction may be established only where the cause of action arises from
the defendant's contacts with the forum."
cause of action arises from the defendant's contacts with the forum. Budget Rent-A-Car, 108
Nev. at 485, 835 P.2d at 19.
In this case, petitioners contend that they made a prima facie case sufficient for the
assertion of specific jurisdiction. We agree.
[Headnote 4]
In Trump, we stated that specific jurisdiction may be exercised over a nonresident
defendant where:
(1) the defendant purposefully avails himself of the privilege of serving the market in
the forum or of enjoying the protection of the laws of the forum, or where the defendant
purposefully establishes contacts with the forum state and affirmatively directs conduct
toward the forum state, and (2) the cause of action arises from that purposeful contact
with the forum or conduct targeting the forum.
Trump, 109 Nev. at 699-700, 857 P.2d at 748.
[Headnote 5]
The purposeful availment' requirement may . . . be satisfied if the defendant
intentionally directed his activities into the forum.' Id. at 700, 857 P.2d at 748 (quoting
Brainerd v. Governors of the University of Alberta, 873 F.2d 1257, 1259 (9th Cir. 1989)).
While the defendant's contacts with the forum must be more than random,' fortuitous,' or
attenuated[,]' it is the quality of the contacts and not the quantity that confers personal
jurisdiction. Trump, 109 Nev. at 700, 857 P.2d at 749 (quoting Munley v. District Court, 104
Nev. 492, 495-96, 761 P.2d 414, 416 (1988)).
[Headnote 6]
Petitioners argue that the district court's analysis is flawed because it is based on the belief
that UAC cannot be held to have availed itself of the privilege of conducting business in this
state unless it specifically directed its activities in Nevada towards Nevada residents. In its
order quashing jurisdiction, the district court reasoned that businesses such as UAC attend
trade shows to sell products to other businesses and enterprises that also attend the show and
not to target a specific market within a particular jurisdiction. Petitioners argue, however,
that Nevada-based businesses were a part of the market targeted by UAC. Petitioners further
contend that the trade show itself served as a market for buyers and sellers in the apparel
business, that this trade show was the market targeted by UAC, and that UAC came to
Nevada specifically to exploit this market. Petitioners thus assert that UAC's presence at the
trade show was not fortuitous as the district court found, but was a deliberate business
decision that led to the formation of the contracts at issue in this case.
decision that led to the formation of the contracts at issue in this case.
UAC argues that it has not purposefully availed itself of the privilege of serving the market
in Nevada, or of enjoying the protection of the laws of Nevada. UAC bases this argument on
the fact that its solicitation at the trade show was not directed at Nevada residents per se, but
at businesses residing in a number of states. UAC thus contends that by making appearances
at the trade shows, it was not conducting business within Nevada for jurisdictional purposes.
The court in Scovill Manufacturing Co. v. Dateline Electric Co., 461 F.2d 897 (7th Cir.
1972), a factually similar case, rejected such an argument. Scovill, a Connecticut corporation,
and the defendant Dateline, an English company, negotiated a contract at a housewares trade
show in Chicago for the manufacture of goods by Dateline for Scovill. Subsequent
negotiations occurred in New York and Connecticut. The contract was ultimately signed in
Connecticut, with discussions concerning performance occurring thereafter at two subsequent
Chicago trade shows. Scovill filed suit in Illinois after the product proved defective, and the
trial court dismissed the breach of contract claim for lack of personal jurisdiction. The court
of appeals reversed, concluding that Dateline had purposefully availed itself of the benefits
and protections of local law and commerce.' Scovill Manufacturing, 461 F.2d at 900
(quoting Fisons, Ltd. v. United States, 458 F.2d 1241, 1250 (7th Cir. 1972)). The Court
rejected Dateline's argument that its contacts with Illinois were casual'' or incidental,
stating:
The three meetings between representatives of Scovill and [Dateline] in 1968 and 1969
in Chicago came about because of their regular attendance at the Housewares Show for
business purposes. Indeed, the sole purpose of these shows was to promote business
contacts and provide a place where business relationships would be initiated if not fully
completed. Business needs prompted Scovill's periodic appearances. Dateline routinely
attended the shows in order to solicit potential customers. The visits of [Dateline's
representative] were made to coincide with the shows since they represented an
important part of Dateline's American business. A defendant who sends an agent into
Illinois to solicit or to negotiate a contract is transacting business within the statutory
definition.
Id.
A similar result was reached in Feldman Associates v. Lingard & Associates, 676 F. Supp.
877 (N.D. Ill. 1988). The president of the defendant corporation, domiciled in Georgia, had
traveled to Chicago to make a sales presentation relating to the company's product.
of the defendant corporation, domiciled in Georgia, had traveled to Chicago to make a sales
presentation relating to the company's product. After his return to Georgia, the parties agreed
to the terms of a contract whereby defendant was to manufacture the product and ship it to
retailers throughout the nation. In the ensuing breach of contract action, the court held that
personal jurisdiction over the company was properly asserted in Illinois, stating:
[Defendant's] presentation of [its] products amounted to in-state solicitation. When
such a sales pitch leads to the formation of a contract, the act of solicitation establishes
long-arm jurisdiction in any case relating to the contract. . . . Once a nonresident
corporation comes to Illinois and conducts substantial negotiations concerning a
contract, that corporation exposes itself to Illinois jurisdiction in the event the contract
becomes the subject of litigation.
Feldman Associates, 676 F. Supp. at 880 (citations omitted); see also Xedit Corp. v. Harvel
Industries Corp., 456 F. Supp. 725 (S.D.N.Y. 1978) (finding that single appearance at trade
show in forum constituted the transaction of business, but concluding that jurisdiction over
tort claim was lacking where cause of action did not arise out of business conducted at show);
Judas Priest v. District Court, 104 Nev. 424, 426, 760 P.2d 137, 139 (1988) (finding personal
jurisdiction based on two concert appearances in forum, together with execution of licensing
agreement for purpose of selling copies of albums nationwide; [t]he test is whether the
defendant has targeted the forum state for marketing his product, thereby purposefully
availing himself of the benefits of the forum).
Following the reasoning of these cases, we reject UAC's argument and conclude that
petitioners made a prima facie showing that UAC purposefully availed itself of the
privilege of serving the trade show market in Nevada, though the contact may not have been
aimed solely at Nevada residents. It is clear that UAC came to the trade show in Nevada to
market its goods and solicit business, thus benefitting from its presence in the state.
Accordingly, UAC exposed itself to Nevada jurisdiction over a dispute on the contract that it
entered into with petitioners at the trade show, as the entire purpose of UAC's presence in
Nevada was to negotiate such transactions.
Further, we conclude that petitioners meet the second requirement necessary for the
exercise of specific jurisdiction: the cause of action arose from the purposeful contact with
the forum. This court has held that the claims must have a specific and direct relationship or
be intimately related to the forum contacts.
Munley v. District Court, 104 Nev. 492, 496, 761 P.2d 414, 416 (1988). Both petitioners'
contract and misrepresentation claims arise from the very agreements that were negotiated
and entered into at the trade show petitioners attended in Nevada.
Additionally, we reject UAC's argument that it is unreasonable for it to have to
adjudicate this dispute in any state besides New Jersey. See Trump v. District Court, 109 Nev.
687, 700, 857 P.2d 740, 749-50 (1993) (where a defendant has the requisite contacts with the
forum state necessary to establish specific jurisdiction, it may still defeat jurisdiction if it
makes a compelling case that other considerations render the exercise of jurisdiction
unreasonable). The record indicates UAC had been soliciting business in Nevada twice a year
for the past ten years.
2
If UAC can travel to Nevada twice a year to solicit business at trade
shows, it certainly cannot persuasively argue that requiring it to litigate here would exceed the
limits of due process.
Lastly, we reject UAC's argument that petitioners' residency should be dispositive in
deciding the issue of jurisdiction. The district court found that Nevada's interest in deciding
a dispute between two businesses whose only tie to its jurisdiction is their coincidental
presence in Las Vegas for a trade show is very negligible. We disagree with this reasoning in
the instant case.
Arguments that a state has little interest in providing a forum for an action brought by
nonresidents have been rejected by other courts in cases where due process requirements were
met. See Edmonton World Hockey Enterprises v. Abrahams, 658 F. Supp. 604, 608 (D.
Minn. 1987) (court rejected California-based defendant's argument that the court could not
exercise personal jurisdiction over him in Minnesota because none of the plaintiffs were
residents of Minnesota, stating that where the purposeful availment requirement is satisfied
the fact that the parties are not residents does not affect the exercise of jurisdiction); Volt
Delta Resources v. Devine, 740 P.2d 1089, 1094 (Kan. 1987) (holding that there was nothing
in the statute precluding a nonresident from bringing an action where the statutory and due
process requirements were met).
Moreover, Nevada law should afford some protection to the out-of-state residents which
Nevada hails to trade shows in order to boost Nevada business.
3
As petitioners argue, the
state has an interest in protecting its visitors from commercial predation and in providing a
forum for the resolution of disputes having their origin here.
__________

2
We note that this evidence is contrary to: (1) the district court's finding that UAC and petitioners' presence in
Nevada were coincidental, (2) the district court's finding that UAC had not affirmatively directed conduct
toward this state, and (3) the district court's finding that UAC had no significant business interests or
involvement in Nevada.

3
Petitioners point out that during 1992 alone, more than 900,000 people attended trade shows in Las Vegas.
They spent more than $1 billion in Nevada, exclusive of gaming expenditures. Las Vegas Convention and
Visitors Authority, Fourth Quarter 1992 Las Vegas Marketing Bulletin 5 (1993).
interest in protecting its visitors from commercial predation and in providing a forum for the
resolution of disputes having their origin here. We refuse to allow businesses to come to
Nevada and enter into contracts free from any threat of litigation in this forum.
Accordingly, we conclude that the district court erred in determining that petitioners failed
to present a prima facie case of specific jurisdiction. We grant the petition. The clerk of this
court shall issue a writ of mandamus compelling the district court to vacate the order
quashing service of process and to assume jurisdiction over UAC.
____________
110 Nev. 1357, 1357 (1994) Meyer v. District Court
LORI MEYER, Individually and as Guardian Ad Litem for CHRIS MEYER, a Minor;
SHARI RANDLE, Individually; ALIDA TURNER, Individually; and LEE TURNER,
Individually and as Guardian Ad Litem for SAMUEL TURNER; ALVIN
CHAPMAN, Individually and as Guardian Ad Litem for GARED CHAPMAN and
LUKE CHAPMAN, Minor Children; GUADALUPE GRADY, Individually and as
Guardian Ad Litem for CANDACE GRADY; and TERRY GRADY, Individually; for
Themselves and on Behalf of All Others Similarly Situated, Petitioners, v. EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, and THE
HONORABLE JOSEPH PAVLIKOWSKI, Respondents, and ROBERT BIGELOW;
DIANE M. BIGELOW; SWENSON ASSOCIATES, a Limited Partnership; ROBERT
BIGELOW, the General Partner of SWENSON ASSOCIATES; HARBOR ISLAND
ASSOCIATES, a Limited Partnership; ROBERT and DIANE BIGELOW, General
Partners of HARBOR ISLAND ASSOCIATES; BIGELOW MANAGEMENT INC.,
a Nevada Corporation; BIGELOW HOLDING CORP., a Nevada Corporation;
BIGELOW DEVELOPMENT CORPORATION, a Nevada Corporation; RICK
CLOUSE; OLIVER DOE; KEN UNDERWOOD; PAMELA BOWSHER; CI CI
CHISM; SHARON HAND; JAMES PARK; ANN STEVENSON; GENE LANG;
ROSE CAMPBELL, Real Parties in Interest.
No. 25789
November 30, 1994 885 P.2d 622
Petition for writ of mandamus commanding the district court to certify petitioners as a
class. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Tenants petitioned for writ of mandamus to compel the district court to certify them as
class in action against their corporate landlord, based on landlord's allegedly illegal pattern of
keeping tenants who were late in paying rent out of their apartments by placing pin in lock,
rendering keys to apartment inoperable and forcing tenants to contact landlord to gain access.
The supreme court held that tenants satisfied commonality requirement for class certification.
Petition for writ of mandamus granted.
Barbara E. Buckley, Las Vegas, for Petitioners.
Richard Parnell, Las Vegas, for Real Parties in Interest.
Laura Wightman FitzSimmons, Richard W. Myers, and Daniel F. Polsenberg, Las Vegas,
for Amicus Curiae Nevada Trial Lawyers Association.
1. Mandamus
Supreme court may issue writ of mandamus to control district court's arbitrary or capricious exercise of discretion.
2. Mandamus.
Appropriate inquiry for supreme court in ruling on petition for writ of mandamus to compel district court to certify class was
whether element of commonality existed, even though district court's order dismissing plaintiffs' countermotion for class certification
did not single out lack of commonality as only justification for dismissal. In order denying reconsideration of issue of certification,
district court cited lack of commonality as its rationale for denying class status, and district court subsequently refused to amend order
denying reconsideration.
3. Mandamus.
In ruling on petition for writ of mandamus to compel trial court to certify class, supreme court's inquiry into trial court's rationale
for its order may extend to boundaries of entire record, not just to selected portions.
4. Parties.
In analyzing whether it should certify class, trial court should generally accept allegations of complaint as true; extensive
evidentiary showing is not required. NRCP 23(a), (b).
5. Parties.
Proposed class of tenants alleged facts sufficient to satisfy element of commonality to warrant class certification in their action
against landlord. Tenants alleged that landlord undertook pattern of illegally keeping tenants who were late in paying rent out of their
apartments by placing pin in lock, rendering keys to apartments inoperable and forcing tenants to contact landlord in order to gain
access, and landlord's claim that tenants were pinned in different apartment complexes run by different employees on different dates
and for different reasons did not preclude commonality finding. NRCP 23(a), (b).
OPINION
Per Curiam:
Real parties in interest Robert Bigelow and other owners of rental properties in Las Vegas
(Bigelow) undertook a pattern of keeping tenants who were late in paying rent out of their
apartments by placing a pin in the lock, rendering the keys to the apartments inoperable and
forcing tenants to contact Bigelow in order to gain access. Petitioners Lori Meyer and other
named plaintiffs who were Bigelow's tenants (the Tenants) sued Bigelow for wrongful
eviction and a number of other statutory and common law violations. The district court
refused to certify a class because it felt the proposed class lacked commonality. The Tenants
now seek a writ of mandamus from this court, claiming that the district court refusal was
arbitrary and capricious. For the reasons discussed herein, we conclude that the element of
commonality was satisfied and that the failure of the district court to find commonality
constituted an abuse of discretion. We therefore grant a writ of mandamus compelling the
district court to certify a plaintiff class.
FACTS
Lori Meyer (Meyer) was one of Bigelow's tenants. Bigelow owned over 2,000 rentals,
including Blue Harbor Club Apartments and South Cove Apartments, renting almost
exclusively on a weekly basis. Meyer alleged that she informed Bigelow that she would be
late in paying rent because her husband was sick and would soon enter the hospital. Bigelow
told her that it would work with her.'' Meyer went to work and left her son at her apartment
with a babysitter. After returning from the apartment pool, Meyer's son and babysitter found a
pin in the lock. Bigelow informed them that they were locked out and could not be readmitted
until Meyer paid rent. Meyer alleged that she received no prior notice of the pinning. When
Meyer complained, she alleged that she was threatened to keep quiet. Meyer and other tenants
who had been locked out initiated a lawsuit against Bigelow for illegal lockout, statutory
violations, unlawful entry, conversion, and other causes of action. The Tenants also sought
class action status, naming as plaintiffs
[a]ll tenants who live, will live or have lived at those apartment complexes known as
South Cove Apartments or Blue Harbor Club Apartments since September 1, 1990, and
who have been or will be evicted or excluded from their rented apartments prior to
being served an eviction notice as required by law.
An affidavit submitted by Daryl Wyatt (Wyatt), a former district manager for Bigelow,
described Bigelow's policy of placing a pin in the locking mechanism of a tenant's door,
preventing the tenant from gaining access to their apartment or personal belongings. Wyatt
stated that the practice was followed at all Bigelow rental complexes. According to Wyatt,
Bigelow had determined that out of every fifty tenants who were pinned out, less than two
would ever call police officers or seek legal help, making the practice an economically
expedient alternative to lawful eviction. Wyatt estimated that during a four-month period, 300
to 400 tenants were pinned out in Harbor Island Apartments alone, about five or six each day.
An affidavit submitted by Cheryl Moody (Moody), a former security dispatcher for all
Bigelow apartments, stated that she received around three complaints every night from
tenants who were pinned out of their apartments. After-hours security officers were instructed
to allow tenants access to their apartment if the tenant threatened to call police. Otherwise,
officers were to encourage tenants to leave the premises and contact management the next
day. Moody estimated that within a three-month period, 180 tenants called at night because
they had been pinned out of their apartments. Deposition testimony of other Bigelow
employees confirmed these allegations. The Tenants estimate that over a period of several
years thousands of tenants must have been pinned out of Bigelow apartments.
Richard Clouse (Clouse), present Vice President of Bigelow Management, Inc., admitted
that the Bigelow policy was to give notice on the first day rent was overdue, pin the door on
the second day and then pack belongings out of the apartment on the third day. Clouse
admitted to being told that the practice was illegal. Depositions of other employees alleged
that Clouse believed the practice to be unlawful. Clouse denied that tenants were actually
prevented from reentering their apartmentseven if they had not paid their rentonce they
contacted management and requested that Bigelow remove the pin.
Bigelow moved to dismiss the Tenants' complaint. Bigelow justified the practice of
pinning by pointing out that the apartments were high-quality weekly rentals and did not
require a security deposit or payment in advance. Because Bigelow apartments experienced
over 10,000 move-outs during 1993 Bigelow argued that it had no other way of determining
whether a tenant had moved out or was simply avoiding management and refusing to pay
rent.
Bigelow also asserted that class status should be denied because the Tenants and other
potential plaintiffs had nothing in common.
common. According to Bigelow, the plaintiffs were pinned in different apartment complexes
run by different employees on different dates and for different reasons. Bigelow also noted
that it initiated lawful summary evictions when necessary and did not resort to pinning as a
means of eviction.
The court denied both the motion to dismiss and the countermotion to certify a class. The
Tenants moved the court to reconsider the order denying class certification. The minute order
summarizes argument on the motion for reconsideration:
Argument by Ms. Buckley [the Tenants' attorney]. Court stated he had found there was
different evidence as to each party and that the parties had nothing in common. COURT
ORDERED, Motion DENIED. Ms. Buckley asked for a clarification to which the Court
stated he felt the commonalty [sic] element was missing and that it is not a class action
case. Mr. Parnell [Bigelow's attorney] to prepare the Order.
Bigelow and the Tenants disagreed over what should be included in this order. After trading
drafts with Bigelow, the Tenants' counsel clarified the court's reasoning with the court's law
clerk. The clerk indicated that if the court gave only one reason for denial of class
certification in open court, then that reason alone was the basis for denial. The Tenants
claimed that Bigelow agreed to allow the Tenants' counsel to contact the clerk to seek
clarification. Bigelow claimed that the Tenants never informed it that the ex parte
communication would occur. The Tenants then sent the court a letter explaining the dispute
between the Tenants and Bigelow concerning the language of the order and sent a copy to
Bigelow. The court eventually signed the Tenants' narrower version of the order denying the
Tenants' motion because they failed to show that common issues of fact or law exist as
required by NRCP 23(a)(2).
Bigelow moved for a nunc pro tunc order to clarify the court's rationale for denying class
certification, arguing that the court found many more deficiencies in the Tenants' claim for
class status than the order indicated. The court denied the motion. The Tenants then appealed
the court's determination that the class lacked commonality.
DISCUSSION
Whether a sufficient basis exists to issue a writ of mandamus
[Headnotes 1, 2]
This court may issue a writ of mandamus to control a district court's arbitrary or capricious
exercise of discretion. Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992).
The district court in the case at hand refused to certify a class because the class lacked
the element of commonality.
district court in the case at hand refused to certify a class because the class lacked the element
of commonality. The Tenants and the Nevada Trial Lawyers Association (the NTLA), who
filed an amicus brief supporting the Tenants' position, argue that if this court determines that
the element of commonality exists, then the district court's refusal to certify a class constitutes
arbitrary and capricious action justifying a writ of mandamus.
The Tenants argue that this case is especially appropriate for a writ of mandamus because
of the presence of substantial public policy concerns, predominantly legal issues and
inevitable problems concerning discovery, notice, and large numbers of intervenors if class
status is denied. Citing Johnson v. Travelers Insurance Company, 89 Nev. 467, 515 P.2d 68
(1973), the Tenants argue that dismissal of a class action is tantamount to dismissal of all
members of the alleged class other than the named plaintiffs, in essence constituting a final
judgment that can be appealed. The Tenants argue that the same concerns justifying the
appeal in Johnson also justify their petition for a writ of mandamus.
Bigelow responds that the Tenants unlawfully narrowed their issues on appeal because the
district court order to dismiss the Tenants' countermotion for class certification did not single
out a lack of commonality as the only justification for dismissal.
1
Bigelow asserts that the
practical effect of denying reconsideration of the issue was to leave intact the original order as
entered. Because the original order made no mention of the rationale justifying dismissal,
Bigelow concludes that the Tenants must prove to this court that they satisfy all requirements
of a class action.
[Headnote 3]
We conclude that this argument lacks merit. The Tenants do not argue that the original
order denying their countermotion for class certification is not intact as entered. The effect of
this original order remains unchanged. The rationale justifying the order remains subject to
this court's inquiry. This inquiry may extend to the boundaries of the entire record, not just to
selected portions. See State ex rel. Pitz v. City of Columbus, 564 N.E.2d 10S1, 10S5 {Ohio
App.
__________

