Nevada Reports 1981 (97 Nev.) PDF

97 Nev.
1, 1 (1981)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 97
____________
97 Nev. 1, 1 (1981) Williams v. State
ROBERT Z. WILLIAMS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 11289
January 2, 1981 620 P.2d 1263
Appeal from conviction for robbery with use of deadly weapon, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
The Supreme Court, Manoukian, J., held that precluding defendant from introducing alibi
testimonies through four witnesses due to fact that defendant's alibi notice was belatedly filed
seven days prior to scheduled trial date was an abuse of discretion constituting reversible
error.
Reversed and remanded.
Carmine J. Colucci, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and H.
Douglas Clark and Mel Bowers, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Purpose of statute requiring notice of alibi is to counterbalance ease with which an alibi can be
fabricated, government's interest in protecting against a belated defense and the suspect nature of alibi
testimony. NRS 174.087.
2. Criminal Law.
In proceeding in which defendant was convicted of robbery with use of deadly weapon, precluding
defendant from introducing alibi testimony through four witnesses due to fact that defendant's alibi notice
was belatedly filed seven days prior to scheduled trial date was abuse of discretion constituting reversible
error, in light of fact that State failed to show that it was prejudiced due to delay in filing notice and that
giving of such alibi testimony by four witnesses, who did not reside with defendant, would be of significant
probative value in such proceeding in which only one witness placed defendant at crime scene and in which
there were several discrepancies in her testimony. NRS 174.075, 174.087-174.135, 193.165,
200.380.
OPINION
By the Court, Manoukian, J.:
The single issue which we discuss is dispositive of this appeal, specifically, whether the
trial court abused its discretion in precluding appellant from introducing independent alibi
testimony. We hold that it did and, in the context of this case, that such abuse constitutes
reversible error.
Appellant, Robert Z. Williams, was tried by jury and found guilty of robbery with the use
of a deadly weapon during the commission of a crime. NRS 200.380; 193.165. The evidence
showed that the offense was committed at 11:30 p.m. on May 1, 1978.
The record is clear concerning appellant's intention to call alibi witnesses. Appellant's
written alibi notice, filed and served on the state on July 24, 1978, provides that four alibi
witnesses would be called, and that their expected testimony would establish that Williams
was with them from 9:00 p.m. on May 1, 1978, until after midnight up to the early hours of
May 2, 1978.
Appellant's trial had been scheduled for July 31, 1978, but was trailed and commenced
August 3, 1978. On July 27, 1978, the state filed a motion for order excluding alibi evidence
pursuant to statute. NRS 174.075; 174.087-174.135. During the hearing of the motion, the
state argued, as it does in this appeal, that because the alibi notice was belatedly filed, it
should be excluded.
1
The trial court granted respondent's motion which determination
provides the basis for this appeal.
____________________

1
NRS 174.087 provides in part:
1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not
less than 10 days before trial or at
A witness listed on the notice of alibi and named as Dorothy Last-Name-Unknown, an
employee of Elks Bar, is one of several crucial proffered witnesses who appellant maintains
could corroborate his own alibi testimony. Appellant was the sole defense witness as the trial
court's exclusionary ruling had the effect of precluding the calling of any of appellant's alibi
witnesses.
[Headnote 1]
The trial court based its disallowance of the testimony of the four proffered alibi
witnesses upon appellant's failure to comply with the statutory notice of alibi provisions. NRS
174.087. The purpose of NRS 174.087 is to counter-balance the ease with which an alibi can
be fabricated, the government's interest in protecting against a belated defense and the
suspect nature of alibi testimony. Eckert v. State, 96 Nev. 96, 101, 605 P.2d 617, 620
(1980). In Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971), we noted that although statutes
such as NRS 174.087 are usually strictly applied, such strict compliance should not be
blindly required if the end result will make the criminal prosecution a game. Id., at 169, 483
P.2d at 656. Founts further held that for good cause shown, the trial court should exercise
its discretion to allow the introduction of alibi testimony irrespective of a defendant's
non-compliance with NRS 174.087. We considered the following to be demonstrative of
good cause for non-compliance:
Whether the testimony is sought to be introduced at such a late time in the course of
the trial that even an adjournment for investigation would not cure the prejudice to the
state, State v. Woodard, 246 A.2d 130, 134 (N.J.Super.App.Div. 1968); whether an
excuse was shown for the omission, State v. Adair, 469 P.2d S23, S26 {Ariz. 1970);
whether the information failed to describe the occurrence of the crime with
sufficient specificity to enable the accused to prepare an alibi defense, Bush v.
State, 454 P.2d 429, 434 {Kan. 1969); and whether the alibi had such substance as
to have probative value to the defense, State v. Martin, 410 P.2d 132, 137 {Ariz.App.
____________________
such other time as the court may direct, file and serve upon the district attorney a written notice of his
intention to claim such alibi, which notice shall contain specific information as to the place at which the
defendant claims to have been at the time of the alleged offense and, as particularly as are known to the
defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish
such alibi.
. . . .
4. If a defendant fails to file and serve a copy of such notice as herein required, the court may
exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of
the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any
witness offered by the defendant for the purpose of proving an alibi if the name and address of such
witness, as particularly as is known to the defendant or his attorney, is not stated in such notice.
(Emphasis added.)
for the omission, State v. Adair, 469 P.2d 823, 826 (Ariz. 1970); whether the
information failed to describe the occurrence of the crime with sufficient specificity to
enable the accused to prepare an alibi defense, Bush v. State, 454 P.2d 429, 434 (Kan.
1969); and whether the alibi had such substance as to have probative value to the
defense, State v. Martin, 410 P.2d 132, 137 (Ariz.App. 1966).
Id., at 169, 483 P.2d at 656. See also Eckert v. State, 96 Nev. 96, 605 P.2d 617.
[Headnote 2]
Here, the written notice was filed with the court seven days prior to the scheduled trial
date. The trial did not actually begin until August 3, or 10 days subsequent to the filing and
service of the alibi notice. In Founts, with only two days oral notice of the proposed alibi
testimony, we held that the failure to allow alibi testimony constituted reversible error. Founts
v. State, 87 Nev. at 170, 483 P.2d at 657. Although the delay in the instant case may have
justified at least a short continuance had it been requested which would have cured any
prejudice claimed by the state, the effect of the trial court's determination not to permit the
proffered testimony cannot be minimized.
2
Here, Dorothy Perkins, the victim, similar to the
Founts case, was the only witness that actually placed appellant at the crime scene. Although
she might be said to have positively identified appellant, there were several discrepancies in
her testimony. Such discrepancies coupled with the suggested probative value of the proposed
alibi testimony is potentially greater than that which was demonstrated in Founts because
here there are four named alibi witnesses rather than merely one, and the witnesses in the
present case do not reside with the appellant as did the witness in Founts. Moreover, as in
Founts, the significance of the alibi testimony was obvious as it would directly contradict the
state's sole eye-witness. Indeed, the alibi defense was central to appellant's case.
Having shown good cause relative to the probative value of the anticipated testimony,
more notice than that afforded by the prosecution in Founts, and a reasonable explanation for
the nominal delay,3 on this record, to require strict compliance with the statute would
"defeat the ends of justice and fair play which is the policy underlying the statute."
____________________

2
Nevertheless, we believe that the state was afforded sufficient notice by which to make at least a cursory
investigation into the tendered alibi prior to trial. Particularly because in this case three of the four proposed alibi
witnesses resided at the same address and the exact address of the fourth witness was easily obtainable by
investigators going to her place of employment which was contained in the notice of alibi. The record is devoid
of even a suggestion that such an investigation was undertaken, although a review of the notice of alibi shows
that each of the proposed witnesses were readily locatable.
nominal delay,
3
on this record, to require strict compliance with the statute would defeat the
ends of justice and fair play which is the policy underlying the statute. Founts v. State, 87
Nev. at 170, 483 P.2d at 656.
In Founts we held that the court's discretion should be exercised whenever good cause
appears, and although we stated in Eckert v. State, 96 Nev. at 101, 605 P.2d at 620, that we
should uphold the court's exercise of that discretion absent manifest abuse, citing Brown v.
State, 81 Nev. 397, 400, 404 P.2d 428, 430 (1965), here, because of the state's failure to show
prejudice to its case and as good cause was shown justifying the admission of the alibi
evidence, its exclusion amounted to an abuse of discretion.
4

Mowbray, C. J., and Gunderson and Batjer, JJ., and Breen, D. J.,
5
concur.
____________________

3
Appellant's trial counsel timely dictated the notice of alibi, but through inadvertance, failed to file and serve
it until just several days prior to the expected commencement of the trial. In retrospect, the notice was given 10
days prior to the actual commencement of the trial.

4
Appellant cites United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976), for the additional
proposition that the instant foreclosure constituted a violation of his constitutional rights to compulsory process
for obtaining favorable witnesses and to due process of law. We need not reach this constitutional claim because
a decision thereof is not necessary for the determination of this case. Spears v. Spears, 95 Nev. 416, 418, 596
P.2d 210, 212 (1979); State Ex Rel. Adams v. Allen, 55 Nev. 346, 350, 34 P.2d 1074, 1075 (1934).

5
The Governor designated The Honorable Peter I. Breen, Judge of the Second Judicial District Court, to sit
in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 5, 5 (1981) Checker Cab v. State, Taxicab Authority
CHECKER CAB COMPANY, Appellant, v. THE STATE OF NEVADA and THE
TAXICAB AUTHORITY OF THE STATE OF NEVADA, Respondents.
No. 12439
January 2, 1981 621 P.2d 496
Appeal from judgment dismissing petition for judicial review. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Taxicab company sought judicial review of allocation of new taxicab permits to cab
companies in city by respondent taxicab authority.
authority. The district court dismissed the petition and the cab company appealed. The
Supreme Court, Mowbray, C. J., held that: (1) the allocation which reduced plaintiff's share
of total number of cabs clearly injured plaintiff in fact and implicated its valuable property
right; thus it was entitled to seek judicial review of the allocation decision, even though it had
not been party to the administrative allocation proceeding, and (2) where taxicab authority's
rules clearly empowered it to waive procedural requirements and provided for parties, other
than intervenors, to participate in hearings on allocation of taxicabs, but authority did not
allow cab companies to participate because they had not filed notices of intervention,
authority's refusal to accept relevant evidence and to accord to companies affected by its
action a reasonable opportunity to be heard rendered authority's action invalid as based upon
unlawful procedure.
[Rehearing denied April 10, 1981]
Reid & Alverson, Las Vegas, for Appellant.
Richard H. Byran, Attorney General, Carson City, and Mary Hyer, Deputy Attorney
General, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
All presumptions are in favor of right to judicial review for those who are injured in fact by agency
action.
2. Automobiles.
Taxicab authority's allocation of new cabs to all cab companies in city so as to reduce plaintiff's share of
total cabs clearly injured plaintiff in fact and implicated its valuable property right; thus it was entitled to
seek judicial review of the allocation decision, even though it had not been party to the administrative
allocation proceeding. NRS 233B.035, 233B.130.
3. Automobiles.
Where taxicab authority's rules clearly empowered it to waive procedural requirements and provided for
parties, other than intervenors, to participate in hearings on allocation of taxicabs, but authority did not
allow cab companies to participate because they had not filed notices of intervention, authority's refusal to
accept relevant evidence and to accord to companies affected by its action a reasonable opportunity to be
heard rendered authority's action invalid as based upon unlawful procedure. NRS 233B.035,
233B.130.
Where procedural dereliction is relatively unimportant and rights of other parties to agency proceeding
are not prejudiced, substantial compliance with procedural requirements is adequate.
5. Automobiles.
By accepting, at beginning of taxicab allocation hearing, appearance of cab companies which had not
intervened, authority effectively admitted such companies as parties to the administrative proceeding and
fact that more significant participation was not allowed, because of authority's
erroneous view of its rules, did not deprive one of such companies of its right to
judicial review.
and fact that more significant participation was not allowed, because of authority's erroneous view of its
rules, did not deprive one of such companies of its right to judicial review. NRS 233B.035, 233B.040,
233B.110, 233B.140, subd. 5(c).
6. Automobiles.
Plaintiff taxicab company was not precluded from contesting in court taxicab authority's allocation of
new cab medallions equally among existing companies, rather than in proportion to their present holdings,
despite contention that authority had previously adopted such policy and that plaintiff had not contested it
then, in absence of any indication that authority had adopted that policy after formal rule-making
procedures of which plaintiff could seek judicial review or any indication that the authority was not free to
change the method of allocation at any time. NRS 233B.035, 233B.040, 233B.110, 233B.140,
subd. 5(c).
OPINION
By the Court, Mowbray, C. J.:
Checker Cab Company seeks judicial review of an allocation of new taxicab permits to the
cab companies in Las Vegas by respondent Taxicab Authority. The district court dismissed
the petition, holding that Checker was aggrieved by the administrative action, but that it could
not obtain judicial review because it was not a party to the administrative proceeding. We
reverse and remand with instructions.
THE FACTS
In April, 1979, Sun Cab. Inc., dba Nellis Cab Company, submitted an application to the
Taxicab Authority requesting an allocation of additional cabs. The Authority scheduled a
hearing for August 21, 1979, and sent notice of the hearing to all the cab companies in Las
Vegas, which stated that all interested parties may appear and be heard. Appellant Checker
was represented at the hearing, and the Authority noted the appearances of all the cab
companies before the hearing began. Nellis Cab presented evidence in support of its
application, and the Taxicab Authority staff also presented evidence. The Authority then
asked if the other cab companies had evidence to submit, but the attorney for Nellis Cab
objected to allowing any of the other companies to participate because they had not filed
notices of intervention in the proceeding pursuant to the Taxicab Authority rules.
1
The
Deputy Attorney General advising the Authority represented that the rule on intervention
was mandatory, that the Taxicab Authority had no discretion to waive its rules, and that
the other companies should not be allowed to participate.
____________________

1
The Taxicab Authority Rules of Practice and Procedure (General Order No. 1), Rule 5.1, provides:
Persons, other than the original parties to the proceeding, who are
Attorney General advising the Authority represented that the rule on intervention was
mandatory, that the Taxicab Authority had no discretion to waive its rules, and that the other
companies should not be allowed to participate. The Authority therefore did not take any
evidence from the cab companies, and at the end of the hearing allocated four additional cabs
to each of the companies in Las Vegas. Checker petitioned for judicial review in the district
court, contending that the method of allocation was incorrect and that excluding it from
participation in the hearing was improper. On the motion of the Taxicab Authority, the
district court dismissed the petition, holding that although Checker was aggrieved by the
administrative action it was not entitled to judicial review because it had not been a party to
the administrative proceeding. Checker appeals.
THE RIGHT OF REVIEW
[Headnote 1]
Judicial review of administrative actions is available to [a]ny party aggrieved by a final
decision in a contested case, NRS 233B.130. The statute defines a party as each person or
agency named or admitted as a party, or properly seeking and entitled as of right to be
admitted as a party. NRS 23B.035. All presumptions are in favor of a right to judicial review
for those who are injured in fact by agency action. Kenney v. Hickey, 60 Nev. 187, 105 P.2d
192 (1940); Application of Bank of Rhame, 231 N.W.2d 801 (N.D. 1975). Allocation of new
cabs to all the companies in Las Vegas, which acts to reduce the proportion of the total
number of cabs which are held by Checker, clearly injures appellant in fact, and, as we have
previously held, implicates valuable property rights. Checker Inc. v. Public Service
Commission, 84 Nev. 623, 446 P.2d 981 (1968).
[Headnotes 2-4]
Respondent Taxicab Authority asserts that Checker cannot seek judicial review of the
allocation decision because it did not participate in the hearing before the Authority. The
record demonstrates that Checker was precluded from participating on the ground that it had
not filed a notice of intervention. No authority has been cited to us, and none was cited before
the Authority, that intervention in the proceeding on an application for an allocation is
required to allow other cab companies to participate in the hearing.
____________________
directly and substantially affected by the proceeding, shall serve notice on the Authority or administrator,
of their intention to intervene by submitting a clear and concise statement, in writing, the interest of the
petitioner in such proceeding, outlining the matters and things relied upon by the petitioner as the basis
for his request, together with a statement as to the nature of evidence the petitioner will present.
Authority, that intervention in the proceeding on an application for an allocation is required to
allow other cab companies to participate in the hearing. The Authority precluded the
participation of Checker and the other cab companies on the strength of the Deputy Attorney
General's representation that intervention was mandatory and that the Authority had no power
to waive its own rules. The Taxicab Authority rules, however, clearly empower the Authority
to waive procedural requirements, and provide for classes of participants in hearings other
than intervenors.
2
The record demonstrates that the Authority never exercised its discretion
to waive the rules or not, because of the representation that it had no discretion to do so.
Under these circumstances, the Authority's refusal to accept relevant evidence and to accord
the other cab companies affected by its action a reasonable opportunity to be heard, Gibbens
Co. v. Archie, 92 Nev. 234, 548 P.2d 1366 (1976), render the Authority's action invalid as
based upon unlawful procedure. NRS 233B.140(5)(c); Wadell v. Board of Zoning Appeals,
68 A.2d 152 (Conn. 1949). Where a procedural dereliction, as in this case, is relatively
unimportant, and the rights of other parties to the agency proceeding are not prejudiced,
substantial compliance with procedural requirements is adequate. See Humboldt L. & C. Co.
v. District Court, 47 Nev. 396, 224 P. 612 (1924); Tafaro's Invest. Co. v. Division of Housing
Improve., 259 So.2d 57 (La. 1972); Hertelendy v. Montgomery County Board of Appeals,
226 A.2d 672 {Md.
____________________

2
Rule 1.3 of the Taxicab Authority Rules of Practice and Procedure provides:
In cases, where good cause appears, not contrary to statute, the administrator or the Authority may permit
deviation from these rules insofar as it may find compliance therewith to be impracticable or unnecessary.
Rule 3.1 provides, in pertinent part:
. . . .
Interested party. Shall be any person or persons who believe that they may be affected by a proceeding,
but do not seek to participate in the proceeding.
Protestant. Shall be any person or persons permitted to protest in opposition to applications or petitions.
Rule 4.1 provides:
At any hearing, all parties named in Rule 3, except interested parties, shall be entitled to enter an
appearance, to introduce evidence, examine and cross-examine witnesses, make arguments, and generally
participate in the conduct of the proceeding. Interested parties who are or may be directly and
substantially affected by the proceeding may enter an appearance, introduce evidence and, subject to the
discretion of the Authority, may otherwise participate in the conduct of the proceeding.
See also Rule 6.9.
Montgomery County Board of Appeals, 226 A.2d 672 (Md. 1967).
[Headnote 5]
Furthermore, by accepting the appearances of Checker and the other cab companies at the
beginning of the hearing, the Authority effectively admitted them as parties to the
administrative proceeding within the meaning of NRS 233B.035. See Taxicab Authority
Rules of Practice and Procedure 4.1; Ketchikan Retail Liquor Dealers v. State, etc., 602 P.2d
434 (Alaska 1979). The fact that more significant participation was not allowed because of
the Authority's erroneous view of its rules does not deprive appellant of its right to judicial
review. Hertelendy v. Montgomery County Board of Appeals, supra; see also Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967). We conclude, therefore, that the action of
respondent Taxicab Authority was made upon unlawful procedure and cannot stand. NRS
233B.140(5)(c).
[Headnote 6]
Respondent contends that Checker cannot now contest the allocation of new cab
medallions equally among existing companies, rather than in proportion to their present
holdings, because the Authority adopted the policy in 1977, and Checker did not contest it
then. This argument is meritless. The record is devoid of any indication that the Authority
adopted this policy after formal rule making procedures of which appellant could seek
judicial review, NRS 233B.040; 233B.110, nor is there any indication that the Authority is
not free to change the method of allocation at any time.
Accordingly, the judgment of the district court dismissing appellant's petition for judicial
review is reversed. The cause is remanded to the district court with directions to vacate the
allocation order of the Taxicab Authority and to remand the cause to the Authority for a
proper hearing.
Gunderson, Manoukian, and Batjer, JJ., and Beko, D.J.,
3
concur.
____________________

3
The Governor commissioned The Honorable William P. Beko, District Judge, to sit in this case in place of
Justice Gordon Thompson. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 11, 11 (1981) Applebaum v. Applebaum
STEVEN H. APPLEBAUM, Appellant, v. GERALDINE
APPLEBAUM, Respondent.
No. 10886
January 13, 1981 621 P.2d 1110
Appeal from order reducing arrearages to judgment, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The Supreme Court held that where arrearages were in fact owing, former husband was
not entitled to return to periodic payment schedule.
Affirmed in part, reversed in part and remanded for computation of interest.
Orin G. Grossman, Las Vegas, for Appellant.
James H. Bilbray, Las Vegas, for Respondent.
1. Constitutional Law.
Supreme Court will not render advisory opinions on moot or abstract questions. Const. Art. 6, 4.
2. Divorce.
Where arrearages were in fact owing, former husband was not entitled to return to periodic payment
schedule.
3. Divorce.
Arrearages which are not yet due may not be reduced to judgment.
OPINION
Per Curiam:
This appeal is taken from an order reducing arrearages to judgment entered by the
district court on February 13, 1978.
1
Appellant contends that the granting of the order was
error because the total amount he was ordered to pay was not at that time due and owing.
The Applebaums were divorced in 1972, remarried in 1973 and divorced again in 1976. In
1977, we decided Applebaum v. Applebaum, 93 Nev. 382, 566 P.2d 85. There we affirmed
the trial court's finding that the parties' 1972 property settlement agreement was valid. We
also affirmed the trial court's finding that Geraldine had excused Steven from the payment of
sums due under the 1972 agreement during the second marriage. In the 1976 decree the trial
court ordered Steven to pay Geraldine the $9,000 due under the 1972 agreement forthwith.
____________________

1
The order required Steven (appellant) to pay $9,000, together with interest thereon, with attorney fees of
$500.
97 Nev. 11, 12 (1981) Applebaum v. Applebaum
[Headnotes 1, 2]
Appellant's counsel, at oral argument, admitted that the entire amount awarded in the 1978
judgment is now due and owing to the respondent.
2
For this reason, we need not address the
merits of this appeal. This court will not render advisory opinions on moot or abstract
questions. Decisions may be rendered only where actual controversies exist. Nev. Const. art.
6 4; Boulet v. City of Las Vegas, 96 Nev. 611, 614 P.2d 8 (1980). The judgment for
arrearages and interest on those arrearages to February 13, 1978, is affirmed.
[Headnote 3]
The part of the order reducing arrearages to judgment for amounts not due and owing as of
February 13, 1978, is reversed and remanded. Upon remand, the district court shall recompute
and award interest pursuant to the payment schedule provided for in the 1972 agreement
3
on
the balance owing to respondent but unpaid.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Young, D. J.,
4
concur.
____________________

2
Despite this admission, the appellant is asking this court to permit him to return to the periodic payment
schedule provided for in the 1972 agreement. Since the entire amount is now due and owing, this claim is
without merit.

3
The 1972 agreement provided for payments of $1,000 due on the 15th day of every fourth month,
commencing on January 15 (of each year).

4
The Governor designated The Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 12, 12 (1981) Talancon v. State
ROBERT MARTIN TALANCON, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 11329
January 14, 1981 621 P.2d 1111
Appeal from judgments of conviction. Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Defendant was convicted in the district court of possession, sale and conspiracy to sell a
controlled substance and he appealed. The Supreme Court, Mowbray, J., held that: (1)
defendant could be convicted of both the sale and possession of a controlled substance; (2)
State's failure to test plastic bag for fingerprints did not violate defendant's right to due
process; and (3) evidence of defendant's guilt was so overwhelming that improper comments
by the prosecutor referring to defendant and his counsel during trial did not deprive
defendant of his right to a fair trial.
improper comments by the prosecutor referring to defendant and his counsel during trial did
not deprive defendant of his right to a fair trial.
Affirmed.
William N. Dunseath, Public Defender, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Calvin Dunlap, District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
Defendant could be convicted of both sale and possession of a controlled substance, where there was
evidence that defendant sold a quarter ounce of cocaine to an agent of an undercover narcotics officer and
that he was in unlawful possession of the remainder of the cocaine. NRS 453.321, subd. 1, 453.336,
subd. 1.
State's failure to test plastic bag for fingerprints did not violate defendant's right to due process, where
defendant's sole contention was that examination of the plastic bag might have failed to reveal his
fingerprints thereon and defendant did not request that the bag in fact be tested. U.S.C.A.Const. Amends.
5, 14.
3. Criminal Law.
In prosecution for possession, sale and conspiracy to sell a controlled substance, evidence of defendant's
guilt was so overwhelming that improper comment by prosecutor referring to defendant and his counsel
during trial did not deprive defendant of his right to a fair trial. NRS 453.321, subd. 1, 453.336, subd. 1.
OPINION
By the Court, Mowbray, J.:
A jury found appellant Talancon guilty of possession, sale, and conspiracy to sell a
controlled substance. He appeals, asserting that he lawfully may not be convicted of both sale
and possession, that the state's failure to preserve fingerprints on a plastic bag containing the
controlled substance denied him due process, and finally that statements of the prosecuting
attorney denied him a fair trial. We affirm the judgments of conviction.
THE TWO CONVICTIONS
[Headnote 1]
Appellant contends that on the facts of this case he cannot be convicted of both the sale
and the possession of a controlled substance. We do not agree. Testimony in thew record
before us shows that appellant originally possessed an ounce of cocaine, and that he sold a
quarter ounce to an agent of an undercover narcotics officer.
and that he sold a quarter ounce to an agent of an undercover narcotics officer. There was also
testimony that the appellant consumed, personally, some of the cocaine which he did not sell.
Thus there was evidence upon which the jury could infer that there was an unlawful sale of
the cocaine to the undercover narcotics agent which violated NRS 453.321(1), and that he
was in unlawful possession of the remainder of the cocaine in violation of NRS 453.336(1).
See Kellett v. Superior Court of Sacramento County, 409 P.2d 206 (Cal. 1966); cf. Fairman v.
State, 83 Nev. 137, 425 P.2d 342 (1967). The crime of possession, therefore, did not merge
with that of possession for sale, since a certain amount of the substance was the predicate for
each separate offense.
THE FINGERPRINTS
[Headnote 2]
Appellant suggest that he was prejudiced by the state's failure to remove fingerprints from
the plastic bag which contained the cocaine. Appellant did not request that such a test be
performed prior to trial, nor does he now claim that he did not know of the existence of the
plastic bag or of the testimony of occupants of the house where it was found which linked
him with it. Appellant's sole contention is that examination of the plastic bag may have failed
to reveal his fingerprints thereon. Without a more substantial showing that the state should
reasonably have believed that a test of the bag would have revealed such exculpatory
evidence, or that the defense requested that the bag in fact be tested, the failure of the state to
test did not violate appellant's right to due process. United States v. Henson, 486 F.2d 1292
(D.C.Cir. 1973) (en banc); White v. State, 577 P.2d 1056 (Alaska 1978).
THE PROSECUTORIAL STATEMENTS
[Headnote 3]
Appellant's final contention is that remarks made by the prosecutor referring to the
defendant and his counsel during the trial prejudiced the jury against him. Although improper
comments by the prosecution are presumed to be prejudicial, Pacheco v. State, 82 Nev. 172,
414 P.2d 100 (1966), in this case the evidence of guilt is so overwhelming that we conclude
that the improper comments by the prosecutor did not deprive the defendant of his right to a
fair trial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962).
Nevertheless, in view of the nature of the conduct on the part of the prosecutor in this case,
we see fit to note in the margin the most egregious instances which have been cited to us.1
We express our strong condemnation of this conduct on the part of any member of the
bar of this Court; and we reiterate our willingness to impose appropriate sanctions in
cases where the prejudice resulting from such conduct requires reversal for a new trial.
the most egregious instances which have been cited to us.
1
We express our strong
condemnation of this conduct on the part of any member of the bar of this Court; and we
reiterate our willingness to impose appropriate sanctions in cases where the prejudice
resulting from such conduct requires reversal for a new trial. Moser v. State, 91 Nev. 809,
814, 544 P.2d 424, 428 (1975) (Gunderson, C. J., concurring).
The judgments of conviction are affirmed.
Gunderson, C. J., and Batjer and Manoukian, JJ., and Young, D. J.,
2
concur.
____________________

1
[Defense Counsel]: The [Prosecutor] can't help you, please remember. It's out of your own memory.
Prosecutor: Your Honor, if Defense Counsel makes that statement again, he won't be standing up there.
Prosecutor: That's baloney, and even Defense Counsel knows that, or should.
[Defense Counsel]: Your Honor, I move to strike that comment about me. I'm not part of this lawsuit.
Prosecutor: I wish you weren't, but you are.
Prosecutor: Mr. Talancon, I submit to you, ladies and gentlemen, is a congenital liar.
Prosecutor: He doesn't work, he sells dope.
Prosecutor: [M]aybe even a half-assed criminal lawyer can make it seem like that individual doesn't know
what he's talking about.
[Defense Counsel]: There is also no evidence that I made any witness do anything unethical or
unprofessional. . . .
Prosecutor: No. No, Mr. (Defense Counsel). I don't even give you credit for that.
Prosecutor: That was the most scandalous, scurrilous attack, I feel, on anybody on that young woman . . . .
What type of lawyer would make that kind of scurrilous attack on somebody and not be able to prove it?