1
Bigelow also argues that the Tenants' attorney engaged in prohibited ex parte contact with the judge's law
clerk to obtain the order denying reconsideration of the issue of certification on the basis of a lack of
commonality. EDCR 7.74 provides that [n]o attorney may argue to or attempt to influence a law clerk on the
merits of a contested matter pending before the judge or judicial officer to whom that law clerk is assigned.
Nothing in the record suggests that the Tenants' counsel argued or attempted to influence the law clerk.
1081, 1085 (Ohio App. 1988) (culling facts from the record to justify the trial court's actions).
The district court stated its rationale for denying class status in the court's order denying
reconsideration of the issue of certification. The district court refused to amend that order.
This court should not be compelled to ignore these facts in determining whether the district
court's rationale for denying class certification was arbitrary and capricious.
Bigelow also responds that the language of the minute order describing the court's
rationale for denying reconsideration does not single out a lack of commonality as the only
justification for dismissal. Bigelow concludes that this indicates the intent of the district court
to refuse to narrow its refusal to certify a class to a lack of commonality. Bigelow quotes the
following language to support this conclusion: [The court] felt the commonality element was
missing and that it was not a class action. (Emphasis supplied by Bigelow.)
We conclude that this argument is without merit. Although conceivably this summary
language could be interpreted to indicate that the Tenants' action was not a class action and
lacked commonality, the full text of the minute order suggests an opposite interpretation,
namely, that the court felt the Tenants' action was not a class action precisely because it
lacked commonality. Furthermore, the court's order denying reconsideration cited
commonality as the only obstacle to class status. The court refused to amend that order.
We conclude, therefore, that the Tenants' concerns justify examining the district court's
action to determine if it abused its discretion in refusing to certify a class.
Whether the district court's denial of class status was clearly erroneous
[Headnotes 4, 5]
NRCP 23, identical to its federal counterpart, governs the process of class certification.
This rule provides that a class representative can sue on behalf of the class if (1) the class is
so numerous that joinder is impractical, (2) questions of law or fact are common to class
members, (3) claims and defenses of the representative are typical of those of the class, and
(4) the representative will fairly and adequately protect the interests of the class. See NRCP
23(a). The court must also be satisfied that the elements of NRCP 23(b) are met. NRCP 23(b)
generally deals with whether maintaining a class action is logistically possible and superior to
other actions. In analyzing whether it should certify a class, the court should generally accept
the allegations of the complaint as true.
allegations of the complaint as true. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975),
cert. denied, 429 U.S. 816 (1976). An extensive evidentiary showing is not required. Id. In
the Tenants' case, this court must determine whether questions of law or fact are common to
class members. If such questions do exist, then the district court acted arbitrarily and
capriciously in failing to certify the class, justifying this court's use of mandamus to compel
certification.
The Tenants and the NTLA argue that common questions both of law and fact are evident
in this case. With respect to questions of fact, the NTLA argues that when a general corporate
policy is the focus of litigation, class status for those adversely affected by the policy is
appropriate. The NTLA cites Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio 1992),
where Pfizer produced thousands of defective heart valves. Id. at 147. Although plaintiffs
alleged different injuries and sought many different forms of relief, the court concluded that
Pfizer's conduct with regard to all implantees arose out of a single nucleus of operative facts
and law, establishing the element of commonality. Id. at 158. The NTLA argues that
Bigelow's practice of pinning tenants out of their apartments is a similar corporate practice
satisfying the element of commonality. The Tenants make essentially the same argument,
albeit with different authority, concluding that commonality is met in circumstances calling
into question a general corporate policy. The Tenants also note that a difference in the amount
of damages does not defeat commonality. See Johnson, 89 Nev. at 473, 515 P.2d at 73.
With respect to questions of law, the NTLA first points out that class members must hold
in common questions of fact or law. The existence of questions of law in common is
therefore sufficient alone to establish commonality. Both the Tenants and the NTLA argue
that questions of whether pinning violated landlord-tenant law, constituted trespass, civil
conspiracy, etc., are held in common by all potential class members. The NTLA cites Like v.
Carter, 448 F.2d 798 (8th Cir. 1971), cert. denied, 408 U.S. 1045 (1972), to justify this
argument. There, the trial court held class certification would be inappropriate because facts
pertaining to the delay in processing social security applications varied from case to case. Id.
at 802. The appellate court reversed, concluding that factual differences are not fatal if
common questions of law exist, such as the interpretation and validity of the statutes and
regulations in question. Id.
Bigelow responds that the issue of commonality is controlled by Johnson, 89 Nev. at 467,
515 P.2d at 68. Bigelow notes that in Johnson this court affirmed the district court's refusal to
certify a class action involving allegations of fraud and misrepresentation because of the
inherent uniqueness of each litigant's claim and understanding of the contract at issue.
class action involving allegations of fraud and misrepresentation because of the inherent
uniqueness of each litigant's claim and understanding of the contract at issue. Bigelow asserts
that the case at hand is analogous. Citing Blackie, Bigelow observes that a class action cannot
be maintained when differences among class members are more than slight. Bigelow argues
that because differences among Bigelow tenants are more than slight, the factual
circumstances surrounding Bigelow's pinning of each tenant would have to be fully explored.
We conclude that the Tenants and the NTLA are correct. The very case Bigelow asserts is
controlling does nothing to further its arguments in response. Bigelow itself admits that
Johnson dealt only with the inherent uniqueness of causes of action for fraud and
misrepresentation. The outcome of Johnson rested entirely upon the court's conclusion that
the complaint lacked a common thread of fraud which existed and pervaded the transaction
at the time of the consumer's purchase. Id. at 472-73, 515 P.2d at 72. In fact, this court
concluded that no claim in the complaint could possibly have sustained a cause of action for
fraud. Johnson, 89 Nev. at 473, 515 P.2d at 73. Applying Johnson, the biggest problem with
Bigelow's rationale for pinning (that is, distinguishing who has moved from who is simply
avoiding management) is that pinning itself may be unlawful and is alleged to be so by both
the Tenants and the NTLA.
CONCLUSION
We conclude that the prospective class meets the element of commonality, and the failure
of the district court to find commonality constitutes an abuse of discretion. In doing so,
however, we accept the allegations of the Tenants as true. We note that the district court
holds discretion to decertify the class if at any time it determines that the plaintiff class and its
representatives no longer meet the elements of a class as defined under NRCP 23. See
Blackie, 524 F.2d at 891. With this caveat, we direct the clerk of this court forthwith to issue
a writ of mandamus compelling the district court to certify a plaintiff class.
2

__________

2
The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.
____________
110 Nev. 1366, 1366 (1994) Burke v. State
JAMES T. BURKE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23418
December 22, 1994 887 P.2d 267
Motion for confession of error in an appeal from a judgment of conviction, pursuant to
guilty plea, of one count of forgery. Eighth Judicial District Court; Clark County, J. Charles
Thompson, Judge.
After law firm was appointed to represent defendant on appeal, defendant was ordered to
show cause why appeal should not be dismissed for failure to file opening statements, and
law firm was ordered to show cause why it should not be sanctioned. Law firm filed motion
for confession of error. The supreme court held that law firm's failure to file timely brief
warranted sanctions.
Motion denied; case remanded for the appointment of new counsel; sanctions
imposed.
Moran & Weinstock and Andrew M. Leavitt, Las Vegas, for Appellant.
1. Criminal Law.
Law firm's failure, after it was appointed to represent defendant in criminal appeal, to file timely brief warranted removal of firm
as counsel, remand for appointment of new counsel, imposition of monetary sanctions against firm, direction that firm be removed
from criminal appointment list, and reference of matter to state bar for further investigation. SCR 151.
2. Criminal Law.
Defendant in direct appeal from judgment of conviction has constitutional right to effective assistance of counsel. U.S. Const.
amend. 6.
OPINION
Per Curiam:
[Headnote 1]
For the second time this year, we address the failure of the law firm of Moran & Weinstock to comply with our procedural rules. In
County Comm'rs v. Las Vegas Discount Golf, 110 Nev. 567, 875 P.2d 1045 (1994), we granted a motion for confession of error after
Moran & Weinstock, counsel for respondent in that case, refused to comply with an expedited briefing schedule.
110 Nev. 1366, 1367 (1994) Burke v. State
Once again, Moran & Weinstock has failed to file a timely briefthis time in a criminal
appeal. For reasons explained below, we remove the firm of Moran & Weinstock as counsel
for appellant, remand this matter to the district court for the appointment of new counsel,
impose monetary sanctions against counsel, direct that the firm of Moran & Weinstock be
removed from the criminal appointment list for the Eighth Judicial District Court, and refer
this matter to the State Bar of Nevada for further investigation.
FACTUAL BACKGROUND
On December 4, 1991, appellant James T. Burke was convicted pursuant to a guilty plea of
one count of forgery and sentenced to five years in the Nevada State Prison. On December 11,
1991, appellant, in proper person, filed a timely notice of appeal.
Our preliminary review of the record indicated that appellant should be represented by
counsel. Accordingly, on August 4, 1992, we remanded this matter to the district court for the
appointment of counsel. Four days later, the district court appointed Andrew M. Leavitt of the
firm of Moran & Weinstock to represent appellant, and on August 28, 1992, Leavitt filed a
docketing statement on appellant's behalf. See NRAP 14.
Following the filing of the docketing statement, Burke submitted an opening brief in
proper person, which we ordered filed on September 15, 1992. Thereafter, no action was
taken in this case by any party for the next year-and-a-half. Finally, on June 10, 1994, this
court ordered appellant to show cause why this appeal should not be dismissed for failure to
file the opening brief. We also ordered the law firm of Moran & Weinstock to show cause
why it should not be sanctioned for its flagrant disregard of our orders and procedural rules.
In response, Leavitt filed a motion for a confession of error in which he asserts that the
appeal should not be dismissed because appellant filed a proper person opening brief on
September 15, 1992. Leavitt also argues that the firm did not disregard any orders or rules of
this court, and that sanctions against Moran & Weinstock are unwarranted. In fact, Leavitt
argues that this court should treat the State's failure to respond to the proper person opening
brief as a confession of error, and should reverse the judgment of conviction.
1

__________

1
Appellant Burke has also submitted a response to our order, in which he asserts that attorney Leavitt should be
removed as counsel, referred to
110 Nev. 1366, 1368 (1994) Burke v. State
DISCUSSION
We are somewhat perplexed by Leavitt's contentions. When we remanded this matter to
the district court for the appointment of counsel, we obviously did so because we desired
briefing by counsel, not a layperson. Indeed, our August 4, 1992, order of remand specifically
directed counsel to file an opening brief on appellant's behalf within 60 days from
appointment. Nothing in our September 15, 1992, order permitting appellant to file a brief in
proper person can be read to have relieved counsel of the obligation to file a brief on
appellant's behalf. The import of our orders being plain, we find highly incredible counsel's
assertion that he labored under the belief that the filing of a proper person opening brief
fulfilled counsel's obligation.
Additionally, we note that counsel did nothing to prosecute this appeal until 22 months
after the State's brief was purportedly due, when he finally filed a motion for confession of
error.
2
The motion for confession of error itself, however, was clearly prompted by this
court's order to show cause. Thus, even if we were to accept counsel's assertion that the filing
of the proper person opening brief freed him from having to file a brief on appellant's
behalfand, as noted, we emphatically reject such a contentioncounsel has still failed to
explain why he did nothing to prosecute this appeal beyond the filing of the docketing
statement on August 28, 1992.
[Headnote 2]
We have previously stated that we expect that all appeals brought in this court will be
pursued in a manner meeting high standards of diligence, professionalism, and competence.
See Cuzdey v. State, 103 Nev. 575, 747 P.2d 233 (1987); SCR 151. Further, a defendant in a
direct appeal from a judgment of conviction has a constitutional right to the effective
assistance of counsel. See Evitts v. Lucey, 469 U.S. 387 (1985). A review of the proceedings
in this case makes it quite clear that counsel's performance has fallen below the high
standards of diligence, professionalism and competence we discussed in Cuzdey. We
therefore conclude that counsel's performance in the present case could arguably give rise to
future claims of ineffective assistance of appellate counsel.
Accordingly, we remand this matter to the Eighth Judicial District Court with instructions
that the firm of Moran & Weinstock be removed as counsel of record for appellant.
__________
the Nevada Bar Association, and sanctioned to the fullest extent of the law. Although this court has not
granted appellant leave to file papers in proper person, see NRAP 46(b), we have received and considered
appellant's response.

2
The filing of a proper person brief does not require a response if the party filing the brief is represented by
counsel.
110 Nev. 1366, 1369 (1994) Burke v. State
District Court with instructions that the firm of Moran & Weinstock be removed as counsel
of record for appellant. We further instruct the district court that neither the law firm of
Moran & Weinstock, nor Andrew M. Leavitt shall be compensated in any manner for their
handling of this appeal. The district court shall appoint new counsel to represent appellant
within 15 days from the date of this opinion. The clerk of the district court shall immediately
inform the clerk of this court of the appointment, and new counsel shall promptly enter an
appearance with this court. Counsel shall have 60 days from the date of this opinion within
which to file the opening brief. Thereafter, briefing shall proceed in strict compliance with
NRAP 31(a)(1).
We further conclude that Leavitt's handling of this appeal warrants the imposition of
monetary sanctions. In City of Las Vegas v. Int'l Assoc. Firefighters, 110 Nev. 449, 452 n.3,
874 P.2d 735, 737 (1994), we warned practitioners that we will not hesitate to impose
sanctions for material violations of our procedural rules. Because Leavitt has materially
violated our procedural rules in this case, we hereby sanction him personally. Leavitt shall
pay to the Clark County Law Library the sum of $l,000.00, and shall provide the clerk of this
court with proof of such payment within 15 days from the date of this opinion. In addition,
Leavitt shall serve a copy of this opinion on appellant, and shall provide the clerk of this court
with proof of such service within 15 days from the date of this opinion. Leavitt's failure to
comply with these directives in a timely manner will result in the imposition of further
sanctions, and, possibly, a citation for contempt of this court.
A cursory review of this court's records reveals that Moran & Weinstock has acted in a
similarly derelict manner as appointed counsel for other criminal appellants. For example, in
Scott v. State, Docket No. 24650, the district court appointed Leavitt as appellate counsel on
September 15, 1993; to date, no opening brief or extension motion has been filed. Similarly,
in Walker v. State, Docket No. 24381, the district court appointed attorney Arnold Weinstock
as appellate counsel on August 10, 1993; to date, counsel has failed to file a brief or any other
document in this court. And, in Thayer v. State, Docket No. 25392, Moran & Weinstock was
obligated to file an opening brief on behalf of appellant on or before April 25, 1994. No
opening brief was filed, however, until November 30, 1994. Additionally, in Green v. State,
Docket No. 25342, Leavitt having been appointed counsel on March 28, 1994, he was
scheduled to file an opening brief on behalf of appellant on or before May 27, 1994. Again,
counsel has not yet filed an opening brief, and did not request an extension of time until
December 8, 1994. Further, in Young v. State, Docket No.
110 Nev. 1366, 1370 (1994) Burke v. State
Docket No. 25625, attorney Dennis M. Leavitt was appointed to represent appellant on June
22, 1994, and entered an appearance in this court on June 30, 1994. To date, Leavitt has failed
to file an opening brief.
The Supreme Court of Nevada is one of the busiest appellate courts in the nation, and our
scarce resources are severely overtaxed. We have recently explained that our resources are
best spent reviewing claims that have been vigorously pursued; we accordingly cannot
condone the behavior of those who sit idly by while their cases clog this court's docket. Int'l
Assoc. Firefighters, 110 Nev. at 451, 874 P.2d at 737. Merely removing the firm of Moran &
Weinstock as counsel in this case will do nothing to cure the firm's derelictions in this and the
above-mentioned criminal appeals. We have therefore entered orders today removing Moran
& Weinstock as counsel from the cases cited above, and we have imposed sanctions against
the firm in each of those cases. We also find it necessary to direct the Eighth Judicial District
Court to remove the firm of Moran & Weinstock from its list of attorneys eligible to accept
appointments to represent indigent criminal defendants for a period of at least one year from
the date of this opinion. Finally, we hereby refer this matter to the State Bar of Nevada for
further investigation concerning possible violations of the Supreme Court Rules governing
professional conduct.
____________
110 Nev. 1370, 1370 (1994) Rodgers v. Rodgers
ROBERT C. RODGERS, Appellant, v. SANDRA RODGERS, Respondent.
No. 23390
December 22, 1994 887 P.2d 269
Appeal from an order of the district court denying a motion to modify a divorce decree.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
The district court denied father's motion to increase child support payments required from
mother. Appeal was taken. The supreme court held that: (1) statute setting forth statutory
schedule for child support payments, based on parent's gross monthly income, did not allow
for adjustment to reflect mother's community property from new marriage; (2) another
provision allowing court to deviate from statutory schedule to reflect various factors
including relative income of both parents could provide basis for considering community
property from new spouse; and (3) remand would be required, in light of trial court's
reversal of referee's recommendation without reasons.
remand would be required, in light of trial court's reversal of referee's recommendation
without reasons.
Denton & Denton, Las Vegas, for Appellant.
Lizzie R. Hatcher, Las Vegas, for Respondent.
1. Statutes.
Words in statute should be given their plain meaning unless spirit of act is violated.
2. Statutes.
No part of statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be
avoided.
3. Statutes.
When statute's language is clear and unambiguous there is no room for construction, and courts are not permitted to search for its
meaning beyond statute itself.
4. Statutes.
If statute is ambiguous, court should attempt to follow legislature's intent.
5. Divorce.
Statute setting forth child support schedule based upon parent's gross monthly income, did not authorize establishment of child
support based upon parent's community property interest in new spouse's earnings. NRS 125B.070(1)(a).
6. Divorce.
Trial court may deviate from statutory child support schedule, in recognition of remarriage of spouse resulting in a community
property interest in income from new spouse changing relative income of parents. NRS 125B.080.
7. Divorce.
Trial court could not reverse domestic relations referee's recommendation that child support payments be increased, without setting
forth basis for reversal.
OPINION
Per Curiam:
Appellant Robert Rodgers (Robert) seeks a modification of the child support obligations owed by his ex-wife, Sandra Rodgers
(Sandra). According to Robert, Sandra's child support payments should be increased to reflect her community property interest in her new
husband's earnings. The district court denied Robert's motion without explanation. Because we conclude that a parent's community
property interest in a new spouse's earnings may, under some circumstances, constitute proper grounds for modifying a child
support award, we reverse the district court's order and remand for further proceedings.
proper grounds for modifying a child support award, we reverse the district court's order and
remand for further proceedings.
FACTS
On February 20, 1991, Robert and Sandra divorced. The original divorce decree awarded
physical custody of their minor child to Sandra, subject to Robert's reasonable visitation
rights. The original decree also required Robert to pay $250 per month in child support.
On June 13, 1991, pursuant to a stipulation, the district court entered an order modifying
the divorce decree. The modified decree, which is still in force, awarded Robert physical
custody of the child subject to Sandra's visitation rights and requires Sandra to pay $125 per
month in child support.
Sandra subsequently moved to California and remarried; as a result, on October 16, 1991,
Robert filed a motion to further modify the divorce decree. In his motion, Robert asserted,
among other things, that Sandra's community property interest in her new husband's earnings
should be considered in setting her child support payments. Upon reviewing Robert's motion,
a domestic relations referee recommended that Sandra's child support payments be increased
to $247 per month. More specifically, the referee found as follows:
[T]he $125 Plaintiff is currently paying is not a reasonable amount as it is just barely
over the statutory minimum. The Referee will presume that Plaintiff is entitled to 1/2 of
her spouse's net income and that amount should be attributed to her share of the
community property income. Plaintiff's spouse's net income is $635.78 per week. That
amount times 52 weeks and divided by 12 months is $2,752. Plaintiff's 1/2 is $1,376.
18 percent is $247. REFEREE RECOMMENDED, child support increased to $247 per
month . . . .
On December 13, 1991, Sandra filed an objection to the referee's findings and
recommendation on the ground that they were unsupported by statutory authority. Robert
filed an opposition to Sandra's objection on December 20, 1991. Thereafter, on April 27,
1992, the district court entered a written order reversing, without explanation, the referee's
findings and recommendation. This appeal followed.
DISCUSSION
Robert asserts that under NRS 125B.070, the district court has discretion to consider a
parent's community property interest in a new spouse's earnings when setting a child support
payment.
Although NRS 125B.070 does not afford the district court discretion to consider community
income, we conclude that, under appropriate circumstances, a noncustodial parent's
community property interest may be taken into account pursuant to NRS 125B.080.
[Headnotes 1-4]
NRS 125B.070(1) sets forth a child support schedule based upon a parent's gross monthly
income. [G]ross monthly income is defined as the total amount of income from any
source of a wage-earning employee or the gross income from any source of a self-employed
person. NRS 125B.070(1)(a). The rules of statutory construction are straightforward: It is
well settled in Nevada that words in a statute should be given their plain meaning unless this
violates the spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438,
441 (1986). [N]o part of a statute should be rendered nugatory, nor any language turned to
mere surplusage, if such consequences can properly be avoided.' Paramount Ins. v. Rayson
& Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (quoting Torreyson v. Board of
Examiners, 7 Nev. 19, 22 (1871)). When a statute's language is clear and unambiguous,
there is no room for construction, and the courts are not permitted to search for its meaning
beyond the statute itself. State v. Jepsen, 46 Nev. 193, 196, 209 P.501, 502 (1922), cited in
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990). If,
however, a statute is ambiguous, the courts should attempt to follow the legislature's intent.
McKay, 102 Nev. at 650-51, 730 P.2d at 443.
[Headnote 5]
Here, NRS 125B.070(1)(a) defines a parent's gross monthly income as a wage-earning
employee's total income from any source or a self-employed person's gross income from any
source. Although this section is hardly a model of clarity, we conclude that self-employed
person refers to the parent, as this section concerns the parent's gross monthly income. In
addition, given the legislature's focus on wage-earning employee and self-employed
person, we conclude that gross monthly income must be limited to the parent's income
from employment. Otherwise, the terms wage-earning employee and self-employed
person are rendered nugatory. Furthermore, we have previously noted that the parent's gross
income . . . is based solely upon the earnings of the parent. Lewis v. Hicks, 108 Nev. 1107,
1109 n.1, 843 P.2d 828, 830 n.1 (1992). Thus, the statutory definition of gross monthly
income does not include a parent's community property interest in a new spouse's earnings.
This conclusion is consistent with Lewis, in which we recognized that [t]he statutory scheme
does not authorize consideration of spousal income. Id. at 1112, 843 P.2d at 832.
NRS 125B.080(1)(a) mandates that the district court apply the formula set forth in NRS
125B.070(1)(b) in determin[ing] the required support in any case involving the support of
children. In addition, the district court is required to apply the statutory support schedule
when a parent requests a change [in] the amount of the required support of [the child]. NRS
125B.080: see Hoover v. Hoover, 106 Nev. 388, 389, 793 P.2d 1329, 1330 (1990) ([W]hen
there is a request to change the amount of the required support of children,' the court shall
apply the appropriate formula set forth in subsection 2 of NRS 125B.070.' ). According to
NRS l25B.070(1)(b), a parent must pay eighteen percent of his or her gross monthly income
to support one child.
1

[Headnote 6]
Nevertheless, NRS 125B.080 permits the district court, upon making appropriate findings
of fact, to deviate from the statutory schedule. This section sets forth twelve factors for the
court to consider in adjusting a child support award: among these is [t]he relative income of
both parents. NRS 125B.080(9)(1). We have previously construed this provision broadly, to
include such things as relative standard of living and financial circumstances. For instance, in
Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989), the district court applied the
statutory formula in a joint custody case. We affirmed the district court's order and stated that
[w]hat really matters in these cases is whether the children are being taken care of as
well as possible under the financial circumstances in which the two parents find
themselves. Greater weight, then, must be given to the standard of living and
circumstances of each parent, their earning capacities, and the relative financial means
of parents than to any of the other factors [delineated in NRS 125B.060 and NRS
125B.080].
Id. at 551, 779 P.2d at 536.
In addition, we noted that [i]f, for example, the secondary custodian has a much higher
standard of living, greater earning capacity and considerably greater financial means than the
primary custodian, the courts must be careful not to allow unwarranted reductions in the
formula amount being paid by such a secondary custodian to the primary custodian."
__________

1
As the district court simply reversed the recommendation, we are unable to determine whether Sandra's
stipulated child support obligation is consistent with the statutory formula. Moreover, the record on appeal does
not contain the requisite certification that Sandra's stipulated support obligation is consistent with the statutory
formula or that a deviation is justified. See NRS 125B.080(2).
mary custodian, the courts must be careful not to allow unwarranted reductions in the formula
amount being paid by such a secondary custodian to the primary custodian.
2
Id.; accord
Lewis v. Hicks, 108 Nev. 1107, 1112, 843 P.2d 828, 832 (1992) (recognizing that [a] trial
judge might properly consider spousal contributions where they have a significant impact on
recognized statutory factors, such as the parents' standards of living or their relative financial
means); see also Herz v. Gabler-Herz, 107 Nev. 117, 119, 808 P.2d 1, 1-2 (1991)
(concluding that the district court may deviate upward from the statutory formula given the
vastly different incomes and financial resources of the [parents]' ) (quoting language of the
district court).
Considerations such as standard of living and financial means may be intimately connected
to community income. Community property law provides that a spouse has a present, vested
one-half interest in the other spouse's earnings.
3
See, e.g., NRS 123.l30, .220, .225; Cal.
Fam. Code 751, 760. In other words, where community property law applies, one-half of
the community income and community expenses belongs to each spouse. Stewart v.
Commissioner of Internal Revenue, 95 F.2d 821, 822 (5th Cir. 1938). In addition, a spouse's
share of the community property may be liable for that spouse's premarital debts. See NRS
123.050; Cal. Fam. Code 910. Further, the Internal Revenue Service treats community
income as belonging equally to each spouse:
Federal income tax law requires spouses who are domiciled in a community property
state to split community income, each reporting and paying tax for one-half of it. A
nonearning spouse in a community property state who files a separate return is liable
for the tax on one-half of the community income earned by the other spouse.
__________

2
In reaching these conclusions, we relied, in part, on former NRS 125B.060, which delineated factors for the
court to entertain in setting a support award. In 1989, NRS 125B.060 was repealed. See 1989 Nev. Stat., ch. 405,
16, at 861. In Barbagallo, however, we determined that
[t]he repeal of this section [125B.060] has no material effect on this opinion as the considerations listed
therein are, in the main, covered elsewhere in Chapter 125B or in the body of the opinion, wherein we
stress the standard of living and circumstances of each parent, their earning capacity and the relative
financial means of parents more than any of the other factors.
Barbagallo, 105 Nev. at 551 n.4, 779 P.2d at 536 (footnote missing in Pacific Reporter).