2
The Governor commissioned The Honorable Llewellyn A. Young, District Judge, to sit in this case in place
of Justice Gordon Thompson. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 15, 15 (1981) Shum v. State
ROBERT CHARLES SHUM, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 11177
January 20, 1981 621 P.2d 1114
Appeal from order denying motion to suppress and judgment of conviction, Third Judicial
District Court, Lander County; Stanley A. Smart, Judge.
The Supreme Court held that intrusion by deputy into defendant's vehicle, allegedly for
purpose of determining ownership so that owner could be contacted and requested to
remove vehicle before its presence on side of road caused an accident, was not justified,
and controlled substances found during course of intrusion were inadmissible despite
claim that they were in plain view or would have inevitably been found in plain view
during course of lawful inventory search after an impoundment, where vehicle was not
involved in accident and was not obstructing traveled portion of highway, and deputy did
not make arrangements to tow vehicle, but simply left vehicle on roadside while he
awaited defendant's return.
97 Nev. 15, 16 (1981) Shum v. State
defendant's vehicle, allegedly for purpose of determining ownership so that owner could be
contacted and requested to remove vehicle before its presence on side of road caused an
accident, was not justified, and controlled substances found during course of intrusion were
inadmissible despite claim that they were in plain view or would have inevitably been found
in plain view during course of lawful inventory search after an impoundment, where vehicle
was not involved in accident and was not obstructing traveled portion of highway, and deputy
did not make arrangements to tow vehicle, but simply left vehicle on roadside while he
awaited defendant's return.
Norman Y. Herring, State Public Defender, and J. Gregory Damm, Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; George G. Holden, District Attorney
and Hy Forgeron, Deputy District Attorney, Lander County, for Respondent.
Searches and Seizures.
Intrusion by deputy into defendant's vehicle, allegedly for purpose of determining ownership so that
owner could be contacted and requested to remove vehicle before its presence on side of road caused an
accident, was not justified, and controlled substances found during course of intrusion were inadmissible
despite claim that they were in plain view or would have inevitably been found in plain view during
course of a lawful inventory search after an impoundment, where vehicle was not involved in accident
and was not obstructing traveled portion of highway, and deputy did not make arrangements to tow
vehicle, but simply left vehicle on roadside while he awaited defendant's return. NRS 484.397;
U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
Robert Charles Shum was charged with several felony counts of possession of a controlled
substance. Before trial Shum filed a motion to suppress certain evidence, arguing that the
evidence was seized in violation of his Fourth Amendment rights. The district judge denied
the motion to suppress and Shum was thereafter convicted of two of the counts. Whether the
denial of the motion to suppress was error is the only issue raised in this appeal.
At approximately 2:30 a.m. on February 4, 1978, a Lander County Deputy Sheriff
observed an unoccupied automobile parked in the emergency lane on Interstate 80 near Battle
Mountain. The deputy parked his patrol car behind the vehicle and called the license number
into the dispatcher in order to learn the identity of the owner.
97 Nev. 15, 17 (1981) Shum v. State
and called the license number into the dispatcher in order to learn the identity of the owner.
Although the vehicle had local license plates, the dispatcher was unable to determine its
ownership because the license was not on file.
The deputy then approached the car and shines his flashlight into the interior. He tried to
open the door on the driver's side, but it was locked. The door on the other side, however, was
unlocked, and the deputy entered the car in search of the registration certificate. He found the
certificate, which listed Shum as the owner, in the glove compartment. After replacing the
certificate and while he was still inside the car, the deputy discovered, with his flashlight, a
bag on the floor of the car. Marijuana was spilling out of the bag.
After discovering the marijuana, the deputy left Shum's vehicle on the side of the road,
backed his patrol car into the brush where it was concealed from view and waited for Shum to
return. The deputy made no arrangements to have Shum's vehicle removed. A short time later
Shum returned to his car, which had run out of gas, and began to re-fill it. At this time the
deputy arrested Shum and seized the controlled substances.
In his motion to suppress Shum argued that the evidence upon which his conviction was
based was seized in violation of the warrant requirements of the Fourth Amendment. The
district judge, however, held (1) that the evidence was observed in plain view by the deputy
when he was lawfully inside Shum's vehicle and therefore was properly subject to seizure and
(2) that the car was a traffic hazard, could therefore have been impounded, and during the
resulting lawful inventory search the evidence would inevitably have been found in plain
view. See Clough v. State, 92 Nev. 603, 555 P.2d 840 (1976).
The sole justification of the deputy's intrusion into Shum's vehicle was allegedly the need
to determine ownership so the owner could be contacted and requested to remove the car
before its presence on the side of the road caused an accident. We do not question the general
authority of police officers to remove and impound an abandoned vehicle which obstructs or
poses a danger to traffic. See NRS 484.397. The Supreme Court recognized this authority in
South Dakota v. Opperman, 428 U.S. 364 (1976).
However, under the facts of this case, we can find no justification for the deputy's entrance
into Shum's vehicle. The car had not been involved in an accident and was not obstructing the
traveled portion of the highway. Nor does the state argue that the car was parked illegally.
Moreover, the deputy's decision to leave the car on the roadside while he awaited Shum's
return belies the contention that the presence of the car there was a hazard.
97 Nev. 15, 18 (1981) Shum v. State
If the car truly were a hazard, the deputy's duty was to have it impounded immediately.
Without such justification, the deputy had no right to enter the car, and his discovery of the
controlled substances cannot be justified under the plain view exception to the Fourth
Amendment warrant requirement. See Lorenzana v. Superior Court of Los Angeles County,
511 P.2d 33 (Cal. 1973); compare Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).
Nor can the seizure of the controlled substances be justified under Clough v. State, supra.
No arrangements had been made to tow the vehicle, nor did there exist any basis for
impounding the vehicle. Thus, the evidence would not have inevitably been discovered in
plain view during a subsequent lawful inventory search.
For the reasons stated above, the evidence seized from Shum's vehicle should not have
been admitted at the trial. Mapp v. Ohio, 367 U.S. 643 (1961). Under the facts of this case the
improper admission of the evidence was reversible error. Chapman v. California, 386 U.S. 18
(1967). Accordingly, the order denying the motion to suppress and the judgment of
conviction are reversed and the matter is remanded to the district court for further
proceedings, consistent with this opinion.
____________
97 Nev. 18, 18 (1981) Director, Prisons v. Biffath
DIRECTOR, NEVADA DEPARTMENT OF PRISONS, Appellant,
v. RONALD BIFFATH, Respondent.
No. 12789
January 20, 1981 621 P.2d 1113
Appeal from order granting petition for writ of habeas corpus, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
The Supreme Court held that sentence for primary robbery offense as enhanced for use of
a firearm in commission of crime was to be treated as one continuous sentence for purpose of
determining parole eligibility.
Affirmed.
Richard H. Bryan, Attorney General, and Robert C. Manley, Deputy Attorney General,
Carson City, for Appellant.
Norman Y. Herring, State Public Defender, and Michael K. Powell, Special Deputy Public
Defender, Carson City, for Respondent.
97 Nev. 18, 19 (1981) Director, Prisons v. Biffath
Pardon and Parole.
Sentence for primary robbery offense as enhanced for use of a firearm in commission of crime was to be
treated as one continuous sentence for purpose of determining parole eligibility. NRS 193.165,
213.120.
OPINION
Per Curiam:
Respondent pled guilty to robbery. NRS 200.380. He was subsequently sentenced to a
nine-year term in the Nevada State Prison for the robbery and to an additional, consecutive
nine-year term for having used a firearm in the commission of the crime. NRS 193.165.
1

After serving part of his sentence, respondent petitioned the district court for a writ of
habeas corpus contending that his two consecutive nine-year terms should be deemed one
continuous sentence for purposes of determining his eligibility for parole under NRS 213.120.
2
The district court agreed with respondent and granted his petition. This appeal followed.
The district court relied on Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979) in granting
the petition. In that case we held that a sentence for a primary offense which is enhanced
under NRS 193.165 is to be treated as one continuous sentence for purposes of awarding
good time credits. Like the district court, we can see no logical reason for treating a sentence
enhanced under NRS 193.165 differently in the context of parole eligibility than in the
awarding of good time credits. The rationale of Biffath is equally applicable in this case. See
Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975) (NRS 193.165 does not prescribe
two penalties for one offense; it enhances the penalty for the primary offense).
Affirmed.
____________________

1
NRS 193.165 provides, in pertinent part:
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact.

2
NRS 213.120 provides:
Except as otherwise limited by statute for certain specified offenses, a prisoner may be paroled when
he has served:
1. One-third of the definite period of time for which he has been sentenced pursuant to NRS 176.033,
less good time credits; or
2. One year,
whichever is longer.
____________
97 Nev. 20, 20 (1981) In re Becker
In the Matter of the Disciplinary Proceedings Against
ALFRED BECKER, Attorney at Law.
No. 12694
February 5, 1981
ORDER GRANTING PETITION
The State Bar of Nevada, Disciplinary Board, Southern District, has petitioned this court
to impose the stated form of discipline contained in the conditional plea of guilty tendered by
Alfred Becker. The conditional plea of guilty has been approved by the appropriate hearing
panel, as provided by SCR 113(1).
Good cause appearing, the conditional plea of guilty is approved and the petition is
granted. Accordingly, we
ORDER that Alfred Becker be suspended from the practice of law for a period of two
years, with credit on said suspension to be given for the time that Mr. Becker has been
suspended by order of this court dated July 11, 1980.
IT IS FURTHER ORDERED that following the expiration of the two-year suspension, Mr.
Becker may pursue reinstatement pursuant to SCR 116, at which time he shall have the
burden of demonstrating by clear and convincing evidence that he has the moral
qualifications, competency, and learning in law required for admission to practice law in this
state, and that his resumption of the practice of law will not be detrimental to the integrity and
standing of the Bar, to the administration of justice, or to the public interest.
____________
97 Nev. 20, 20 (1981) First Nat'l Bk. v. Ron Rudin Realty
FIRST NATIONAL BANK OF NEVADA, Executor of the Estate of L.S. BROTHERTON,
Deceased, Appellant, v. RON RUDIN REALTY CO., a Nevada Corporation, Respondent.
No. 10883
February 10, 1981 623 P.2d 558
Appeal from dismissal after appellant-plaintiff's case in chief, Eighth Judicial District
Court, Clark County; George E. Marshall, Judge.
Executor of party to escrow agreement for purchase of real estate sought recovery of
amounts allegedly due. The district court dismissed action after plaintiff's case-in-chief,
and executor appealed. The Supreme Court, Manoukian, J., held that purchaser's
performance was excused by breach of duty of vendor to have title to property or inform
purchaser of condition or status of title, and trial court therefore properly granted motion
to dismiss.
court dismissed action after plaintiff's case-in-chief, and executor appealed. The Supreme
Court, Manoukian, J., held that purchaser's performance was excused by breach of duty of
vendor to have title to property or inform purchaser of condition or status of title, and trial
court therefore properly granted motion to dismiss.
Affirmed.
Paul L. Larsen, Chartered, and Foley Brothers, Las Vegas, for Appellant.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Respondent.
1. Appeal and Error.
Where defendant is granted motion to dismiss on ground plaintiff failed to prove sufficient case for court
or jury after plaintiff's case-in-chief, the Supreme Court in reviewing case must accept plaintiff's evidence
as true and draw all permissible inferences in plaintiff's favor, and not pass on credibility of witnesses nor
weigh evidence.
2. Vendor and Purchaser.
Even in absence of provision in escrow agreement that may have required vendor to have title to real
estate at time of opening of escrow or upon payment, vendor owed duty to purchaser to either have title at
relevant time or to inform purchaser of condition and status of title, and breach of this duty excused
purchaser's duty to deposit agreed sum in escrow account.
OPINION
In this appeal, appellant-plaintiff requests us to reverse, contending that the trial court (1)
improperly granted respondent-defendant's motion for involuntary dismissal under NRCP
41(b), and (2) improvidently determined the escrow agreement's forfeiture clause to be
invalid as a penalty. We affirm.
Appellant Bank, as executor of the estate of L. S. Brotherton, Deceased, (hereinafter
referred to as Brotherton) sought the recovery of $19,000 claimed due under a forfeiture
cause contained in an escrow agreement between Brotherton and Ron Rudin Realty Co.
(hereinafter referred to as Rudin). The escrow agreement was entered into by Brotherton and
Rudin on May 14, 1973, a time at which Brotherton did not have any title to, nor possession
of the property which was the subject of the escrow. Brotherton had, however, previously
entered into an escrow agreement to purchase the property from the then owner, Michael R.
Terlizzi, on September 13, 1972.
The purchase price ultimately specified in the Brotherton/Rudin escrow was $466,000, of
which $25,000 in earnest money was to be paid before May 18, 1973. Subsequently and
pursuant to the escrow's earnest money provision, Rudin paid $6,000 to Brotherton. The
Brotherton/Rudin escrow never closed, although Brotherton eventually acquired title to the
property through the Brotherton/Terlizzi escrow in August of 1973. Thereafter, Brotherton
sold the property to someone other than Rudin, and commenced this action based upon the
following clause in the Brotherton/Rudin escrow agreement: It is understood and agreed that
the earnest money deposited of $25,000.00 will be forfeited to the Seller herein in the event
the Buyer fails to complete this transaction. He alleged, inter alia, that under the foregoing
provision, the $6,000 was forfeited and the $19,000 was due and payable. Rudin answered
affirmatively alleging Brotherton's failure of performance and the invalidity of the forfeiture
clause.
At the close of appellant's case in chief, the trial court granted respondent's motion for
involuntary dismissal, finding that since appellant did not have title to the property, he was
not entitled to require respondent's performance under the Brotherton/Rudin escrow and that
the contract called for an invalid forfeiture. Finally, the court found that Brotherton had failed
to offer any proof of any damages sustained . . . by reason of . . . Rudin's failure to complete
the escrow, and that consequently, Brotherton did not sustain any damage by reason of the
failure of the escrow to close.
1. The Involuntary Dismissal.
In Bates v. Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968), we set
forth in detail the appellate, as well as trial court, standard for review of a NRCP 41(b)
1
motion for involuntary dismissal upon completion of a plaintiff's case in chief: [the]
plaintiff's evidence must be accepted as true, both the trial court and this court must draw all
permissible inferences in his favor, and not pass upon the credibility of the witnesses nor
weigh the evidence [citations omitted]. See also Fennell v. Miller, 94 Nev. 528, 583 P.2d
455 (1978).
[Headnote 1]
While we recognize that there are cases in which the granting of a motion to dismiss under
NRCP 41(b) should be reviewed under the "clearly erroneous" standard of NRCP 52{a),
see Martin v. Ross, 96 Nev. 916, 620 P.2d S66 {19S0), the present case is inappropriate
for such a standard of review, for although the district court made findings of fact and
conclusions of law, only one witness, a non party, was called by the appellant and it does
not appear that there had been a "complete trial" before the plaintiff rested his case. Id.
at 91S.
____________________

1
NRCP 41(b) provides in part:
After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right
to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury.
under the clearly erroneous standard of NRCP 52(a), see Martin v. Ross, 96 Nev. 916, 620
P.2d 866 (1980), the present case is inappropriate for such a standard of review, for although
the district court made findings of fact and conclusions of law, only one witness, a non party,
was called by the appellant and it does not appear that there had been a complete trial
before the plaintiff rested his case. Id. at 918. Accordingly, we are bound by the stricter Bates
standard in the instant case.
At the close of appellant's case in chief, in addition to the facts hereinabove mentioned, the
record shows that Brotherton and Rudin entered into an escrow for the sale of the Fez Motel
and incidental personalty; that the escrow was to close on May 31, 1973; that pursuant
thereto, Rudin made a payment of $6,000 to the escrow which was disbursed to Brotherton;
that even had the entire $25,000 been deposited, the escrow holder could not have closed the
[Brotherton/Rudin] escrow without further instructions; that Brotherton gave no such
closing instructions, nor was the Brotherton/Terlizzi escrow ever referred to in the
Brotherton/Rudin escrow; that Brotherton did not obtain title to the property until August 23,
1973; that numerous, substantial repairs and improvements were required to be made to the
properties by Brotherton under the terms and conditions of the escrow, and the record is
devoid of any evidence showing compliance with such conditions.
Although the escrow officer testified that had Brotherton directed her to transfer the
money to another escrow . . . [he] would then gain title to the property, the record does not
support this testimony, as the Brotherton/Terlizzi escrow did not close until well beyond the
May 31st deadline.
[Headnote 2]
Even drawing all permissible inferences in favor of appellant and irrespective of the
requirement of any payment by Rudin to Brotherton, and the absence of a provision in the
escrow agreement that may have required Brotherton to have title at the time of the opening
of the escrow or on payment, in the context of this case, we believe that Brotherton owed a
duty to Rudin to either have title at the relevant time or to inform Rudin of the condition and
status of the title. This is so notwithstanding any suggestion in the record that respondent may
have been anticipatorily in breach of his obligation to timely pay the remainder of the
$25,000. Cf. Woodard, et ux, v. Allen, 265 P.2d 398 (Utah 1953) (contract expressly provided
that title was deliverable after final payment).
We therefore conclude that respondent's performance was excused and that the trial
court properly granted respondent's motion to dismiss with prejudice.
excused and that the trial court properly granted respondent's motion to dismiss with
prejudice.
In that our determination of the first issue is dispositive of this case, we do not reach the
second issue concerning the validity of the forfeiture clause. The trial court correctly awarded
to respondent the $6,000 previously paid in escrow, together with attorneys fees and costs.
Accordingly, we affirm.
Batjer and Mowbray, JJ., and Young D. J.,
2
concur.
Gunderson, J., concurring:
I concur in the result.
____________________

2
____________
97 Nev. 24, 24 (1981) Jones v. Golden Spike Corp.
WALLY JONES, Appellant, v. GOLDEN SPIKE CORPORATION, a Nevada Corporation;
and CHARLES PAUL LEONARD, Jr., Respondents.
No. 11896
February 20, 1981 623 P.2d 970
Appeal from order granting respondents' motion for summary judgment and judgment.
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Employee instituted slander action against corporate employer and its president. The
district court entered judgment for defendants, and plaintiff appealed. The Supreme Court,
Joseph O. McDaniel, D. J., held that: (1) alleged defamatory statement made in respect to
employee by president of corporate employer was not published when made to general
manager in private office of president and, hence, was not actionable, and (2) alleged
defamatory statement made by president of corporate employer in his private office to five
employees as a group was not actionable as to one employee on ground that there was
publication as to other employees in absence of evidence that it was communicated to
someone other than persons defamed.
Affirmed.
[Rehearing denied May 6, 1981]
George W. Abbott, Minden, for Appellant.
Allison, Brunetti, MacKenzie & Taylor, Carson City, for Respondents.
1. Libel and Slander.
To be actionable, there must be a publication of the defamatory statement.
Defamatory communications between officers, agents and employees of a corporation do not amount to a
publication which would support an action for libel when made in regular course of corporation's business.
Alleged defamatory statement made in respect to employee by president of corporate employer was not
published when made to general manager in private office of president and, hence, was not actionable.
Tort liability for slander requires that defamation be communicated to someone other than person or
persons defamed.
Alleged defamatory statement made by president of corporate employer in his private office to five
employees as a group was not actionable as to one employee on ground that there was publication as to
other employees in absence of evidence that it was communicated to someone other than persons defamed.
OPINION
By the Court, McDaniel, D. J.
1
:
This appeal involves a slander action by an employee against his corporate employer.
Appellant Wally Jones was employed as the head bartender by respondent Golden Spike
Corporation, a Nevada corporation, which owns and operates the Golden Spike Casino in
Carson City, Nevada. On September 22, 1977, the president of Golden Spike, Charles Paul
Leonard, Jr., had received a surveillance report on the performance of the bartenders in the
bar at the casino. He reviewed the report with Golden Spike's general manager, Richard
Bennett. At 5:30 p.m. that day, appellant and four other bartenders were summoned to
Leonard's private office in the casino. Each was given a typewritten copy of the report to read.
A discussion was then held, during which appellant alleges that Leonard stated to the group,
You are all no-good,
____
,
____
, thieves.
Appellant filed his complaint alleging slander and damages. Respondents answered and
then filed a motion for summary judgment on the grounds that, assuming that a
defamatory statement had been made as alleged, there had been no publication.
____________________

1
The Governor designated The Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District Court,
to sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
judgment on the grounds that, assuming that a defamatory statement had been made as
alleged, there had been no publication. The trial court granted the motion on that ground and
entered judgment for respondents, and this appeal followed.
[Headnote 1]
To be actionable, there must be a publication of the defamatory statement. This concept is
explained in Great Atlantic & Pacific Tea Co. v. Paul, 261 A.2d 731, 734-735 (Md.App.
1970):
Publication' in the law of defamation is the communication of defamatory matter to a
third person or persons. (Citations omitted.) This means that for alleged defamatory
words to be actionable they must be seen or heard by some person other than the
plaintiff and defendant.
Appellant first contends that since the general manager was present, there was a
publication. Jurisdictions that have followed the Restatement of Torts have taken that
position. We choose to follow the majority rule as set forth in Prins v. Holland-North
American Mortgage Co., 181 P. 680 (Wash. 1919):
Publication of a libel is the communication of the defamatory matter to some third
person or persons. Here the communication was sent from the main office of the
company to its branch office. . . . Agents and employees of this character are not third
persons in their relations to the corporation, within the meaning of the laws pertaining
to the publication of libels. For the time being, they are a part and parcel of the
corporation itself, so much so, indeed, that their acts within the limits of their
employment are the acts of the corporation. For a corporation, therefore, acting through
one of its agents or representatives, to send a libelous communication to another of its
agents or representatives, cannot be a publication of the libel on the part of the
corporation. It is but communicating with itself. Id. at 680-81.
In Mims v. Metropolitan Life Ins. Co., 200 F.2d 800 (5th Cir. 1952) the court added:
This court has held that where the language complained of was communicated only
by one corporate officer to another in the regular course of the corporation's business,
such communication did not amount to a publication which would support an action for
libel. Id. at 802.
[Headnotes 2, 3]
This rule of law as to defamatory communications between officers, agents and employees
of a corporation is hereby adopted as the law of the State of Nevada. Accord, Western Union
Tel. Co. v. Lesesne, 198 F.2d 154 (4th Cir. 1952); United States Steel Corp. v. Darby, 516
F.2d 961 (5th Cir. 1975); Keddie v. Pennsylvania State University, 412 F.Supp. 1264
(M.D.Pa. 1976); Burney v. Southern Railway Company, 165 So.2d 726 (Ala. 1964);
McDaniel v. Crescent Motors, Inc., 31 So.2d 343 (Ala. 1947); Lu Allen v. Home Mission
Board, 188 S.E.2d 138 (Ga.App. 1972); McKenna v. Mansfield Leland Hotel Co., 9 N.E.2d
166 (OhioApp. 1936); Magnolia Petroleum Co. v. Davidson, 148 P.2d 468 (Okl. 1944).
[Headnotes 4, 5]
Appellant also contends there was a publication as to the other four bartenders. We
disagree. All five individuals were addressed as a group and the defamatory statement made
to them as such. In Pate v. Tyee Motor Inn, 467 P.2d 301, 302 (Wash. 1970), the court stated:
Tort liability for slander requires that the defamation be communicated to someone other
than the person or persons defamed. (Emphasis added.) Accord, Campbell v. Jacksonville
Kennel Club, 66 So.2d 495 (Fla. 1953); Starnes v. St. Joseph Railway, Light, Heat & Power
Co., 52 S.W.2d 852 (Mo. 1932); Harbison v. Chicago, R.I. & P. Ry. Co., 37 S.W.2d 609
(Mo. 1931); Bull v. Collins, 54 S.W.2d 870 (Tex.Civ.App. 1932). Therefore, there was no
publication as to the other parties who were defamed.
The order granting summary judgment and judgment is affirmed.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., concur.
____________
97 Nev. 27, 27 (1981) Polk v. Tully
H. W. POLK, aka HARRY W. POLK, Appellant, v.
FLORENCE T. TULLY, Respondent.
No. 11104
February 20, 1981 623 P.2d 972
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Action was instituted on complaint to revive judgment. The district court entered summary
judgment from which appeal was taken. The Supreme Court held that judgment could be
revived by complaint filed in same case number as original judgment, notwithstanding
claim that judgment could be revived only by an independent action, where no statute
required an independent action and, though action was brought within original action,
defendant was served with a summons and complaint and, as evidence by his filing an
answer, was on notice.
97 Nev. 27, 28 (1981) Polk v. Tully
judgment, notwithstanding claim that judgment could be revived only by an independent
action, where no statute required an independent action and, though action was brought
within original action, defendant was served with a summons and complaint and, as evidence
by his filing an answer, was on notice.
Affirmed.
Douglas J. Shoemaker, Las Vegas, for Appellant.
Keefer, Clark & O'Reilly, and R. Steven Young, Las Vegas, for Respondent.
1. Judgment.
Judgment could be revived by complaint filed in same case number as original judgment, notwithstanding
claim that judgment could be revived only by an independent action, where no statute required an
independent action and, though action was brought within original action, defendant was served with a
summons and complaint and, as evidenced by his filing an answer, was on notice.
Failure of respondent to obtain leave of court to file a new complaint was waived by appellant by reason
of his failure to object until 16 months after filing his answer. NRCP 1.
OPINION
Per Curiam:
On November 24, 1970, a money judgment was entered in favor of respondent. Almost six
years passed, and the judgment remained unenforced.
1

On November 19, 1976, respondent filed a complaint seeking to revive the judgment. The
complaint was filed in the same case number as the original judgment. Respondent did not
obtain leave of court to file the new complaint in accordance with NRCP 15(a). A summons
issued, and appellant was served.
Appellant filed an answer to the complaint on January 31, 1977. Respondent moved for
summary judgment on May 12, 1978. Appellant moved to dismiss the complaint on June 16,
1978. The district court denied appellant's motion to dismiss and granted respondent's motion
for summary judgment. This appeal followed.
1. Appellant's first contention is that a judgment may not be revived by a complaint filed
in the same case number as the original judgment.
____________________

1
The statute of limitations for an action upon a judgment is six years. See NRS 11.190(1)(a).
97 Nev. 27, 29 (1981) Polk v. Tully
be revived by a complaint filed in the same case number as the original judgment. Appellant
argues that a judgment can be revived only by an independent action.
2

The proper procedure for reviving a judgment in Nevada is not clear. In many states the
revival of judgments is provided for by statute.
3
Nevada has no such statute. At least one
other court has held that, in the absence of a statute, a proceeding to revive a money judgment
is not a new suit, but is part of the original action. See Donellan Jerome, Inc. v. Trylon
Metals, Inc., 270 F.Supp. 996 (N.D.Ohio 1967).
[Headnote 1]
In the instant case, although the action was brought within the original action, appellant
was served with a summons and complaint. Appellant clearly had notice, as evidenced by his
filing an answer. The district court concluded that, in the absence of a statute requiring an
independent action, the procedure followed by respondent was not improper.
4
We agree. To
hold otherwise would exalt form over substance.
[Headnote 2]
2. Appellant argues that even if the procedure followed by respondent was proper,
respondent failed to obtain leave of court to file the new pleading, as required by NRCP
15(a). However, even if such leave be required, appellant waived this objection by not raising
it in his answer. Cf. Johnson v. Johnson, 55 Nev. 109, 27 P.2d 532 (1933). Appellant did not
object to respondent's failure to obtain leave of court until 16 months after filing his answer.
Our conclusion that appellant waived this objection is in harmony with the goal of our rules
of civil procedure: to secure the just, speedy, and inexpensive determination of every
action. NRCP 1.
Affirmed.
____________________

2
Appellant cites Reid v. Bristol, 86 S.E.2d 417 (N.C. 1955), for this proposition. However, in Reid the court
emphasized that no complaint was filed and no summons was issued. Thus, Reid is distinguishable from the
present case.

3
It appears that most statutes provide for revival by a motion in the original action, similar to the procedure
followed by respondent. See, e.g., Ariz. Rev. Stat. 12-1612 (West Supp. 1976); Kan. Stat. 60-2404 (Weeks
1976); La. Code Civ. Pro. Ann. art. 2031 (West 1960).

4
THe district court found that it would be a useless act to file a separate action to revive the judgment in this
matter.
____________
97 Nev. 30, 30 (1981) Tharpe v. Pan-Pacific Auditorium, Inc.
E. A. THARPE, II, Appellant, v. PAN-PACIFIC
AUDITORIUM, INC., Respondent.
No. 12130
February 20, 1981 623 P.2d 973
Appeal from Judgment, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Broker brought action against vendor seeking to recover a commission on the sale of
vendor's real property. The district court entered judgment in favor of vendor, and broker
appealed. The Supreme Court held that evidence was sufficient to support findings that
vendor did not agree to pay a finder's fee to broker and that broker did not find and introduce
vendor as a prospective purchaser, the ultimate purchaser of vendor's property.
Affirmed.
Charles M. Murphy, Reno, for Appellant.
Bradley & Drendel, Ltd., Reno, for Respondent.
Brokers.
Evidence was sufficient to support findings that vendor did not agree to pay a finder's fee to broker and
that broker did not find and introduce to vendor as a prospective purchaser, the ultimate purchaser of
vendor's property.
OPINION
Per Curiam:
Action was brought against Pan-Pacific by Tharpe who claimed in his complaint that
Pan-Pacific engaged the services of the plaintiff for the purpose of finding and introducing
to the Defendant prospective purchasers of certain property and that Pan-Pacific agreed to
pay to the plaintiff the reasonable value of such services performed.
Tharpe claims that when a portion of the property was ultimately sold to the United States
Postal Service, his services were a procuring cause of the sale and that the property was
sold as a direct consequence and result of the introduction of United States Postal Service
Representatives by Tharpe.
Tharpe seeks the reasonable value of services that Pan-Pacific agreed to pay.
The court made formal findings of fact that there was no such agreement and that if there
were any contract between the parties, the "only contract which may have existed"
between the parties was a contract which required Tharpe "to produce a purchaser ready,
willing and able to purchase all of the property for a price net to the seller with any
broker's commission to come from the purchaser."
97 Nev. 30, 31 (1981) Tharpe v. Pan-Pacific Auditorium, Inc.
parties, the only contract which may have existed between the parties was a contract which
required Tharpe to produce a purchaser ready, willing and able to purchase all of the
property for a price net to the seller with any broker's commission to come from the
purchaser. The court then held with respect to any such contract that (n)o such purchaser
was ever produced by Plaintiff.
Added to these findings are the further findings that Pan-Pacific never agreed to pay a
finder's fee to Tharpe and that Tharpe did not, in fact, find and introduce to Defendant
(Pan-Pacific) as a prospective purchaser the United States Postal Service. As long as such
findings stand, Tharpe cannot prevail.
There is more than ample evidence to support the mentioned findings of fact, and we will
not disturb them on appeal. Kleeman v. Zigtema, 95 Nev. 285, 593 P.2d 468 (1979); NRCP
52(a). The findings of fact support the conclusions and judgment.
Several evidentiary questions are raised. We find them without merit. If error be present, it
is harmless. NRS 47.040, Rehling v. Brainard, 38 Nev. 16, 144 P. 167 (1914).
Affirmed.
____________
97 Nev. 31, 31 (1981) McGinnis v. Consolidated Casinos Corp.
MARY ANN McGINNIS and OWEN R. McGINNIS, Appellants, v. CONSOLIDATED
CASINOS CORP., a Nevada Corporation, SAHARA-NEVADA CORPORATION, a Nevada
Corporation, DEL E. WEBB CORPORATION, an Arizona Corporation, and DEL E. WEBB
HOTEL CO., an Arizona Corporation, d/b/a THE MINT HOTEL & CASINO, Respondents.
No. 12859
February 20, 1981 623 P.2d 974
Motion to dismiss appeal from summary judgment, Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Hotel employee and her husband brought action against hotel for injuries sustained after
she had completed her shift. The district court dismissed complaint and employee and her
husband appealed. The Supreme Court, 94 Nev. 640, 584 P.2d 702 (1978), reversed and
remanded with instructions to reinstate amended complaint. The district court granted
summary judgment to hotel, employee and her husband appealed, and hotel moved to
dismiss appeal.
judgment to hotel, employee and her husband appealed, and hotel moved to dismiss appeal.
The Supreme Court held that policy considerations underlying rule which allows trial court
three years to bring case to trial following remand for new trial dictate that district court
should have discretion to allow an equal amount of time following remand to complete
preparations and bring matter to trial in first instance.
Motion denied.
Stanley Pierce, Las Vegas, for Appellants.
Dickerson, Miles, Pico, Mitchell & Wagner, Las Vegas, for Respondents.
Appeal and Error.
Policy considerations underlying rule which allows trial court three years to bring case to trial following
remand for new trial dictate that district court should have discretion to allow an equal amount of time
following remand to conclude preparation and bring matter to trial in first instance. NRCP 41(e).
OPINION
Per Curiam:
Appellants sought damages from respondents for negligence. The action was filed August
1, 1975. Before trial began, appellants' amended complaint was dismissed. On appeal, we
reversed the order of dismissal and remanded the matter with instructions to reinstate the
amended complaint. McGinnis v. Consolidated Casinos Corp., 94 Nev. 640, 584 P.2d 702
(1978).
Thereafter, respondents filed a motion for summary judgment, which was granted by the
district court. This second appeal ensued.
Respondents have now moved to dismiss this appeal, contending that even if we reversed
the order granting summary judgment, NRCP 41(e) would require the district court to dismiss
plaintiff's amended complaint. This is so, respondents contend, because no trial has been
commenced within five years from the date the action originally was filed. We do not agree.
NRCP 41(e) provides that any action shall be dismissed if not brought to trial within five
years except where the parties have stipulated in writing that the time may be extended.
Thus, in Bank of Nevada v. Friedman, 86 Nev. 747, 476 P.2d 172 (1970), this Court held it
was mandatory for a district court to dismiss an action filed over five years previously, even
though a portion of the five-year period had been consumed by an appeal. However, NRCP
41(e) also contains a further provision, with which we were not concerned in the Friedman
case, to-wit: .
. . . When in an action after judgment, an appeal has been taken and judgment reversed
with the cause remanded for a new trial (or when an appeal has been taken from an
order granting a new trial and such order is affirmed on appeal), the action must be
dismissed by the trial court on motion of defendant after due notice to plaintiff, or of its
own motion, unless brought to trial within three years from the date upon which
remittitur is filed by the clerk of the trial court . . . . (Emphasis added.)
Therefore, the issue before us now is whether the sense of the provision just quoted is that
a district court should have discretion to allow three years to bring any case to trial, after a
prior judgment has been appealed and the cause remanded? Or should a district court be
permitted to allow three years only when a case is remanded for a new trial?
Of course, the text of NRCP 41(e) only explicitly mentions new trials. The rule is silent
concerning whether three years, or some other time frame, is contemplated when an
erroneous district court judgment is reversed, and a case thereupon remanded which has never
yet been accorded any trial whatever. Nonetheless, we think the policy considerations which
underlie the rule in the former situation also control the latter. If a district court should be
permitted to allow a maximum of three years to re-try a case following reversal, then surely
like exigencies dictate that the district court should have discretion to allow equal time,
following remand, to conclude preparation and bring a matter to trial in the first instance.
As noted above, in the Friedman case, this three-year savings provision of NRCP 41(e)
had no application, because in Friedman more than three years had elapsed, subsequent to
remittitur, before the district court dismissed the action pursuant to the rule's five-year
mandatory provision.
The motion to dismiss this appeal is therefore denied.
____________
97 Nev. 34, 34 (1981) State v. District Court
STATE OF NEVADA, Through ROBERT J. MILLER, District Attorney of Clark County,
Nevada, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA IN AND FOR THE COUNTY OF CLARK, and the HONORABLE ADDELIAR
D. GUY, Respondents.
No. 12976
February 20, 1981 623 P.2d 976
Original petition for writ of mandamus.
State filed petition for writ of mandamus directing respondent court to vacate its order of
dismissal to hear State's appeal from order reducing the amount of bail bond forfeiture by a
surety from $3,000 to $1,500. The Supreme Court held that bail bond forfeiture action was a
civil proceeding; thus State had right of appeal to district court from order reducing amount
of bail bond forfeiture on a surety.
Writ granted.
Robert J. Miller, District Attorney, and Stanley W. Parry, Deputy District Attorney, Clark
County, for Petitioner.
Ira H. Hecht, Las Vegas, for Respondents.
1. Bail.
Bail bond forfeiture action was a civil proceeding; thus State had right of appeal to district court from
order reducing amount of bail bond forfeiture on a surety. Const. Art. 6, 6; NRS 3.190, subd. 2;
NJRCP 72.
2. Mandamus.
Where district court erroneously decided that it lacks jurisdiction over a matter, mandamus is the proper
remedy.
OPINION
Per Curiam:
The Justice Court of Las Vegas reduced the amount of a bail bond forfeiture by a surety
from $3,000 to $1,500. The State filed a notice of appeal to the district court. The district
court dismissed the appeal on the ground that it lacked jurisdiction. Apparently the court
found that a bail bond forfeiture was a criminal proceeding from which the State had no
statutory right of appeal. See NRS 189.120.
This court has not previously addressed the question of whether a bail bond forfeiture
proceeding is civil or criminal in nature.
97 Nev. 34, 35 (1981) State v. District Court
nature. However, other courts have treated such proceedings as civil in nature and have
applied the procedural rules governing civil actions. See e.g., United States v. Plechner, 577
F.2d 596 (9th Cir. 1978); People v. Argonaut Ins. Co., 139 Cal. Rptr. 795 (Cal.App. 1977);
LaRue v. Burns, 268 N.W.2d 639 (Iowa 1978); City of Westwood v. Holland, 394 P.2d 56
(Kan. 1964); State v. Norton, 347 S.W.2d 849 (Mo. 1961); State v. United Bonding Insurance
Company, 464 P.2d 884 (N.M. 1970). Such treatment is logical. A bail bond is a contract
between the State and the surety of the accused. A bail bond forfeiture action does not
involve guilt or innocence, conviction or acquittal. Although it arises out of a criminal
proceeding, it has all the indicia of a civil proceeding and none of the indicia of a criminal
proceeding.
[Headnotes 1, 2]
Since a bail bond forfeiture action is a civil proceeding, the filing of an appeal therefrom is
governed by the civil rules. See United States v. Plechner, supra; People v. Montaigne, 407
N.E.2d 1107 (Ill.App. 1980). Therefore, the State has a right of appeal to the district court,
Nev. Const. art. 6, 6; NRS 3.190(2); NJRCP 72, and the district court erred in its
determination that it lacked jurisdiction. Where a district court erroneously decides that it
lacks jurisdiction over a matter, mandamus is the proper remedy. Buckholt v. District Court,
94 Nev. 631, 584 P.2d 672 (1978); Benson v. District Court, 85 Nev. 327, 454 P.2d 892
(1969).
Accordingly, a writ of mandamus shall issue forthwith directing the respondent court to
vacate its order of dismissal and to hear the State's appeal in this matter.
Writ granted.
____________
97 Nev. 35, 35 (1981) Hagblom v. Personnel Advisory Comm'n
DONALD M. HAGBLOM, Appellant, v. PERSONNEL ADVISORY COMMISSION OF
THE STATE OF NEVADA, and THE STATE OF NEVADA DEPARTMENT OF MOTOR
VEHICLES, NEVADA HIGHWAY PATROL DIVISION, Respondents.
No. 11684
February 20, 1981 623 P.2d 977
Appeal from a judgment of the district court upholding a finding of the Personnel
Advisory Commission, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Former highway patrolman brought action challenging his dismissal. The district court
sustained ruling of Personnel Advisory Commission upholding the termination, and
patrolman appealed. The Supreme Court, Mowbray, J., held that: (1) terminated highway
patrolman who did not object to the lack of a proceeding before a single hearing officer prior
to a full hearing before the Personnel Advisory Commission thereby waived any right to
object to the procedure on appeal, and (2) highway patrolman who refused to attend monthly
pistol shoot after being advised that his attendance was required and who thereafter
persistently refused to write a memo of explanation for his absence was dismissed for just
cause.
Affirmed.
Lohse & Lohse, Reno, for Appellant.
Richard H. Bryan, Attorney General, Joe E. Colvin, Deputy Attorney General, Carson
City, for Respondents.
1. Highways.
Terminated highway patrolman who did not object to the lack of a proceeding before a single hearing
officer prior to a full hearing before the Personnel Advisory Commission thereby waived any right to
object to the procedure on appeal.
2. Highways.
It is not the province of the Supreme Court to substitute its judgment for that of the highway patrol in
disciplinary matters relating to the operation of the department.
3. Highways.
Highway patrolman who refused to attend monthly pistol shoot after being advised that his attendance
was required and who thereafter persistently refused to write a memo of explanation for his absence was
dismissed for just cause.
OPINION
The Nevada State Highway Patrol dismissed the appellant, Donald M. Hagblom, a
highway patrolman, from service. The Personnel Advisory Commission held a hearing, and
upheld the termination on a finding of just cause to release the appellant. The district court
sustained the Commission's ruling. This appeal ensued; we affirm.
THE FACTS
On October 25, 1976, appellant was advised that his attendance was required at the
monthly pistol shoot. Before the shoot, he orally notified his superior, Sergeant Gartiez,
that because the shoot fell on his day off, he would not attend.
shoot, he orally notified his superior, Sergeant Gartiez, that because the shoot fell on his day
off, he would not attend. Appellant was again instructed that his presence was required; he
did not attend the shoot.
Appellant was requested, on November 13, 1976, to supply in writing his reasons for
missing the shoot. He was similarly instructed twice again in the next four days. The last time
he was told to either write the memo of explanation, or face dismissal for insubordination.
Appellant chose the latter; he was terminated, and this action followed.
THE COMMISSION PROCEEDING
NRS 284.390 governs the process by which a state employee may appeal a termination
order. Upon termination by one's employer, an employee may appeal to the personnel
division. His cause is normally first heard by a hearing officer. NRS 284.390(1). The findings
of the hearing officer are binding on the parties. NRS 284.390(6). The losing party may then
request a hearing before the Personnel Advisory Commission, NRS 284.390(7). It is within
the discretion of the Commission to grant or deny the request for a hearing. NRS 284.390(8).
If a hearing is granted, the review is de novo. NRS 284.390(9).
[Headnote 1]
In the instant matter, the full Commission heard the matter. Initially, there was no prior
proceeding before a single hearing officer. Appellant now claims this procedure was error.
However, appellant, who was represented by counsel, did not object at the time of the hearing
before the Commission, but preferred to go forward with the matter as scheduled. Rather,
appellant accepted the de novo hearing before the entire Commission, which was granted at
their discretion, in lieu of one before a hearing officer, and he was granted the one de novo
review assured by NRS 284.390. He therefore waived his right to raise the issue later on
appeal. United States v. Tucker Truck Lines, 344 U.S. 33 (1952).
APPELLANT'S REMAINING CONTENTIONS
[Headnotes 2, 3]
Appellant also suggest that complete termination of his employment was too drastic a
penalty for his actions. The record reveals that appellant was aware of the general orders
governing the highway patrol, that these orders specifically provided for discharge for
insubordination, and that appellant was warned that his persistent refusal to write the memo
would result in termination of his employment.
result in termination of his employment. It is not the province of this Court to substitute its
judgment for that of the highway patrol in disciplinary matters relating to the operation of the
department. In Richardson v. Bd. of Regents, 70 Nev. 347, 367, 269 P.2d 265, 276 (1954),
we defined insubordination as a willful disregard of express or implied directions, or such a
defiant attitude as to be equivalent thereto. Appellant's behavior falls into this category; his
dismissal was for just cause.
We therefore affirm the decision of the district court.
Gunderson, C. J., and Manoukian, Batjer, and Springer, JJ., concur.
____________
97 Nev. 38, 38 (1981) Prostack v. Songailo
RICHARD C. PROSTACK, Appellant, v.
PATRICIA SONGAILO, Respondent.
No. 11861
February 20, 1981 623 P.2d 978
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Attorney's assignee brought action to recover attorney fees. The district court awarded
summary judgment for plaintiff, and defendant appealed. The Supreme Court held that: (1)
attorney's assignment of accounting claim for collection of attorney fees did not constitute an
unethical splitting of fees with a nonlawyer and was not against public policy, and (2)
assignee of claim for attorney fees was entitled to recover fees from client, since both parties
acknowledged existence of agreement for representation between client and attorney and
client had previously acknowledged and agreed to the fee and stated he would pay it as soon
as possible.
Affirmed.
L. Earl Hawley, Las Vegas, for Appellant.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Respondent.
1. Assignments; Attorney and Client.
Attorney's assignment of accounting claim for collection of attorney fees did not constitute an unethical
splitting of fees with a nonlawyer and was not against public policy.
2. Assignments.
Assignee of claim for attorney fees was entitled to recover fees from client, since both parties
acknowledged the agreement for representation between client and attorney, and client had previously
acknowledged and agreed to the fee and stated he would pay it as soon as possible.
3. Attorney and Client.
Guidelines necessary to determine reasonableness of attorney fee include the qualities of advocacy, the
character of work to be done, the work actually performed by attorney, and the result.
4. Pretrial Procedure.
In action to recover attorney fees, trial court did not err in denying defendant's request for continuance for
further discovery, since no written motion for continuance was ever filed.
OPINION
Per Curiam:
This is an appeal from an order awarding summary judgment for $2,500.00 attorney's fees.
In mid 1973, the appellant, Richard C. Prostack, was faced with the possibility of criminal
charges being filed against him by the IRS. Appellant's wife was employed by the Las Vegas
law firm of Wiener, Goldwater & Waldman, Ltd. She approached Mr. Wiener of the firm and
explained the problem facing her husband. Appellant arranged for Mr. Wiener to represent
him. The criminal charges were not filed. This result required a substantial number of hours
of the attorney's time, as well as trips to Los Angles and New York. Several requests for
payment were made. Appellant acknowledged by letter the indebtedness, but tendered no
money. An accounting claim was assigned for collection; a complaint was filed, and
respondent assignee, Patricia Songailo, prevailed on her motion for summary judgment.
[Headnote 1]
Appellant asserts that the assignment is an unethical splitting of fees with a nonlawyer,
and, therefore, an illegal assignment because it is against public policy. This contention is
meritless. The assignment was for collection only--a common practice in such cases. This is
not the instance of an improper splitting of fees with a nonlawyer. The cases cited by
appellant, Greene v. Reed, 486 P.2d 222 (Ariz.App. 1971), and Sellars v. Lamb, 6 N.W.2d
911 (Mich. 1942) are inapposite. In Greene, the assignment was made to avoid the payment
of income tax; in Sellars, the assignment violated public policy because the assignee, as a
bank receiver, also approved the fee that the Comptroller determined and allowed. The
assignment in this case was proper.
[Headnote 2]
Summary judgment is properly granted when, as a matter of law, the moving party is
entitled to the judgment because there is no genuine issue as to any material fact. NRCP
56(c); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963). The affidavits of both
parties acknowledge the agreement for representation between appellant and respondent's
assignor. Indeed, upon billing, the appellant acknowledged and agreed to the fee, stating that
he would pay it as soon as possible.
[Headnote 3]
This Court has heretofore enunciated the guidelines necessary to determine the
reasonableness of a fee: (1) the qualities of the advocacy; (2) the character of the work to be
done; (3) the work actually performed by the attorney; and (4) finally, the result. Brunzell v.
Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969).
1
Respondent's
assignor spent a substantial number of hours on the case; he traveled extensively; importantly,
the result of his efforts was successful.
[Headnote 4]
Finally, at the hearing on the motion, appellant asserts that he requested a continuance for
further discovery. The only record of any such request is in the Statement of Proceedings filed
by appellant's attorney. No written motion seeking a continuance was ever filed. Appellant
claims the court committed reversible error in denying the request for the continuance. The
contention is meritless.
The trial judge did not err in granting summary judgment in this case. We therefore affirm.
____________________

1
See ABA Code of Professional Responsibility, EC 2-17, 2-18; DR 2-107 and SCR 203, which adopts the
ABA code.
____________
97 Nev. 40, 40 (1981) Ross v. State
DANNY L. ROSS, JAMES F. TAYLOR and CLAUDE THERIAULT,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 10856
February 20, 1981 623 P.2d 980
Appeals from judgment of conviction. First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendants were convicted in the district court of murder, and they appealed. The
Supreme Court, Batjer, J., held that where defendants requested that counsel be appointed
to represent them a month before scheduled trial date, district court had not discretion to
refuse appointment of counsel.
97 Nev. 40, 41 (1981) Ross v. State
where defendants requested that counsel be appointed to represent them a month before
scheduled trial date, district court had not discretion to refuse appointment of counsel.
Reversed and remanded for new trial.
Stephen M. Stephens, Carson City, for Appellant Danny L. Ross.
Samuel S. Wardle, Carson City, for Appellant James F. Taylor.
Paul C. Giese, Reno, for Appellant Claude Theriault.
Richard H. Bryan, Attorney General, Carson City, for Respondent.
Criminal Law.
Where defendants charged with murder for participation in prison riot had validly waived right to
representation by counsel but retracted waivers one month prior to date set for trial and requested counsel
be appointed, district court had no discretion to refuse appointment of counsel. U.S.C.A.Const. Amend. 6.
OPINION
By the Court, Batjer, J.:
Appellants were convicted of murder for their participation in a prison riot which took
place on October 10, 1976, in the Nevada State Prison in Carson City. Taylor and Theriault
were sentenced to death.
1
Ross was sentenced to two consecutive terms of life imprisonment
without possibility of parole. We reverse the convictions and remand the case because
appellants were denied the assistance of counsel at their trial.
The record demonstrates that appellants validly waived their right to representation by
counsel, invoked their constitutional right to represent themselves, and proceeded to litigate
pretrial writs and motions in propria persona. Faretta v. California,
____________________

1
The trial court properly ruled that the present bifurcated procedure for imposing the death penalty, NRS
200.030 et seq., was applicable to appellants Taylor and Theriault. Although the offenses were committed 422
U.in 1976, when the provisions of the capital murder statute were in force, 1973 Nev. Stats. ch. 798 5, the trial
was held after the bifurcated procedure was in force, 1977 Nev. Stats. ch. 585 1-4. The change from a
mandatory death penalty to the sentencing hearing was a procedural and ameliorative one, see Dobbert v.
Florida, 432 U.S. 282 (1977), and employing the procedure in effect at the time of the trial was proper.
97 Nev. 40, 42 (1981) Ross v. State
422 U.S. 806 (1975); Nev. Const. art. 1 8. The record also shows, however, that a month
before the date set for trial, the appellants retracted their waivers of the right to counsel, and
requested that counsel be appointed to represent them at trial. We need not decide at what
point the district court would have discretion to refuse to appoint counsel when a defendant
seeks to terminate his propria persona status. See State v. MacKinnon, 41 Nev. 182, 168 P.
330 (1917) (request for counsel when case called for trial). We hold that under the
circumstances of this case, when the defendants requested that counsel be appointed to
represent them a month before the scheduled trial date, the district court had no discretion to
refuse appointment of counsel. See Gideon v. Wainwright, 372 U.S. 335 (1963); State v.
DeLuna, 520 P.2d 1121 (Ariz. 1974); Ferrel v. Superior Ct. of L.A. County, 576 P.2d 93, 95
n. 5 (Cal. 1978); see also Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). We are
therefore constrained to reverse these convictions and remand to the district court for a new
trial.
In view of our disposition of the case, other errors assigned by appellants need not be
considered. The judgments of conviction are reversed and the case is remanded to the district
court for a new trial.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
97 Nev. 42, 42 (1981) Nee v. L. C. Smith, Inc.
TERRI NEE, Appellant, v. L. C. SMITH, INC., a
Nevada Corporation, Respondent.
FREDERICK C. BERGER, STEWART S. SEGAL, MARGARET SEGAL, JOHN ROBERT
WILLIAMS and FAE CLAUDETTE WILLIAMS, STEWART TITLE INSURANCE OF
NEVADA, a Nevada Corporation, Respondents and Cross-Appellants, v. TERRI NEE,
Cross-Respondent.
No. 10956
February 23, 1981 624 P.2d 4
Appeal and cross-appeal from amended judgment in action for declaratory relief and
judicial foreclosure, Eighth Judicial District Court, Clark County, Joseph S. Pavlikowski,
Judge.
Appeal and cross-appeal was taken in action for declaratory relief and judicial foreclosure
of agreement alleged to be mortgage from amended judgment entered by the district court
which declared agreement between appellant lender and respondent developer to be
valid mortgage, determined note secured by mortgage to be usurious, and permitted
appellant to foreclose against three properties secured by mortgage.
which declared agreement between appellant lender and respondent developer to be valid
mortgage, determined note secured by mortgage to be usurious, and permitted appellant to
foreclose against three properties secured by mortgage. The Supreme Court, Gunderson, C. J.,
held that: (1) finding that note secured by mortgage was usurious was reversible error in view
of fact that usury defense was not raised by party to usurious transaction or his privy, and (2)
agreement between appellant lender and respondent developer unambiguously indicated
parties' intention to create mortgage.
Affirmed in part, reversed in part.
Snyder & Meyers, Las Vegas, for Appellant and Cross-Respondent Nee.
Deaner, Deaner & Reynolds, Las Vegas, for Respondents and Cross-Appellants.
1. Usury.
Usury is personal defense and may be asserted only by party to usurious transaction or his privy.
2. Appeal and Error; Usury.
Finding that note given to lender by developer was usurious constituted reversible error in view of fact
that usury defense was not raised by developer or developer's privy.
3. Mortgages.
Mortgage is usually considered to be nominal conveyance, held in abeyance, of certain property as
security for payment of certain debt.
4. Mortgages.
If parties intend to create mortgage, no particular form of instrument or words is necessary to create
equitable mortgage.
5. Mortgages.
Agreement between lender and developer which stated that developer mortgaged real property legally
described in agreement as security for obligations of developer to lender, unambiguously indicated
intention of lender and developer to create mortgage.
OPINION
By the Court, Gunderson, C. J.:
This appeal and cross-appeal arise from an action seeking a declaratory judgment and
foreclosure of an agreement alleged to be a mortgage. In this matter the district court (1)
declared an agreement between appellant Nee and respondent L. C. Smith, Inc. to be a valid
mortgage, (2) determined the note secured by the mortgage to be usurious, and, {3)
permitted appellant Nee to foreclose against three properties secured by the mortgage
which respondent L. C. Smith, Inc., had sold without obtaining releases.
secured by the mortgage to be usurious, and, (3) permitted appellant Nee to foreclose against
three properties secured by the mortgage which respondent L. C. Smith, Inc., had sold
without obtaining releases.
Appellant Nee contends the trial court erred in determining that the original note was
usurious, and that consequently she was entitled to only a $35,000.00 judgment.
Cross-appellants Frederick Berger, Stewart S. Segal, Margaret Segal, John Robert Williams,
and Fae Claudette Williams are the individuals who purchased lots from respondent L. C.
Smith, Inc., without releases. Cross-appellant Stewart Title Insurance Company of Nevada
served as an escrow agent in these land sales. These cross-appellants, defendants below,
contend the trial court erred in declaring the agreement in question to be a mortgage, and in
permitting foreclosure on the properties referred to therein.
There is little dispute as to the facts. It appears appellant Nee loaned respondent L. C.
Smith, Inc., $40,000.00 on January 22, 1973, upon the representation that the money would
be used as a down payment for land and as seed money for a project to be known as Sunrise
Mountain Executive Village. Respondent L. C. Smith, Inc., then gave appellant an unsecured
note in the sum of $60,000.00, payable in six months. On April 6, dominion Mortgage
Company loaned said respondent sums of money secured by a deed of trust for the further
development of the project. On April 12, Dominion Mortgage assigned its note and security
to Valley Bank of Nevada.
By August, appellant Nee had been repaid only $5,000.00. Hence, on November 20,
appellant Nee recorded a claim of lien against the project. On November 30, the parties
executed an agreement whereby respondent L. C. Smith, Inc., mortgaged the real property
which is the subject matter of this litigation to secure the remaining $55,000.00 indebtedness.
A copy of this document was served on cross-appellant Stewart Title on December 3, and
recorded with the County Recorder on December 24.
1
Stewart Title acknowledged appellant
Nee as mortgagee, and the November 30 agreement as an Agreement Mortgage, in
documents introduced in evidence at the trial below.
Important provisions in this agreement for purposes of this appeal include the following:
WHEREAS, Nee has heretofore loaned to Smith the sum of $40,000.00, which loan has not
been paid as of its due date, and is now past due; and
____________________

1
Defendant's Exhibit D, a copy of the agreement, indicates that the agreement was first recorded as No.
343592 in book 384 on November 30, 1973. However, the trial court in its findings of fact and conclusions of
law cited a December 24, 1973 re-recording of the document as being its official date of recordation.
WHEREAS, Nee has heretofore loaned to Smith the sum of $40,000.00, which loan
has not been paid as of its due date, and is now past due; and
WHEREAS, an unsecured note for the said loan was previously executed by Smith
to Nee; and
WHEREAS, Smith is willing to pay to Nee the total sum of $55,000.00; and
WHEREAS, Smith is obligated to pay to Dominion Mortgage Co. 100% of the sales
proceeds from the first ten (10) closings of escrows on sales of said residences in the
subdivision hereafter described, and 97 1/2% of the sales proceeds on the subsequent
closings of escrows on sales of said residences until Smith's obligation to Dominion
Mortgage Co. is satisfied; and
WHEREAS, Smith because of the foregoing is willing to secure the obligation on
the basis as is hereinafter provided,
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein contained, and Nee's agreement to release the lien as hereafter
provided and forbear from filing suit on the existing obligation, it is hereby agreed as
follows:
1. Smith shall, on or before December 1, 1974, pay to Nee the sum of $55,000.00.
2. Nee shall accept said $55,000.00 as full payment and satisfaction of all monies
and sums and debts owing to Nee by Smith save and except for real estate commissions
due and to become due from Smith to Nee.
3. Upon execution of this Agreement by the parties hereto, Nee shall execute a
RELEASE OF LIEN of that certain NOTICE OF CLAIM OF LIEN filed by Nee in the
County Recorder's Office on November 20, 1973 as Instrument No. 341014, in Book
382 of the Clark County Recorder's Office.
4. Smith owns the following real property in the County of Clark, State of Nevada,
presently being developed by Smith as a residential subdivision, the proceeds of the
referred to loan herein having been used in the development of said real property:
Lots One (1) through Sixteen (16), inclusive in Block One (1); Lots One (1)
through Nine (9) inclusive in Block Two (2); Lots One (1) through Eight (8)
inclusive in Block Three (3) and Lot (A), all being in SUNRISE MOUNTAIN
EXECUTIVE VILLAGE, as shown by map thereof on file in Book 15 of Plats,
Page 69, in the Office of the County Recorder of Clark County, Nevada.
Page 69, in the Office of the County Recorder of Clark County, Nevada.
5. Smith hereby mortgages as security for the obligations of Smith to Nee under this
Agreement the real property legally described in paragraph 4 above, with the express
understanding, however, that this Agreement and security shall be subordinate to the
existing note, deed of trust and all indebtedness due by Smith to Dominion Mortgage
Co., who holds a first deed of trust against said real property. Smith shall pay the
obligation to Nee as follows: Commencing with the twenty-ninth closing of escrow on
the sale of residences in the subdivision legally described above, escrow shall cause to
be paid to Nee, on each closing, the sum of $10,500.00, which payment in said amount
shall continue through the thirty-third closing of escrow on the above described real
property. Smith represents that other than one closing handled by Title Insurance and
Trust Company, all other escrows have been and will be handled by Stewart Title
Guaranty Company, and accordingly, a copy of this Agreement will be deposited with
Stewart Title Guaranty Company and upon delivery thereof Stewart Title Guaranty
Company will be deemed to have been instructed by Smith to disburse the proceeds as
in this paragraph provided.
Respondent L. C. Smith, Inc., breached its obligation to Valley Bank, and on February 15,
1974, Valley Bank recorded a notice of breach and election to sell. On November 11, 1974,
Valley Bank foreclosed on the unsold lots. After recordation of the November 30, 1973
Agreement Mortgage, but before the foreclosure by Valley Bank, respondent L. C. Smith,
Inc., conveyed several lots to purchasers, no one of whom received releases from appellant
Nee. Appellant Nee then brought the action below to have her agreement with respondent L.
C. Smith, Inc., declared to be a mortgage, and to obtain a judgment permitting her to
foreclose on lots sold to the individual cross-appellants.
In its amended conclusions of law, the trial court determined that (1) the agreement
recorded on December 24, 1973 is a valid mortgage; (2) respondent L. C. Smith, Inc., is in
default in its obligations under the mortgage agreement, to pay appellant Nee $35,000; (3)
said respondent's $60,000.00 note to appellant Nee is usurious on its face and, therefore, she
can recover no interest thereunder; (4) the $5,000.00 paid by respondent should be credited
against the unpaid principal of $40,000.00; and {5) appellant Nee is entitled to foreclose
against three of the properties sold by respondent L. C. Smith, Inc., between December
24, 1973 and November 11, 1974 {the date of Valley Bank's foreclosure sale).
I
Appellant's Assignment of Error
and (5) appellant Nee is entitled to foreclose against three of the properties sold by respondent
L. C. Smith, Inc., between December 24, 1973 and November 11, 1974 (the date of Valley
Bank's foreclosure sale).
I
Appellant's Assignment of Error
Appellant Nee contends the court erred by giving credence to the assertion that the original
note given to her by L. C. Smith, Inc., was usurious. We agree.
[Headnote 1]
Usury is a personal defense and may be asserted only by a party to the usurious transaction
or his privy. Langson v. Nevada Savings & Loan, 93 Nev. 24, 25, 559 P.2d 396 (1977).
Hence, a trial court's recognition of a usury defense raised by a nonparty, or nonprivy of a
party, constitutes reversible error.
[Headnote 2]
In the instant matter, appellant Nee and L. C. Smith, Inc., were the only parties to the
alleged usurious transaction. L. C. Smith, Inc., did not raise the defense of usury in its answer
to the complaint filed by appellant Nee. Nor did L. C. Smith, Inc., appear at trial to defend
against the claims made concerning it.
In the instant matter, the issue of usury was raised as a counterclaim by the
cross-appellants, i.e., purchasers of lots, and by title insurance companies and financial
institutions involved in the sales transactions. None of these was a privy of L. C. Smith, Inc.,
as to any claim of usury the latter might have raised against appellant Nee. It was therefore
error for the trial court to consider this issue. See Langson, supra.
II
Cross-Appellants' Assignment of Error
Cross-appellants contend that the agreement executed between L. C. Smith, Inc., and Mrs.
Nee was not a mortgagee but an assignment of funds. Alternatively, cross-appellants argue
that, if the agreement was a mortgage, by its terms Mrs. Nee assigned away her interest in all
property which is the subject matter of the instant litigation. In making these arguments,
cross-appellants contend that the language of the agreement itself compels the conclusions
they proffer.
[Headnotes 3, 4]
A mortgage is usually considered to be a nominal conveyance, held in abeyance, of certain
property as a security for the payment of a certain debt.2 Henry v. Confidence Mining Co.,
the payment of a certain debt.
2
Henry v. Confidence Mining Co., 1 Nev. 619, 622 (1866). If
the parties intend to create a mortgage, no particular form of instrument or words is necessary
to create an equitable mortgage. Flyge v. Flynn, 63 Nev. 201, 224, 166 P.2d 539 (1946).
[Headnote 5]
By its terms, the agreement unambiguously indicates the parties' intent to create a
mortgage.
3
The trial court, therefore, did not err in concluding that Mrs. Nee could foreclose
on the properties of the cross-appellants which are covered by the mortgage.
Accordingly, that part of the judgment which decrees the original note to appellant Nee to
be usurious, and that consequently appellant Nee is entitled only to $35,000.00 rather than to
$55,000.00, is hereby reversed. The trial court is instructed to enter judgment against L. C.
Smith, Inc., in the amount of $55,000.00, together with costs of $231.00. In all other respects,
the judgment of the trial court is affirmed.
Manoukian, Batjer, and Mowbray, JJ., and Fondi, D. J.,
4
concur.
____________________

2
By NRS 40.050, A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as
to enable the owner of the mortgage to take possession of the real property without a foreclosure and sale.

3
Paragraph 5 of the agreement says, Smith hereby mortgages as security for the obligations of Smith to Nee
under this Agreement the real property legally described in paragraph 4 above [the property described in 4
includes the lots of the cross-appellants which the court determined were encumbered by the mortgage and
subject to foreclosure], with the express understanding, however, that this Agreement and security shall be
subordinate to the existing note, deed of trust and all indebtedness due by Smith to Dominion Mortgage Co.,
who holds a first deed of trust against said real property.