3
Spouses do not have to accept community property law; they can opt out by agreement. See, e.g., NRS
123.190, .220; Cal. Fam Code 850, 1500.
Susan Kalinka, Federal Taxation of Community Income: A Simpler and More Equitable
Approach, l990 Wis. L. Rev. 633, 633-34.
Thus, although the narrow statutory definition of gross monthly income does not
encompass community income, an examination of a remarried parent's relative income may
properly include consideration of his or her one-half interest in the new spouse's income. Our
conclusion that community income may be considered in determining the parents' relative
income is consistent with opinions from other jurisdictions. See, e.g., Yost v. Yost, 735 P.2d
988, 990 (Idaho 1987) (concluding that the financial resources, needs and obligations of
both custodial and noncustodial parents' encompass their share of the community property of
their new marital communities) (quoting language of trial court), superseded by Idaho Code
32-706 (permitting consideration of noncustodial parent's share of community property
when compelling reasons exist); DeTevis v. Aragon, 727 P.2d 558, 563-64 (N.M. Ct. App.
1986) (ruling that a spouse has a legal obligation to use his or her community property
interest, even if derived from a subsequent marriage, to support his or her children); Smith v.
Smith, 534 P.2d 1033, 1034 (Wash. Ct. App. 1975) (holding that in determining whether a
substantial change of circumstances has occurred, trial court must consider income available
to parent's new marital community).
[Headnote 7]
In the present case, the district court had discretion, based upon appropriate findings under
NRS 125B.080(9)(1), to consider Sandra's share of community property in adjusting her child
support payments. The district court, however, simply reversed the referee's
recommendation and gave no reasons for doing so. We are therefore unable to discern the
district court's basis for reversal. In addition, we are unable to determine whether the district
court found that Sandra's present child support obligation is consistent with the statutory
formula. Under these circumstances, the district court erred in failing to make specific
findings with regard to the amount of Sandra's child support payments.
For the foregoing reasons, we reverse the order of the district court and remand this case
for further proceedings consistent with this opinion. On remand, the district court shall enter
appropriate findings with respect to Sandra's child support obligation.
____________
110 Nev. 1377, 1377 (1994) Westgate v. Westgate
CAROL M. WESTGATE, nka CAROL KEMM, Appellant, v. MURRAY WESTGATE,
Respondent.
No. 24370
December 22, 1994 887 P.2d 737
Appeal from denial of post-judgment motions regarding child support and payment of
arrearages. Eighth Judicial District Court, Clark County; Gerald W. Hardcastle, Judge
(Family Court Division).
The district court denied post-judgment motions regarding child support and payment of
arrearages, and appeal was taken. The supreme court held that failure to comply with terms of
visitation agreement cannot be used as reason to reduce child support obligation or to refuse
to reduce child support arrearages to judgment, overruling Noble v. Noble, 86 Nev. 459, 470
P.2d 430 (1970) and Melahn v. Melahn, 78 Nev. 162, 370 P.2d 213 (1962).
Robert W. Lueck, Las Vegas, for Appellant.
Murray Westgate, In Proper Person, and Carl Lovell, Las Vegas, for Respondent.
Court has limited discretion in deviating from child support guidelines and if court chooses to deviate, it must base its deviation on
statutory factors. NRS 125B.070, 125B.080(9).
New child support guidelines intentionally depart from traditional practice in which courts exercised broad discretion in
determining child support awards. NRS 125B.070.
Reduction in child support cannot be used to punish spouse for refusing visitation as this is not one of the statutory factors listed
for deviating from child support guidelines. NRS 125B.080.
Best interest of the child cannot be served by refusing to reduce child support arrearages to judgment as form of punishment for
parent's failure to allow visitation.
Fraudulent conduct may justify cutting child support.
Failure to comply with terms of visitation agreement cannot be used as reason to reduce child support obligation or to refuse to
reduce child support arrearages to judgment; overruling Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970) and Melahn v. Melahn, 78
Nev. 162, 370 P.2d 213 (1962).
OPINION
Per Curiam:
FACTS
Appellant Carol Westgate (now Carol Kemm) (Carol) and respondent Murray Westgate
(Murray) battled over child support and custody of their daughter for over ten years since
Murray filed for divorce in December 1982. In the divorce decree, the district court awarded
Carol primary physical custody subject to reasonable visitation and ordered Murray to pay
$200 per month in child support. Because Carol was a flight attendant, she was forced to
move from Las Vegas to Memphis, Tennessee, when Republic Airlines (now Northwest
Airlines) closed its home base operation in Las Vegas. Murray stopped paying child support,
and Carol refused to allow visitation based on allegations made by their daughter that Murray
molested her on her last visit to Las Vegas and because of alleged difficulties in arranging for
airline flights for their daughter. Medical examiners in Tennessee found allegations of abuse
to be credible, although charges of abuse lodged in a Tennessee court were eventually
dismissed.
In October 1985 the district court cut Murray's child support obligation in half to penalize
Carol primarily for violating Murray's visitation rights. In October 1987 Carol moved the
district court to increase support to conform to newly adopted Nevada guidelines. In May
1988, after extensive review of the circumstances of the litigants, a domestic relations referee
recommended to the district court that child support be increased to $400 per month
calculated from January 1988. The district court vacated the referee's findings and
recommendations because it felt that the referee did not consider Carol's failure to allow
visitation or the income of Carol's new husband, an airline pilot. Two years later, after
conducting extensive hearings concerning visitation, the referee once again reviewed the
issue of support and made the same recommendations. Murray did not oppose the
recommendations and the district court ordered an increase in support. When Carol attempted
to reduce arrearages to judgment, Murray objected, claiming that he did not get an
opportunity to contest the recommendations. The district court vacated its own order and
directed the referee to once again make findings and recommendations.
Following a number of recusals and formation of the district court's family court division
(family court), the family court reviewed the issue of child support and refused to modify
the district court's orders, basing its opinion primarily on Noble v. Noble, S6 Nev. 459
Noble, 86 Nev. 459, 470 P.2d 430 (1970), a case which predated modern child support
guidelines and noted that a district court has broad discretion to modify child support awards.
The family court calculated child support arrearages based upon a $200 per month figure until
the time that the district court ordered support cut in half, and then $100 per month thereafter.
Carol eventually garnished some of this amount from Murray's wages.
Carol appeals, arguing that the family court erred because (1) child support under the
Nevada guidelines cannot be reduced to punish one spouse for refusing to allow visitation,
and (2) the district court's signed order increasing child support was a final order precluding
relitigation of the issue. Because we agree that child support cannot be used to punish a
spouse for refusing visitation, we need not address Carol's second argument. Accordingly, we
reverse the judgment of the family court and remand the case with instructions.
DISCUSSION
[Headnotes 1, 2]
Payment of child support is governed by NRS 125B.080. This statute requires the district
court to apply the guidelines set forth in NRS 125B.070 to determine the amount of support
in any request for support made after July 1, 1987. See NRS 125B.080(1)(a)-(b). For one
child, these guidelines require support to be made in the amount of eighteen percent of the
obligor's income up to $500 per month. NRS 125B.070(1)(b)(1)-(5). A court has limited
discretion in deviating from these guidelines. See Lewis v. Hicks, 108 Nev. 1107, 1111, 843
P.2d 828, 831 (1992). If a court chooses to deviate, it must base its deviation on the following
factors set forth, in relevant part, in NRS 125B.080(9):
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother's pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial
parent moved with the child from the jurisdiction of the court which ordered the
support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent; {k) Any other necessary
expenses for the benefit of the child; and
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both parents.
The new support guidelines intentionally depart from traditional practice in which courts
exercised broad discretion in determining child support awards. Lewis, 108 Nev. at 1111, 843
P.2d at 831.
The district court, as did the family court, relied upon an earlier line of cases validating
this traditional practice to justify reducing child support to punish Carol. See Noble, 86 Nev.
at 459, 470 P.2d at 430. Carol argues in contrast that the issues of child support and visitation
are separate.
[Headnote 3]
We conclude that Carol is correct. NRS 125B.080 does not list punishment for failure to
provide visitation as a reason to cut child support. Such punishment is, in fact, inconsistent
with these guidelines. Nothing in the record indicates that the domestic relations referee did
not follow the Nevada statutory formula to the letter when Carol sought modification
according to new Nevada guidelines in 1987.
[Headnote 4]
Having decided that the lower court was in error, we need not address whether the district
court also erred in refusing to accept the referee's findings when Murray did not timely object
to them. We note, however, that Murray's child support obligation must now be reduced to
judgment. NRS 125.180 provides that
[w]hen either party to an action for divorce, makes default in paying any sum of money
as required by the judgment or order directing the payment thereof, the district court
may make an order directing entry of judgment for the amount of such arrears, together
with costs and a reasonable attorney's fee.
(Emphasis added.) We relied upon this statute in Libro v. Walls, 103 Nev. 540, 746 P.2d 632
(1987), to determine that an ex-husband could not be forced to pay child support arrearages
when the ex-wife fraudulently withheld from him the knowledge that the ex-husband was not
the biological father. Id. at 542. We have also concluded that equitable defenses such as
waiver and estoppel may be considered by the district court in exercising its discretion to
reduce arrearages to judgment. Parkinson v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231
(1990). These considerations are not inconsistent with child support guidelines. And, of
course, the best interest of the child should be of primary importance. See NRS
125.510(1)(a); NRS 125B.090. We conclude that the best interest of the child cannot be
served by refusing to reduce arrearages to judgment as a form of punishment for failing
to allow visitation.
clude that the best interest of the child cannot be served by refusing to reduce arrearages to
judgment as a form of punishment for failing to allow visitation. See Appert v. Appert, 341
S.E.2d 342, 349 (N.C. Ct. App. 1986) (noting that to condition payment of child support upon
compliance with visitation rights is inherently detrimental to the best interest of the minor
child).
[Headnote 5]
In reviewing the case at bar, the family court considered many equitable factors, but
seemed primarily concerned with Carol's alleged fraudulent conduct in justifying the district
court's original order to cut child support and in refusing to grant arrearages based on a
modified award. Some authority, again founded in cases predating the Nevada support
guidelines, exists to support the family court's position. See, e.g., Melahn v. Melahn, 78 Nev.
162, 370 P.2d 213 (1962). Unfortunately, this authority provides a means of circumventing
child support guidelines by allowing a court to refuse to reduce support arrearages to
judgment in order to punish one spouse for failure to allow visitation. We cannot allow this.
Furthermore, although fraudulent conduct may indeed justify cutting support, no clear
indication of fraud exists in this case.
CONCLUSION
[Headnote 6]
We hold that a failure to comply with the terms of a visitation agreement cannot be used as
a reason to reduce a child support obligation or to refuse reducing child support arrearages to
judgment. Noble, Melahn and other cases predating adoption of the Nevada child support
guidelines are hereby overruled to the extent that they can be read to support a contrary
proposition. We therefore reverse the family court judgment and remand the case with the
following instructions: (1) to enter an order adopting the domestic relations referee's May
1988 recommendation that Murray pay $400 per month in child support from January 1988
pursuant to Nevada child support guidelines; and (2) to consider his daughter's best interest
and any other equitable factors consistent with the Nevada child support guidelines in
determining what amount of support arrearages should be reduced to judgment. Murray is
entitled to an offset for any payment of support from January 1988 to the present.
____________
110 Nev. 1382, 1382 (1994) Basile v. Union Plaza Hotel & Casino
ROSE I. BASILE, Appellant, v. UNION PLAZA HOTEL & CASINO, Respondent.
No. 24451
December 22, 1994 887 P.2d 273
judgment. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Casino patron who was injured when she was knocked down by person fleeing casino
security officers brought personal injury action against casino owner. The district court
entered summary judgment in favor of owner, and patron appealed. The supreme court held
that: (1) fact issue as to whether casino patron's injuries were foreseeable precluded summary
judgment, and (2) assuming that casino owner had duty to protect patron from danger posed
by person fleeing after being approached by casino security officers, whether owner breached
that duty by allowing security officers to approach third party in midst of crowded casino and
then chasing him after he knocked unidentified woman to the ground in process of evading
them was genuine issue of material fact precluding summary judgment.
Frederick S. Geihs, Las Vegas, for Appellant.
Respondent.
1. Judgment.
Litigant has right to trial when slightest doubt as to facts exists, and in deciding whether summary judgment is appropriate,
evidence must be viewed in light most favorable to nonmoving party.
2. Negligence.
Proprietor has duty to exercise reasonable and ordinary care in keeping its premises safe for its patrons.
3. Negligence.
Proprietor's duty to protect patron is conditional when harm is caused by third person. Proprietor only has duty to take affirmative
action to control acts of third person when proprietor has reasonable cause to anticipate third person's acts and probability of injury.
4. Negligence.
In general, whether proprietor could foresee wrongful acts of third person and probability of injury is question of fact, and thus
jury question.
5. Judgment.
Fact issue as to whether casino patron's injuries were foreseeable precluded summary judgment in patron's action against casino
owner arising when third person knocked patron down while fleeing casino security officers.
6. Judgment.
Assuming that casino owner had duty to protect patron from danger posed by person fleeing after being approached by casino
security officers, whether owner breached that duty by allowing security officers to approach third party in midst of crowded casino
and then chasing him after he knocked unidentified woman to the ground in process of evading them was genuine issue of material fact
precluding summary judgment in patron's personal injury action.
OPINION
Per Curiam:
This is an appeal from summary judgment granted in favor of respondent Union Plaza Hotel and Casino Inc. (Union Plaza). We
conclude that the summary judgment was improperly granted, and thus reverse the summary judgment and remand this case to the district
court.
On August 20, 1990, two Union Plaza security officers observed an individual (who was later identified as Willie Stringer (Stringer))
who they believed had been previously 86'ed
1
from the Union Plaza casino for purse snatching or
something or other. The security officers approached Stringer to request identification
because he was not playing any of the casino games, wore ragged clothes, apparently had no
money and was looking through slot machine trays for coins. It is standard Union Plaza
procedure for two security guards to approach an individual suspected of being previously
86'ed in order to dissuade the individual from attempting to flee. In this instance, the presence
of two security guards did not dissuade the six-foot, two-hundred pound Stringer from
fleeing. Rather, Stringer successfully eluded the two security officers and began running
through the crowded casino. After Stringer knocked an unidentified woman to the floor, the
two security guards began chasing Stringer, and during this chase Stringer knocked appellant
Rose I. Basile (Basile) to the floor. As a result, Basile was injured, and she subsequently
brought this tort action against Union Plaza. The district court granted Union Plaza's motion
for summary judgment based on its conclusion that the Union Plaza security guards acted
reasonably under the circumstances.
[Headnote 1]
This court reviews a summary judgment order de novo. Tore, Ltd. v. Church, 105 Nev.
183, 185, 772 P.2d 1281, 1282 (1989). Summary judgment is appropriate only when the
evidence shows that there is no genuine issue of any material fact and the moving party is
entitled to judgment as a matter of law."
__________