4
The Governor designated The Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit
in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.
____________
97 Nev. 49, 49 (1981) Old Aztec Mine, Inc. v. Brown
OLD AZTEC MINE, INC., Appellant, v. CAROLINE
E. BROWN, Respondent.
No. 11743
February 23, 1981 623 P.2d 981
Appeal from judgment of the Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Vendor brought action for declaratory judgment as to purchaser's default, to quiet title on
some mining claims and obtain damages for alleged breach of contract, and purchaser
counterclaimed for interference in contractual relationships and with prospective economic
advantage. The district court declared that purchaser was in default, quieted title in favor of
vendor and rendered no explicit decision on purchaser's counterclaim, and purchaser
appealed. The Supreme Court held that: (1) oral notice of default given to purchaser was not
inadequate since notice was not termination of agreement; (2) parties' agreement designed to
convey certain mining claims to purchaser was not an installment sale or land sale contract
requiring vendor to comply with statutory requirements of foreclosure; and (3) purchaser
waived alleged error of trial court in not ruling on its counterclaim.
Affirmed.
Embry & Shaner, Las Vegas, for Appellant.
George E. Franklin, Las Vegas, for Respondent.
1. Mines and Minerals.
Oral notice to purchaser by vendor's attorney that it was in default of terms of agreement concerning
patented and unpatented mining claims was not invalid under provisions of agreement requiring that notice
be personally served or mailed by registered or certified mail since notice did not terminate the agreement,
but only stated that contract became nullity if purchaser failed to cure defects within allowed time after
notification.
2. Mines and Minerals.
Agreement designed to convey certain patented and unpatented mining claims was not an installment sale
or land sale contract requiring vendor to comply with statutory requirements concerning foreclosure of
mortgage or deed of trust since nothing in the parties' agreement indicated that they intended it to be a
security device governed by the statutory requirements. NRS 40.005 et seq., 107.020 et seq.
3. Contracts.
A court has no power to create a new contract for the parties which they have not created or intended
themselves.
Since appellant neglected to raise before trial court that a decision on its counterclaim needed to be made,
and since issue did not concern jurisdiction of trial court, appellant waived asserted error of trial court in
not ruling on its counterclaim.
A point not urged in the trial court, unless it goes to jurisdiction of that court, is deemed to have been
waived and will not be considered on appeal.
OPINION
Per Curiam:
This is an appeal from a judgment in an action brought for a declaratory judgment, to quiet
title on some mining claims, and to obtain damages for an alleged breach of contract. Ms.
Caroline E. Brown was the plaintiff below. Appellant Old Aztec Mine, Inc. (hereafter Old
Aztec) was the defendant below.
Ms. Brown brought the action on July 14, 1976 seeking (1) a declaration that Old Aztec
was in default of the terms of an agreement designed to convey certain patented and
unpatented mining claims in Clark County, (2) to quiet title on the mining claims involved in
the agreement and to restore possession of said properties to her, and, (3) to obtain money
allegedly owed to her under the terms of the agreement. Old Aztec counterclaimed alleging
interference by the plaintiff with its contractual relationships and with its prospective
economic advantage and perhaps hinting that the plaintiff had committed a forcible detainer
of the subject property.
1

At the close of a non-jury trial the district court found,
. . . that adequate notice of default was given, the defendant was in default, that default
was not cured and as a result the contract became null and void by its own terms.
Therefore, the title to the property rests with the plaintiff as well as all monies paid
to her as set forth in the contract, and Defendant Old Aztec Mine, Inc., no longer has
any right, title or interest in the subject properties.
The court also concluded that no additional monies were owed to Ms.
____________________

1
The defendant's allegation in this regard is found in paragraph IV of its counterclaim. That
Counter-Defendant has interfered with the mining operations of Defendant and has prevented it from fully
operating the mine thereby causing a loss of profits in excess of $10,000.00.
to Ms. Brown under Section II of the agreement.
2
The district court rendered no explicit
decision on the defendant's counterclaim nor did it set forth any findings of fact or
conclusions of law concerning the counterclaim.
Appellant contends that the trial court erred, (1) by ruling that an oral notice of default
given by Ms. Brown to Old Aztec constituted an adequate notice of default under the parties'
agreement, (2) by failing to hold that the land sales contract, executed by the parties herein,
was actually a mortgage subject to the provisions of NRS Chapters 40 and 107, and, (3) by
failing either to rule at all on Old Aztec's counterclaim or, if it can be deemed to have
rendered a judgment on the counterclaim, by failing to rule in favor of Old Aztec. In all
respects we affirm the district court.
[Headnote 1]
1. The appellant contended at trial that XI and XVI of the agreement
3
required that
written notice of default be given, and that the oral notice of default given by Ms. Brown's
attorney on or about 3/15/76 was inadequate. In substance Old Aztec's argument was . . . that
a notice of default is a termination of the agreement and could not be accomplished orally.
The trial court found on this point, however, that,
[t]he notice of default did not terminate the contract. In this case the contract
becomes null and void by its own terms as set forth in Section XVIII of the agreement.
That section, entitled Default, reads as follows: Time is of the essence to this
agreement, and if Buyer (defendant) should fail, neglect or refuse to abide by any of the
terms or conditions hereof for a period of sixty (60) days after notice of default, this
agreement will be considered null and void. . . ."
____________________

2
Section II, Purchase Price, provides that, The purchase price, which shall be paid by Buyer to Seller, shall
be Two Hundred Thousand ($200,000.00) Dollars, payable as follows:
Seller shall receive, as and for payments on said purchase price, one-quarter (1/4) of the proceeds of gross
profits of the material mined and sold by Buyer on said property. All payments to Seller shall be made to escrow
as hereinafter provided. After taking possession of said property, Buyer shall make accountings to Seller within
ten (10) days after receipt of sales proceeds of each shipment.

3
In pertinent part, part XI provides, Any notice, report or demand required or permitted by any provision
of this Agreement shall be deemed to have been personally given or served for all purposes if it is personally
served or if mailed by registered or certified mail, . . . (Emphasis added.) Section XVI provides, This
Agreement . . . cannot be changed or terminated orally.
and void. . . . Thus the contract became a nullity by its own provisions when the
defendant failed to cure the defects in his performance within the allowed time after
notification by the plaintiff.
As the trial court also correctly noted, no other pertinent sections of the agreement can be
read to require a writing.
[Headnote 2]
2. The appellant argues that the parties' agreement, entitled Agreement for Purchase of
Mining Claim, was in fact an installment sale or land sale contract. Hence, it contends, . .
. statutory requirements of foreclosure should apply as if the installment land contract were a
mortgage or deed of trust.
4
The court below implicitly rejected this argument by
recognizing the validity of the default provision of the parties' agreement (Section XVIII,
provided in full above) and by concluding that via that provision the contract had become null
and void by its own terms.
[Headnote 3]
Under well-settled rules of contract construction a court has no power to create a new
contract for the parties which they have not created or intended themselves. Club v.
Investment Co., 64 Nev. 312, 323, 182 P.2d 1011 (147); accord Mohr Park Manor, Inc. v.
Mohr, 83 Nev. 107, 112, 424 P.2d 101 (1967); Geo. B. Smith Chemical v. Simon, 92 Nev.
580, 582, 555 P.2d 216 (1976). Nothing in the parties' agreement indicates that they intended
it to be a security device governed by statutory requirements concerning foreclosures.
3. Finally, the appellant argues that the district court erred by not ruling on its forcible
detainer counterclaim.
[Headnotes 4, 5]
A point not urged in the trial court, unless it goes to the jurisdiction of that court, is
deemed to have been waived and will not be considered on appeal. Britz v. Consolidated
Casinos Corp., 87 Nev. 441, 447, 488 P.2d 911 (1971); Harper v. Lichtenberger, 59 Nev. 495,
92 P.2d 719 (1939). It was incumbent upon the appellant to direct the trial court's attention to
its asserted omission to mention the counterclaim expressly in its judgment. For example, the
appellant could have moved the district court for amended judgment which would have
included an explicit ruling on its counterclaim. NRCP 52(b). Because the appellant neglected
to raise the issue that a decision on its counterclaim needed to be made, and because this
issue does not concern the jurisdiction of the trial court we will not consider that issue on
appeal.
____________________

4
Specifically, the appellant argues that Ms. Brown should have had to comply with the requirements of NRS
107.080 and 107.090 or 40.430, et seq., in order to obtain a remedy against it.
on its counterclaim needed to be made, and because this issue does not concern the
jurisdiction of the trial court we will not consider that issue on appeal. Britz, cited above.
The judgment below is affirmed.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Fondi, D. J.,
5
concur.
____________________

5
The Governor designated the Hon. Michael E. Fondi, Judge of the First Judicial District Court, to sit in the
place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.
____________
97 Nev. 53, 53 (1981) Andolino v. State of Nevada
SAM and MARIE ANDOLINO, Appellants, v. THE STATE OF NEVADA; NEVADA
HIGHWAY PATROL; DEPARTMENT OF HIGHWAYS; THE METROPOLITAN POLICE
DEPARTMENT; THE CITY OF LAS VEGAS; THE COUNTY OF CLARK, et al.,
Respondents.
No. 12086
February 23, 1981 624 P.2d 7
Appeal from summary judgment, Eighth Judicial District Court, Clark County, Robert G.
Legakes, Judge.
Injured motorists brought action for negligence in clearing freeway ramp of ice and snow.
The district court entered summary judgment in favor of all defendants, and motorists
appealed. The Supreme Court held that: (1) State and Department of Highways, which owed
affirmative duty to maintain highways and keep them reasonably safe for traveling public and
which made operational decision regarding areas of freeway to plow, could not claim
immunity from suit for negligent performance; thus, whether or not State or Department of
Highways acted negligently was a question of fact, precluding summary judgment in their
favor, but (2) highway patrol, police department, city, and county, which owed no duty to
maintain the highway, were immune from suit.
Affirmed in part and reversed in part.
Paul H. Schofield, Las Vegas, for Appellants.
Richard H. Byran, Attorney General, Joe E. Colvin, Deputy Attorney General, Carson
City; Michael Kaplan, Deputy Attorney General, Las Vegas; Charles H. Wagner, Las Vegas,
for Respondents.
1. Automobiles.
State owes affirmative duty to keep highways reasonably safe for traveling public.
2. States.
State of Nevada may be sued for operational acts, but maintains sovereign immunity for policy or
discretionary ones. NRS 41.032, subd. 2.
3. Automobiles.
State's initial decision to construct a highway is a policy determination, as to which the state enjoys
sovereign immunity, but its subsequent decisions or actions to maintain the highway safely are operational
ones, as to which the state has no sovereign immunity. NRS 41.032, subd. 2.
4. Automobiles.
Since decision regarding which areas of freeway to plow after snowstorm was an operational decision and
not a policy or discretionary decision, State and Department of Highways could not claim immunity from
suit for negligent performance in clearing highway. NRS 41.031, 41.032, subd. 2.
5. Judgment.
In action for negligence in clearing highway of snow and ice, whether or not State and Department of
Highways acted negligently was question of fact precluding summary judgment in their favor.
6. Automobiles.
When duty to maintain highways is placed upon one governmental agency, any action by another agency
to assume voluntarily the burden of maintenance is discretionary and therefore precludes liability for
negligence. NRS 41.032, subd. 2.
7. Automobiles.
Where highway patrol, city police department, city, and county owed no duty to maintain highway, their
action in assuming voluntarily the burden of maintenance was discretionary and injured motorists could not
recover from them for injuries sustained in accident on exit ramp which was covered with snow and ice.
NRS 41.032, subd. 2.
OPINION
Per Curiam:
Appellants Sam and Marie Andolino sued the State of Nevada, the Department of
Highways, the Nevada Highway Patrol, the Metropolitan Police Department, the City of Las
Vegas, and Clark County for negligence. The district court granted motions for summary
judgment in favor of all defendants on the ground that they were immune from suit for their
discretionary acts. NRS 41.032(2). We reverse with respect to the state and the highway
department, and affirm with respect to the other defendants.
In January, 1974, a record snow storm swept the Las Vegas metropolitan area creating
hazardous road conditions. Road crews were dispatched to plow the highway and aid local
authorities in handling traffic congestion.
authorities in handling traffic congestion. The majority of Interstate 15, the main north-south
freeway through Las Vegas, was open to travelers. However, the offramp leading to
downtown Las Vegas was covered with snow and ice. Plaintiffs were injured when their car
entered the offramp, spun out of control, and collided with a guardrail.
[Headnotes 1-5]
The state owes an affirmative duty to keep the highways reasonably safe for the traveling
public. State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976). At the time of the alleged accident,
the duty to maintain the highways fell upon the Department of Highways pursuant to NRS
481.027.
1
The doctrine of sovereign immunity does not bar plaintiff's claim that the state and
the highway department acted negligently in maintaining the highway. The State of Nevada
has waived its sovereign immunity by the enactment of NRS 41.031.
2
It may be sued for
operational acts, but maintains immunity for policy or discretionary ones, NRS.032(2).
3
We
have held that the initial decision to construct a highway is a policy determination, but
subsequent decisions or actions to maintain that highway safely are operational ones. State v.
Webster, 88 Nev. 690, 504 P.2d 1316 (1972). The decision regarding which areas of the
freeway to plow was an operational one. Id. The state cannot claim immunity for the
negligent performance of operational acts, NRS 41.032(2). Whether or not these defendants
acted negligently is a question of fact. See Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d
94 (1970).
4
Summary judgment in favor of the State of Nevada and the Department of
Highways was improper.
[Headnotes 6, 7]
By contrast, the Nevada Highway Patrol, Metro Police Department, City of Las Vegas, and
County of Clark owed no duty to maintain the highway. NRS 481.027. When the duty to
maintain is placed upon one governmental agency, any action by another agency to assume
voluntarily the burden of maintenance is discretionary and therefore precludes liability.
____________________

1
NRS 481.027 prior to its amendment provided: It is intended by this section that the Department of
Highways shall retain its control over the physical aspects of the public highways.

2
NRS 41.031 provides: The State of Nevada hereby waives its immunity from liability and action and
hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil
actions against natural persons . . .

3
NRS 41.032(2) provides: No action may be brought . . . which is based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty . . .

4
We express no opinion as to whether or not the alleged acts constitute negligence.
by another agency to assume voluntarily the burden of maintenance is discretionary and
therefore precludes liability. NRS 41.032(2); LaFever v. City Sparks, 88 Nev. 282, 496 P.2d
750 (1972). Thus with respect to these defendants, summary judgment was proper.
We affirm summary judgment with respect to the Nevada Highway Patrol, Metropolitan
Police Department, City of Las Vegas, and County of Clark. Because the decision regarding
which areas of the freeway to plow was an operational one, the doctrine of sovereign
immunity does not bar suit with respect to the State of Nevada and the Department of
Highways. The order granting summary judgment in favor of these parties is therefore
reversed, and the case is remanded for further proceedings.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Fondi, D. J.,
5
concur.
____________________

5
The Governor designated The Honorable Michael E. Fondi, District Judge, to sit in the place of The
Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 56, 56 (1981) NCAA v. University of Nevada
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and WEST COAST ATHLETIC
CONFERENCE, Appellants, v. UNIVERSITY OF NEVADA, RENO, and EDGAR JONES,
Respondents.
No. 12303
February 24, 1981 624 P.2d 10
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Member of university's basketball team brought an action challenging university's action in
declaring him ineligible to compete, and athletic associations intervened as defendants. The
district court dismissed the action on the ground that member's claims for relief had become
moot, and athletic associations appealed. The Supreme Court held that the controversy was
moot where member had played out his athletic eligibility and had graduated from university,
in that the controversy was not likely to often recur where the result avoided review or trial on
the merits.
Affirmed.
Swanson, Midgley, Gangwere, Thurlo and Clarke, and James H. McClarney, Kansas City;
and Wiener, Goldwater & Waldman, Las Vegas, for Appellants.
Larry D. Lessley, Reno; and Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno,
for Respondents.
1. Action.
Duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into
effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles of
law which cannot affect the matter in issue before it.
2. Action.
Controversy over which athletic eligibility of a member of university's basketball team was moot where
member had played out his athletic eligibility and had graduated from university, in that the controversy
was not likely to often recur where the result avoided review or trial on the merits.
OPINION
Per Curiam:
Pursuant to directions from the appellant National Collegiate Athletic Association's
Committee on Infractions, the respondent University of Nevada declared respondent Edgar
Jones ineligible to compete in intercollegiate athletics. Consequently, in October of 1976,
respondent Jones commenced an action challenging the University's action and, following a
hearing, the court below entered a preliminary injunction in Jones' favor. Pending trial,
pursuant to the injunction, Jones continued to play basketball as a member of the University's
varsity team.
Several months after respondent Jones commenced his action, the appellant NCAA and
appellant West Coast Athletic Conference sought and obtained leave to intervene as
defendants; however, neither appellant alleged any counter-claims or cross-claims. By the
time the case was brought on for trial, in August of 1979, respondent Jones had played out his
athletic eligibility and had graduated from the University. Accordingly, based on these
intervening events, the district court determined that Jones' two claims for relief had become
moot. Rather than proceeding to trial, the court therefore dismissed the action. This appeal
follows.
[Headnote 1]
1. Of course, the duty of every judicial tribunal is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principles of law which cannot affect the matter in issue
before it. Miller v. West, 88 Nev. 105, 110, 493 P.2d 1332 (1972); Morrow v. Morrow, 62
Nev. 492, 497, 156 P.2d S27 {1945); City of Reno v.
Nev. 492, 497, 156 P.2d 827 (1945); City of Reno v. District Court, 58 Nev. 325, 328, 78
P.2d 101 (1938).
This court has frequently refused to determine questions presented in purely moot cases.
See, e.g., Pac. L. Co. v. Mason Val. M. Co., 39 Nev. 105, 153 P.431 (1915). Cases presenting
real controversies at the time of their institution may become moot by the happening of
subsequent events. Wedekind v. Bell, 26 Nev. 395, 413-15, 69 P. 612 (1902); Pac. L. Co.,
cited above. A moot case is one which seeks to determine an abstract question which does not
rest upon existing facts or rights. Id.
[Headnote 2]
2. Appellants contend that the instant matter is not moot because its fact situation is one
capable of repetition, yet evading review.
1
The district court determined, however, and we
concur that the present controversy is not likely to often recur where the result avoids review
or trial on the merits.
Other assigned errors need not be considered.
Affirmed.
2
concur.
____________________

1
This court has not explicitly recognized a capable of repetition, yet evading review exception to our
mootness doctrine. But see Cirac v. Lander, 95 Nev. 723, 734, 602 P.2d 1012 (1979)

2
sit in the place of The Honorable Gordon Thompson, who was disqualified. Nev. Const., art. 6, 4.
____________
97 Nev. 58, 58 (1981) Morrison v. Rayen Investments, Inc.
WILLIAM L. MORRISON, RONALD B. DALE and EDWARD F. KILLIAN, Appellants, v.
RAYEN INVESTMENTS, INC., a California Corporation, Respondent.
No. 12166
February 25, 1981 624 P.2d 11
Appeal from judgment of the Second Judicial District Court, Washoe County, William N.
Forman, Judge.
Suit was brought arising out of alleged agreement to purchase land. The district court
rendered judgment for defendant, and plaintiffs appealed. The Supreme Court, Gunderson, C.
J., held that land purchase contract never came into being, where telegram containing alleged
acceptance was not sent within time limits specified in document claimed to be an offer, and,
treating telegram as counteroffer, none of the events subsequent to telegram served to
create any legal relationship between the parties.
and, treating telegram as counteroffer, none of the events subsequent to telegram served to
create any legal relationship between the parties.
Affirmed.
Corn & Hardesty, Reno, for Appellants.
Fitzgibbons & Beatty, Las Vegas, for Respondent.
Land purchase contract never came into being, where telegram containing alleged acceptance was not
sent within time limits specified in document claimed to be an offer, and, treating telegram as counteroffer,
none of the events subsequent to telegram served to create any legal relationship between the parties.
2. Contracts.
If offer specifies time for acceptance, power to create contract by acceptance terminates at that time; if no
time is specified, power to create contract by acceptance of offer terminates at end of a reasonable time.
3. Contracts.
Where offer has expired by lapse of time, attempt to accept is ineffectual to create contract.
4. Contracts.
Acceptance which is late or defective constitutes counteroffer which must in turn be accepted by original
offeror to create contract.
OPINION
On June 23, 1976 appellants executed a document which expressed appellants' desire to
purchase land owned by respondent. The document recited [t]hat this deposit is taken [by the
seller's real estate agent] subject to the approval of the Seller and said agent is irrevocably
granted-15-days from date to obtain acceptance of this offer. It further specified that the
seller's agent might extend time limits for performance of any act required by the document .
. . except for the time for acceptance by Seller and possession date. (emphasis added.)
On July 9, sixteen days later, respondent's president sent a telegram which appellants
contend constituted an acceptance. Respondent contends that the telegram, read with the
document originally executed by appellants, did not define the parties' intent sufficiently to
warrant specific performance. We need not, however, address this issue or several others
which the trial court decided in respondent's favor.
[Headnotes 1-4]
The telegram containing appellants' alleged acceptance was not sent within the time limits
specified in the document which appellants claim was an offer. It is a settled principle of
contract law that, the power to create a contract by acceptance of an offer terminates at the
time specified in the offer, or, if no time is specified, at the end of a reasonable time.
Restatement of the Law of Contracts, 40(1). Thus, where an offer has expired by lapse of
time, an attempt to accept is ineffectual to create a contract. See, e.g. Kurio v. United States,
429 F.Supp. 42, 64 (S.D. Tex. 1970). An offeror who receives an acceptance which is too
late or which is otherwise defective, cannot at his election regard it as valid. The late or
defective acceptance is a counteroffer which must in turn be accepted by the original offeror
to create a contract. Restatement of the Law of Contracts, 73; Kurio, cited above.
Appellants contend, however, that if respondent's telegram merely constituted a
counteroffer, then they nonetheless, by their subsequent actions, accepted the counteroffer. In
particular, appellants argue that when respondent's nominal agent, Keller, had escrow
instructions prepared in late July, and thereafter sent the instructions to respondent, Keller
was acting in accord with their wishes and, in effect, was their agent.
In regard to this contention the district court specifically found that, [n]one of the events
subsequent to July 9, 1976 [the date respondent's telegram was sent], served to create any
legal relationship between the parties. In our view, the record does not impel a contrary
finding. Rather, it appears that the evidence presented to the district court may be interpreted
to support either the appellants' contention or the trial court's finding.
1
In such circumstances
this court has stated that, [a]ny conflicts in testimony are to be resolved by the trier of fact.
L. M.
____________________

1
None of the appellants testified at the trial. Moreover, very little testimony either at the trial or in the
deposition of Mr. Keller, which was admitted into evidence, concerned what the appellants and Keller did in
regard to the alleged counteroffer telegram of 7/9/76. Such testimony as exists is presented hereafter:
Testimony from Keller's deposition:
A. My next step was to notify the purchasers that their offer had been accepted and to open an
escrow with Washoe Title.
Q. Did you so notify the purchasers?
A. Yes, I did.
On examination by Mr. Fitzgibbons (the respondent's attorney):
Q. At no time did you, or did you at any time act as agent for the purchasers [appellants]?
A. No, I was working for the sellers.
. . .
Q. . . . the actions you took were exclusively on behalf of Rayen investments?
A. Yes.
[a]ny conflicts in testimony are to be resolved by the trier of fact. L. M. Enterprises,
Inc. v. Kenny, 92 Nev. 653, 556 P.2d 547 (1976). Furthermore, where a trial court,
sitting without a jury, makes a determination predicated upon conflicting evidence, that
determination will not be disturbed on appeal where supported by substantial evidence.
J & J Bldg. Contractors, Inc. v. Savage Constr., Inc., 92 Nev. 590, 555 P.2d 488 (1976).
Dickstein v. Williams, 93 Nev. 605, 608, 571 P.2d 1169 (1977).
The trial court's determination that no acceptance of a counteroffer occurred is supported
by the evidence. Consequently, the judgment reached below will not be disturbed on appeal.
Affirmed.
Mowbray, Manoukian, Batjer, JJ., and McDaniel, D. J.,
2
concur.
____________________
Keller's testimony at trial:
I notified the buyers that there had been an acceptance, and then I opened up an escrow.
I believe I only made one copy, and gave it [a copy of the 7/9/76 telegram] to Morrison and Dale
[two of the appellants].
On the basis of this testimony it was reasonable for the trial court to find, contrary to the appellants'
contention, (1) that Keller was not their agent, (2) that he did not open the escrow on their behalf, (3) that
he opened the escrow in the belief that he was furthering the contract which he mistakenly thought was
created by the 7/9/76 telegram, and, (4) that, therefore, the appellants never, in the period post-7/9/76,
technically or consciously expressed an assent to the terms of the counteroffer which Rayen had made to
them by its belated telegram. Restatement of the Law of Contracts, 52.

2
The Governor designated The Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District Court,
to sit in the place of The Honorable Gordon Thompson, Nev. Const., art. 6, 4.
____________
97 Nev. 61, 61 (1981) Sheriff v. Fernandez
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
MANUEL FERNANDEZ, Respondent.
No. 12912
February 25, 1981 624 P.2d 13
Appeal from order granting petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Defendant petitioned for writ of habeas corpus after indictment charged him with
felonious sale of cocaine. The district court granted the petition on basis that there was
insufficient evidence before grand jury to establish probable cause, and sheriff appealed.
court granted the petition on basis that there was insufficient evidence before grand jury to
establish probable cause, and sheriff appealed. The Supreme Court held that: (1) probable
cause existed for a grand jury to indict defendant for felonious sale of cocaine, and (2)
undercover officer's identification of defendant was sufficient to establish that defendant was
bellman who met with seller of cocaine and who received proceeds from sale in hotel parking
lot.
Reversed.
Robert Miller, District Attorney, and John Wawerna, Deputy District Attorney, Clark
County, for Appellant.
Goodman, Oshins, Brown & Singer, and Stephen Stein, Las Vegas, for Respondent.
1. Indictment and Information.
In grand jury proceedings, the state need only show that a crime has been committed and that the accused
probably committed it.
Probable cause to support an indictment may be based on slight or even marginal evidence.
If an inference of criminal agency can be reasonably drawn, it is proper for grand jury to do so.
Probable cause existed for a grand jury to indict defendant for felonious sale of cocaine where testimony
by undercover police officer indicated that defendant was consulted separately by seller before each step of
transaction involving cocaine sale, and actually received proceeds from sale, and where meetings between
actual seller and defendant, one of which took place in defendant's own automobile, supported reasonable
inference that defendant gave seller cocaine for purpose of making delivery and returning cash to
defendant.
5. Criminal Law.
Undercover officer's identification of defendant was sufficient to establish that defendant was bellman
who met with seller of cocaine and received proceeds from sale of drug to undercover officer in hotel
parking lot where, in addition to obtaining license plate of defendant's vehicle and hearing seller identify
defendant by his first name, undercover police officer testified before grand jury that he had dealt with
defendant over a period of time, that he had had other meetings with him and that he was certain defendant
was same man he saw in bellman's uniform.
OPINION
Per Curiam:
An indictment charged Manuel Fernandez with the felonious sale of cocaine, a controlled
substance (NRS 453.321, 453.171). A pretrial petition for writ of habeas corpus was granted
on the basis that there was not sufficient evidence before the grand jury to establish
probable cause to believe that Fernandez committed the offense charged.
basis that there was not sufficient evidence before the grand jury to establish probable cause
to believe that Fernandez committed the offense charged. We disagree.
The bulk of the evidence before the grand jury consisted of testimony from Ralph Orduno,
an undercover narcotics officer with the Las Vegas Metropolitan Police Department. The
substance of Orduno's testimony is as follows. Orduno met one Peter Bella (who was also
named in the indictment) in a restaurant parking lot to further a narcotics purchase. Bella told
Orduno the price for cocaine was $2,000 an ounce, and Orduno asked for a test sample.
According to the testimony, Bella and Orduno then drove to the rear of the Flamingo Capri
Hotel and parked. Bella left Orduno's automobile to get Orduno a sample of cocaine and was
met by a hotel bellman, subsequently identified as Fernandez. Together Bella and Fernandez
walked to the hotel's east parking lot and returned in approximately five minutes. Bella alone
returned to Orduno's vehicle with a sample of cocaine. Officer Orduno tested the cocaine and
told Bella he would purchase an ounce. Bella and Orduno then drove to the hotel's east
parking lot and parked. Bella asked for the money but officer Orduno said he would not pay it
until he first weighed the cocaine. Bella had to confer with his partner so he got out of
Orduno's automobile and walked over to a nearby Lincoln Continental where he was again
joined by Fernandez. Both Bella and Fernandez got into the Lincoln Continental and within a
minute or two Bella returned to officer Orduno's vehicle with a plastic bag of cocaine. Officer
Orduno weighed the bag and gave Bella $2,000. Bella immediately exited Orduno's vehicle
and gave the money to Fernandez, who was standing at the rear of the Lincoln Continental.
Officer Orduno also told the grand jury that he met Fernandez at a restaurant on a subsequent
occasion to buy more cocaine and that Fernandez was the same man he had seen in the
bellman's uniform when he purchased the ounce of cocaine. No purchase was made at this
subsequent meeting but Fernandez later phoned Orduno to set up the details for another
purchase which was consummated.
[Headnotes 1-3]
In grand jury proceedings the State need only show that a crime has been committed and
that the accused probably committed it. Sheriff v. Hodes, 96 Nev. 184, 606 P.2d 178 (1980).
Probable cause to support an indictment may be based on slight or even marginal
evidence. Sheriff v. Hodes, supra; Woodall v. Sheriff, 95 Nev. 218, 591 P.2d 1144 (1979);
Sheriff v. Badillo, 95 Nev. 593, 600 P.2d 221 (1979); Perkins v. Sheriff, 92 Nev. 1S0
Sheriff, 92 Nev. 180, 547 P.2d 312 (1976). If an inference of criminal agency can reasonably
be drawn, it is proper for the grand jury to do so. See Wrenn v. Sheriff, 87 Nev. 85, 482 P.2d
289 (1971); Thedford v. Sheriff, 86 Nev. 741, 476 P.2d 25 (1970). To commit an accused
for trial, the State is not required to negate all inferences which might explain his conduct, but
only to present enough evidence to support a reasonable inference that the accused committed
the offense. Kinsey v. Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971); see also Sheriff
v. Hodes, supra; Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).
[Headnote 4]
Fundamentally, the respondent advances two arguments, both of which we find
unpersuasive. Respondent first argues that his physical presence during the sale of narcotics
by Bella is insufficient to establish probable cause to indict him. In support, respondent cites
a detailed history of Nevada cases so stating. Had the evidence, together with reasonable
inferences, indicated merely that respondent had been present during the sale of the cocaine
and nothing more, there would indeed be no probable cause to indict him. Twigg v. Sheriff,
95 Nev. 112, 590 P.2d 630 (1979); Loucious v. Sheriff, 94 Nev. 98, 575 P.2d 598 (1978);
Salazar v. Sheriff, 94 Nev. 287, 579 P.2d 767 (1978); Rhodes v. Sheriff, 93 Nev. 526, 569
P.2d 405 (1977); Palombo v. Sheriff, 93 Nev. 492, 568 P.2d 580 (1977); Egan v. Sheriff, 88
Nev. 611, 503 P.2d 16 (1972). However, the testimony before the grand jury indicated that
the respondent was consulted separately by Bella before each step of the transaction and,
most significantly, that the respondent received the proceeds from the sale. Further, the
meetings between Bella and respondent, one taking place in respondent's own automobile,
support the reasonable inference that respondent gave Bella the cocaine for the purpose of
making delivery and returning cash to respondent. In such circumstances ample probable
cause exists to indict the respondent.
[Headnote 5]
Respondent also complains that officer Orduno's identification of him, inasmuch as it was
based on the license plate of respondent's vehicle and Bella's statement, I'll see you later,
Manny, was insufficient to establish that respondent was the bellman who met with Bella in
the hotel parking lot. This contention ignores the fact that officer Orduno dealt with the
respondent over a period of time and had other meetings with him. One such meeting, on
November 9, 1977, was described in detail by officer Orduno for the grand jury. Orduno
stated that he was certain Manuel Fernandez was the very same man he had seen in the
hotel bellman's uniform conferring with Bella and ultimately receiving the $2,000.
he was certain Manuel Fernandez was the very same man he had seen in the hotel bellman's
uniform conferring with Bella and ultimately receiving the $2,000. The officer, then, had
numerous independent bases to ascertain the bellman's identity.
Consequently, we find that the evidence before the grand jury established sufficient
probable cause to indict Manuel Fernandez for the felonious sale of cocaine. The district
court's order granting respondent's petition for a writ of habeas corpus is reversed.
____________
97 Nev. 65, 65 (1981) Lenz v. State
JOHN JULIUS LENZ, Appellant, v. THE
No. 11413
February 25, 1981 624 P.2d 15
Appeal from judgment of conviction after a jury trial for battery with a deadly weapon.
First Judicial District Court, Carson City; Howard D. McKibben, Judge.
The Supreme Court, held that: (1) trial court did not abuse its discretion when it declined
to offer an advisory verdict on defendant's behalf, given evidence which had been presented
by State to link the defendant to the crime, and (2) defendant's trial counsel performed his
role in manner that was within the range of competence demanded of attorneys in criminal
cases.
Affirmed.
Donald C. Hill, Reno, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and John C. Giomi, District Attorney,
Lyon County, for Respondent.
1. Assault and Battery.
Trial court, in prosecution for battery with a deadly weapon, did not abuse its discretion when it declined
to offer an advisory verdict on defendant's behalf, given evidence which had been presented by State to link
the defendant to the crime.
2. Criminal Law.
Effective counsel does not mean errorless counsel but, rather, counsel whose assistance is within range of
competence demanded of attorneys in criminal cases.
3. Criminal Law.
Nevada law presumes that counsel fully discharge their duties, and that presumption can only be
overcome by strong and convincing proof to the contrary.
97 Nev. 65, 66 (1981) Lenz v. State
4. Criminal Law.
Standard by which a claim of counsel ineffectiveness is to be tested is whether the performance of
counsel was of such low caliber as to reduce trial to a sham, a farce or a pretense.
5. Criminal Law.
In prosecution for battery with a deadly weapon, performance by defendant's trial counsel did not reduce
his trial to a sham, farce or pretense and defendant's trial counsel performed his role in a manner that was
within the range of competence demanded of attorneys in criminal cases.
OPINION
Per Curiam:
A jury convicted appellant of battery with a deadly weapon. On appeal Lenz contends that
his conviction should be reversed either because the trial judge erred when he denied Lenz's
motion for a judgment of acquittal, or because he was denied the effective assistance of
counsel in his trial below. Our review of the record presented and the oral argument we have
heard has convinced us that neither one of the appellant's claims is meritorious. Accordingly,
we affirm the appellant's conviction.
[Headnote 1]
1. We have said in construing NRS 175.381
1
that, [t]he granting of an advisory
instruction to acquit rests within the sound discretion of the court. Geer v. State, 92 Nev.
221, 223, 548 P.2d 946 (1976). The trial court did not abuse its discretion when it declined to
offer an advisory verdict on the appellant's behalf, given the evidence which had been
presented by the State to link the appellant to the crime. Geer, cited above.
[Headnotes 2-4]
2. Effective counsel does not mean errorless counsel, but rather counsel whose assistance
is within the range of competence demanded of attorneys in criminal cases. Jackson v.
Warden, 91 Nev. 430, 432, 537 P.2d 473 (1975). Nevada law presumes that counsel fully
discharge their duties, and that presumption can only be overcome by strong and convincing
proof to the contrary. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6 (1974). The standard
by which a claim of counsel ineffectiveness is to be tested is whether the performance of
counsel was of such low caliber as to reduce the trail to a sham, a farce or a pretense. Id.
____________________

1
NRS 175.381, the statutory provision concerned with advisory verdicts, provides that, [i]f, at any time after
the evidence on either side is closed, the court deems the evidence insufficient to warrant a conviction, it may
advise the jury to acquit the defendant, but the jury is not bound by such advice. (Emphasis added.)
97 Nev. 65, 67 (1981) Lenz v. State
[Headnote 5]
The performance by appellant's trial counsel did not reduce his trial to a sham, farce or
pretense.
2
Appellant's trial counsel performed his role in a manner that was [w]ithin the
range of competence demanded of attorneys in criminal cases. Jackson, cited above.
____________________

2
Furthermore, we think the representation afforded to appellant satisfied the less stringent test recognized by
the Ninth Circuit Court of Appeals, i.e., whether counsel has rendered reasonably effective assistance. See
Cooper v. Fitzharris, 551 F.2d 1162, 1166 (1977).
____________
97 Nev. 67, 67 (1981) Bird v. Casa Royale West
ALLEN S. BIRD, Appellant, v. CASA ROYALE WEST, a Limited Partnership, WILL
ROBERTS, OLIND JENNI, General Partners CASA ROYALE EAST, a Limited Partnership,
WILL ROBERTS, OLIND JENNI, General Partners VENETIAN APARTMENTS, a Limited
Partnership, Formerly Known as CAESAR'S APARTMENTS, a Limited Partnership, WILL
ROBERTS, OLIND JENNI, General Partners ROMAL VILLAS, a Limited Partnership,
Formerly Known as CLEOPATRA APARTMENTS, a Limited Partnership, WILL
ROBERTS, OLIND JENNI, General Partners and WILL ROBERTS CORPORATION, A
Nevada Corporation, Respondents.
No. 12022
February 25, 1981 624 P.2d 17
County; James A. Brennan, Judge.
Purchaser brought action against vendor seeking specific performance or damages
resulting from alleged breach of contract for sale of real property. The district court granted
vendor's motion for summary judgment, and purchaser appealed. The Supreme Court,
Manoukian, J., held that: (1) where purchaser stopped payment on check given to vendor,
alleging in affidavit, without support of specific facts, that he had been advised by vendor's
accountant that vendor did not intend to honor the contract between the parties and close the
sale as required thereby, purchaser could not obtain specific performance or damages from
vendor for an alleged breach of the contract between the parties, and (2) facts that purchaser
stopped payment of check given to vendor prior to date by which the parties were to
approve sale of real estate under contract, that vendor subsequently returned purchaser's
initial deposit, and that both parties had continually been modifying the contract,
supported theory that the parties mutually rescinded the contract, or that either or both
parties failed to meet the conditions of required approval of the contract.
payment of check given to vendor prior to date by which the parties were to approve sale of
real estate under contract, that vendor subsequently returned purchaser's initial deposit, and
that both parties had continually been modifying the contract, supported theory that the
parties mutually rescinded the contract, or that either or both parties failed to meet the
conditions of required approval of the contract.
Affirmed.
Donald W. Haley, Las Vegas, for Appellant.
Harding & Zervas, Las Vegas, for Respondent Will Roberts.
John Peter Lee, Las Vegas, for Respondent Olind Jenni.
1. Judgment.
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories,
admissions and affidavits on file, show that there exists no genuine issue as to any material fact, and that
the moving party is entitled to judgment as a matter of law. NRCP 56, 56(c).
2. Specific Performance; Vendor and Purchaser.
Where purchaser of real estate stopped payment on check given to vendor, alleging in affidavit, without
support of specific facts, that he had been advised by vendor's accountant that vendor did not intend to
honor the contract between the parties and close the sale as required thereby, purchaser could not obtain
specific performance or damages from vendor for an alleged breach of the contract between the parties.
NRCP 56, 56(c), (e).
3. Specific Performance; Vendor and Purchaser.
Facts that purchaser stopped payment on check given to vendor prior to date by which the parties were to
approve sale of real estate under contract, that vendor subsequently returned purchaser's initial deposit
upon request, and that both parties had continually been modifying the contract supported theory that the
parties mutually rescinded the contract, or that either or both parties failed to meet the conditions of
required approval of the contract; therefore, purchaser could not obtain specific performance or damages
from vendor for an alleged breach of the contract. NRCP 56, 56(c), (e).
OPINION
In this appeal, we are 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 in
favor of respondents-defendants. We hold that it did not and affirm.
Appellant Bird instituted this suit against respondent Casa Royale West, hereinafter
referred to as West, and others seeking specific performance, or alternatively, damages
resulting from the alleged breach of a contract between the parties for the sale of certain real
property in Clark County. West filed an answer alleging, inter alia, that Bird had failed to
perform under the contract. Thereafter, West filed a motion for summary judgment, which
was opposed by appellant. Without oral argument, the trial court entered an order granting the
motion.
West's primary basis for its claim that Bird failed to perform the contract is Bird's failure
to deposit $40,000 into escrow as required by the contract. The contract, in relevant part,
provides:
3. An additional sum of dlrs 40,000.00 will be deposited by buyer into escrow upon
his approval of premises and records, not later than November 8th, 1976, at 6:00 p.m.
The total sum of dlrs 60,000.00 deposited by buyer to be applied dlrs 15,000.00 for
each of the 4 escrows.
. . . .
6. . . . buyer will submit proposed contract forms and buyers financial statements to
seller not later than November 8, 1976 for sellers review. Transactions are subject to
both parties agreeing on and approving the contract forms not later than November 15,
1976.
Pursuant to the contract, Bird submitted his November 8, 1976 check in the sum of
$40,000.00 to Title insurance. On November 14, 1976, Bird and respondent, Olind Jenni,
General Partner with West, entered into a written supplemental agreement which provided in
part: the approval of contract of sale by both parties is hereby extended until 6:00 p.m.
November 20, 1976.
Thereafter, on November 20, 1976, in a letter from Title Insurance, respondent, Will
Roberts, was informed that the check for $40,000.00 had been returned unpaid. At no time
during the course of negotiations or during the continuation of the escrow did West or any
one in its behalf receive from appellant the financial statements or contract forms required to
consummate the transaction. In February 1977, Bird successfully demanded the return of an
initial $20,000.00 that had been deposited in escrow.
[Headnote 1]
Pursuant to NRCP 56(c), summary judgment is appropriate where the pleadings,
depositions, answers to interrogatories, admissions and affidavits on file, show that there
exists no genuine issue as to any material fact, and that the moving party is entitled to
judgment as a matter of law.
entitled to judgment as a matter of law. Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610
(1965). NRCP 56(e)
1
provides in part that when a motion for summary judgment is made
and supported as required by NRCP 56, the adverse party may not rest upon the mere
allegations of his pleading, but must, by affidavit or otherwise, set forth facts demonstrating
the existence of a genuine issue for trial. Garvey v. Clark County, 91 Nev. 127, 130, 532
P.2d 269, 271 (1978) [1975]; Adamson v. Bowker, 85 Nev. 115, 118-20, 450 P.2d 796,
799-800 (1969). Appellant's affidavit stated, inter alia that
3. At all times affiant was and is ready, willing and able to close the transaction
which is the subject of this suit.
4. The $40,000.00 check for part of the down payment was never honored because
affiant was advised by Defendant's accountant that Defendant did not intend to honor
the contract between the parties and close the sale as required thereby. . . .
Citing Kahle v. Kostiner, 85 Nev. 355, 358, 455 P.2d 42, 44 (1969), appellant asserts that
allegation 4 above manifests a definite unequivocal and absolute intent not to perform a
substantial portion of the contract and that this is an anticipatory repudiation of the contract.
Therefore, under Kahle, where there is such a repudiation, the purchaser's failure to tender
performance is excused, and the purchaser may assert his claim of entitlement to specific
performance in a subsequent legal action.
[Headnote 2]
Even assuming the accountant did have the authority to repudiate, the appellant's affidavit,
in our view, does not meet the personal knowledge and specificity requirements of NRCP 56.
____________________

1
NRCP 56(e) provides:
Supporting and opposing affidavits 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. The court may permit affidavits to be supplemented or
opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate shall be entered against him.
56. We have held that specific facts, rather than general allegations and conclusions,
presenting a genuine issue of material fact must be shown to preclude summary judgment.
Adamson v. Bowker, 85 Nev. at 118-20, 450 P.2d at 800-801. Appellant's bald assertion that
the Defendant did not intend to honor the contract absent any specific facts, such as the
identity of the accountant, information as to whether one or all of the four escrows would not
be honored, corroboration from the principal, return of any deeds, documentation, or any
other manifestation of a definite, unequivocal and absolute intent does not give rise to a
material issue of fact concerning an anticipatory repudiation.
[Headnote 3]
Moreover, the fact that Bird had stopped payment on the check prior to the November 20th
approval date when viewed with the absence of any forfeiture, the return of the initial deposit
and the fact that these parties had continually been modifying the contract, are consistent with
a theory of mutual rescission, see Herring-Hall-Marvin Safe Co. v. Balliot, 38 Nev. 164, 145
P. 941 (1918), or failure of the conditions of required approval by either or both parties. See
Sala v. Ruthe Realty, Inc. v. Campbell, 89 Nev. 483, 515 P.2d 394 (1973).
2

We affirm the trial court's order granting summary judgment in favor of respondent.
Gunderson, C. J., and Batjer and Mowbray, JJ., and Griffin, D. J.,
3
concur.
____________________

2
We need not consider respondents' other contention that the trial court inappropriately considered
appellant's belatedly filed countervailing affidavit. See NRCP 56(e) and EDCR 2.3(b).

3
The Governor designated The Honorable Michael R. Griffin, Judge of the First Judicial District Court, to sit
____________
97 Nev. 71, 71 (1981) Bolden v. State
RUDY BOLDEN, Appellant, v. THE STATE
No. 12238
February 25, 1981 624 P.2d 20
Appeal from conviction, after jury trial, of robbery, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court, Mowbray, J., held that evidence was sufficient to support conviction,
notwithstanding defendant's alibi defense and introduction of envelope, postmarked day
before robbery, mailed from defendant's purported out-of-state location and bearing
defendant's alleged nickname as return addressee.
alibi defense and introduction of envelope, postmarked day before robbery, mailed from
defendant's purported out-of-state location and bearing defendant's alleged nickname as return
addressee.
Affirmed.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General; Robert J. Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Robbery.
Evidence was sufficient to support conviction, notwithstanding that defendant and aunt testified that he
was out of state on date of robbery and that defendant introduced an envelope, without a letter, postmarked
day before robbery, mailed from out-of-state purported location of defendant, and bearing defendant's
alleged nickname as return addressee.
2. Criminal Law.
Where there is substantial evidence to support jury's verdict, it will not be disturbed on appeal.
OPINION
[Headnote 1]
A jury convicted Rudy Bolen of robbery. He seeks reversal on the sole ground that the
evidence presented at his trial did not support the jury's verdict. We disagree and affirm
Bolden's judgment of conviction.
THE FACTS
Bolden, on February 14, 1979, pointed a .38 caliber revolver at a food checker in a grocery
store and grabbed a handful of currency from the cash register. He fled the premises. The
checker, soon after the robbery, identified an old photograph of Bolden from 250 prints at the
police station. She repeated the identification several weeks later from a more recent picture.
Finally, the checker made positive in-court identification of Bolden.
SUBSTANTIAL EVIDENCE TO CONVICT
Appellant presented an alibi defense: he and his aunt testified that he was in Louisiana on
February 13 and 14, 1979; he introduced an envelope, without a letter, postmarked
February 13, 1979, mailed from Louisiana and purportedly bearing Bolden's nickname
"Shyface" as the return addressee.
introduced an envelope, without a letter, postmarked February 13, 1979, mailed from
Louisiana and purportedly bearing Bolden's nickname Shyface as the return addressee.
[Headnote 2]
This Court has repeatedly held as recently as Stewart v. State, 94 Nev. 378, 580 P.2d 473
(1978) that where there is conflicting testimony presented, it is for the jury to determine
what weight and credibility to give to the testimony.' Hankins v. State, 91 Nev. 477, 538 P.2d
167, 168 (1975). Accord, Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978); Porter v. State,
94 Nev. 142, 576 P.2d 275 (1978). Where, as here, there is substantial evidence to support the
jury's verdict, it will not be disturbed on appeal. Cunningham v. State, 94 Nev. 128, 575 P.2d
936 (1978); Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
For these reasons we affirm the appellant's judgment of conviction.
____________
97 Nev. 73, 73 (1981) Nicklo v. Peter Pan Playskool
JOYCE C. NICKLO, Appellant, v. PETER PAN
PLAYSKOOL, Respondent.
No. 12162
March 2, 1981 624 P.2d 22
Appeal from judgment for defendant, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Action was brought against day-care center by mother who alleged that she expended
$2,800 in travel and litigation expenses in order to redeem custody of child after day-care
center wrongfully released child to child's father, who had allegedly taken the child to Florida.
The district court entered judgment in favor of day-care center, and mother appealed. The
Supreme Court held that: (1) trial court erred in striking all testimony relating to day-care
center's director's alleged promise not to release child to child's father, where day-care center
had offered deposition of director, who had died prior to trial, thus waiving protection of
dead person statute, and (2) trial court erred in refusing to order production of child custody
report which had been prepared in connection with other litigation prior to initiation of
mother's suit against day-center center, as none of the purposes for which confidentiality rule
was enacted would have suffered by disclosure and admission of those parts of report in
which director admitted making promise to mother not to release child to child's father
nor would interests of subject of report have been offended by such disclosure.
those parts of report in which director admitted making promise to mother not to release child
to child's father nor would interests of subject of report have been offended by such
disclosure.
Richard W. Myers, Las Vegas, for Appellant.
John P. Fadgen, Las Vegas, for Respondent.
1. Witnesses.
In suit brought against day-care center by mother who alleged that day-care center had breached its
agreement not to release child to child's father, trial court erred in striking, under dead person statute, all
testimony relating to day-care center's director's alleged promise not to release child to child's father, in
view of fact that day-care center produced deposition of director taken by her attorneys prior to her death to
show that director had denied making promise not to release child, thus waiving protection of dead
person statute, and in view of evidence corroborating mother's contention that director had promised not
to release child. NRCP 32(a), (a)(3).
In suit brought against child day-care center by mother who alleged that center breached its agreement
not to release child to child's father, trial court erred in refusing to order production of child custody report
which had been prepared in connection with other litigation prior to initiation of mother's suit against
center, in view of fact that none of the purposes for which confidentiality rule was enacted would have
suffered by disclosure and admission of those points of report in which center's director admitted making
promise to mother not to release child. EDCR 5.11 (Repealed).
3. Records.
Statutes providing for confidentiality of records are in derogation of common-law right to inspect
documents in which individual has an interest and must therefore be strictly construed. EDCR 5.11
(Repealed).
4. Records.
Provision for making child custody reports available by court order vests discretion in district court to
refuse production of report if functioning of agency would suffer prejudice. EDCR 5.11 (Repealed).
OPINION
Per Curiam:
Appellant Nicklo placed her child in the custody of respondent Peter Pan Playskool for day
care. She had previously had difficulties with her estranged husband, who had once abducted
the child while exercising his visitation privileges under their separation agreement.
According to Nicklo's testimony, she informed Cindy Reynolds, the director of Playskool, at
the time of the child's registration at Playskool, that the child had been abducted by his
father before, and that the child was not to be released to him.
informed Cindy Reynolds, the director of Playskool, at the time of the child's registration at
Playskool, that the child had been abducted by his father before, and that the child was not to
be released to him. Reynolds allegedly promised that the father would never get [the child]
out of her school.
About a month after the child had been attending Playskool, the father appeared and the
child was released to him. Nicklo testified that Reynolds called her and told her that she had
forgotten not to release the child to his father. The father took the child to Florida, and
Nicklo expended $2,800 in travel and litigation expenses in order to regain custody of the
child. She sued Playskool for this amount for breach of its contract not to release the child.
At trial, the district court struck all of Nicklo's testimony relating to her conversations with
Reynolds, who was then dead, under former NRS 48.064 (repealed 1979 Nev. Stats. ch. 134,
1, at 198), the dead person statute, ruling that her testimony was not corroborated. The
district court also quashed a subpoena duces tecum to the child welfare authorities in Clark
County relating to a child custody report which had been prepared on Nicklo and her husband
(in which Reynolds allegedly admitted to the investigator that she had forgotten her promise
to Nicklo not to release the child to his father) on the ground that the report was confidential.
At the close of the trial, judgment was rendered in favor of Playskool, and Nicklo appeals.
Two issues are presented: (1) whether it was error to strike all testimony relating to
Reynolds' promise not to release the child, under NRS 48.064, and (2) whether it was error to
refuse to order production of the child custody report.
[Headnote 1]
Nicklo's testimony relating to her conversation with Reynolds was the only live evidence
of the conversation. However, a deposition of Reynolds taken by her attorneys before her
death was published at trial, on motion of Playskool's counsel, in which Reynolds denied
making a promise not to release the child.
In jurisdictions which have dead person statutes, introduction of evidence of the dead
person's statements, by the party who represents the interest of the decedent, waives the
protection of the statute. Rosche v. McCoy, 156 A.2d 307 (Pa. 1959). This fits logically into
the purpose of the dead person rule, which is intended to place the living and dead on terms
of perfect equality, and, the dead being not able to testify, the living shall not. Zeigler v.
Moore, 75 Nev. 91, 99, 355 P.2d 425, 430 {1959).
425, 430 (1959). By publication of Reynolds' deposition, the dead person, in effect, was able
to testify and therefore, it was error to strike Nicklo's testimony. This conclusion is supported
by NRCP 32(a)(3) which provides that [t]he deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court finds: (A) that the witness is dead. . . .
Reading this rule along with NRCP 32(a), which makes a deposition admissible against any
party which had notice of the taking of the deposition so far as admissible under the rules of
evidence applied as though the witness were then present and testifying. . . , the deposition is
meant to be the equivalent of live testimony. The deposition was offered by Playskool to
support its position that no contract existed, and the court's ruling deprived Nicklo of her
opportunity to contradict it. This is inconsistent with the purpose intended to be accomplished
by the dead person statute, and striking Nicklo's testimony was error.
Further, the statute provided that testimony as to transactions with the deceased is
admissible if supported by corroborative evidence. The record card of the school was
admitted into evidence. It shows the mother's name, and the name of a relative to be called in
case of an emergency. There is no entry, except for a line drawn through the space, under the
place for the father's name. In the space entitled operator to contact (before the child is
released to anyone), only the mother's space was checked. While this does not corroborate the
actual conversation with Reynolds, it does indicate a promise on the part of Playskool not to
release the child except in accordance with the terms of the record card. It also satisfies the
test of corroboration now required by most jurisdictions which still have dead person statutes,
that the corroborative evidence must be such that a reasonable person could conclude that the
plaintiff's testimony is probably true. Schwartz v. Davis Manufacturing Company, 189
N.W.2d 1 (Mich.App. 1971); Peck v. Wright, 372 P.2d 831 (N.M. 1962).
Former DCR 5.11 (now DCR 5.70) of the Eighth Judicial District provided, in part, as
follows:
(a) In domestic relations proceedings where the issue of custody of children is
contested, the court may require an investigation to be made by the Child Custody
Division of the Eighth Judicial District of the character and fitness of the parties, the
economic condition of family and the financial ability of the parties to pay support. The
court may continue the domestic relations proceeding for the purpose of such
investigation until the same be completed and a report submitted to the court.
purpose of such investigation until the same be completed and a report submitted to the
court.
(b) The written report of the investigator shall be delivered to the court in chambers
and, at the direction of the court may be made available to the attorneys for the parties.
The report shall be regarded as confidential, except as provided by court order. The
report may be received as direct evidence of the facts contained therein which are
within the personal knowledge of the officer who made the investigation and report.
(Emphasis supplied.)
[Headnote 2]
It is significant that this report was prepared in connection with other litigation prior to the
initiation of this suit. The considerations which generally favor of the preserving of
confidentiality of records and sources of information are not present here. In this case, the
information obtained from Reynolds did not relate to the purpose for which the report was
made, i.e., the determination of the parents' suitability for child custody. Rather, the alleged
admission by Reynolds, that she had promised not to release the child to the father, related
only to the alleged contract with Nicklo. An appropriate in camera inspection of the report,
coupled with a proper protective order concerning the other parts of the report which were
entitled to protection as confidential and which would have no relevance to any issues at this
trial, would have maintained confidentiality and still permitted the admission of evidence
vital to Nicklo.
[Headnotes 3, 4]
Statutes providing for confidentiality of records are in derogation of the common law right
to inspect documents in which an individual has an interest, and must therefore be strictly
construed. Mulford v. Davey, 64 Nev. 506, 186 P.2d 360 (1947). Strictly construing former
DCR 5.11, it would appear that the provision for making such reports available by court order
vests discretion in the district court to refuse production of the report if the functioning of the
agency would suffer prejudice. Here, none of the purposes for which such rule was enacted
would suffer by disclosure and admission of those parts of the report in which Reynolds
admitted making he promise to Nicklo not to release the child, nor would the interests of the
subjects of the report, i.e., Nicklo, her husband and the child, be offended. Such evidence
would provide further corroboration of Nicklo's testimony, and the court's refusal to permit
production of such admissions from the report must be considered an abuse of discretion.
Accordingly, we order the judgment reversed and the case remanded to the district court
for a new trial.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Beko, D. J.,
1
concur.
____________________