1
The term 86'ed is a Union Plaza security code describing a person who has been evicted from the Union
Plaza casino on a prior occasion.
moving party is entitled to judgment as a matter of law. Pacific Pools Construction Co. v.
McClain's Concrete, Inc., 101 Nev. 557, 559, 706 P.2d 849, 851 (1985). Further, a litigant has
the right to a trial when the slightest doubt as to the facts exists, and in deciding whether
summary judgment is appropriate, the evidence must be viewed in the light most favorable to
the nonmoving party. Id., 706 P.2d at 849.
[Headnotes 2-5]
A proprietor has a duty to exercise reasonable and ordinary care in keeping its premises
safe for its patrons. Early v. N.L.V. Casino Corp., 100 Nev. 200, 203, 678 P.2d 683, 684
(1984); see also Asmusen v. New Golden Hotel Company, 80 Nev. 260, 262, 392 P.2d 49, 49
(1964). The duty to protect a patron, however, is conditional when the harm is caused by a
third person. A proprietor only has a duty to take affirmative action to control the acts of a
third person when the proprietor has reasonable cause to anticipate the third person's acts and
the probability of injury. Id. (citing Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020,
1022 (1970)). In general, whether a proprietor could foresee the wrongful acts of a third
person and the probability of injury is a question of fact, and thus a jury question. Elko
Enterprises, Inc. v. Broyles, 105 Nev. 562, 566, 779 P.2d 961, 964 (1989). In this case, Union
Plaza apparently concedes that it had reasonable cause to anticipate that a person suspected of
having been previously 86'ed might attempt to flee upon being approached by Union Plaza
security guards (otherwise Union Plaza would not need a policy designed to dissuade such
people from fleeing). A question of fact nevertheless remains regarding the foreseeability of
Basile's injury. Thus, whether Union Plaza had a duty to take affirmative action to control
Stringer's actions remains an open issue that can only be resolved after the jury answers the
question of the foreseeability of Basile's injury.
[Headnote 6]
Assuming that Union Plaza did have a duty to protect Basile from the danger posed by a
person fleeing after being approached by Union Plaza security officers, the question is
whether Union Plaza breached that duty by failing to act reasonably under the circumstances.
See Early, 100 Nev. at 204, 678 P.2d at 684. That is, assuming the foreseeability of Stringer's
action in running from the security officers and the foreseeability of Basile's injury, was it
reasonable for the two security officers to approach Stringer in the midst of a crowded casino
and then chase Stringer after he knocked an unidentified woman to the ground in the process
of successfully evading them? Union Plaza urges, and the district court apparently concluded,
that Union Plaza did act reasonably under the circumstances as a matter of law.
reasonably under the circumstances as a matter of law. We cannot uphold this conclusion.
Viewing the evidence presented in the light most favorable to Basile, we believe a jury could
reasonably conclude that the Union Plaza security officers did not act reasonably under the
circumstances and thus that Union Plaza breached its duty to exercise reasonable and ordinary
care in keeping its premises safe for its patrons. See id. at 203, 678 P.2d at 684.
Based upon the foregoing, we reverse the district court's order granting summary judgment
and remand this case to the district court for further proceedings consistent with this opinion.
____________
110 Nev. 1385, 1385 (1994) Walsh v. State
JOHN JOSEPH WALSH, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24883
December 22, 1994 887 P.2d 1239
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of
embezzlement. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Bailee who drove truck, which was entrusted to him for repairs, off premises of his repair
shop to purchase something from gas station was convicted of embezzlement in the district
court and he appealed. The supreme court held that: (1) to be convicted of embezzlement,
bailees who convert property to their own use must possess the intent to steal such property;
(2) bailees who convert property to their own use may not be prosecuted under fiduciary
prong of embezzlement statute; and (3) bailee lacked any intent to steal and, thus, could not
be found guilty of embezzlement.
Reversed.
David C. Polley, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Arthur F. Wehrmeister, District
Attorney, Nye County, for Respondent.
1. Embezzlement.
To be convicted of embezzlement, bailees who convert money, property or goods to their own use must possess the intent to steal
such money, property, or goods or to defraud the owners thereof. Bailees who convert property to their own use may not be prosecuted
under fiduciary prong of embezzlement statute. NRS 205.300(1).
110 Nev. 1385, 1386 (1994) Walsh v. State
2. Embezzlement.
To prosecute bailee for embezzlement, state had to prove beyond reasonable doubt that bailee who drove truck, which had been
entrusted to him for repairs, off the premises of his repair shop had intent to steal truck. NRS 205.300(1).
3. Embezzlement.
Embezzlement statute stating that any use of money or property by bailee other than that for which it was borrowed or deposited is
prima facie evidence of conversion and of intent to steal the same and defraud the owner thereof indicates rebuttable presumption of
intent to steal, not absolute proof. NRS 205.300(3).
4. Embezzlement.
Bailee's personal use of truck, which had been entrusted to him for repairs, established only rebuttable presumption of intent to
steal, not a conclusive finding, for purposes of offense of embezzlement. NRS 205.300, 205.300(1), (3).
5. Embezzlement.
Evidence was inconsistent with any intent of bailee to steal truck entrusted to him for repairs when he drove it off the premises of
his repair shop to purchase something from gas station, thereby precluding conviction for embezzlement. NRS 205.300(1).
OPINION
Per Curiam:
A jury convicted John Joseph Walsh (Walsh) of embezzlement pursuant to NRS 205.300. Walsh drove a truck belonging to one of
his customers off the premises of his automobile repair shop and subsequently got into an accident which completely destroyed the truck.
Because we conclude that the state did not present sufficient evidence of Walsh's intent to steal, which is required when bailees allegedly
convert money, property or goods for their own use, we reverse the embezzlement conviction.
Walsh entered into an oral contract with Bill J. King (King) to repair some body damage to King's truck. King delivered his truck to
Walsh and asked that it be repaired by the following day. After beginning work on the truck, Walsh drove it off the premises to go to a
nearby gas station. On his return from the gas station, Walsh had an accident. As a result, King's truck was destroyed.
Walsh was subsequently charged with and tried for embezzlement pursuant to NRS 205.300. Following the state's presentation of its
case, the defense moved to take the issue of embezzlement away from the jury. At that time, the defense conceded that the evidence may
have been sufficient to support the lesser related offense of Unlawful Taking of Vehicle pursuant to NRS 205.2715. The defense made a
similar motion at the end of its presentation. The court denied both motions.
110 Nev. 1385, 1387 (1994) Walsh v. State
The district court determined that the embezzlement statute has two separate prongs under
which a defendant can be convicted. First, a bailee can be convicted of embezzlement for the
theft of property. Second, a fiduciary can be convicted of embezzlement for the diversion of
entrusted property from its intended use. The district court noted that there was no evidence
which could support a finding that Walsh intended to steal the vehicle. Therefore, he could
not be convicted under the first (bailee) prong. Nevertheless, the district court found that
the case should go to the jury under the second (fiduciary) prong.
The jury entered a verdict of guilty on the charge of embezzlement and apparently
convicted Walsh under the fiduciary prong of the embezzlement statute. Walsh appeals from
the judgment of conviction.
On appeal, Walsh claims that (1) the embezzlement statute requires proof of intent to steal
or a relationship of trust and confidence between the accused and alleged victim, (2) he was
not in a relationship of trust and confidence with the owner of the truck, (3) there was no
evidence which could support a finding of intent to steal, and (4) the district court erroneously
denied his motion to take the issue of embezzlement away from the jury.
Any bailee of any money, goods or property, who converts it to his own use, with the
intent to steal it or to defraud the owner or owners thereof and any agent, manager or
clerk of any person, corporation, association or partnership, or any person with whom
any money, property or effects have been deposited or entrusted, who uses or
appropriates the money, property or effects or any part thereof in any manner or for any
other purpose than that for which they were deposited or entrusted, is guilty of
embezzlement . . . .
This section appears to set forth two mutually exclusive circumstances that constitute the
crime of embezzlement. First, there is criminal liability for conversion by a bailee with the
intent to steal or defraud and second, for diversion of entrusted property from its intended use
by a fiduciary. However, the statutory definition of bailee unfortunately serves to muddy
the waters.
NRS 205.300(4) defines bailee as:
[A]ll persons with whom any money, goods or property has been deposited, all persons
to whom any goods or property has been loaned or hired, all persons to whom any
goods or property has been delivered, and all persons who are, either as agent, collector
or servant, empowered, authorized or entrusted to carry, collect or receive any money,
goods or property of another.
110 Nev. 1385, 1388 (1994) Walsh v. State
Thus, the definition of bailee appears to coincide with the second (fiduciary) prong in
NRS 205.300(1).
The general principles of statutory construction are straightforward. It is well settled in
Nevada that words in a statute should be given their plain meaning unless this violates the
spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986).
[N]o part of a statute should be rendered nugatory, nor any language turned to mere
surplusage, if such consequences can properly be avoided. Paramount Ins. v. Rayson &
Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (citation omitted).
Here, if the definition of bailee is considered to be so broad that it is coextensive with
the fiduciary prong of NRS 205.300(1), then the requirement of intent to steal or defraud
under the first prong of NRS 205.300(1) is effectively rendered nugatory in contravention of
our statutory construction rules. In other words, if all bailments may fall under the second,
fiduciary prong, then any use of the property that is contrary to the purpose for which it was
deposited, constitutes embezzlement, regardless of the bailee's intent.
[Headnote 1]
We conclude that the legislature, by expressly carving out a specific intent requirement for
bailees who convert property to their own use, did not intend that such bailees be prosecuted
under the second prong of NRS 205.300(1). Instead, bailees who convert money, property or
goods to their own use must, to be convicted of embezzlement under NRS 205.300, possess
the intent to steal such money, property or goods or to defraud the owners thereof.
[Headnote 2]
In the present case, as King delivered his truck to Walsh in exchange for Walsh's
agreement to repair it, a bailment existed between King and Walsh. Walsh allegedly
converted King's truck for Walsh's own use. In order to prosecute Walsh for embezzlement,
the state had to prove beyond a reasonable doubt that Walsh had an intent to steal King's
truck.
The evidence on the record does not support the proposition that Walsh had any intent to
steal King's truck. All evidence indicates that Walsh merely intended to use the truck to
purchase something from the gas station. The evidence on the record is inconsistent with any
intent to steal the truck.
The state asserts that NRS 205.300(3) provides that any use of property exceeding the
terms of the bailment is proof of an intent to embezzle. This contention is not supported by
the wording of the statute. NRS 205.300(3) states, [a]ny use of the money, goods or
property by any bailee thereof, other than that for which it was borrowed, hired,
deposited, carried, received or collected, is prima facie evidence of conversion and of
intent to steal the same and defraud the owner or owners thereof."
110 Nev. 1385, 1389 (1994) Walsh v. State
goods or property by any bailee thereof, other than that for which it was borrowed, hired,
deposited, carried, received or collected, is prima facie evidence of conversion and of intent
to steal the same and defraud the owner or owners thereof. (Emphasis added.)
[Headnotes 3-5]
The wording of the statute indicates a rebuttable presumption of intent to steal, not
absolute proof. Therefore, Walsh's personal use of the truck establishes only a rebuttable
presumption of an intent to steal, not a conclusive finding. The district court noted that there
was not a scintilla of evidence that would indicate any intent to steal. Thus, the district
court determined that the presumption of intent to steal was rebutted by the evidence adduced
at trial. Given the facts of this case, we find that a reasonable jury could not conclude that
Walsh had any intent to steal the truck.
We conclude that the first prong of NRS 205.300(1) applies to bailees who allegedly
convert property to their own use, and it requires an intent to steal. The second (fiduciary)
prong of NRS 205.300(1) is not applicable in such instances; otherwise the intent requirement
would effectively be rendered nugatory. As Walsh was a bailee who allegedly converted
property to his own use, we conclude that the district court erred when it allowed the case to
go to the jury under the second prong of NRS 205.300(1).
In addition, as Walsh lacked any intent to steal, he could not be convicted under the
applicable prong of NRS 205.300(1). We therefore reverse the judgment of conviction.
1

____________
110 Nev. 1389, 1389 (1994) State v. Purcell
THE STATE OF NEVADA, Appellant, v. LYNN EUGENE PURCELL, Respondent.
No. 24952
December 22, 1994 887 P.2d 276
Appeal from an order of the district court granting a motion for a new trial. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant who was convicted of lewdness with minor and sexual assault moved for new
trial. The district court granted motion, and the state appealed. The supreme court held that:
(1) under amended statute stating that trial court may set aside verdict and enter judgment of
acquittal if evidence is insufficient to sustain conviction, district court cannot grant new
trial based on determination of insufficient evidence to support verdict, and {2) although
district court termed evidence "insufficient," thorough reading of its decision revealed
that district court found that evidence was conflicting and thus, district court's order
granting new trial was proper.
__________