1
The Governor designated The Honorable William P. Beko, Judge of the Fifth Judicial District Court, to sit
____________
97 Nev. 78, 78 (1981) McPherron v. McAuliffe
DENNIS McPHERRON, Appellant, v. JACK I. McAULIFFE, Administrator of the Estate of
ALVAR ALFRED NORGARD, Deceased, Respondent.
No. 11987
March 2, 1981 624 P.2d 21
Appeal from summary judgment, Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Administrator brought suit seeking quiet title to property, and defendant counterclaimed.
The district court dismissed counterclaims and granted administrator's motions for summary
judgment, and appeal was taken. The Supreme Court held that fact issues existed as to
possibility of earlier possession, payment of taxes, duration of possession and whether
possession was hostile, precluding summary judgment.
Reversed and remanded for trial.
Fran Archuleta, Reno, for Appellant.
Sala & McAuliffe, Reno, for Respondent.
1. Adverse Possession.
Existence of elements which constitute adverse possession is a question of fact.
2. Judgment.
In action seeking to quiet title to property in which adverse possession was raised, fact issues existed as to
possibility of earlier possession which would negate presumption against one asserting adverse possession
who allegedly came into possession of property under terms of lease-option, and further fact issues
regarding payment of taxes, duration of possession and whether possession was hostile, precluding
summary judgment.
OPINION
Per Curiam:
This appeal is from an order granting summary judgment quieting title to a parcel of real
estate situated in Washoe County.
Two years after the death of respondent's predecessor in interest, respondent administrator
filed his second amended complaint seeking to quiet title to the property, the subject of this
action. Appellant answered the complaint and counterclaimed for relief; the counterclaims
were dismissed by the lower court. Respondent filed a motion for summary judgment.
Appellant's opposition included an affidavit of his attorney which asserted facts supporting
his claim to superior title by adverse possession. The district court granted the motion; we
reverse and remand for trial.
[Headnote 1]
Summary judgment may be granted when, as a matter of law, the moving party is entitled
to judgment because there is no genuine issue as to any material fact. NRCP 56(c); Smith v.
Hamilton, 70 Nev. 212, 265 P.2d 214 (1953). On appeal, the question is whether any genuine
issue of fact was created by the pleadings and proof offered. Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963). The existence of the elements which constitute adverse
possession remain a question of fact. Bepple v. Reiman, 316 P.2d 452 (Wash. 1957).
[Headnote 2]
We believe that material issues of fact are presented by the affidavits on file herein.
Respondent contends that appellant came into possession of the subject property under the
terms of a lease-option between the appellant and the respondent's predecessor in interest; and
that therefore appellant, as a matter of law, may not challenge respondent's title to the
property. See NRS 11.160. Respondent's motion is supported by numerous affidavits and
exhibits tracing the abstract of the title in the property and the interest of the respective parties
therein. However, respondent' own affidavit admits of the possibility of earlier possession.
Such possession may negate the presumption in NRS 11.160, and may allow appellant to
assert his claim of superior title. See Holzer v. Rhodes, 163 P.2d 811 (Wash. 1945); Strong v.
Baldwin, 97 P. 178 (Cal. 1908). Without expressing any opinion as to whether or not
appellant will be able to satisfy the elements required to prove adverse possession, we note,
for instance, at the very least, the existence of genuine issues of fact regarding the payment
of taxes, the duration of possession, and whether or not the possession was hostile.
genuine issues of fact regarding the payment of taxes, the duration of possession, and whether
or not the possession was hostile.
Because of the existence of such issues of fact, we must reverse the ruling of the lower
court and remand for a full trial on the merits.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Charles E. Springer, who voluntarily disqualified himself in this case. Nev. Const. art 6, 19; SCR
10.
____________
97 Nev. 80, 80 (1981) Johann v. Aladdin Hotel Corp.
KENNETH F. JOHANN, d/b/a JOHANN REALTY, Appellant,
v. ALADDIN HOTEL CORPORATION, Respondent.
No. 12171
March 3, 1981 624 P.2d 493
Appeal from order granting dismissal under NRCP 41(e). Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
Appeal was taken from an order of the district court dismissing a complaint on the basis of
the mandatory dismissal rule. The Supreme Court held that the dismissal was improper where
the parties had stipulated in writing that the time limitation contained in the rule was
extended to the first day of June, 1979, and trial was commenced on that date before the chief
judge of the judicial district, and, further, a later stipulation and order entered into by the
parties did not supersede or invalidate the prior stipulation where the subsequent stipulation
and order did not refer to the rule.
Reversed with instructions.
John Peter Lee, Ltd. and James C. Mahan, Las Vegas, for Appellant.
Jones, Jones, Bell, Close & Brown, and Gary R. Goodheart, Las Vegas, for Respondent.
Where parties stipulated in writing that the time limitation set forth in NRCP 41(e) is hereby extended
to the first day of June, 1979," and, on that date, when counsel for parties were present,
trial was commenced before chief judge of judicial district and testimony of witness
was taken, case was "brought to trial" on June 1, 1979, and, therefore, it was error to
dismiss action under rule requiring dismissal unless action is brought to trial within
five years after plaintiff has filed his action.
1979, and, on that date, when counsel for parties were present, trial was commenced before chief judge of
judicial district and testimony of witness was taken, case was brought to trial on June 1, 1979, and,
therefore, it was error to dismiss action under rule requiring dismissal unless action is brought to trial
within five years after plaintiff has filed his action. NRCP 41(e).
2. Stipulations.
Where parties had stipulated in writing that time limitation contained in rule governing mandatory
dismissal was extended to first day of June, 1979, later stipulation and order that case be heard prior to
June 1, 1979, did not supersede or invalidate prior stipulation where neither subsequent stipulation nor
order mentioned mandatory dismissal rule. NRCP 41(e).
Where only issue on appeal was whether case was brought to trial on time within meaning of rule
governing mandatory dismissal, and trial was commenced by duly elected district judge who was
empowered to do just that, whatever might have been import of possibly irregular ex parte order, that order
did not render trial void. NRCP 41(e).
OPINION
Per Curiam:
This is an appeal from a district court order dismissing appellant's complaint on the basis
of the mandatory dismissal provisions of NRCP 41(e). The rule requires dismissal 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.
[Headnote 1]
On May 10, 1978, the parties stipulated in writing that the time limitation set forth in
NRCP 41(e) is hereby extended to the first day of June, 1979. On June 1, 1979, with counsel
for the parties present, the trial was commenced before the chief judge of the judicial district.
The testimony of a witness was taken. The case was therefore brought to trial on June 1,
1979, within the meaning of NRCP 41(e). Ad-Art, Inc. v. Denison, 94 Nev. 73, 574 P.2d
1016 (1978). Consequently, it was error to dismiss the complaint.
[Headnote 2]
Respondent claims that a later stipulation and order are controlling. On November 3, 1978,
pursuant to stipulation the court ordered that the case be heard prior to June 1, 1979. A
June 1 trial would not be timely, claims respondent, if prior to June 1 is the binding time
limitation. Neither the stipulation nor the order of November 3, 1978, refers to Rule 41(e).
We reject the contention that the later stipulation or order in any way supercedes or
invalidates the May 10, 197S stipulation extending "to the first day of June, 1979."
any way supercedes or invalidates the May 10, 1978 stipulation extending to the first day of
June, 1979. (Court's emphasis.)
[Headnote 3]
Respondent also says that the trial proceedings were void and of no force and effect
because they were conducted in response to what respondent perceives as an irregular ex
parte order of the chief justice of this court.
As stated, the only question here is whether or not the case was brought to trial on time.
Trial was commenced by a duly elected district judge, the chief judge of his district. He was
empowered by the constitution and laws of this state to do just that. Whatever might have
been the import of the mentioned ex parte order, it certainly could not and did not render the
trial void as contended by respondent.
The order of dismissal is set aside and the matter remanded with instructions that it be
brought on for trial on the merits within 120 days of receipt of remittitur.
Gunderson, C. J., and Manoukian, Batjer, and Springer, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable John C. Mowbray, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 82, 82 (1981) Miles v. State
ROBERT DURANT MILES, Appellant, v. THE
No. 12209
March 5, 1981 624 P.2d 494
Appeal from a judgment entered upon a jury verdict, Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
Defendant was convicted in the district court of embezzlement, and he appealed. The
Supreme Court held that: (1) trial court's refusal of jury's request during deliberation for
reading back of certain testimony did not constitute an abuse of discretion, and (2) evidence
adduced in embezzlement trial, which established that defendant came to work and was given
custody of $1,000 which was held in a locked cabinet to which he had a key, that defendant
asked for and received a paper bag and soon thereafter left his work place without revealing
to anyone a reason for his absence, that other employees forced open the untampered lock of
the money cabinet and found over $700 missing and that defendant left the area and was
arrested several months later in a neighboring state, was sufficient to support instruction
on flight.
97 Nev. 82, 83 (1981) Miles v. State
untampered lock of the money cabinet and found over $700 missing and that defendant left
the area and was arrested several months later in a neighboring state, was sufficient to support
instruction on flight.
Affirmed.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial judge has wide discretion in manner and extent of his response to a jury's request during
deliberation for reading back testimony.
2. Criminal Law.
In embezzlement trial, trial court's refusal of jury's request during deliberation for reading back of certain
testimony did not constitute an abuse of discretion.
3. Criminal Law.
Reviewing court will carefully scrutinize a flight instruction to be certain the record supports the
conclusion that a defendant's going away was not just a mere leaving but was with a consciousness of guilt
and for the purpose of avoiding arrest.
4. Criminal Law.
Evidence adduced in embezzlement trial, which established that defendant came to work and was given
custody of $1,000 which was held in a locked cabinet to which he had a key, that defendant asked for and
received a paper bag and soon thereafter left his work place without revealing to anyone a reason for his
absence, that other employees forced open the untampered lock of the money cabinet and found over $700
missing and that defendant left the area and was arrested several months later in a neighboring state, was
sufficient to support instruction on flight.
OPINION
Per Curiam:
A jury found appellant Miles guilty of embezzlement. NRS 205.300. On appeal Miles
contends the trial judge committed reversible error when he refused the jury's request to read
back portions of testimony, and when he gave a jury instruction on flight absent testimony
regarding appellant's actual departure from the scene of the crime. We disagree and affirm.
1. Throughout the trial defense counsel contended that Jarvis Buie, a state's witness, was
the embezzler.
97 Nev. 82, 84 (1981) Miles v. State
Jarvis Buie, a state's witness, was the embezzler. After the jury had retired to consider its
verdict, a note was sent to the trial judge which read: Jay Buoy [sic] oral testimony. Buie
was the individual relieved from his shift by appellant. The trial judge responded to the jury
request by a note which read: In my opinion, to read back testimony tends to emphasize that
testimony over all other testimony in the trial. For that reason, I do not order it.
Defense counsel contends that the trial judge arbitrarily denied the jury's request to have
testimony read back, thereby failing to exercise his discretionary duty to consider the request.
[Headnote 1]
A trial judge has wide discretion in the manner and extent of his response to a jury's
request during deliberation for reading back testimony. Glaze v. State, 565 P.2d 710
(Okla.Crim. 1977); Garden v. State, 73 Nev. 312, 318 P.2d 652 (1957). In Glaze, the trial
court refused to read back testimony on the ground that the testimony, taken out of context,
might permit the jury to place too much emphasis on a particular part of the testimony. The
court refused to find an abuse of discretion considering the brevity of the trial, the small
number of witnesses and the adequacy of the instructions. Glaze, supra at 714.
[Headnote 2]
Here, the trial judge refused to read back the testimony because it tends to emphasize that
testimony over all other testimony in the trial. The trial lasted two and one-half days, few
witnesses testified, and the record indicates the jury was adequately instructed. Considering
these facts, the trial judge did not abuse his discretion in refusing to read back Buie's
testimony. We do, however, agree with those courts which have held that it cannot be
prejudicial to anyone to conduct a reasonable rereading of requested testimony. There is no
need to be chary for fear of giving undue prominence to the testimony of a particular witness.
Price v. State, 437 P.2d 330 (Alaska 1968); see also ABA Minimum Standards, Trial by Jury,
5.2(b).
2. Over appellant's objection, the trial judge gave an instruction on flight.
1
Appellant
argues the evidence is insufficient to warrant the giving of a flight instruction, and that a
flight instruction can only be given if the circumstances surrounding his actual departure
from the scene of the crime are established by the evidence.
____________________

1
The challenged instruction reads as follows:
The flight of a person immediately after the commission of a crime 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. The weight to which such circumstance is entitled
is a matter for the jury to determine.
97 Nev. 82, 85 (1981) Miles v. State
insufficient to warrant the giving of a flight instruction, and that a flight instruction can only
be given if the circumstances surrounding his actual departure from the scene of the crime are
established by the evidence.
[Headnote 3]
We recently held that the giving of a flight instruction is not reversible error if evidence of
flight has been admitted. Potter v. State, 96 Nev. 875, 619 P.2d 1222 (1980). However, a
flight instruction may give undue influence to one phase of evidence, therefore we will
carefully scrutinize it to be certain that the record supports the conclusion that appellant's
going away was not just a mere leaving but was with a consciousness of guilt and for the
purpose of avoiding arrest. Potter, supra; Theriault v. State, 92 Nev. 185, 547 P.2d 668
(1976).
[Headnote 4]
Here, appellant came to work and was given custody of $1,000 which was held in a locked
cabinet to which he had a key. He asked for and received a paper bag and soon thereafter left
his work place without revealing to anyone a reason for his absence. After an hour passed,
other employees forced open the untampered lock of the money cabinet and found $729
missing. Miles left the area and was arrested several months later in a neighboring state.
The jury reasonably could have inferred that appellant fled his place of employment to
avoid arrest. The test set forth in State v. Rothrock, 45 Nev. 214, 229, 200 P. 525, 529 (1921),
and followed in Theriault, supra, Mathews v. State, 94 Nev. 179, 576 P.2d 1125 (1978), and
Potter, supra, is satisfied in this case.
The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Christensen, D. J.,
2
concur.
____________________

2
The Governor designated The Honorable Carl J. Christensen, Judge of The Eighth Judicial District Court, to
sit in place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 86, 86 (1981) Lapica v. District Court
ANDREW LAPICA, M.D., Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK and
HONORABLE THOMAS J. O'DONNELL, Respondents, and THELMA GREGORY, Real
Party in Interest.
No. 12914
March 12, 1981 624 P.2d 1003
Physician petitioned for writ of mandamus ordering the district court to enter summary
judgment in his favor in a medical malpractice suit. The Supreme Court held that complaint
was valid from the date of its filing within the limitations period notwithstanding that the
complaint was filed prior to submission of case to an appropriate screening panel where
premature complaint was not automatically void but subject to discretionary dismissal, the
physician did not move to dismiss the complaint and the trial court did not sua sponte dismiss
it.
Writ denied.
Dickerson, Miles, Pico, Mitchell & Wagner, Las Vegas, for Petitioner.
R. Steven Young, Las Vegas, for Respondents and Real Party in Interest.
1. Judgment.
A summary judgment should be granted when there is no genuine issue of fact and the movant is entitled
to a judgment as a matter of law. NRCP 56(c); NRAP 3A(b)(5).
2. Mandamus.
Denial of summary judgment is reviewable by proceedings in mandamus. NRCP 56(c); NRAP
3A(b)(5).
Words subject to, within medical malpractice limitations statute providing that any action filed
without satisfying the requirements of this chapter is subject to dismissal for failure to comply with this
section, denote judicial discretion and indicate that a premature complaint is not automatically void, but
that it may be dismissed. NRS 41A.070.
4. Limitation of Actions.
Complaint in medical malpractice action was valid from the date of its filing within the limitations period
notwithstanding that the complaint was filed prior to submission of case to an appropriate screening panel
where premature complaint was not automatically void but subject to discretionary dismissal, the physician
did not move to dismiss the complaint and the trial court did not sua sponte dismiss it. NRS 41A.070,
41A.080, 41A.097.
OPINION
Per Curiam:
[Headnotes 1, 2]
Lapica seeks a writ of mandamus ordering the district court to enter summary judgment in
his favor in the medical malpractice case styled Thelma Gregory v. Sunrise Hospital, Inc.,
Andrew Lapica, M.D., et al. A summary judgment should be granted when there is no
genuine issue of fact, and the movant is entitled to judgment as a matter of law. NRCP 56(c);
see Coray v. Hom, 80 Nev. 39, 389 P.2d 76 (1964). The denial of summary judgment is
reviewable by proceedings in mandamus. Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d
851 (1978); Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964); NRAP 3A(b)(5). The
facts in this case are undisputed. The only question is one of law: whether Gregory's
malpractice claim is barred by the statute of limitations.
The statute of limitations for medical malpractice actions is four years after the date of
injury or two years from the date that plaintiff discovers or should have discovered the injury,
whichever occurs first. NRS 41A.097. Gregory discovered the alleged injury on August 4,
1975, thus triggering the two-year limitation period. Nevada law requires submission of
medical malpractice cases to a medical-legal screening panel as a prerequisite to filing such
suits in the courts. NRS 41A.070. The statute of limitations is tolled from the date the
claimant files a request for a screening panel hearing until the panel notifies the parties of its
findings in writing. NRS 41A.080.
Gregory's petition for a screening panel hearing was filed on June 6, 1977, just 59 days
before the statute of limitations would have barred her suit. The statute was tolled at this
point. Gregory filed her lawsuit against Lapica on June 24, 1977. By March 6, 1978, both
parties had received written notice of the panel's decision that Lapica was not guilty of
malpractice. On August 17, 1978, Lapica was served with a summons and a copy of the June
24, 1977 complaint.
Citing NRS 41A.070, Lapica contends that Gregory's complaint, filed prior to the panel's
decision, was of no force and effect. NRS 41A.070 provides:
No cause of action involving medical malpractice may be filed until the medical
malpractice case has been submitted to an appropriate screening panel and a
determination made by such panel as provided in this chapter, and any action filed
without satisfying the requirements of this chapter is subject to dismissal for failure to
comply with this section.
If Gregory's premature filing of the complaint rendered it void, as Lapica contends, she would
have had 59 days from March 6, 1978 within which to file a new complaint. Since she failed
to do so, the statute of limitations would bar her action, and summary judgment in Lapica's
favor should be granted.
[Headnotes 3, 4]
Lapica's argument is not persuasive in light of the final clause in NRS 41A.070, which
provides that any action filed without satisfying the requirements of this chapter is subject to
dismissal for failure to comply with this section. (Emphasis added.) The words subject to
denote judicial discretion, i.e., they indicate that a premature complaint is not automatically
void, but that it may be dismissed. Apparently Lapica did not move to dismiss the complaint,
and the district court did not sua sponte dismiss it. Therefore, we conclude that the complaint
was valid from the date of its filing, and it was filed within the two-year limitation period.
Accordingly, the petition for a writ of mandamus is denied.
____________
97 Nev. 88, 88 (1981) Collins v. Union Fed. Savings
ERNEST J. COLLINS, Appellant, v. UNION FEDERAL SAVINGS AND LOAN
ASSOCIATION, aka FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION,
Respondent.
No. 12961
March 12, 1981 624 P.2d 496
Motion to dismiss appeal from summary judgment, Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
The Supreme Court held that notice of appeal which did not designate correct judgment
did not warrant dismissal where intent to appeal from proper summary judgment order could
reasonably be inferred from date of filing of notice of appeal as well as the text of the notice,
and where respondents had not demonstrated how they had been materially misled by the
error in the notice of appeal.
Motion denied.
Roger A. Bergmann, Reno, for Appellant.
Vargas & Bartlett, and John C. Renshaw, Reno, for Respondent.
General rule is that judgment or order which is not included in notice of appeal will not be considered on
appeal, but notice of appeal which does not designate the correct judgment does not warrant dismissal
where the intention to appeal from a specific judgment may be reasonably inferred from the text of the
notice and where the defect has not materially misled respondent. NRAP 3(c).
Where first order granting summary judgment was void because signed by judge not assigned to the case
and order granting summary judgment was signed by the proper judge several months later, appeal would
not be dismissed on ground that notice of appeal specified the wrong order, where intent to appeal from the
proper order could be reasonably inferred from the date of filing of notice of appeal as well as from the text
of notice, and where respondents had not demonstrated how they had been materially misled by the error in
the notice of appeal. DCR 18; NRAP 3(c).
OPINION
Per Curiam:
Appellant's notice of appeal in this case states that the appeal is taken from an order
granting respondent's motion for summary judgment entered in this action on the 17th day of
December 1979. This order, however, was mistakenly signed by a district judge who was not
assigned to the case, and is therefore conceded by the parties to be void. See DCR 18. The
order granting the motion for summary judgment in question was actually signed by the
proper judge on August 25, 1980, and entered on August 27, 1980. This order also granted
two other motions for summary judgment filed by respondent relating to other causes of
action raised by appellant below. Notice of entry of this judgment was mailed to appellant on
August 28, 1980.
On September 29, 1980, appellant filed the notice of appeal specifying the wrong order
(that of December 17, 1979) as the one from which the appeal was being taken. Respondent
has moved to dismiss this appeal, arguing that an appeal may not be taken from the void order
for purposes of reviewing the merits of the issues raised in the motion for summary judgment.
In his response to the motion to dismiss, appellant contends that it was his intent to appeal
from the order entered August 27, 1980, that the error in the notice of appeal was merely
clerical and should not preclude him from prosecuting this appeal.
[Headnote 1]
It is the general rule that a judgment or order which is not included in the notice of appeal
will not be considered on appeal.
included in the notice of appeal will not be considered on appeal. See NRAP 3(c); Reno
Newspapers v. Bibb, 76 Nev. 332, 353 P.2d 458 (1960). However, a notice of appeal which
does not designate the correct judgment does not warrant dismissal where the intention to
appeal from a specific judgment may be reasonably inferred from the text of the notice and
where the defect has not materially misled the respondent. Forman v. Eagle Thrifty Drugs &
Markets, 89 Nev. 533, 516 P.2d 1234 (1973). See also Grouse Cr. Ranches v. Budget
Financial Corp., 87 Nev. 419, 488 P.2d 917 (1971); Casino Operations, Inc. v. Graham, 86
Nev. 764, 476 P.2d 953 (1970).
[Headnote 2]
Here, appellant's intention to appeal from the order entered August 27, 1980 can be
reasonably inferred from the date of the filing of the notice of appeal (September 29, 1980) as
well as the text of the notice. Moreover, respondents have not demonstrated how they have
been materially misled by the error in the notice of appeal. See, e.g., Welch v. State ex rel.
Hwy. Dep't, 80 Nev. 128, 390 P.2d 35 (1964) (appeal dismissed as to two defendants where
notice of appeal designated separate judgment which did not include those two defendants).
Under these circumstances we decline to dismiss this appeal on the basis of a procedural
technicality. Forman v. Eagle Thrifty Drugs & Markets, supra; see also Harmon v. Tanner
Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963).
The motion to dismiss is denied.
____________
97 Nev. 90, 90 (1981) Sheriff v. Willoughby
VERNON H. WILLOUGHBY, Respondent.
No. 13120
March 12, 1981 624 P.2d 498
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
Defendant petitioned for a pretrial writ of habeas corpus after he was charged with murder
and battery with the use of a deadly weapon. The district court granted the petition, and
county sheriff appealed. The Supreme Court held that evidence that the killing of passenger in
defendant's car in an automobile accident occurred during an attempted escape by defendant
after the commission of battery with the use of a deadly weapon, a felony, was sufficient
evidence that victim's involuntary killing happened "in the prosecution of a felonious
intent" to justify a charge of murder, and thus there was probable cause to hold
defendant on the charge of open murder.
weapon, a felony, was sufficient evidence that victim's involuntary killing happened in the
prosecution of a felonious intent to justify a charge of murder, and thus there was probable
cause to hold defendant on the charge of open murder.
Reversed.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
L. J. O'Neale, Chief Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Peggy A. Leen, Deputy Public Defender, Clark
County, for Respondent.
First-degree murder and second-degree murder are not separate and distinct crimes which must be
pleaded accordingly, and thus, there need not be evidence of first-degree murder to support an open murder
charge. NRS 200.010, 200.070.
2. Criminal Law.
Evidence that the killing of passenger in defendant's car in an automobile accident occurred during an
attempted escape by defendant after commission of battery with the use of a deadly weapon, a felony, was
sufficient evidence that victim's involuntary killing happened in the prosecution of a felonious intent to
justify a charge of murder, and thus there was probable cause to hold defendant on a charge of open
murder. NRS 193.120, 200.010, 200.070, 200.481.
OPINION
Per Curiam:
By way of information, respondent was charged with murder (NRS 200.010, 200.070) and
battery with the use of a deadly weapon (NRS 200.481). Thereafter, respondent petitioned the
district court for a pretrial writ of habeas corpus, alleging that the evidence adduced at the
preliminary examination was insufficient to establish probable cause to hold respondent on
the charge of open murder.
1
In essence, respondent argued that the facts give rise, at most, to
a charge of involuntary manslaughter. The district court granted the petition, reasoning that
since an open murder charge includes a charge of first degree murder, and since no evidence
of first degree murder was presented at the preliminary examination, respondent could not be
held on the open murder charge. For reasons expressed hereafter, we reverse.
____________________

1
The petition did not challenge the charge of battery with the use of a deadly weapon.
At the preliminary examination, the following pertinent facts were presented. After
initially pulling his car over at the request of a motorcycle policeman, respondent then
accelerated rapidly in reverse, striking the officer. In the chase that ensued, respondent drove
90 miles per hour on the wrong side of the road causing oncoming vehicles to swerve to
avoid a collision. Finally, respondent's car slammed into an embankment, killing Susan
Staffa, a passenger in the car.
[Headnote 1]
It is clear that first degree murder and second degree murder are not separate and distinct
crimes which must be pleaded accordingly. Thedford v. Sheriff, 86 Nev. 741, 476 P.2d 25
(1970); Howard v. Sheriff, 83 Nev. 150, 425 P.2d 596 (1967). Thus, there need not be
evidence of first degree murder to support an open murder charge. See Wrenn v. Sheriff, 87
Nev. 85, 482 P.2d 289 (1971).
[Headnote 2]
As mentioned above, respondent contends that the evidence gives rise only to a charge of
involuntary manslaughter. NRS 200.070 differentiates between involuntary manslaughter and
murder as follows:
Involuntary manslaughter shall consist in the killing of a human being, without any
intent so to do, in the commission of an unlawful act, or a lawful act which probably
might produce such a consequence in an unlawful manner; but where such involuntary
killing shall happen in the commission of an unlawful act, which, in its consequences,
naturally tends to destroy the life of a human being, or is committed in the prosecution
of a felonious intent, the offense shall be deemed and adjudged to be murder.
(Emphasis added.)
This court's sole function is to determine whether the evidence presented at the preliminary
examination establishes probable cause to believe that an offense was committed and that the
defendant committed it. Sheriff v. Hodes, 96 Nev. 184, 606 P.2d 178 (1980); State v. von
Brincken, 86 Nev. 769, 476 P.2d 733 (1970). Here, there is evidence that the killing occurred
during an attempted escape after the commission of battery with the use of a deadly weapon,
a felony, See NRS 200.481, 193.120. Thus, we conclude that there is sufficient evidence that
the victim's involuntary killing happened in the prosecution of a felonious intent to justify a
charge of murder. In so holding, we note that other courts have affirmed felony-murder
convictions resulting from traffic collisions during attempted escapes. See, e.g., Whitman v.
People, 420 P.2d 416 {Colo. 1966); People v. Burke, 407 N.E.2d 72S {Ill.App. 19S0); State
v. Milentz, 547 S.W.2d 164 {Mo.App.
escapes. See, e.g., Whitman v. People, 420 P.2d 416 (Colo. 1966); People v. Burke, 407
N.E.2d 728 (Ill.App. 1980); State v. Milentz, 547 S.W.2d 164 (Mo.App. 1977).
Accordingly, the district court's order granting respondent's petition for a writ of habeas
corpus is reversed.
____________
97 Nev. 93, 93 (1981) Nicosia v. Turzyn
DOMINICK NICOSIA, Appellant, v. KATHRYN
TURZYN, Respondent.
No. 12306
March 12, 1981 624 P.2d 499
Appeal from order, Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
Appeal was taken from an order of the district court which found a trust to be irrevocable
and compelled trustor surviving spouse to return to that trust all assets which he had delivered
to himself. The Supreme Court held that although Trust B was not made specifically
revocable under trust agreement as was Trust A, the specific limitations upon power of
providing trustor plus the specific limitations upon invasion of corpus for benefit of surviving
spouse as well as terms for ultimate distribution of trust corpus suggested that Trust B was
intended to be irrevocable by surviving spouse rather than revocable by implication.
Affirmed.
Jones, Jones, Bell, Close & Brown, Ltd., Las Vegas, for Appellant.
Charles W. Johnson, Las Vegas, for Respondent.
1. Trusts.
Unless a power of revocation is specifically provided for in trust, revocation will not be permitted.
2. Trusts.
Power to revoke a trust may be evidenced by implication from terms of the agreement.
3. Trusts.
Although Trust B was not made specifically revocable under trust agreement as was Trust A, the specific
limitations upon power of surviving trustor plus the specific limitations upon invasion of corpus for benefit
of surviving spouse as well as terms for ultimate distribution of trust corpus suggested that Trust B was
intended to be irrevocable by surviving spouse rather than revocable by implication.
OPINION
Per Curiam:
This is an appeal from an order finding a trust to be irrevocable and compelling appellant
Dominick Nicosia to return to that trust all assets which he had delivered to himself.
The facts reveal that in 1976 Mary and Dominick Nicosia conveyed certain assets to an
inter vivos trust. The trust agreement provided that at the death of either trustor, the assets of
the trust would be equally divided, creating two trusts, A and B, and that Kathryn Turzyn,
Mary's sister, and the surviving trustor would act as co-trustees of these two trusts. The trust
agreement also provided that during the lifetime of the surviving trustor the income from each
trust would be distributed to the surviving trustor, and that the corpus of each trust would be
invaded only if such income were insufficient to maintain the trustor. The agreement further
specified that when both trustors had died, a new co-trustee would be appointed by Turzyn,
and that thereafter she would receive the corpus of both trusts. The agreement stated that
Trust A was to be irrevocable. It was silent as to the revocability of Trust B.
Mary Nicosia died in 1978. Several months after his wife's death Nicosia notified Turzyn
of his intent to revoke Trust B. He thereafter seized a portion of that trust's assets. Turzyn
petitioned the court to order Nicosia to return the assets. Nicosia in turn petitioned the court
for a determination that Trust B was revocable. The court found that by the intent and terms
of the trust agreement both Trusts A and B became irrevocable upon the death of Nicosia's
wife and that Nicosia's revocation of Trust B was invalid. The court ordered Nicosia to return
the seized assets to Trust B. This appeal followed.
[Headnote 1]
It is generally held that unless a power of revocation is specifically provided for in the
trust, revocation will not be permitted. State Bank of Parsons v. First Nat. Bank in Wichita,
504 P.2d 156 (Kan. 1972); Loco Credit Union v. Reed, 516 P.2d 1112 (N.M. 1973); Clayton
v. Behle, 565 P.2d 1132 (Utah 1977); In Re Estate of Button, 490 P.2d 731 (Wash. 1971).
Compare Cal. Civ. Code 2880. No power of revocation was reserved in the trust at issue
[Headnotes 2, 3].
Appellant, nevertheless, contends that because Trust A was specifically made irrevocable
and nothing was said in the trust agreement regarding the revocability of Trust B, and because
of the spousal relationship of the trustors, Trust B was, by implication, revocable.
of the spousal relationship of the trustors, Trust B was, by implication, revocable. A power to
revoke may be evidenced by implication from the terms of the agreement. Trenton Banking
Co. v. Howard, 187 A. 569 (N.J.Super.Ct.Ch.Div. 1936). However, review of the trust
agreement at issue fails to give rise to such an implication. The specific limitations upon the
power of the surviving trustor, including particularly the provision for a new co-trustee to be
appointed by Turzyn, plus the specific limitations upon invasion of the corpus for the benefit
of the surviving spouse, as well as the terms for the ultimate distribution of the corpus to
Turzyn, all suggest, on the contrary, an intent that the trust was intended to be irrevocable by
the surviving spouse.
The order of the district court is affirmed.
____________
97 Nev. 95, 95 (1981) Severance v. Armstrong
DANIEL S. SEVERANCE, Appellant, v. BRYN ARMSTRONG, and THE
NEVADA BOARD OF PAROLE COMMISSIONERS, Respondents.
No. 12328
March 12, 1981 624 P.2d 1004
Appeal from order denying petition for writ of habeas corpus, First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Prisoner filed petition for writ of habeas corpus alleging unlawful denial of application for
parole release. The district court entered judgment, and prisoner appealed. The Supreme
Court, 96 Nev. 836, 620 P.2d 369 (1980), affirmed. On petition for rehearing, the Supreme
Court held that prisoner did not have, under statute, expectancy of release once parole
application was made such as warranted protection under due process clause.
Rehearing denied.
Powell and Ray, Ltd., Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Charles P. Cockerill, Deputy Attorney General,
Carson City, for Respondents.
Constitutional Law; Pardon and Parole.
Prisoner did not have, under statute, expectancy of release once parole application was made
such as warranted protection under due process clause.
97 Nev. 95, 96 (1981) Severance v. Armstrong
parole application was made such as warranted protection under due process clause. NRS 213.1099;
U.S.C.A.Const. Amends. 5, 14.
OPINION ON PETITION FOR REHEARING
Per Curiam:
Appellant seeks a rehearing, contending that our decision in Severance v. Armstrong, 96
Nev. 836, 620 P.2d 369 (1980), ignores this court's previous holding in Goldsworthy v.
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). In Goldsworthy, a statute enacted after the
defendant had been convicted and sentenced increased the time he would be required to serve
before becoming eligible to apply for parole. This court declared the statute unconstitutional
as an ex post facto law and stated:
[I]f the legislature undertakes to enact laws granting parole [footnote omitted] when
it need not constitutionally have done so, we think those rights granted as acts of
clemency or grace must be administered in accordance with concepts of due process
and may not arbitrarily increase the punishment previously imposed in the unequal and
illogical manner done here.
Id. at 256, 468 P.2d at 353. Appellant interprets this language to mean that due process rights
attach to all parole statutes.
We do not read Goldsworthy so broadly. That case dealt solely with the right to apply for
parole. Such a right, once granted by the legislature, is a constitutionally protected interest
which may not be unfairly denied. Here, the right to apply for parole is not in issue. The
question is whether NRS 213.1099 creates a protectible expectancy of release once a parole
application is made. As we stated in our opinion, this statute does not confer such an
expectancy and therefore due process concepts do not apply. Simply stated, a prisoner may
have a constitutionally protected right to apply for parole, but he has no expectancy that his
application will be granted. Therefore, Goldsworthy is inapposite.
Rehearing denied.
____________
97 Nev. 97, 97 (1981) Schwabacher & Co. v. Zobrist
SCHWABACHER AND CO., Appellant, v. RAY V.
ZOBRIST and MARILYN ZOBRIST, Respondents.
Nos. 11058 and 11434
March 19, 1981 625 P.2d 82
Appeals from a judgment dismissing action pursuant to NRCP 41(b), and from a
post-judgment order assessing costs and attorneys' fees, Eighth Judicial District Court, Clark
County; George E. Marshall, Senior Judge.
Appeal was taken from judgment of the district court entered in favor of defendants in
action based on alleged fraudulent concealment, conversion and fraud in a stock transaction,
and appeal was also taken from postjudgment order granting defendants' motion to assess
costs and attorney fees. The Supreme Court held that plaintiff made out a sufficient case to
withstand involuntary dismissal, and thus basis for order for assessment of costs and attorney
fees no longer existed.
Jolley, Urga & Wirth, Las Vegas, for Appellant.
Leavitt, Graves & Leavitt, Las Vegas, for Respondents.
1. Fraud.
Plaintiff in action based on alleged fraudulent concealment, conversion and fraud in stock transaction
made out a sufficient case to withstand involuntary dismissal. NRCP 41(b).
Where order granting defendants an involuntary dismissal was reversed for a trial on the merits, such
resolution compelled reversal of court's order granting defendants' motion to assess costs and attorney fees
because basis for the order, i.e., a judgment finally obtained by plaintiff that was not more favorable than
settlement offer made by defendants, no longer existed. NRCP 68.
OPINION
Per Curiam:
Case No. 11058 is an appeal arising from an action in which appellant Schwabacher was
plaintiff, based on alleged fraudulent concealment, conversion and fraud in a stock
transaction. At the conclusion of appellant's evidence, the district court granted respondents,
the Zobrists, an involuntary dismissal under NRCP 41(b). Case No. 11434 is an appeal from a
post-judgment order granting respondents' motion to assess costs and attorneys' fees pursuant
to NRCP 68.
97 Nev. 97, 98 (1981) Schwabacher & Co. v. Zobrist
[Headnotes 1, 2]
In evaluating an appeal from an involuntary dismissal of an action at the close of the
plaintiff's case, plaintiff's evidence and all inferences that reasonably can be drawn from it
must be deemed admitted and the evidence must be interpreted in the light most favorable to
plaintiff. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 337, 291 P.2d 1054 (1955); Bates v.
Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622 (1968); Adelman v. Arthur, 83
Nev. 436, 440, 433 P.2d 841 (1967). Our review of the record compels us to conclude that the
appellant made out a sufficient case, to withstand dismissal under NRCP 41(b), and that
respondents were sufficiently notified of appellant's claims by its complaint. Therefore, in
Case No. 11058, we conclude the district court erred when it granted respondents' motion,
and we reverse the matter for a trial on the merits. This resolution compels us to reverse the
court's order in Case No. 11434 also, because the basis for the order no longer existsi.e., a
judgment finally obtained by appellant that is not more favorable than the settlement offer
made by respondents.
1