1
Having concluded that Walsh's conviction should be reversed, we need not address his remaining arguments
on appeal.
verdict and enter judgment of acquittal if evidence is insufficient to sustain conviction,
district court cannot grant new trial based on determination of insufficient evidence to support
verdict, and (2) although district court termed evidence insufficient, thorough reading of its
decision revealed that district court found that evidence was conflicting and thus, district
court's order granting new trial was proper.
Affirmed.
Attorney, and Gary H. Hatlestad and Terrance P. McCarthy, Deputy District Attorneys,
Jerome M. Polaha, Reno, for Respondent.
1. Criminal Law.
There was conflict in the evidence so as to permit trial court to grant new trial to defendant convicted on charges of lewdness with
minor and sexual assault where victim's testimony was state's only evidence and the defense, on cross-examination, brought out
inconsistencies in victim's testimony, put on its own witnesses to testify about victim's untruthfulness and her motivation to lie about
defendant with whom she and her mother lived so that victim could go live with her father, and introduced evidence showing lack of
opportunity for defendant to have committed crimes at time and in manner that victim described. NRS 176.515.
2. Criminal Law.
District court which granted new trial to defendant clearly identified the conflict in the evidence when it noted in its opinion that
evidence as to defendant's guilt was conflicting and then stated its general impression with regard to each count, as well as its reasons
for disagreeing with jury verdict. NRS 176.515.
3. Criminal Law.
Totality of the evidence evaluation is standard for district court to use in deciding whether to grant new trial based on independent
evaluation of conflicting evidence. NRS 176.515.
4. Criminal Law.
In contrast to conflicting evidence as basis for granting new trial, insufficiency of the evidence as basis for granting new trial
occurs when prosecution has not produced minimum threshold of evidence upon which conviction may be based, even if such
evidence were believed by jury. NRS 176.515.
5. Criminal Law.
Under amended statute stating that court may set aside verdict and enter judgment of acquittal if evidence is insufficient to sustain
conviction, district court may not grant new trial based on finding that there is insufficient evidence to support jury verdict; if there is
truly insufficient evidence, defendant must be acquitted. NRS 175.381.
6. Criminal Law.
Although district court termed evidence insufficient, thorough reading of its decision revealed that district court
did not find evidence insufficient as a matter of law to support verdict, but instead found that it was
conflicting and that verdict was not based on substantial evidence and thus, district court's order granting
new trial was proper.
reading of its decision revealed that district court did not find evidence insufficient as a matter of law to support verdict, but instead
found that it was conflicting and that verdict was not based on substantial evidence and thus, district court's order granting new trial
was proper. NRS 176.515.
OPINION
Per Curium:
A jury convicted respondent Lynn Eugene Purcell (Purcell) of one count of lewdness with a minor and two counts of sexual assault.
Purcell made a motion for a new trial on grounds that the evidence presented was conflicting and did not support the verdict. The district
court granted the motion based on its assessment of the victim's credibility, the victim's motive to lie, and the testimony of the victim's
family. The State argues that the district court failed to identify a conflict in the evidence, thus abusing its discretion in ordering a new trial.
The State also argues that Nevada law provides no guidelines to the district court in ordering a new trial, thus permitting the district court to
arbitrarily override jury verdicts. We conclude that the State's contentions are without merit.
FACTS
Purcell was charged with one count of lewdness with a minor and two counts of sexual assault upon the thirteen-year-old victim. The
lewdness count charged Purcell with fondling the victim's breasts and buttocks and requesting that she perform fellatio on him. The sexual
assault counts charged him with forcing the victim to perform fellatio and digitally penetrating her vagina.
The victim was the State's sole witness at trial. She testified that at the time the alleged conduct occurred, she lived in a double-wide
trailer with her mother, Purcell, her four-year-old half-sister, and her fifteen-year-old brother. She stated that Purcell would often give her
massages to ease the aches and pains of playing sports at school. Initially, these rubdowns were limited to her back and feet and took place
in the living room area of the trailer. Eventually, however, Purcell began coming into her bedroom to rub her butt, breasts and private
areas. These acts allegedly occurred on a regular basis for nearly two years in the bedroom the victim shared with her younger sister. The
victim testified that on one occasion Purcell came into her bedroom, pulled down his pants, grabbed her neck and put his penis in her
mouth as he knelt on her bed, and on two occasions he digitally penetrated her vagina.
The victim eventually gave a statement to Detective Cote describing all incidents but the alleged fellatio. Just prior to the start of the
first preliminary hearing, the victim described the fellatio incident to Detective Cote and a deputy district
attorney.
start of the first preliminary hearing, the victim described the fellatio incident to Detective
Cote and a deputy district attorney. She later made additional statements regarding Purcell's
behavior to Judge Adams, who presided over the motion for a change of custody brought by
her father. The victim currently resides with her father and his new wife.
During their cross-examination of the victim, the defense attempted to show that Purcell
lacked the opportunity to have committed the acts she described given her statements
regarding the layout of the trailer, her testimony that her bedroom door was always open, her
testimony that light shined into her bedroom, and the fact that other family members were
nearly always home. Additionally, the defense asserted that it would have been impossible for
Purcell to kneel on the victim's bed and force her to perform fellatio on him as she had
described given the distance between the bunk beds that the victim and her half-sister slept in.
The defense also presented five family members who testified regarding the victim's
history of lying. Her brother and mother further testified that the acts could not have occurred
as she alleged without them being aware of it. Her brother stated that a possible motive for
the accusations was the victim's desire to live with her father so that she did not have to share
a room with her half-sister, and would have more freedom to do what she wanted.
The victim's mother testified that the victim wanted to move to her father's house in May,
1991, but that she had resisted that request. It was after this time that the victim came forth
with her allegations against Purcell.
Purcell was convicted on all counts by the jury, but made a motion for a new trial before
sentencing. After hearing arguments on the matter, the district court granted the new trial
pursuant to NRS 176.515. The district court stated that in its opinion, the evidence of
Purcell's guilt was conflicting, and the court therefore had the duty to independently evaluate
the evidence. The court noted that the victim had testified that Purcell, on many occasions,
touched her in private areas, but stated: the inconsistencies in her testimony, her demeanor
on the witness stand, the existence of a motive to fabricate, as well as the testimony of other
witnesses, including her mother, brother, and grandfather, led this Court to conclude that [the
victim's] testimony was not credible. The district court further stated that her testimony was
the only evidence presented in support of the sexual assault charges, and that [the victim]
was not a credible witness such that a reasonable person should have based a finding of guilt
upon her testimony alone. Accordingly, the court granted Purcell's motion for a new trial.
The State appeals.
DISCUSSION
Motions for a new trial in criminal cases are governed by NRS 176.515.
1
We have
consistently held that pursuant to the provision regarding other grounds, the district court
may grant a motion for a new trial based on an independent evaluation of the evidence:
Historically, Nevada has empowered the trial court in a criminal case where the
evidence of guilt is conflicting, to independently evaluate the evidence and order
another trial if it does not agree with the jury's conclusion that the defendant has been
proven guilty beyond a reasonable doubt.
Washington v. State, 98 Nev. 601, 604, 655 P.2d 531, 532 (1982) (quoting State v. Busscher,
81 Nev. 587, 589, 407 P.2d 715, 716 (1965)).
The State argues that the district court's grant of Purcell's motion for a new trial constituted
an abuse of discretion because the district court did not identify a conflict in the evidence,
which is a necessary precondition to a district court's independent evaluation of the evidence
and its power to allow a new trial. We conclude that the State's argument is not persuasive.
[Headnote 1]
The victim's testimony was the State's only evidence. On cross-examination, the defense
brought out inconsistencies in her testimony, put on its own witnesses to testify about her
untruthfulness and her motivation to lie about Purcell so that she could go live with her
father, and introduced evidence showing a lack of opportunity for Purcell to have committed
the crimes at the time and in the manner that she described. Contrary to the State's assertion
that the victim's testimony was uncontroverted, the defense introduced evidence tending to
discredit her testimony. Thus, we reject the State's contention that there was no conflict in the
evidence.
[Headnote 2]
We further conclude that the State's argument that the district court committed reversible
error because it failed to give a list of each and every conflict in the evidence is without merit.
The district court noted in its opinion that the evidence as to Purcell's guilt was
conflicting, then stated its general impression with regard to each count, as well as its
reasons for disagreeing with the jury verdict.
__________

1
1. The court may grant a new trial to a defendant if required as a matter of law or on the ground of newly
discovered evidence.
. . . .
4. A motion for a new trial based on any other grounds must be made within 7 days after verdict or
finding of guilt or within such further time as the court may fix during the 7-day period.
district court noted in its opinion that the evidence as to Purcell's guilt was conflicting, then
stated its general impression with regard to each count, as well as its reasons for disagreeing
with the jury verdict. Thus, it clearly identified the conflict.
[Headnote 3]
We also reject the State's argument that the current case law fails to provide any standards
in granting a new trial based on an independent evaluation of conflicting evidence, leaving
the district court with unchanneled discretion to override jury verdicts. In State v. Walker,
109 Nev. 683, 685-86, 857 P.2d 1, 2 (1993), we stated:
[A] conflict of evidence occurs where there is sufficient evidence presented at trial
which, if believed, would sustain a conviction, but this evidence is contested and the
district judge, in resolving the conflicting evidence differently from the jury, believes
the totality of evidence fails to prove the defendant guilty beyond a reasonable doubt.
Accordingly, the totality of the evidence evaluation is the standard for the district court to
use in deciding whether to grant a new trial based on an independent evaluation of conflicting
evidence.
[Headnote 4]
Additionally, in Walker, we drew a distinction between granting a new trial based on
insufficient evidence and granting a new trial based on conflicting evidence. In contrast to
conflicting evidence, insufficiency of the evidence occurs where the prosecution has not
produced a minimum threshold of evidence upon which a conviction may be based, even if
such evidence were believed by the jury. Walker, 109 Nev. at 685, 857 P.2d at 2.
In the instant case, after discussing each charge in turn and stating the problems with the
evidence presented, the district court noted: because of the insufficient evidence presented at
trial, this Court cannot in good conscience sentence the Defendant to life in prison. The
court then went on to recognize its authority to acquit the defendant pursuant to NRS
175.381(2) upon a finding of insufficient evidence, but noted, that section, however, does
not require acquittal upon a finding of insufficient evidence. This statement is incorrect.
[Headnote 5]
In Walker, we held that before the amendment of NRS 175.381 became effective on
October 1, 1991, in which sections 2 and 3 were added,
2
a district court could not grant a
new trial based on a finding that there was insufficient evidence to support a jury verdict.
__________

2
NRS 175.381 currently states:
verdict. Walker, 109 Nev. at 686, 857 P.2d at 2 (citing Hudson v. Louisiana, 450 U.S. 40,
44-45 (1981)); State v. Wilson, 104 Nev. 405, 407, 760 P.2d 129, 130 (1988); Washington,
98 Nev. at 604, 655 P.2d at 532. We take this opportunity to clarify that this remains the case
under amended NRS 175.381.
The guilty verdict was returned in Walker prior to October 1, 1991, and we therefore
declined to consider the issue under revised NRS 175.381. We note, however, that in Hudson
v. Louisiana, 450 U.S. 40 (1981), the Supreme Court ruled that the trial court's grant of a
defendant's motion for a new trial based on grounds of insufficient evidence to support a
guilty verdict was barred by the Double Jeopardy Clause. Thus, the additions of sections 2
and 3 cannot be interpreted to allow a district court the power to grant a new trial based on a
determination of insufficient evidence to support the verdict. If there is truly insufficient
evidence, a defendant must be acquitted.
3

[Headnote 6]
In the instant case, though the district court termed the evidence insufficient, a thorough
reading of the decision reveals that the district court did not find the evidence insufficient as a
matter of law to support the verdict as described in Walker, but instead found that it was
conflicting, and that the verdict was not based on substantial evidence. Additionally, the
record shows that the victim testified to the substance of the allegations, so that there was
technically sufficient evidence supporting the charges.
4

__________
1. If, 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.
2. The court may, on a motion of a defendant or on its own motion, which is made after the jury returns a
verdict of guilty, set aside the verdict and enter a judgment of acquittal if the evidence is insufficient to
sustain a conviction. The motion for a judgment of acquittal must be made within 7 days after the jury is
discharged or within such further time as the court may fix during that period.
3. If a motion for a judgment of acquittal after a verdict of guilty pursuant to this section is granted, the
court shall also determine whether any motion for a new trial should be granted if the judgment of
acquittal is thereafter vacated or reversed. The court shall specify the grounds for that determination. . . .

3
Not only is granting a new trial based on insufficient evidence not allowed by law, it is not supported by a
plain reading of the statute. NRS 175.381(2) merely empowers the district court to acquit based on
insufficiency of the evidence. The language in section 3 referring to a motion for a new trial is included as a
default provision should such motion to acquit be reversed by this court, thus providing some deference to the
district court's judgment that the evidence was lacking.

4
The district court did note that the State presented no evidence in support of the charge that Defendant
requested fellatio. This is true, as the
Accordingly, the district court's order granting Purcell a new trial is affirmed.
____________
110 Nev. 1396, 1396 (1994) Grappo v. Mauch
TILLIE D. GRAPPO, Appellant, v. TIMOTHY J. MAUCH and NANCY L. MAUCH,
Husband and Wife, Respondents.
No. 24985
December 22, 1994 887 P.2d 740
Appeal from an order of the district court granting respondents declaratory relief and
reforming a deed of trust. Second Judicial District Court, Washoe County; Jerry Carr
Whitehead, Judge.
Purchasers of lot after deed of trust was foreclosed sought declaratory relief as to boundary
between their lot and lot of former common owner of both lots. The district court reformed
deed of trust, and common owner appealed. The supreme court held that: (1) evidence
justified reformation of deed of trust to reflect boundary shift; (2) statute of frauds did not
apply to reformation; and (3) agreed boundary doctrine did not apply.
Affirmed.
Hale, Lane, Peek, Dennison & Howard and Donald L. Christensen, Reno, for Appellant.
Henderson & Nelson and James M. Walsh and Robert C. Vohl, for Respondent.
1. Reformation of Instruments.
Evidence justified reformation of deed of trust to reflect former common owner's shift of boundary between two lots; owner did
not dispute subsequent lot purchasers' testimony concerning her intent to shift boundary and did not dispute causing fence to be built
reflecting new boundary; moreover, owner recorded record of survey describing shift and did not assert interest in disputed parcel after
shift.
Deeds may be reformed in accordance with intention of parties when that intention is frustrated by mutual mistake.
__________
victim only testified to the act of fellatio. As the State argues, however, requesting fellatio is not an element of lewdness with a minor,
whether pled or not, since the heart of the crime involves commission of a lewd act. See NRS 201.230(1). Thus, even though the victim did
not testify that Purcell requested fellatio, her testimony that he rubbed her butt and breasts is evidence which is legally sufficient to
support the lewdness charge.
Reformation is based upon equitable principles, applied when written instrument fails to conform to parties' previous
understanding or agreement.
Third party is entitled to reformation of deed of trust or mortgage when by mutual mistake parties to deed have omitted from legal
description tract of land intended to be conveyed, and third party subsequently purchases land under decree of foreclosure; reformation
in such case must be supported by clear and convincing evidence.
Statute of frauds does not apply to reformation of written instrument such as deed of trust, and does not apply to boundary shifting
by common owner.
6. Boundaries.
Under agreed boundary doctrine, boundary line between two coterminous owners that is subject to dispute may be settled
between parties and bind successors in interest to parties; doctrine is used to overcome potential statute of frauds problems that would
arise if agreed boundary was in fact inaccurate.
7. Boundaries.
Agreed boundary doctrine did not apply in dispute between former common owner of two lots and subsequent purchasers of one
lot as to whether common owner had shifted boundaries between lots prior to foreclosure sale; doctrine assumes existence of some
form of agreement between multiple parties to resolve boundary dispute, and common owner could neither agree nor dispute with
herself over boundary.
Record established that issues of mutual mistake and possible reformation of deed of trust were tried by express or implied consent
of parties, thus foreclosing claim on appeal that reformation was improper because not requested in pleadings.
OPINION
Per Curiam:
FACTS
Appellant Tillie Grappo (Grappo) owned two parcels of real estate, Lots 6 and 7, Millcreek Estates, Washoe County, Nevada.
According to undisputed testimony at trial, Grappo attempted to shift the common boundary of these lots by causing to be recorded a
Record of Survey. She did so to provide enough room on Lot 7 to conform with county setback requirements in preparation for building a
house. Lot 7 was eventually encumbered by a deed of trust. The property description of the deed did not reflect the boundary as modified by
Grappo. The deed of trust was foreclosed and the purchaser conveyed the property to respondents (the Mauchs). The district court
reformed the deed of trust to reflect the boundary shift.
Grappo argues that the district court erred in reforming the deed of trust because (1)
reformation was not supported by clear and convincing evidence; (2) the Record of Survey
did not properly transfer the 17-foot parcel from Lot 6 to Lot 7, and the transfer was in
violation of the statute of frauds; and (3) the Mauchs did not plead a claim for reformation,
resulting in the taking of the 17-foot parcel without due process of law. We conclude that the
district court did not err.
DISCUSSION
[Headnotes 1-4]
The district court's decision to reform the deed of trust was supported by clear and
convincing evidence. Deeds may be reformed in accordance with the intention of parties
when that intention is frustrated by a mutual mistake. First Federal v. Racquet Club
Condominiums, 106 Nev. 758, 761, 801 P.2d 1360, 1362 (1990) (citing Lattin v. Gray, 75
Nev. 128, 335 P.2d 778 (1959)), vacated in part, 107 Nev. 20, 805 P.2d 601 (1991).
Reformation is based upon equitable principles, applied when a written instrument fails to
conform to the parties' previous understanding or agreement. A third party is entitled to
reformation of a deed of trust or mortgage when by mutual mistake the parties to the deed
have omitted from the legal description a tract of land intended to be conveyed, and the third
party subsequently purchases the land under a decree of foreclosure. Id. at 761-62, 801 P.2d
at 1362-63 (citing Johnston v. Sorrels, 729 S.W.2d 21, 23 (Ark. Ct. App. 1987)). Reformation
in such a case must be supported by clear and convincing evidence. Johnston, 729 S.W.2d at
23.
In reviewing the record according to this standard, we note that Grappo failed to dispute
the Mauchs' trial testimony concerning her intent to shift the boundary between Lots 6 and 7
in order to comply with what she perceived to be setoff requirements in preparation for
construction of a house on Lot 7. She does not dispute causing a fence to be built reflecting
the new boundary. She does not dispute causing to be recorded the Record of Survey
describing the boundary change. She does not dispute that she failed to assert an interest in
the 17-foot parcel after shifting the boundaries. This evidence is sufficiently clear and
convincing to justify the district court's order.
[Headnote 5]
With respect to the statute of frauds, we conclude that Grappo misunderstands the nature
of the district court's action. The issue before this court is not reformation of the Record of
Survey, but reformation of the deed of trust. The Record of Survey is relevant only in that it
reveals Grappo's understanding of the boundaries of Lot 7, and thus her intent to include the
17-foot parcel in the deed of trust.
of Lot 7, and thus her intent to include the 17-foot parcel in the deed of trust. The statute of
frauds does not apply to reformation of a written instrument such as a deed of trust, see
Roberts v. Hummel, 69 Nev. 154, 158, 243 P.2d 248, 249 (1952), nor does it apply to
boundary shifting by a common owner. See 23 Am. Jur. 2d Deeds 26-27 (1983).
[Headnotes 6, 7]
Grappo relies in her reply brief upon two Idaho cases to support her statute of frauds
argument, both of which concern the so-called agreed boundary doctrine. See Berg v.
Fairman, 690 P.2d 896 (Idaho 1984); Gameson v. Remer, 537 P.2d 631 (Idaho 1975).
According to this doctrine, a boundary line between two coterminous owners that is subject to
dispute may be settled between the parties and bind successors in interest to the parties. Berg,
690 P.2d at 899; Gameson, 537 P.2d at 633. The doctrine is used to overcome potential
statute of frauds problems which would arise if the agreed boundary was in fact inaccurate.
See Shelton v. Malette, 301 P.2d 18, 21 (Cal. Ct. App. 1956).
In both cases cited by Grappo, the courts declined to apply the doctrine because the
boundaries were not subject to dispute among the various parties. Berg, 690 P.2d at 899;
Gameson, 537 P.2d at 633. Successors in interest were therefore precluded from asserting the
validity of the new boundary because the shift essentially amounted to an oral conveyance of
real property, in violation of the statute of frauds. Berg, 690 P.2d at 899; Gameson, 537 P.2d
at 633. Grappo presumably deduces from these cases that the Mauchs, as successors in
interest, are precluded from asserting ownership of the 17-foot parcel by operation of the
statute of frauds because the true boundaries of Lots 6 and 7 were known. Grappo apparently
is suggesting that the Mauchs' only hope of overcoming the statute of frauds rests with the
agreed boundary doctrine, but that the doctrine offers no help.
We conclude that the agreed boundary doctrine is inapplicable. This doctrine assumes the
existence of some form of agreement between multiple parties to resolve a boundary dispute.
See, e.g., Morrissey v. Haley, 865 P.2d 961, 963-64 (Idaho 1993). Grappo can neither agree,
nor dispute, with herself over a boundary. In contrast, we note that other jurisdictions have
validated boundary modifications initiated by a common grantor even when the modified
boundary does not reflect deed descriptions. See DeRoche v. Winski, 409 So. 2d 41, 44 (Fla.
Dist. Ct. App. 1981); Schultz v. Plate, 739 P.2d 95, 97 (Wash. Ct. App. 1987).
[Headnote 8]
Finally, with respect to the Mauchs' failure to request reformation in their pleadings, we
conclude that the issues of mutual mistake and possible reformation were tried by express
or implied consent, and that the Mauchs included in their complaint the facts necessary to
sustain the district court's decision to reform the deed of trust.
mistake and possible reformation were tried by express or implied consent, and that the
Mauchs included in their complaint the facts necessary to sustain the district court's decision
to reform the deed of trust. See Schmidt v. Sadri, 95 Nev. 702, 601 P.2d 713 (1979).
CONCLUSION
In view of the foregoing, we conclude that the district court's decision to reform the deed
of trust was justified. Accordingly, we affirm the order of the district court.
____________
110 Nev. 1400, 1400 (1994) Hermanson v. Hermanson
CINDY HERMANSON, Appellant, v. DAVID HERMANSON, Respondent.
No. 25113
December 22, 1994 887 P.2d 1241
This is an appeal from a decree of divorce incorporating an interlocutory order declaring
David Hermanson to be the father of James Hermanson. Eighth Judicial District Court, Clark
County; Gloria Sanchez, Judge.
Wife appealed decree of divorce entered by the district court which incorporated
interlocutory order declaring husband to be the father of wife's child. The supreme court held
that: (1) district court erred in applying law of California, where child was born, rather than
law of Nevada, where child now resides, to determine paternity, and (2) equitable estoppel
did not bar wife from denying husband's paternity.
Nicholas A. Del Vecchio, Las Vegas, for Respondent.
1. Action.
Under substantial relationship test used to resolve conflict of law questions in Nevada, the state whose law is applied must have
substantial relationship with the transaction and the transaction must not violate strong public policy of Nevada.
2. Children Out-of-Wedlock.
California had no substantial interest in having its law applied in Nevada paternity action where California's only relationship with
the litigation was that child was born there, child had not resided in California for almost ten years, and California paternity statute at
issue had been repealed. Cal. Evid. Code 621 (Repealed).
Under current paternity statutes of both Nevada and California, presumption is rebuttable that child born to legally married couple
is child of the marriage. NRS 126.051; Cal. Fam. Code 7611.
District court's application of repealed California law which provided conclusive presumption that child born to legally married
couple is child of the marriage was violation of Nevada public policy which recognizes that minors have right to have their paternity
determined in court of law and affords them the opportunity to litigate paternity until three years after the age of majority. NRS
126.081; Cal. Evid. Code 621 (Repealed).
5. Estoppel.
Four elements of equitable estoppel are that the party to be estopped must be apprised of the true facts, the party to be estopped
must intend that his or her conduct shall be acted upon or must act in such a manner that the party asserting estoppel has the right to
believe it was so intended, the party asserting estoppel must be ignorant of the true state of facts, and the party asserting estoppel must
have relied to his or her detriment on the conduct of the party to be estopped.
6. Evidence.
Substantial evidence for purposes of determining sufficiency of the evidence is that which a reasonable mind might accept as
adequate to support a conclusion.
Finding that wife was estopped from denying that husband was father of child was not supported by evidence that wife told
husband she was pregnant with another man's child, that husband admitted wife never told him he was child's biological father, that
husband admitted in court papers that he was not child's blood father, that husband's contact with child was intermittent, and that
husband did not pay significant sums for child's support.
8. Estoppel.
Doctrine of estoppel is grounded in principles of fairness.
OPINION
Per Curiam:
Cindy Hermanson (Cindy), the biological mother of James Hermanson (James), appeals from a district court order finding that
David Hermanson (David) is the father of James. Cindy and David married when Cindy was six months pregnant with James in June,
1982. Cindy maintains that she informed David that she was pregnant with another man's child. David admits that Cindy never told him
that he was the father of her unborn child.
James was born on October 12, 1982. The parties agree that things did not go well after James's birth. Cindy stated that for the three
years following James's birth (1982-85), she moved in and out of David's residence, seeking temporary housing in battered women's
shelters, and staying with various friends.
women's shelters, and staying with various friends. Cindy sought protective orders and direct
assistance in battered women's shelters on multiple occasions between 1982 and 1985.
In October, 1985, Cindy separated from David and relocated to Iowa with James. Between
1985 and 1988, Cindy raised James alone while attending nursing school. She applied for and
received welfare. In May, 1990, Cindy completed nursing school in Iowa. In August, 1990,
David and Cindy discussed a reconciliation. Cindy returned to Las Vegas with James in
October, 1990. The reconciliation attempt lasted only thirty days.
Cindy filed for divorce in December, 1990. Cindy's divorce complaint asserted that there
were no issue of the marriage, although David's name appeared on James's birth certificate.
She also asserted that David knew, and had always known, that he was biologically unrelated
to the child. David denied Cindy's assertions.
In January, 1991, David filed a motion requesting that the child be named the defacto
child of David even if he is not the biological son of [David]. Cindy opposed the motion
and requested blood tests as to paternity. A domestic relations referee heard the motion. In
June, 1991, he filed his recommendation stating that this case is similar to Frye v. Frye
(Equitable Adoption), based on the conduct of the parties, and that David is found to be the
real father of the child and should be declared the real father. The referee also established a
visitation schedule and ordered that David pay child support.
Cindy and David each filed objections to the referee's recommendationshe as to the
real father recommendation, and he as to the child support amount. David subsequently
withdrew his objection, and argued that the court should not order blood tests to determine
paternity. In July, 1991, the district court sustained Cindy's objection and referred the parties
to a paternity hearing master with direction to order blood tests. The blood tests conclusively
proved that David was not the father of James, and the parties so stipulated.
In November, 1991, after further filings, the matter returned to the district court's regular
law and motion calendar. After hearing argument, and requesting additional written
arguments, the district court concluded that Cindy failed to rebut a conclusive presumption in
the California Evidence Code that James was the issue of her marriage to David. The district
court further stated that equitable estoppel barred Cindy from denying that David was James's
father. Thus, the court held that David is James's legal father.
Cindy appealed the district court's order to this court. This court noted jurisdictional
defects and ordered that appeal dismissed on September 14,1992.
court noted jurisdictional defects and ordered that appeal dismissed on September 14,1992.
Cindy and David's divorce went to trial on April 1, 1993, on all matters other than
paternity, and a decree was entered on August 25, 1993. It states that pursuant to the February
4, 1992 order, David is the father of James. The court awarded Cindy primary physical
custody of James and it granted David joint legal custody of James and extensive visitation
rights. Cindy filed a timely appeal.
On appeal, Cindy argues that the district court erred because it applied California law
instead of Nevada law to determine James's paternity and because substantial evidence does
not support a finding of equitable estoppel. We agree.
The district court applied California Evidence Code section 621 to determine the paternity
of James Hermanson. California Evidence Code section 621, at the time the Hermansons
lived in California, provided:
1

Notwithstanding any other provision of law, the issue of a wife cohabitating with her
husband, who is not impotent, is conclusively presumed to be legitimate.
Cal. Evid. Code 621 (West 1990) (emphasis added). The district court stated that there was
no evidence on the record that David is either impotent or sterile. Because the parties were
legally married and cohabitating at James's birth, the district court applied this conclusive
presumption to find that David is the father of James.
[Headnote 1]
This court has adopted the substantial relationship test to resolve conflict of law questions.
Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 603 P.2d 270 (1979). Under this test, the
state whose law is applied must have a substantial relationship with the transaction: and the
transaction must not violate a strong public policy of Nevada. Id. at 815, 603 P.2d at 273.
2

__________

1
In Michael H. v. Gerald D., 491 U.S. 110 (1989), the United States Supreme Court addressed the
constitutionality of the conclusive presumption of paternity under California Evidence Code section 621. In a
five-four decision containing five separate opinions, the Court held, after balancing the private interests of the
parties with the interests of the state, that a conclusive presumption of paternity does not deny due process to a
putative father. Id. at 430. However, several members of the court disagreed. Michael H. v. Gerald D., 491 U.S.
at 138-64 (Brennan, J., Marshall, J., Blackmun, J., and White, J., dissenting).

2
Some courts have applied the origin of domicile doctrine to determine that the law of the child's birthplace is
the applicable law for paternity
[Headnotes 2, 3]
California's only relationship with this litigation is that James was born there and that
David and Cindy resided there during the three years that they cohabitated during their
turbulent marriage. The parties have not resided in California for almost ten years. California
has no substantial interest in having former California Evidence Code section 621 applied in
this paternity action in the Nevada court system especially in light of the fact that the
California Legislature has repealed California Evidence Code section 62l.
3
Under
California's current paternity statute, California Family Code section 7611, a paternity action
may be brought at any time. Thus, the prevailing public policy in California is that there is
no statute of limitations for paternity actions.
[Headnote 4]
Moreover, the district court's application of California Evidence Code section 621 violates
a public policy of Nevada. Under NRS 126.081, a paternity action is not barred until 3 years
after the child reaches the age of majority. Nevada recognizes that minors have a right to
have their paternity determined in a court of law. Therefore, Nevada affords them the
opportunity to litigate their paternity for three years after the age of eighteen. In this case,
James is presently twelve years old. He is a Nevada resident and should have the opportunity
to have his paternity determined under Nevada law rather than precluded by a repealed
California statute.
Choice of law analysis dictates that Nevada law applies to the determination of James's
paternity. Because the district court applied California law, we conclude that the district court
erred.
[Headnotes 5-7]
The district court also determined that the doctrine of equitable estoppel bars Cindy from
denying David's paternity of James. The district court found that Cindy began a steady stream
of affirmations that she was pregnant with David's child soon after she learned that she was
pregnant with James; Cindy named David as the father of James and placed his name on the
birth certificate; the parties have continuously held themselves to the public as the
parents of James; Cindy applied for and received welfare benefits for dependent children
by naming David as the father.
__________
actions. See In Re Estate of Dauenhauer, 535 P.2d 1005 (Mont. 1975); Kowalski v. Wojtkowski, 116 A.2d 6
(N.J. 1955). However, these cases reflect a traditional conflict of laws approach which Nevada has rejected by
adopting the more modern substantial relationship test.