____________________

1
NRCP 68 provides in relevant part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve
upon the adverse party an offer to allow judgment to be taken against him for the money or property or to
the effect specified in his offer, with costs then accrued. . . . If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree shall not recover costs, nor attorneys fees, but
shall pay the costs and attorneys' fees, if any be allowed, of the party making the offer from the time of
the offer. . . . (Emphasis added.)
____________
97 Nev. 98, 98 (1981) Hornback v. Warden
LEONARD HORNBACK, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 12752
March 19, 1981 625 P.2d 83
Appeal from denial of petition for post-conviction writ of habeas corpus; First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
The Supreme Court held that right of parolee to confront and question his accusers was
violated where no effort was made to procure attendance of arresting officer at hearing upon
revocation and, though arrest report was admitted in evidence and parole officer testified that
he spoke with arresting officer, neither the parole board, the parolee, the district court in a
habeas proceeding, nor the Supreme Court on review could have had any means of
testing the accuracy or reliability of the facts recited in the report itself or the parole
officer's recollection of them.
neither the parole board, the parolee, the district court in a habeas proceeding, nor the
Supreme Court on review could have had any means of testing the accuracy or reliability of
the facts recited in the report itself or the parole officer's recollection of them.
Norman Y. Herring, State Public Defender; Powell & Ray, Ltd., Special Deputy Public
Richard H. Bryan, Attorney General, Thomas P. Wright, Deputy Attorney General, Carson
City, for Respondent.
Due process standards of rule in Anaya for probation revocation also apply to revocation of parole.
NRAP 22; NRS 176.217, subd. 2; U.S.C.A.Const. Amend. 14.
2. Pardon and Parole.
Right of parolee to confront and question his accusers was violated where no effort was made to procure
attendance of arresting officer at hearing upon revocation and, though arrest report was admitted in
evidence and parole officer testified that he spoke with arresting officer, neither the parole board, the
parolee, the district court in a habeas proceeding, nor the Supreme Court on review could have had any
means of testing the accuracy or reliability of the facts recited in the report itself or the parole officer's
recollection of them. NRAP 22; NRS 176.217, subd. 2; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
While on parole, appellant was arrested in South Tucson, Arizona for possession of a
weapon. After the arrest, appellant was transported to Las Vegas, Nevada. Appellant waived
his right to a preliminary inquiry and proceeded to a revocation hearing before the parole
board. Appellant was charged with a substantive violation of his parole agreement.
At the hearing, appellant's parole officer testified that he spoke by telephone with the
Arizona arresting officer, who verified the contents of the Arizona arrest report. The arrest
report was admitted into evidence. Appellant objected to its admission and its contents. The
arresting officer did not testify and the parole officer admitted that no effort had been made to
procure his attendance.
A Las Vegas detective also testified that the serial number on the gun which was allegedly
found upon the appellant during the Arizona arrest matched the serial number upon a gun
which was missing from an unsolved burglary in Las Vegas.
was missing from an unsolved burglary in Las Vegas. After the gun was transported to
Nevada, authorities in Nevada instituted criminal charges against appellant while the Arizona
authorities dismissed their charges.
Appellant testified at the hearing that he was not in possession of the gun in Tucson at the
time of the arrest. He testified that he had been framed by an Arizona police officer.
Over appellant's objection that he had been denied his due process right to confront and
question witnesses giving information against him, see Anaya v. State, 96 Nev. 119, 606 P.2d
156 (1980), the parole board revoked his parole. In addition, the parole board removed three
hundred and sixty-five days of previously earned statutory good time from appellant's records.
Appellant filed an original writ of habeas corpus with this court. We transferred that writ
to the district court. See NRAP 22. After hearing arguments and considering the briefs filed
by counsel, the district court denied the petition. The district court reasoned that there is a
distinction between parole revocation and probation revocation, and as a result parole
revocation enjoys somewhat less stringent evidentiary requirements than does a probation
revocation. With this distinction, the district court denied the petition for a writ of habeas
corpus and this appeal followed.
[Headnote 1]
In Anaya, a probation revocation case, we followed the standards announced in Morrissey
v. Brewer, 408 U.S. 471 (1972), Gagnon v. Scarpelli, 411 U.S. 778 (1973) and NRS
176.217(2). Morrissey v. Brewer, supra, involved parole revocation; Gagnon v. Scarpelli,
supra, involved probation revocation. In Gagnon, the U.S. Supreme Court held that there is
no distinction relevant to the guarantee of due process between the revocation of parole and
the revocation of probation. Id. at 782. Accordingly, we hold that the due process standards of
Anaya v. State, supra, also apply to the revocation of parole.
[Headnote 2]
In the case at bar, appellant challenged the accuracy of the facts contained within the
Arizona arrest report. Respondent has conceded that no effort was made to procure the
attendance of the arresting officer at the hearing upon the revocation. Although the arrest
report was admitted into evidence and appellant's parole officer testified that he spoke with
the arresting officer, [n]either the [parole board], the [parolee, the district court in a habeas
proceeding], nor this Court on review could have any means of testing the accuracy or
reliability of the facts recited in the report itself or the [parole] officer's recollection of
them."
the facts recited in the report itself or the [parole] officer's recollection of them. Anaya v.
State, supra at 125, 606 P.2d at 159. Under these circumstances, we conclude that the
parolee's right to confront and question his accusers was violated.
Accordingly, we reverse the decision of the district court and remand the matter to the
district court for issuance forthwith of the writ of habeas corpus.
____________
97 Nev. 101, 101 (1981) Brown v. State
STEVEN L. BROWN, Appellant, v. THE STATE
No. 11224
March 19, 1981 624 P.2d 1005
Appeal from judgment of conviction, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendant was convicted before the district court of battery on a police officer causing
substantial bodily harm, and at his sentencing hearing was adjudicated an habitual criminal.
On appeal, the Supreme Court held that where conviction of defendant for carrying a
concealed weapon was not entered until after the date defendant, a prison inmate, threw a
rock at a prison guard, seriously injuring him, the conviction for carrying a concealed weapon
could not be used to adjudicate defendant an habitual criminal, despite fact that the incident
giving rise to the charge of carrying a concealed weapon occurred prior to the rock-throwing
incident.
Sentence vacated and case remanded for a new sentencing hearing.
Paul C. Giese, Reno, for Appellant.
Richard H. Bryan, Attorney General, Carson City, for Respondent.
1. Criminal Law.
Where conviction of defendant for carrying a concealed weapon was not entered until after the date
defendant, a prison inmate, threw a rock at a prison guard, seriously injuring him, the conviction for
carrying a concealed weapon could not be used to adjudicate defendant an habitual criminal at his
sentencing hearing on the conviction for battery of a police officer causing substantial bodily harm, despite
fact that the incident giving rise to the charge of carrying a concealed weapon occurred prior to the
rock-throwing incident.
97 Nev. 101, 102 (1981) Brown v. State
2. Criminal Law.
All prior convictions used to enhance a sentence must have preceded the primary offense.
OPINION
Per Curiam:
[Headnote 1]
On May 2, 1977, appellant Steven L. Brown, while an inmate at the Nevada State Prison,
threw a rock at a prison guard. The guard was struck on the side of the head and suffered
serious injury.
Brown was charged with attempted murder, battery upon an officer, battery with a deadly
weapon, and mayhem on September 13, 1977.
1
On May 23, 1978, Brown pled guilty to
battery on a police officer causing substantial bodily harm. Respondent agreed to dismiss the
remaining charges, reserving the right to argue Brown's status as an habitual criminal. His
sentencing hearing was held on July 5,1978. At that time he was adjudicated an habitual
criminal and sentenced to life with the possibility of parole.
On this appeal, Brown alleges that the trial court, at the sentencing hearing, denied him
effective assistance of counsel; and committed error when it used prior convictions more than
once, used a conviction that occurred subsequent to the primary offense, and used a
conviction from a case on appeal to enhance his sentence.
[Headnote 2]
Appellant's claim of error in the use of his conviction for carrying a concealed weapon to
enhance the sentence for his present conviction is well taken. The carrying of a concealed
weapon occurred on October 30, 1976, but the conviction was not entered until October 3,
1977. The present offense occurred on May 2, 1977. All prior convictions used to enhance a
sentence must have preceded the primary offense. Carr v. State, 96 Nev. 936, 620 P.2d 869
(1980).
Because appellant's sentence must be vacated and the case remanded for resentencing, we
need not address any of his other contentions.
The sentence imposed in this case is vacated and the case is remanded to the district court
for resentencing in conformity with the law.
____________________

1
The information filed November 22, 1977, included a fifth count alleging the habitual criminal status of the
defendant.
____________
97 Nev. 103, 103 (1981) Pace v. Linton
PAUL PACE, Individually, and PAUL PACE, General Partner of P.M.R. PROPERTIES, a
Limited Partnership, Appellants, v. LEE LINTON, Respondent.
No. 12115
March 19, 1981 625 P.2d 84
Appeal from a judgment in an action to recover fees for professional services, Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that the evidence was sufficient to sustain the district court's
determination that the architect had performed his contractual obligations and was entitled to
the agreed-upon compensation.
Affirmed.
Albright, McGimsey & Stoddard, and John A. Warnick, Las Vegas, for Appellants.
James L. Buchanan, II, Las Vegas, for Respondent.
Findings of fact shall not be set aside on appeal unless clearly erroneous and due regard shall be given to
opportunity of trial court to judge credibility of witnesses. NRCP 52.
2. Contracts.
In action by architect to recover professional fee for services rendered, evidence was sufficient to support
district court's determination that architect had performed his contractual obligations and was entitled to
agreed-upon compensation.
OPINION
Per Curiam:
This is an appeal in a breach of contract action. The respondent Linton, a Nevada architect,
sued to recover a $10,000.00 professional fee for services rendered to appellants in the
construction of the Post Realty Building in Las Vegas. On appeal, the sole question is
whether sufficient evidence was adduced to justify the district court's determination that
respondent had performed his contractual obligations and was entitled, therefore, to the
agreed-upon compensation.
[Headnote 1]
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses. NRCP 52.
97 Nev. 103, 104 (1981) Pace v. Linton
Our task when reviewing the appropriateness of findings and judgments rendered by district
courts is to . . . . determine whether there is substantial evidence in the record to support the
findings and judgment of the district judge. Utley v. Airoso, 86 Nev. 116, 118, 464 P.2d 778
(1970); Savini Constr. Co. v. A & K Earthmovers, 88 Nev. 5, 7, 492 P.2d 125 (1972);
Brandon v. Travitsky, 86 Nev. 613, 615, 472 P.2d 353 (1970).
[Headnote 2]
Here, although the evidence was conflicting, there was substantial proof to support the
district court's findings and judgment. Accordingly, we affirm the court's judgment and its
award of damages.
____________
97 Nev. 104, 104 (1981) Grover v. County of Clark
WILLIAM MARVIN GROVER, Appellant, v. COUNTY OF CLARK, a Political
Subdivision of State of Nevada; CITY OF LAS VEGAS, a Municipal Corporation; LAS
VEGAS METROPOLITAN POLICE DEPARTMENT; OFFICER F. FRENCH, R.N. 375,
Individually; OFFICER J. R. WEAVER, P. N. 659, Individually; and JOHN DOES I to X,
Individually, Respondents.
No. 12222
March 19, 1981 625 P.2d 85
Appeal from an order granting summary judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Appeal was taken from the district court which entered summary judgment in favor of
respondents in action brought for false arrest and for alleged excessive force used during
arrest. The Supreme Court held that: (1) appellant, who had been arrested for violation of
statute prohibiting indecent or obscene exposure, was not entitled to maintain false arrest
action against county, city, city police department, and police officers, in that probable cause
existed to warrant arrest, and (2) genuine issue of fact was raised in action whether restraint,
if any, used by officer in making arrest was reasonable under the circumstances, thereby
precluding summary judgment.
Affirmed in part; remanded in part.
Michael L. Hines, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondents.
1. False Imprisonment.
Appellant, who had been arrested for violation of statute prohibiting indecent or obscene exposure, was
not entitled to maintain suit seeking damages for false arrest against county, city, city police department,
and police officers, in that police officers had probable cause to arrest appellant. NRS 201.220.
2. Judgment.
Genuine issue of fact in action brought by appellant, who had been arrested for violation of statute
prohibiting indecent or obscene exposure, and who alleged excessive force used against him during his
arrest, were raised whether restraint, if any, used by officer in making arrest was reasonable under the
circumstances, thereby precluding summary judgment. NRS 201.220; NRCP 56(c).
OPINION
Per Curiam:
Appellant was arrested for a violation of NRS 201.220. The criminal charges were
dropped. He then filed suit seeking damages against the above named respondents for false
arrest and for alleged excessive force used against him during his arrest. Respondents were
granted summary judgment on both causes of action. This appeal followed. We agree that
summary judgment was properly granted as to the claim predicated on the arrest for lack of
probable cause; however, the record does not support the court's ruling that summary
judgment should have been granted dismissing appellant's claim that the officer used
excessive force during the arrest.
[Headnote 1]
In the instant case the arresting officer was summoned by a visibly distraught woman who
claimed a man had exposed himself. She described the car, the man, and the direction the car
was traveling. The officer followed her directions and located the car. The appellant was
seated inside. After an on-the-spot identification by the woman, the officer arrested the
appellant. Probable cause exists if the facts and circumstances known to the officer warrant a
prudent man in believing that a felony has been committed by the person arrested.
Nootenbaum v. State, 82 Nev. 329, 334, 418 P.2d 490, 492 (1966). Since there was no
material question of fact presented as to the existence of probable cause to arrest, summary
judgment was properly granted. NRCP 56(c); see Washington v. State, 94 Nev. 181, 576 P.2d
1126 (1978).
[Headnote 2]
Appellant's complaint also alleged that the officer used excessive force against him during
his arrest. Respondents, in their motion for summary judgment, failed to set forth any facts
suggesting that the restraint, if any, used by the officer in making the arrest was
reasonable under the circumstances.
their motion for summary judgment, failed to set forth any facts suggesting that the restraint,
if any, used by the officer in making the arrest was reasonable under the circumstances. Since
a genuine issue of fact remains on this issue, summary judgment was improperly granted
thereon. NRCP 56(c).
We therefore affirm that portion of the order granting summary judgment on the issue of
probable cause to arrest, but we reverse and remand the case for trial on the appellant's claim
of the use of excessive force by the officer during the appellant's arrest.
____________
97 Nev. 106, 106 (1981) American Fidelity Fire Ins. v. Adams
AMERICAN FIDELITY FIRE INSURANCE COMPANY, a New York
Corporation, Appellant, v. ARNOLD ADAMS, Respondent.
No. 11676
March 19, 1981 625 P.2d 88
Appeal from judgment of the First Judicial District Court, Carson City; Howard D.
McKibben, Judge.
Insurer brought action against insured seeking declaratory judgment as to homeowner's
insurance policy, and the action was consolidated with third-party complaint which insured
filed against insurer in litigation arising from dune buggy accident. The district court entered
judgment for insured, and insurer appealed. The Supreme Court held that: (1) homeowner's
policy provided coverage against liability arising from use of the dune buggy, and (2) insured
had provided insurer timely notice following the accident.
Affirmed.
Joseph J. Van Walraven, Reno, for Appellant.
Allison, Brunetti, MacKenzie & Taylor, and James Todd Russell, Carson City, for
Respondent.
1. Insurance.
Trial court's determination that insured's dune buggy was not subject to motor vehicle registration, was
designed for use principally off roads, and thus was not covered by exclusion clause in homeowner's policy
was based on substantial evidence.
2. Insurance.
Where policy provisions are susceptible of different interpretations, doubts must be resolved against
insurer.
3. Insurance.
Trial court's finding that insured's delay in notifying insurer was due to his good-faith belief that no action
would be filed against him and finding that the notice, which was given approximately seven months after
the incident occurred, met requirements of homeowner's policy were supported by substantial evidence.
OPINION
Per Curiam:
Appellant American Fidelity Fire Insurance Company sued respondent Adams, seeking a
declaratory judgment as to a homeowners insurance policy. The district court consolidated
American's action for trial with a third party complaint which Adams had filed against
American in litigation arising from a dune buggy accident. The judgment favored Adams, and
this appeal poses two questions. First, did the district court err in deciding that Adams'
homeowners policy provided coverage against liability arising from use of the dune buggy?
Second, did the court err in deciding that Adams had provided American timely notice
following the accident?
1. The policy excludes coverage for any liability arising from an occurrence resulting
from the ownership, maintenance, operation or use . . . of an automobile. However, the
policy also declares the term automobile does not include any crawler or farmtype tractor,
farm implement or if not subject to motor vehicle registration, any equipment which is
designed for use principally off public roads. (Emphasis added.) The district court found
that Adams' dune buggy was not subject to motor vehicle registration, and was designed for
use principally off roads. Hence, concluding that the homeowners' policy was ambiguous and
should therefore be construed in Adams' favor, the district court held the policy protected
Adams. We agree.
[Headnotes 1, 2]
The court's factual determination concerning the dune buggy's nature and design is based
on substantial evidence, and therefore will not be disturbed on appeal. NRCP 52; Fletcher v.
Fletcher, 89 Nev. 540, 542, 516 P.2d 103 (1973); Savini Const. Co. v. A & K Earthmovers,
88 Nev. 5, 7, 492 P.2d 125 (1972). Furthermore, the court did not err in concluding that
where policy provisions are susceptible of different interpretations, doubts must be resolved
against the insurer. See Home Indem. Co. v. Desert Palace, Inc., 86 Nev. 234, 236, 468 P.2d
19 (1970); Catania v. State Farm Life Ins. Co., 95 Nev. 532, 534, 598 P.2d 631 (1979).
2. The policy provided that, [w]hen an occurrence takes place, written notice shall be
given by or on behalf of the Insured to this company or any of its authorized agents as soon as
practicable. (Emphasis added.) We think clauses in insurance policies calling for notice of a
liability creating event as soon as practicable or promptly or within a reasonable time
all essentially mean the same thing.
. . . [S]uch clauses do not require instantaneous notice of an accident, but rather call for
notice within a reasonable length of time under all the facts and circumstances of each
particular case. 8 J. Appleman, Insurance Law and Practice 4734 (2d ed.); 13 G.
Couch, Cyclopedia of Insurance Law 49.39-49.48 (2d ed.)
Certified Indemnity Company v. Thun, 439 P.2d 28, 30 (Colo. 1968) (emphasis in the
original).
[Headnote 3]
Here, Adams first gave notice of the occurrence to American approximately seven months
after the incident occurred. The district court found that Adams' delay in notifying American
was due to his good faith belief that no action would be filed against him. Accordingly, the
district court held the notice, when given, met requirements of the policy. Here again, the
court's findings are supported by substantial evidence, and therefore will not be disturbed on
appeal.
Affirmed.
____________
97 Nev. 108, 108 (1981) Surety Midland Ins. Co. v. State of Nevada
SURETY MIDLAND INSURANCE COMPANY, Appellant,
v. STATE OF NEVADA, Respondent.
No. 11118
March 19, 1981 625 P.2d 90
Appeal from the denial of a motion to set aside a bond forfeiture, Eighth Judicial District
Court; Paul S. Goldman, Judge.
The Supreme Court held that district court committed no abuse of discretion in refusing to
set aside forfeiture of bail bond.
Affirmed.
Morton R. Galane, Las Vegas, for Appellant.
97 Nev. 108, 109 (1981) Surety Midland Ins. Co. v. State of Nevada
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
Bail.
District court committed no abuse of discretion in refusing to set aside forfeiture of bail bond, as justice
did not require another result. NRS 178.512.
OPINION
Per Curiam:
Appellant Surety Midland Insurance was the surety on a $25,000.00 bail bond forfeited to
the respondent State of Nevada. Surety Midland has appealed the denial of its motion to set
aside the forfeiture of its bond. The district court committed no abuse of discretion in refusing
to set aside its forfeiture order. We affirm its denial of the appellant's motion.
NRS 178.512, in pertinent part, provides that, [t]he court shall not set aside a forfeiture
[of a bond] unless: . . . The court determines that justice does not require the enforcement of
the forfeiture. This provision clearly puts the responsibility for determining whether a
forfeiture shall be set aside in the district court's hands.
Here, the district court evidently felt unable to determine, that justice does not require the
enforcement of the forfeiture. The record does not require a determination contrary to this
finding, and we therefore will not disturb it on appeal. Fletcher v. Fletcher, 89 Nev. 540, 542,
516 P.2d 103 (1973).
____________
97 Nev. 109, 109 (1981) Baccari v. State
LAWRENCE BACCARI, Appellant, v. THE
No. 11291
March 19, 1981 624 P.2d 1008
Appeal from a judgment of conviction for murder in the first degree, Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that: (1) defendant was not denied due process by destruction of
tape recording of his initial interview by police, where no agent of State acted in bad faith or
in connivance concerning the erasure of tape recording, defendant was not prejudiced by loss
of the tape since all that appeared was that tape would have given one psychiatrist "a little
better idea in putting one more piece into the puzzle" as to what defendant's mental state
had been and {2) record did not disclose that district court had abused its discretion in
denying defendant's motion for a second competency hearing.
appeared was that tape would have given one psychiatrist a little better idea in putting one
more piece into the puzzle as to what defendant's mental state had been and (2) record did
not disclose that district court had abused its discretion in denying defendant's motion for a
second competency hearing.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
Defendant was not denied due process by destruction of tape recording of his initial interview by police,
where no agent of State acted in bad faith or in connivance concerning erasure of tape recording and
defendant was not prejudiced by loss of the tape, since all that appeared was that tape would have given
one psychiatrist a little better idea in putting one more piece into the puzzle as to what defendant's
mental state had been. U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Record did not disclose that district court had abused its discretion in denying defendant's motion for a
second competency hearing. NRS 178.405.
OPINION
Per Curiam:
A jury found the appellant guilty of first degree murder and sentenced him to life
imprisonment without possibility of parole. On appeal, he has assigned a number of errors,
only two of which we deem deserving of discussion. First, was appellant denied due process
through destruction of the tape recording of his initial interview by the police? Second, was
appellant deprived of due process through the district court's denial of his motion for a second
competency hearing, five days before his trial?
1. . . . [T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S.
83, at 87 (1963).
The language of Brady, Rule 16 and the Jencks Act includes no reference to the timing
of possession and suppression. It is most consistent with the purposes of those
safeguards to hold that the duty of disclosure attaches in some form once the
Government has first gathered and taken possession of the evidence in question.
taken possession of the evidence in question. Otherwise, disclosure might be avoided
by destroying vital evidence before prosecution begins or before defendants hear of its
existence. Hence we hold that before a request for discovery has been made, the duty of
disclosure is operative as a duty of preservation. Only if evidence is carefully preserved
during the early stages of investigation will disclosure be possible later.
United States v. Bryant, 439 F.2d 642, at 650-51 (D.C.Cir. 1971) (footnote deleted).
When defendants have sought to have convictions reversed for an alleged loss of material
evidence, this court has declared that such an individual must show . . . either (1) bad faith
or connivance on the part of the government or, (2) that he was prejudiced by the loss of the
evidence. Howard v. State, 95 Nev. 580, 582, 600 P.2d 214 (1979); Crockett v. State, 95
Nev. 859, 865, 603 P.2d 1078 (1979); Boggs v. State, 95 Nev. 911, 912, 604 P.2d 107 (1979).
[Headnote 1]
The record does not establish that any agent of the State acted in bad faith or in connivance
concerning the erasure of the tape recording. Nor does the record show that the appellant was
prejudiced by the loss of the tape. All that appears, in the words of one psychiatrist, is that the
tape would give me a little better idea in putting one more piece into the puzzle as to what
his mental state was. . . .
2. NRS 178.405 provides: When an indictment or information is called for trial, . . . if
doubt shall arise as to the sanity of the defendant, the court shall suspend the trial of the
indictment or information . . . until the question of insanity is determined. (Emphasis added.)
In construing 178.405 this court has declared:
The doubt mentioned in NRS 178.405 means doubt in the mind of the trial court, rather
than counsel or others. . . . A determination whether doubt exists rests largely within the
discretion of the trial judge. . . . If the court determines a doubt to exist, it must suspend
the trial and inquire into the sanity of the accused. . . .
Williams v. State, 85 Nev. 169, 174, 451 P.2d 848 (1969).
[Headnote 2]
Upon review of the record, it does not appear to us that the district court abused its
discretion by denying appellant's motion for a second competency hearing.
Affirmed.
____________
97 Nev. 112, 112 (1981) Morris v. Board of Regents
WILLIAM W. MORRIS, as Taxpayer and Citizen of the State of Nevada, Appellant and
Cross-Respondent, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA;
ROBERT A. CASHELL, as Chairman of the Board of Regents; DONALD H. BAEPLER, as
Chancellor and Ex-officio Treasurer of the University of Nevada; KENNETH W.
PARTRIDGE, as Vice Chancellor for Finance of the University of Nevada; BONNIE M.
SMOTONY, as Secretary of the Board of Regents; STANTON B. COLTON, as Treasurer of
the State of Nevada; and WILSON McGOWAN, as Controller of the State of Nevada,
Respondents and Cross-Appellants.
No. 12612
March 19, 1981 625 P.2d 562
Appeal from judgment. Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Action was instituted by taxpayer to enjoin issuance of construction bonds by university
and its board of regents. The district court entered judgment that issuance of some bonds was
unconstitutional, and both parties appealed. The Supreme Court held that to the extent that
the construction bonds issued by the university were funded by revenues from the slot
machine tax, they constituted a debt within the Constitution and were invalid, but to the
extent that student and user fees were the fund for any part of the bonds, no debt within the
Constitution was created, as the special fund doctrine applied, and bonds were not invalid.
Affirmed.
Morris & Wood, Las Vegas, for Appellant and Cross-Respondent.
Richard H. Bryan, Attorney General, Carson City; Larry D. Lessly, Reno, and Dawson,
Nagel, Sherman & Howard, Denver, Colorado, for Respondents and Cross-Appellants.
1. Colleges and Universities; States.
To the extent that the construction bonds issued by the university were funded by revenues from the slot
machine tax, they constituted a debt within the Constitution and were invalid, but to the extent that
student and user fees were the fund for any part of the bonds, no debt within the Constitution was
created, as the special fund doctrine applied, and bonds were not invalid. Const. Art. 9, 3; NRS
396.8395; St. 1979, c. 679, 1 et seq.
2. States.
The constitutional debt limitation prevents the state government from incurring debts in an aggregate
amount greater than one percent of the assessed value of the state. Const. Art. 9, 3.
3. States.
Definition of debt subject to the constitutional debt limitation does not include obligations for which
the revenues of the state are not pledged, but for whose payment a special fund is created from fees
charged to users of the facility funded or from other sources not having their origin in general state
taxation. Const. Art. 9, 3.
4. States.
Whether the state taxation which funds a bond issue is an ad valorem or an excise tax is immaterial to the
determination whether the bonds are a debt within the constitutional limitation; in either case, state tax
revenue is being used to finance a debt which does not have a special fund to support it entirely. Const.
Art. 9, 3.
5. Colleges and Universities; States.
The construction bond issued by the university and funded by the proceeds of the slot machine tax were
not an indebtedness exempt from the constitutional debt limitation where the construction project was not
necessary, expedient or advisable for any of the purposes enumerated in the exemption provision. NRS
396.8395; St. 1979, c. 679, 1 et seq.; Const. Art. 9, 3.
OPINION
Per Curiam:
Appellant Morris challenges the legality of issuance of certain bonds by the University of
Nevada, authorized by the legislature. The district court held that issuance of part of the
bonds authorized (referred to as the 1979(2) bonds) was unconstitutional insofar as they were
funded by the proceeds of the slot machine tax under the debt limitation of the Nevada
constitution.
1
Respondents have cross-appealed from this part of the judgment. Morris, the
taxpayer who sued to enjoin issuance of the bonds, appeals from the part of the judgment in
which the district court held that issuance of some of the bonds (the 1979(1) bonds) was not
unconstitutional insofar as they were funded from University student fees and from user fees.
____________________

1
Nev. Const. art. 9, 3 provides:
Limitations and exceptions. The state may contract public debts; but such debts shall never, in the
aggregate, exclusive of interest, exceed the sum of one per cent of the assessed valuation of the state, as
shown by the reports of the county assessors to the state controller, except for the purpose of defraying
extraordinary expenses, as hereinafter mentioned. Every such debt shall be authorized by law for some
purpose or purposes, to be distinctly specified therein; and every such law shall provide for levying an
annual tax sufficient to pay the interest semiannually, and the principal within twenty years from the
passage of such law, and shall specially appropriate the proceeds of said taxes to the payment of said
principal and
[Headnote 1]
The 1977 Nevada legislature authorized the University of Nevada to undertake certain
construction projects on its campuses and to issue bonds for the projects funded by student
and user fees. 1977 Nev. Stats. ch. 378. The 1979 legislature provided for the funding of
University construction bonds from various sources, 1979 Nev. Stats. ch. 264, codified at
NRS 396.8395, including the revenues from the tax on slot machines, 1979 Nev. Stats. ch.
679. The University, pursuant to this legislation, has authorized issuance of bonds in the
principal amount of $58,000,000. Appellant Morris contends that the bond issue will
constitute a debt within the meaning of Nev. Const. art. 9 3, and that the issuance would
exceed the available debt incurring capacity of the state and would therefore be void ab initio
under Nev. Const. art. 9 3. The district court found that issuance of the bonds would exceed
the debt limitation. We are constrained to agree, to the extent that the bonds are funded by
revenues from the slot machine tax, they constitute a debt within the meaning of the
constitutional provision. We also agree with the district court that to the extent that student
and user fees are the fund for any part of the bonds, no debt within the meaning of the
Constitution is created, as the special fund doctrine applies. Accordingly, we affirm the
judgment of the district court in all respects.
[Headnotes 2-4]
The constitutional debt limitation prevents the state government from incurring debts in an
aggregate amount greater than one percent of the assessed value of the state. Nev. Const. art.
9 3. The definition of debts subject to the limitation does not include obligations for which
the revenues of the state are not pledged, but for whose payment a "special fund" is created
from fees charged to users of the facility funded or from other sources not having their
origin in general state taxation.
____________________
interest; and such appropriation shall not be repealed nor the taxes postponed or diminished until the principal
and interest of said debts shall have been wholly paid. Every contract of indebtedness entered into or assumed by
or on behalf of the state, when all its debts and liabilities amount to said sum before mentioned, shall be void and
of no effect, except in cases of money borrowed to repel invasion, suppress insurrection, defend the state in time
of war, or, if hostilities be threatened, provide for the public defense.
The state, notwithstanding the foregoing limitations, may, pursuant to authority of the legislature, make and
enter into any and all contract necessary, expedient or advisable for the protection and preservation of any of its
property or natural resources, or for the purposes of obtaining the benefits thereof, however arising and whether
arising by or through any undertaking or project of the United States or by or through any treaty or compact
between the states, or otherwise. The legislature may from time to time make such appropriations as may be
necessary to carry out the obligations of the state under such contracts, and shall levy such tax as may be
necessary to pay the same or carry them into effect.
pledged, but for whose payment a special fund is created from fees charged to users of the
facility funded or from other sources not having their origin in general state taxation. See
Secretary of Transportation v. Mancuso, 359 A.2d 79 (Md. 1976); State v. Martin, 384 P.2d
833 (Wash. 1963); Conder v. University of Utah, 257 P.2d 367 (Utah 1953); see also
Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937). In this context, whether the
state taxation which funds a bond issue is an ad valorem or an excise tax is immaterial to the
determination whether bonds are a debt within the constitutional limitation: in either case,
state tax revenue is being used to finance a debt which does not have a special fund to
support it entirely. See State v. Martin, supra at 842; People v. Barrett, 26 N.E.2d 478 (Ill.
1940).
Should the revenue from the slot machine tax ever be insufficient to repay the bond
obligations, the general credit of the state is pledged for their repayment. The statute binds
subsequent legislatures to continue the tax at its present level at least, until the obligations
created by the bonds are paid. 1979 Nev. Stats. ch. 679 3; NRS 396.844. Thus the tax
revenues of the state are liable for the repayment of these obligations, see State ex rel. Nev.
Bldg. Auth. v. Hancock, 86 Nev. 310, 468 P.2d 333 (1970); McLaughlin v. L.V.H.A., 68
Nev. 84, 227 P.2d 206 (1951), and the obligation is a debt within the meaning of the
constitutional provision. See Ronnow v. City of Las Vegas, supra, at 358-59, 65 P.2d at 143.
Were we to accept the proposition that a pledge of any specific tax revenues would be
sufficient to invoke the special fund doctrine, the constitutional debt limitation would be
largely nullified, since the legislature could exempt almost any obligation from its strictures
merely by identifying a specific tax from which the obligation could be paid.
2