3
The California Legislature repealed California Evidence Code section 621effective January 1, 1994. Thus,
California's policy position on this conclusive presumption of paternity has changed. Under California's and
Nevada's current paternity statutes, the presumption that a child born to a legally married couple is a child of the
marriage is rebuttable.
certificate; the parties have continuously held themselves to the public as the parents of
James; Cindy applied for and received welfare benefits for dependent children by naming
David as the father. The district court determined that [e]ach of the preceding factors
demonstrates a specific and repetitious pattern which Cindy has maintained to all concerned
that David is the father of James. Thus, the district court held that the doctrine of equitable
estoppel bars Cindy from denying that David is the father of James.
In Nevada, equitable estoppel has four elements:
(1) the party to be estopped must be appraised 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.
Southern Nev. Mem. Hosp. v. State, 101 Nev. 387, 391, 705 P.2d 139, 142 (1985) (quoting
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d 996 (1982)). Substantial
evidence is that which a reasonable mind might accept as adequate to support a conclusion.
State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (citation
omitted).
Applying the test set forth above, in order for Cindy to be estopped from denying David's
paternity, the second element would require that Cindy asserted that David was the father and
intended David to rely on her assertions. The facts simply do not support such a finding. In
her affidavit, Cindy asserts that after she knew she was pregnant, Cindy informed David that
she was pregnant with another man's child. At a hearing before the referee, David admitted
that Cindy never told him that he was the biological father of her unborn child.
The third element for estoppel, the party asserting the estoppel must be ignorant of the true
state of facts, would require that David was ignorant of the fact that he is not the biological
father of James. David has admitted that he was told that he was not the child's father before
James was born. In his responding brief, David notes the Respondent in this matter is not the
blood father of the minor child.
In light of the above facts, we conclude that substantial evidence does not support a
finding of the second and third elements for estoppel in this case.
Furthermore, David's contact with James and financial support of James do not support the
application of the doctrine of estoppel. David's contact with James for the three years after his
birth was intermittent.
was intermittent. Cindy moved in and out of David's residence seeking temporary housing in
battered women's shelters from 1982 until 1985. Cindy estimates that the parties actually
cohabitated a total of nine months after James's birth. David testified that he actually
cohabitated with James for about two years total during the child's lifetime.
In addition, David did not pay any significant sums for James's support. From 1985 to
1988, Cindy raised James alone while attending nursing school in Iowa. She applied for and
received welfare benefits. David paid a total of $125.50 in child support for the years Cindy
was on welfare.
[Headnote 8]
In Topaz Mutual Co. v. Marsh, 108 Nev. 845, 853, 839 P.2d 606, 611 (1992), this court
stated, [e]quitable estoppel functions to prevent the assertion of legal rights that in equity
and good conscience should not be available due to a party's conduct. This statement reflects
that the doctrine of estoppel is grounded in principles of fairness. This case does not warrant
the application of the doctrine of estoppel. Instead of ensuring fairness, estoppel works in this
case to unjustly deprive Cindy from disputing the presumption of paternity. The issue of
David's paternity of James should be reached on its merits under Nevada law, not determined
by a repealed California statute nor by the doctrine of equitable estoppel.
Furthermore, we conclude that the doctrine of equitable adoption enunciated in Frye v.
Frye, 103 Nev. 301, 738 P.2d 505 (1987), and the myriad of other psychological theories of
parentage that the parties mention in order to determine paternity are inapplicable.
Nevada's paternity statute, NRS 126.051, states, in pertinent part:
1. A man is presumed to be the natural father of a child if:
(a) He and the child's natural mother are or have been married to each other and the
child is born during the marriage . . . .
. . . .
3. A presumption under this section may be rebutted in an appropriate action only
by clear and convincing evidence. . . . The presumption is rebutted by a court decree
establishing paternity of the child by another man.
NRS 126.051 provides for a rebuttable presumption of paternity and is the applicable
statute in this matter. We reverse the district court's order finding that David is the father of
James and remand this case to the district court for further proceedings consistent with
this opinion.
remand this case to the district court for further proceedings consistent with this opinion.
4

____________
110 Nev. 1407, 1407 (1994) McMonigle v. McMonigle
SUSAN L. McMONIGLE, Appellant, v. ROBERT M. McMONIGLE, Respondent.
No. 25296
December 22, 1994 887 P.2d 742
Appeal from a district court order changing child custody. Eighth Judicial District Court,
Clark County; Frances-Ann Fine, Judge.
Divorced father moved to modify award to mother of child's primary custody. The district
court ordered change in child custody and appeal was taken. The supreme court held that
mother's predivorce move was erroneously considered as justification for change.
[Rehearing denied January 12, 1995]
Woodburn & Wedge and James W. Erbeck, Las Vegas, for Respondent.
1. Divorce.
Custodial mother's out-of-state move, which was completed before final divorce judgment, as well as mother's failure to provide
father with predivorce reports concerning child could not be considered when deciding father's motion to change award of primary
custody. Change of custody must be based on substantially changed circumstances occurring since most recent custodial order.
Harmless error occurs if trial court incorrectly admits evidence which does not affect substantial rights of parties. NRCP 61.
3. Divorce.
Relying on custodial mother's predivorce out-of-state move as basis for modifying previous primary child custody award to mother
was error; predivorce move was not change in circumstances needed to modify previous primary custody award.
__________

4
The district court awarded David joint legal custody of James because of its earlier determination that David is
the father of James. Since we reverse the district court's order finding that David is the father of James, it follows
that the district court's award of joint legal custody to David is also reversed.
OPINION
Per Curiam:
On March 2, 1992, appellant Susan Grandgeorge (Susan), then Susan McMonigle, and
respondent Robert McMonigle (Robert) were divorced. The district court ordered primary
custody of their one child, Mari, to Susan.
On March 17, 1993, Robert filed a motion to modify custody. The same day an ex parte
restraining order gave him custody of Mari pending a hearing. On March 23, 1993, an initial
hearing left the restraining order unchanged. In June, 1993, the district court gave Robert
temporary custody. After a seven-day hearing which stretched from September 7 to October
6, 1993, the court awarded Robert permanent custody of Mari. Susan appealed.
We now reverse the order changing custody because the district judge improperly based
her decision in large part on irrelevant evidence.
Once primary custody has been established, a court can consider changing custody only if
(1) the circumstances of the parents have been materially altered; and (2) the child's welfare
would be substantially enhanced by the change. Murphy v. Murphy, 84 Nev. 710, 711, 447
P.2d 664, 665 (1968). The moving party in a custody proceeding must show that
circumstances . . . have substantially changed since the most recent custodial order. . . .
Events that took place before that proceeding [are] inadmissible to establish a change of
circumstances. Stevens v. Stevens, 810 P.2d 1334, 1336 (Or. Ct. App. 1991) (citations
omitted).
The district court set forth the Murphy standard in its final order, but did not explicitly
specify the circumstances it found altered. However, it is clear that some of the circumstances
it considered were not appropriate under Murphy.
During the long evidentiary hearing in this case, the district court received extensive
testimony and numerous exhibits relating to the period before March 2, 1992, the date of the
divorce judgment and thus the last custody order prior to Robert's motion to modify custody.
The court apparently realized this evidence was not relevant and stated in its final order that it
had not addressed matters prior to the last custody order. Nevertheless, it expressly based its
decision in large part on some of this evidence.
[Headnote 1]
First, and most important, the district court improperly considered Susan's move to Kansas
City and continued residence there. The court stated in its order that any activities with
respect to [Susan] which occurred prior to [her] move to Kansas City were disregarded."
[Susan] which occurred prior to [her] move to Kansas City were disregarded. Thus, the court
considered the move itself to be within its purview. However, Susan moved to Kansas City in
November, 1991, before the final divorce judgment. In fact, that judgment noted that she had
already moved and therefore ordered her to share Robert's travel expenses for visitation.
Accordingly, consideration of Susan's relocation was improper under Murphy.
Second, the district court found it improper that Susan did not provide Robert with
certain reports concerning Mari. This finding apparently refers to reports generated in Santa
Barbara in 1990, about which extensive testimony and argument were heard. Again,
consideration of this evidence was improper under Murphy.
[Headnote 2]
It is harmless error if a court incorrectly admits evidence which does not affect the
substantial rights of the parties. NRCP 61. Also, this court has held that where inadmissible
evidence has been received by the court, sitting without a jury, and there is other substantial
evidence upon which the court based its findings, the court will be presumed to have
disregarded the improper evidence. Dep't of Highways v. Campbell, 80 Nev. 23, 33, 388
P.2d 733, 738 (1964).
[Headnote 3]
Whether there was other substantial evidence in this case is arguable but need not be
decided because the court below, instead of disregarding inadmissible evidence, expressly
relied on it in reaching its decision. Susan's substantial rights were adversely affected most
notably by the court's preoccupation throughout the proceedings with her living in Kansas
City. In fact, the court would have allowed Susan to retain shared primary custody but for the
fact she lived out of state. The court stated in its temporary order of June 28, 1993: If
[Susan] moves to Las Vegas, there could be shared primary physical custody. In its final
order it stated: If both parents had resided in Clark County, Nevada, this decision would be
an easy one. An award of joint legal and joint physical custody to both parents would permit a
check and balance system to insure the needs of this magical child are met.
Since the district court considered Susan fit, absent the irrelevant fact that she lived
outside Nevada, to share primary custody of Mari, we reverse and remand with instructions
that primary custody be restored to Susan.
____________
110 Nev. 1410, 1410 (1994) Wiese v. Granata
WALTER SCOTT WIESE, Appellant, v. VICKI LYNN GRANATA, Respondent.
No. 25518
December 22, 1994 887 P.2d 744
Appeal from a district court order granting custody of minor child to respondent and from
a district court order affirming that order. Second Judicial District Court, Washoe County;
Scott Jordan, Judge.
Father appealed from order of the district court changing custody of child from father to
mother following hearing on mother's petition to extend temporary order of protection. The
supreme court held that: (1) father did not have adequate notice that child custody would be at
issue at hearing; (2) hearing held did not satisfy due process; and (3) district court implied
improper standard in changing custody of child.
Orders reversed.
Mark L. Sturdivant, Reno, for Appellant.
Michael Melner, Reno, for Respondent.
1. Breach of the Peace.
Father did not receive adequate notice that issue of child custody would be considered by district court at hearing to consider
whether to extend, modify, or dissolve temporary order of protection, where mother never requested modification of child custody in
any of her moving papers, and motion which accompanied notice for hearing disclosed only that mother sought to have her visitation
rights modified. U.S. Const. amend. 14.
2. Breach of the Peace; Constitutional Law.
Even if father received notice that child custody was to be determined at hearing on temporary protective order, hearing father
received did not satisfy due process, where hearing was limited to 30 minutes, father was not allowed to present any witnesses, and
mother presented no evidence. U.S. Const. amend. 14.
3. Divorce.
District court applied improper standard when changing custody of child from father to mother, based on finding that child would
not be exposed to harm while in mother's custody; no materially changed circumstances which would justify modification of custody
had been demonstrated in record, and district court made no attempt to ascertain whether child's welfare would be enhanced by change
in her custody, much less substantially so.
OPINION
Per Curiam:
Appellant Walter Scott Wiese (Wiese) and respondent Vicki Lynn Granata (Granata) were divorced in February 1987, and custody
of the parties' daughter, Autumn, was awarded to Wiese.
custody of the parties' daughter, Autumn, was awarded to Wiese. Autumn has remained in her
father's custody ever since.
On December 30, 1993, Granata filed an application for a temporary order for protection
against domestic violence from Wiese. This application did not request a change in the
custody of Autumn. The district court issued the requested temporary order for protection that
same day. The district court's order did not purport to alter child custody in any way.
1

On January 28, 1994, Wiese was served with a motion brought by Granata to extend the
temporary order of protection and modify it with respect to Granata's visitation rights with
Autumn. The motion did not request a change of custody. Accompanying this motion was a
notice of hearing and an order to show cause. The notice informed Wiese that on April 8,
1994, the district court would consider whether to extend, modify or dissolve the temporary
order for protection and would determine whether Wiese had violated the temporary order for
protection. The notice did not require Wiese to appear (however, the order to show cause
attached to the notice did order Wiese to appear).
The district court held the hearing on April 8, 1994, as scheduled. Wiese did not, however,
appear at the hearing, apparently because his counsel had not told him he needed to appear.
We do not know what transpired at this hearing because neither the transcript nor the minutes
from the hearing are part of the record on appeal. What we do know is that following the
hearing, on April 13, 1994, the district court issued an order granting Granata physical
custody of Autumn. Wiese requested an emergency stay of the order. Following a
thirty-minute hearing regarding this request, the district court took the matter under
consideration and on April 18, 1994, denied Wiese's request for an emergency stay and
reaffirmed its April 13, 1994 order giving custody of Autumn to Granata.
Wiese appealed and moved this court for an emergency stay of the district court's orders
changing custody. In an April 28, 1994 order, this court stayed those portions of the district
court's orders which affected the custody rights of the parties. We now vacate those portions
of the district court's April 13, and 18, 1994 orders which affect the custody rights of the
parties because (1) Wiese did not receive notice that the issue of child custody was before
the district court; {2) Wiese did not receive a full and fair hearing; and {3) the district
court did not consider or apply the proper standard for modifying custody before it
changed custody of Autumn to Granata.
__________

1
Granata's allegations of domestic violence are summarized as follows: Granata alleged that Wiese physically
abused her in 1985 and that she received four bizarre letters purportedly from Wiese. Granata also alleged that
Wiese asked Autumn what kind of car Granata drives. As a result, Granata alleged that she felt in danger. In
addition, Granata alleged that she saw Wiese stalking her. Granata noted in her application that Wiese hasn't
threatened me recently, however, due to past threats of violence . . . and [sic] that he continues to stalk me I feel
afraid and threatened.
was before the district court; (2) Wiese did not receive a full and fair hearing; and (3) the
district court did not consider or apply the proper standard for modifying custody before it
changed custody of Autumn to Granata.
[Headnote 1]
First, due process requires that notice be given before a party's substantial rights are
affected. The notice of hearing Wiese received does not mention or even hint that child
custody is at issue. Dagher v. Dagher, 103 Nev. 26, 731 P.2d 1329 (1987), is exactly on point.
In that case, the district court gave custody of the parties' minor child to the father following a
hearing on a motion for modification of divorce which the mother failed to attend. Id. at 27,
731 P.2d at 1329. The motion for modification of divorce did not seek a permanent change of
physical custody. Thus, as with Wiese in this case, the mother was never apprised that the
hearing might involve a change of custody. Id., 731 P.2d at 1329. This court reversed the
district court's order changing custody, calling it precipitous and holding that the court
erred in changing custody without prior specific notice and as a sanction for perceived
maternal misconduct. Id. at 28, 731 P.2d at 1330 (footnote omitted).
The district court's orders in this case were also precipitous, and, as in Dagher, appear to
have been motivated by Wiese's failure to appear at the April 8, 1994 hearing. As we noted in
Dagher, a court may not use changes of custody as a sword to punish parental misconduct.
Id. at 28 n.3, 731 P.2d at 1330 n.3; see also Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63,
66 (1992).
Granata argues that Wiese should have known the April 8, 1994 hearing would encompass
child custody issues because the word modified is circled in the notice of hearing on the
temporary protective order. This argument is just short of specious. Nothing in the notice or
the order to show cause can be fairly read as notice that custody of Autumn would be at issue
at the April 8, 1994 hearing. Granata never requested a modification of child custody in any
of her moving papers, and the motion which accompanied the notice of hearing disclosed
only that Granata sought to have her visitation rights modified.
[Headnote 2]
Furthermore, even if Wiese had received notice that child custody was to be determined in
the April 8, 1994 hearing on the temporary protective order, the hearing Wiese actually
received (the hearing on the emergency stay) cannot be construed as having provided Wiese
with due process of law.
Litigants in a custody battle have the right to a full and fair hearing concerning the
ultimate disposition of a child.
hearing concerning the ultimate disposition of a child. At a minimum, observance of
this right requires that before a parent loses custody of a child, the elements that serve
as a precondition to a change of custody must be supported by factual evidence.
Furthermore, the party threatened with the loss of parental rights must be given the
opportunity to disprove the evidence presented.
Moser, 108 Nev. at 576-77, 836 P.2d at 66 (citation omitted). The hearing Wiese received
was limited to thirty minutes, he was not allowed to present any witnesses, and because
Granata in fact presented no evidence, Wiese necessarily had no chance to disprove the
evidence presented.
[Headnote 3]
Finally, the district court did not apply or even consider the proper standard in changing
custody of Autumn. Here the only relevant finding the district court made was that there is
no basis to conclude that Autumn will be exposed to harm while in [Granata's] custody. This
obviously is not a basis for modifying custody. A change in custody is warranted only when:
(1) the circumstances of the parents have been materially altered; and (2) the child's welfare
would be substantially enhanced by the change. Murphy v. Murphy, 84 Nev. 710, 711, 447
P.2d 664 (1968) (emphasis added). No materially changed circumstances which would justify
a modification of Autumn's custody have been demonstrated in the record before this court,
and the district court made no attempt to ascertain whether Autumn's welfare would be
enhanced by the change in her custody, much less substantially so.
For the foregoing reasons, those portions of the district court's orders which affect the
parties' custody rights are reversed.
2

__________

2
In the interest of justice, if any future proceedings are conducted in this case, the case should be reassigned to
a Family Court Judge other than Judge Jordan.
____________

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