[Headnote 5]
We are not persuaded by respondents' argument that the bonds are an indebtedness exempt
from the limitation under Nev. Const. art. 9 3 2. The project in question here is not
necessary, expedient or advisable for any of the purposes enumerated in the constitutional
provision. Cf. Marlette Lake Co. v. Sawyer, 79 Nev. 334, 383 P.2d 369 (1963) (expenditure
to furnish water to seat of state government).
____________________

2
Arguments that such constitutional debt limitations are an inefficient way to curb excessive government
indebtedness, and that the typically low limitation is unrealistic, e.g., Bowmar, The Anachronism Called Debt
Limitation, 52 Iowa L.Rev. 863 (1967), must be addressed to the legislature and the people of the state, as this
Court is bound by the constitutional provision.
As to any part of the bond issue which is funded by student and user fees, however, the
special fund doctrine is applicable to the extent that funds are supplied exclusively from
those sources. See State ex rel. Nev. Bldg. Auth. v. Hancock, supra; Ronnow v. City of Las
Vegas, supra; State v. New Mexico State Authority, 411 P.2d 984 (N.M. 1966). The district
court was therefore correct in holding that, under the severability clause of the enactment in
question, 1979 Nev. Stats. ch. 679 16, the invalidity of the bonds funded from the slot
machine tax does not affect the validity of the fund created from student and user fees.
___________
97 Nev. 116, 116 (1981) Martinez v. State
SIREINO JOE MARTINEZ, Appellant, v. THE
No. 11503
March 19, 1981 625 P.2d 87
Appeal from a verdict of guilty and judgment of conviction upon a charge of second
degree murder in a jury trial, Sixth Judicial District Court, Humboldt County; Llewellyn A.
Young, Judge.
The Supreme Court held that evidence on element of causation was substantial enough to
establish defendant's guilt of second degree murder beyond reasonable doubt in connection
with death of victim, who apparently was killed by bullet fragment ricocheting off asphalt of
alley.
Affirmed.
Richard H. Bryan, Attorney General, Carson City; William MacDonald, District Attorney,
and Jack T. Bullock, Deputy District Attorney, Humboldt County, for Respondent.
Homicide.
Evidence on element of causation was substantial enough to establish defendant's guilt of second degree
murder beyond reasonable doubt in connection with death of victim, who apparently was killed by bullet
fragment ricocheting off asphalt of alley.
OPINION
Per Curiam:
Appellant was found guilty of second degree murder in the death of Carl C. Coberly. On
appeal, the sole issue is whether sufficient evidence was adduced to sustain appellant's
conviction.
Between 2:00 a.m. and 3:00 a.m. on June 24, 1978, the appellant was drinking at the bar in
the Winner's Inn in Winnemucca. Around 3:00 a.m. a verbal dispute over ethnic purity broke
out between the appellant and two other individuals, Juan Martinez and Michael Blagovich.
The dispute escalated into a shoving match, then into a fight in the street, and finally
appellant fired several shots from a .38 revolver at Juan Martinez, Michael Blagovich and
Charles Watson.
The appellant fired his last shot at Juan Martinez while both of them were in an alley
adjacent to the La Villa Motel. Apparently the victim of the homicide, the 64 year old
Coberly, was out walking his dog at around 3:15 a.m. in the alley. When appellant and Juan
Martinez came running into the alley, Coberly reportedly attempted to take cover by a large
garbage dumpster. However, the fifth round fired by appellant, which missed Juan Martinez,
impacted with the blacktop of the alley. Apparently, a large fragment of the bullet split off
and struck Coberly over the left eye, piercing his skull, immobilizing him, and causing his
death a few hours later.
On appeal, the issue is not whether this court would have found appellant guilty, but
whether the jury properly could. Anstedt v. State, 89 Nev. 163, 165, 509 P.2d 968 (1973);
Wheeler v. State, 91 Nev. 119, 120, 531 P.2d 1358 (1975); Hulett v. State, 92 Nev. 140, 141,
546 P.2d 1293 (1976); Crawford v. State, 92 Nev. 456, 457, 552 P.2d 1378 (1976). And, in
this regard, this court has declared that, [w]here there is substantial evidence to support a
verdict in a criminal case, . . . , the reviewing court will not disturb the verdict nor set aside
the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206 (1974); Crawford, cited
above; Hulett, cited above.
Of course, as an element of the crime, the State was required to prove an act of the
appellant caused Carl Coberly's death. No physical evidence conclusively linked the
appellant's gun to the bullet fragment taken from Coberly's brain. However, a great deal of
circumstantial evidence was presented to show that it was the appellant's act, i.e., the firing of
the fifth round, which cause Coberly's death.1 Therefore, we find the evidence presented
on this element of the crime substantial enough to establish guilt beyond a reasonable
doubt, as determined by a rational trier of fact.
which cause Coberly's death.
1
Therefore, we find the evidence presented on this element of
the crime substantial enough to establish guilt beyond a reasonable doubt, as determined by a
rational trier of fact. Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
Affirmed.
____________________

1
Testimony was proffered to establish that: (1) the victim was up at 3:00 a.m. to nurse his dog, (2) an
individual looking like the victim started to walk a dog in the alley just before the shooting, (3) the same dog was
seen wandering aimlessly near the La Villa Motel at 6:00 a.m., (4) an individual looking like the victim was
standing right next to the dumpsterclose by the gas meter (the place where the victim was found at 5:40 a.m.
on June 24, 1978)in the midst of the shooting and just before the last shot was fired, (5) the victim had been
shot from more than 4 feet away because no powder burns were found, (6) the fatal bullet was a fragment most
likely caused by a ricochet off the asphalt of the alley, (7) the alley sloped downhill so that where the appellant
allegedly fired the last shot was significantly lower than the place where the victim was standing when he was
hit, and, with the appellant in a kneeling position, firing at a rolling Juan Martinez, it is very likely that the fifth
bullet would have hit the asphalt, and, (8) the victim could very possibly have lived with strong vital signs for a
number of hours after suffering the injury he did, but he would have been unconscious and mute. Also, no
witness who testified concerning the shots around 3:00 a.m. on the night in question could recall having heard
any other kind of a gun report or loud noise after the five shots in question.
____________
97 Nev. 118, 118 (1981) Cohen v. Rasner
MURRAY COHEN and LOUISE COHEN, Appellants, v. PETE
RASNER and CLARENCE TISHER, Respondents.
No. 12056
March 19, 1981 624 P.2d 1006
Appeal from judgment denying specific performance. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
The Supreme Court held that whether or not financing was a condition precedent under the
contract, district court did not err in finding that the buyer should have completed financial
arrangements before seeking specific performance.
Affirmed.
Walter Bruce Robb, Reno, for Appellants.
Ralph M. Crow, Carson City, for Respondents.
1. Specific Performance.
Whether or not financing was a condition precedent under the contract for the sale of land, district court
did not err in finding that buyers should have completed their financial arrangements
before requesting the court to order specific performance of the contract, which
called for construction of an apartment building and sale of land.
buyers should have completed their financial arrangements before requesting the court to order specific
performance of the contract, which called for construction of an apartment building and sale of land.
Specific performance sought by purchaser of real property may be denied if the purchase price is not
tendered when due; if the purchaser has not tendered the purchase price, he must demonstrate that he is
ready, willing and able to perform if the court should order specific performance.
OPINION
Per Curiam:
Appellants were purchasers and respondents were sellers of two vacant lots in Carson
City, referred to as E-2 and E-3. The sales contract was prepared by a real estate agent and
signed by respondents in early December, 1977. The offer was then mailed to appellants in
California, where it was signed and returned to the agent who so notified appellants.
The contract, in essence, provided for the sale of two lots, E-2 and E-3, and the
construction of an eight-unit apartment building on each of them. The purchase price for the
two lots was $425,000. The contract was contingent upon buyers securing a maximum loan
obtainable with sellers to carry the balance.
Before completion of construction on Lot E-2, appellants assumed a loan which had been
made to respondents for the construction of the E-2 building. Appellants also applied for a
loan with which to purchase E-3, but that loan was never processed.
In December, 1977, respondents obtained a building permit authorizing them to construct
an eight-unit apartment building on Lot E-2. Construction on that lot was commenced shortly
thereafter; however, no application for a permit was made for Lot E-3.
In May, 1978, respondent sellers informed the realtor that while construction on Lot E-2
was complete, Carson City had imposed a moratorium on the construction of multiple-unit
residences and that a building permit for Lot E-3 could not, therefore, be obtained. Thus, the
agent was advised, respondents considered the contract to be unenforceable.
Appellants sued for specific performance, requesting the district court to order the
construction of the building on E-3. That remedy was denied by the district court which found
that buyers' assumption of one loan and their application for another did not constitute
performance which would entitle appellants to equitable relief because they had not shown
their present willingness and ability to perform their obligation under the contract.
appellants to equitable relief because they had not shown their present willingness and ability
to perform their obligation under the contract.
[Headnote 1]
Appellants argue that under the terms of the contract, the purchase price was due only at
the close of escrow, and that therefore the trial court's finding that the securing of financing
was a condition precedent to respondent's duty to construct the apartments was erroneous.
This argument may have had merit if appellants had sought only damages rather than bringing
their action in equity. However, whether or not financing was a condition precedent under the
contract, it cannot be said that the district court judge erred in finding that the buyers should
have completed financial arrangements before requesting the court to order construction of an
apartment building.
[Headnote 2]
Specific performance sought by a purchaser of real property may be denied if the purchase
price is not tendered when due. See McCann v. Paul, 90 Nev. 102, 520 P.2d 610 (1974). If the
purchaser has not tendered the purchase price, he must demonstrate that he is ready, willing
and able to perform if the court should order specific performance. See Ceizyk v. Goar
Service & Supply, Inc., 516 P.2d 61 (Ariz.App. 1973); Poznik v. Urton & Co., 496 P.2d 1073
(Colo.App. 1972); Leche v. Stout, 514 P.2d 1399 (Okla. 1972); Thompson v. Parke, 595 P.2d
499 (Or.App. 1979).
The rationale for this rule is obvious. A trial court should be certain that if the seller is
ordered to perform, the purchaser will be able to pay. Because appellants had not completed
the necessary financial arrangements, there was no guarantee that respondents would be paid
for the apartment building once it was constructed.
As the court recently stated in Carcione v. Clark, 96 Nev. 808, 618 P.2d 346 (1980),
specific performance is within the discretion of the district court, and is available only when
the district court is willing to order it. In this case, the district court was simply not willing
to order the construction of an eight-unit apartment building where the purchasers had not
demonstrated an ability to pay for the building upon completion.
Judgment is affirmed.
____________
97 Nev. 121, 121 (1981) Lane v. Torvinen
PATRICIA MARIE LANE, Petitioner, v. THE HONORABLE ROY L. TORVINEN, Judge
of the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, Respondent.
No. 12954
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v.
PATRICIA MARIE LANE, Respondent.
No. 13083
March 19, 1981 624 P.2d 1385
Original proceedings in prohibition, and appeal from order granting pretrial writ of habeas
corpus. Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Defendant by pretrial habeas corpus petition challenged four counts of indictment against
herself and several other defendants. The district court granted partial relief. Defendant
sought writ of prohibition as to relief denied, and sheriff appealed order of district court. The
Supreme Court held that: (1) counts of indictment alleging conspiracy were adequate, and (2)
counts of indictment charging swindling and unlawful use of gaming cards, which contained
no facts showing how defendant aided and abetted other defendants, were insufficient.
Writ denied; judgment affirmed.
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry, Las Vegas, for
petitioner and respondent on appeal.
and Laurence P. Digesti, Chief Criminal Deputy, Washoe County, for respondent on the
prohibition proceeding and appellant on appeal.
Indictment containing introductory paragraph naming all of various defendants, each count beginning
with statement that the said defendants committed charged offense gave adequate notice that each and
every defendant was included in each count of the indictment.
An accusation must include such a description of acts alleged to have been committed as will enable
accused to defend against the accusation.
3. Conspiracy.
Counts of indictment which included allegations as to date and place of conspiracy, object of conspiracy,
and means by which conspiracy was to be accomplished contained adequate statement of essential facts
constituting charge of conspiracy. NRS 199.480.
An accusation must include a description of the acts alleged to have been committed.
Indictment alleging that defendant aided and abetted commission of crime must provide information as to
acts performed by defendant; conclusory allegations are insufficient.
Counts of indictment charging swindling and unlawful use of gaming cards, which contained no facts
whatsoever showing how defendant aided or abetted other defendants, were insufficient to charge
defendant. NRS 465.070, 465.080.
OPINION
Per Curiam:
On April 9, 1980, a four-count indictment was field against several defendants, including
Patricia Marie Lane. Counts I and III of the indictment charge swindling, NRS 465.070, and
unlawful use of gaming cards, NRS 465.080. Counts II and IV charge conspiracy, NRS
199.480.
A pretrial habeas corpus petition challenged all four counts. The district court granted
habeas relief as to counts I and III, but denied relief as to counts II and IV. Case No. 12954 is
an original proceeding in which Lane seeks a writ of prohibition as to counts II and IV.
1
Case No. 13083 is an appeal by the sheriff as to counts I and III.
2

No. 12954
[Headnote 1]
Lane first contends that the indictment does not state an offense against her because she is
not named within the charging paragraphs. The indictment contains an introductory paragraph
which names all of the various defendants, including Lane. Each count begins with a
statement that the said defendants committed the charged offense. We agree with the
district court's finding that the indictment gives adequate notice that each and every defendant
is included in each count of the indictment. See State v. Nelson, 514 S.W.2d 581 (Mo. 1974);
Hill v. State, 523 P.2d 1114 (Okla.Cr. 1974).
[Headnote 2]
It is next argued that counts II and IV fail to contain statements of essential facts
constituting the offenses charged. NRS 173.07S{1).
____________________

1
Prohibition is an appropriate remedy to resolve a claim that the indictment does not charge a public offense.
Konstantinidis v. Sheriff, 96 Nev. 285, 607 P.2d 584 (1980).

2
See NRS 34.380(6).
173.075(1). An accusation must include such a description of the acts alleged to have been
committed as will enable to accused to defend against the accusation. Simpson v. District
Court, 88 Nev. 654, 503 P.2d 1225 (1972).
[Headnote 3]
The gist of the crime of conspiracy is the unlawful agreement or confederation. State v.
Smith, 184 A. 494 (R.I. 1936). Counts II and IV in the present case include allegations as to
the date and place of the conspiracy, the object of the conspiracy, and the means by which the
conspiracy was to be accomplished. The district court properly found that the conspiracy
counts are adequate.
Other contentions attacking the adequacy of counts II and IV have been considered, and
we find them to be without merit.
No. 13083
Counts I and III charge swindling and unlawful use of gaming cards. The charges refer to
conduct of certain defendants, but Lane is not mentioned. The state argues that Lane is to be
included within general aiding and abetting language contained in counts I and III.
[Headnotes 4, 5]
An accusation must include a description of the acts alleged to have been committed.
Simpson v. District Court, supra. Specifically, an indictment alleging that a defendant aided
and abetted the commission of a crime must provide information as to the acts performed by
the defendant. Sheriff v. Standall, 95 Nev. 914, 604 P.2d 111 (1979). Conclusory allegations
are insufficient. Id.; Earlywine v. Sheriff, 94 Nev. 100, 575 P.2d 599 (1978).
[Headnote 6]
In the present case counts I and III contain no facts whatsoever showing how Lane aided
and abetted the other defendants. The district court correctly found those counts to be
insufficient as against Lane.
3

For the foregoing reasons we deny the prohibition petition in No. 12954, and we affirm the
district court in No. 13083.
____________________

3
It should be noted that counts I and III do not allege that Lane is vicariously liable for substantive offenses
because of her participation in a conspiracy. See McKinney v. Sheriff, 93 Nev. 70, 560 P.2d 151 (1977); State v.
Beck, 42 Nev. 209, 174 P. 714 (1918). Rather, counts I and III are based solely on the theory that Lane aided
and abetted other defendants in the commission of the substantive offenses.
____________
97 Nev. 124, 124 (1981) Star v. Rabello
SYLVIA STAR, Appellant, v. SANDRA RABELLO as an Individual and as Guardian ad
Litem for LISA RABELLO, a Minor, Respondent.
No. 12228
March 20, 1981 625 P.2d 90
Appeal from Judgment. Eighth Judicial District Court; Clark County; J. Charles
Thompson, Judge.
Suit was brought against defendant to recover for assault and battery. Plaintiff also sued as
guardian ad litem for her daughter, a witness to the attack, for intentional infliction of
emotional distress, and defendant counterclaimed for assault and battery. The district court
dismissed counterclaim, awarded plaintiff damages, awarded daughter $300, and defendant
appealed. The Supreme Court, Springer, J., held that assault in question was insufficient to
warrant recovery by daughter for intentional infliction of emotional distress.
Affirmed in part, reversed in part.
Mark Gibbons, Las Vegas, for Appellant.
Frederic Berkley, Las Vegas, for Respondent.
1. Damages.
Generally, elements of cause of action for intentional infliction of emotional distress, the tort of
outrage, are extreme and outrageous conduct with either intention of or reckless disregard for causing
emotional distress, plaintiff's having suffered severe or extreme emotional distress, and actual or proximate
causation.
2. Damages.
Recovery on part of a third-party witness to outrageous act may be permitted if that third party is close
relative of person against whom outrage was directed; however, most plaintiffs who have been permitted
recovery as bystanders have witnessed acts which were not only outrageous but unquestionably violent and
shocking.
3. Damages.
Assault upon witness' mother was insufficient to warrant recovery, for alleged intentional infliction of
emotional distress on witness, who as result of witnessing altercation and her embarrassment at being
daughter of participant allegedly suffered from intermittent headaches, sleeplessness and upset stomach.
4. Assault and Battery.
Evidence was sufficient to support findings and judgment in favor of plaintiff in her action against
defendant for assault and battery, in which defendant claimed that district court committed error by failing
to make finding on issue of self-defense and retaliation.
5. Trial.
Where testimony presented at trial of assault case did not concern either self-defense or excessive force
since defendant's contention was based upon assertion that plaintiff started fight, and where no request
was made to trial court for such a finding, trial court was not required to make
finding on issue of self-defense and retaliation; in any event, dismissal of defendant's
counterclaim sufficiently implied that trial court as trier of fact found that plaintiff's
defense of herself did not constitute an assault.
no request was made to trial court for such a finding, trial court was not required to make finding on issue
of self-defense and retaliation; in any event, dismissal of defendant's counterclaim sufficiently implied that
trial court as trier of fact found that plaintiff's defense of herself did not constitute an assault.
OPINION
By the Court, Springer, J.:
Respondent Rabello sued appellant Star for special, general and punitive damages for
assault and battery. Rabello also sued as Guardian ad Litem for her daughter, Lisa Rabello,
who was a witness to the attack, for intentional infliction of emotional distress. Star
counterclaimed for assault and battery, alleging that Rabello initiated the fight. The
counterclaim did not allege that Rabello used force which exceeded that which would be
privileged as self-defense.
At trial, both sides presented conflicting evidence as to who stated the fight and who was
the more aggressive during its course. After hearing testimony from fifteen witnesses, the trial
judge dismissed Star's counterclaim, stating that Rabello's version of the fight was
corroborated by two disinterested witnesses. He then found that Star precipitated the fight,
and awarded Rabello special, general and punitive damages. He also awarded Lisa Rabello,
Rabello's daughter, $300.00 in general damages for intentional infliction of emotional
distress.
Star appeals from the damages awarded to Lisa Rabello, arguing that Lisa should not be
entitled to recovery under an intentional infliction of emotional distress cause of action. We
agree.
The fight occurred at Lisa's school after the opening of a school play. Star testified that she
knew Lisa was present at the time. As a result of witnessing the altercation and her
embarrassment at being the daughter of one of the participants, Lisa has suffered from
intermittent headaches, sleeplessness and an upset stomach.
[Headnote 1]
There are no reported cases in this jurisdiction concerning the intentional infliction of
emotional distress--the tort of outrage. Generally, the elements of this cause of action are
(1) extreme and outrageous conduct with either the intention of, or reckless disregard for,
causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional
distress and (3) actual or proximate causation. Cervantes v. J. C. Penney, Inc., 595 P.2d 975
(Cal. 1979).
[Headnote 2]
Recovery on the part of a third party witness to an outrageous act is permitted if that third
party is a close relative of the person against whom the outrage was directed. Restatement of
Torts 2d 46(2). Most plaintiffs who have been permitted recovery as bystanders, however,
have witnessed acts which were not only outrageous but unquestionably violent and shocking.
Prosser's analysis of witness recovery indicates that the outrage requirement is more
difficult to meet when the act has been directed against a third party in cases in which the
plaintiff has been a mere witness to the occurrence. In short, the law appears to be moving in
the direction of liability; but thus far recovery is clearly limited to the most extreme cases of
violent attack, where there is some especial likelihood of fright or shock, usually on the part
of a woman. W. Prosser, The Law of Torts, 12 at 62 (4th ed. 1971).
Thus, recovery has been allowed when a husband watched his wife die because the doctor
refused to treat her, Grimsby v. Samson, 530 P.2d 291 (Wash. 1975), and when an
illegitimate five year old sued her father's estate after she had witnessed her father kill her
mother, was kept in a room with the body for seven days, and was forced to watch her father
commit suicide, Mahnke v. Moore, 77 A.2d 923 (Md. 1951). Recovery was denied when,
after a boundary line dispute, plaintiff's husband was verbally abused and assaulted with a
pitchfork by an irate neighbor. Wiehe v. Kukal, 592 P.2d 860 (Kan. 1979).
In urging that Star's conduct was sufficiently outrageous to sustain her cause of action,
Rabello relies on three cases.
1
In each case, the defendant had knowledge that the witness
was either pregnant or had recently given birth and was in a weakened state. Knowledge of a
witness's condition tends to increase the outrageous nature of the act.
[Headnote 3]
There is very little case law relating to recovery based on the mere observation of
outrageous acts aimed at third parties. In instances where recovery has been allowed, the
observed conduct has been outrageous in the extreme. Although the trial judge found that
Star's conduct was outrageous, we rule, as a matter of law, that an assault of the kind
presented in this appeal is insufficient to warrant recovery by a witness to such an assault;
accordingly, the judgment in favor of Lisa must be reversed.
____________________

1
Jeppsen v. Jensen, 155 P. 429 (Utah 1916) (defendant, while in plaintiff's home and in front of her children,
threatened her husband with a gun); Lambert v. Brewster, 125 S.E. 244 (W.Va. 1924) (plaintiff witnessed
forcible assault on her father); Rogers v. Williard, 223 S.W. 15 (Ark. 1920) (defendant threatened to shoot
plaintiff's husband).
an assault; accordingly, the judgment in favor of Lisa must be reversed.
Appellant Star also claims that the district court committed error by failing to make a
finding on the issue of self-defense and retaliation. It is not clear from appellant's brief or
argument whether it is claimed that appellant is entitled to judgment as a matter of law on this
issue or simply that the court failed to make a finding on this issue.
[Headnote 4]
If it is claimed that Sandra Rabello's use of excessive force is so clear from the record that
it must be so determined as a matter of law, such a claim must be rejected out of hand. There
is more than ample evidence to support the court's findings and judgment in favor of Sandra
Rabello.
[Headnote 5]
If appellant is claiming that error arose out of the court's failure to make a finding on the
issue of self-defense and retaliation, this claim must also be rejected.
No request was made to the trial court for such a finding. No such finding is required by
law. Testimony presented at trial did not concern either self-defense or excessive force
because Star's contention was based upon an assertion that Rabello started the fight.
Additionally, the trial judge's dismissal of the counterclaim and entry of judgment in favor of
Rabello sufficiently implies that the trial judge, as the trier of fact, found that Rabello's
defense of herself did not constitute an assault. Cooper v. Pacific Automobile Insurance Co.,
95 Nev. 798, 603 P.2d 281 (1979); Pederson v. First Nat'l Bank of Nevada, 93 Nev. 388, 566
P.2d 89 (1977).
The judgment in favor of Sandra Rabello is affirmed; the judgment in favor of Lisa
Rabello is reversed.
____________
97 Nev. 127, 127 (1981) Kearney v. State
RICHARD KEARNEY, aka LEE DeWAYNE TURNER, Appellant,
v. THE STATE OF NEVADA, Respondent.
No. 12062
March 20, 1981 625 P.2d 93
Appeal from a conviction of robbery with use of a deadly weapon in the commission of a
crime. Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The Supreme Court, Springer, J., held that: (1) trial court's instruction that the mere
absence of defendant after he was accused of crime was a fact which, if proven, could be
considered by jury in deciding the question of guilt or innocence was erroneous by reason
of its failure to deal with the essence of flight, i.e., the deliberate attempt to avoid
apprehension or prosecution; however, such error did not require reversal in absence of
objection at trial; {2) defendant was precluded from raising his contention of error with
respect to trial court's limitation of defense argument to 20 minutes, in view of
defendant's failure to object to such ruling at the time of trial; and {3) evidence sustained
conviction.
accused of crime was a fact which, if proven, could be considered by jury in deciding the
question of guilt or innocence was erroneous by reason of its failure to deal with the essence
of flight, i.e., the deliberate attempt to avoid apprehension or prosecution; however, such
error did not require reversal in absence of objection at trial; (2) defendant was precluded
from raising his contention of error with respect to trial court's limitation of defense argument
to 20 minutes, in view of defendant's failure to object to such ruling at the time of trial; and
(3) evidence sustained conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
James N. Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Deliberate avoidance of apprehension or prosecution may be properly admissible as showing
consciousness of guilt.
2. Criminal Law.
In prosecution for robbery with use of a deadly weapon in the commission of a crime, trial court's
instruction that the mere absence of defendant after he was accused of crime was a fact which, if proven,
could be considered by jury in deciding the question of guilt or innocence was erroneous by reason of its
failure to deal with the essence of flight, i.e., the deliberate attempt to avoid apprehension or prosecution;
however, such error did not require reversal in absence of objection at trial.
3. Criminal Law.
On appeal from defendant's conviction of robbery with use of a deadly weapon in the commission of a
crime, defendant was precluded from raising his contention of error with respect to trial court's limitation of
defense argument to 20 minutes, in view of defendant's failure to object to such ruling at the time of trial.
4. Criminal Law.
In prosecution for robbery with use of a deadly weapon in the commission of a crime, trial court did not
abuse its discretion in limiting defense argument to 20 minutes, and any error in such ruling would be
minimal and nonprejudicial.
5. Robbery.
Evidence in prosecution for robbery with use of a deadly weapon in the commission of a crime sustained
conviction.
OPINION
This is an appeal from a robbery conviction. Appellant claims that the trial court erred in
admitting evidence relating to flight and in limiting defense argument to twenty minutes.
[Headnote 1]
Deliberate avoidance of apprehension or prosecution may be properly admissible as
showing consciousness of guilt. In the case at bar, when the prosecutor announced his
intention during opening argument to raise the issue of flight, the trial judge cautiously
excluded any comment on the subject of flight by the district attorney until a formal legal
ruling had been made by the court.
Two exhibits on the issue of flight were offered by the state during its case-in-chief. State's
Exhibit 4 is an abstract of justice's court minutes showing appellant's failure to appear; State's
Exhibit 6 is a copy of a bench warrant for appellant's arrest for failure to appear.
Early in the trial the court indicated to counsel a wish to settle the issue at this point on
the admissibility of certain evidence concerning the defendant's failure to appear at prior
proceedings in this case. A hearing was held on the issue. Defense counsel argued that such
evidence would be improper evidence of another crime. He did admit that it may be of
probative value but it is ambiguous. Later defense counsel told the court that the persuasive
value of such evidence was minimal.
Apparently on the basis of defense counsel's view that the evidence might be of some
probative value although minimal, he did not object to the introduction of either Exhibit
4 or Exhibit 6.
[Headnote 2]
The court instructed the jury that the mere absence of the Defendant after he was accused
of a crime . . . is a fact, which, if proven, may be considered by you . . . in deciding the
question of guilt or innocence. Such an instruction was erroneous by reason of its failure to
deal with the essence of flight, the deliberate attempt to avoid apprehension or prosecution.
See, e.g., McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). No objection was made to the
giving of this instruction.
Ordinarily we will not consider assignments of error on appeal when they are not raised by
objection at the trial. It has not even been argued by appellant that the error is so egregious
and prejudicial as to require reversal even in the absence of objection. Bonacci v. State, 96
Nev. 894, 620 P.2d 1244 (1980).
[Headnotes 3, 4]
On the question of limiting the time for argument, again, no objection was made to this
ruling at the time of trial; appellant is therefore precluded from raising the issue on appeal.
People v. Stout, 424 P.2d 704 (Cal. 1967). See Thomas v. State, 93 Nev. 565, 571 P.2d 113
{1977).
Nev. 565, 571 P.2d 113 (1977). We find no breach of discretion on the part of the trial court;
and certainly if there were error it would be minimal and nonprejudicial.
[Headnote 5]
There was an eyewitness to the commission of this crime who identified appellant. There
is ample evidence to support the judgment of conviction and we will not set it aside.
Affirmed.
____________
97 Nev. 130, 130 (1981) Hanley v. State
GRAMBY ANDREW HANLEY, Sr., Appellant, v.
No. 11309
March 20, 1981 624 P.2d 1387
Appeal from denial of Motions to Withdraw Plea of Guilty, Set Aside Conviction and
Grant a New Trial. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court, Springer, J., held that: (1) where defendant received the exact
sentence which trial judge said was the maximum he could impose defendant could not
complain that he was not admonished as to consequences of plea; (2) unless the defendant
either admits that he committed the crime charged or that he entered plea knowing the
elements of the crime, the plea must be set aside; (3) although there was no record evidence
that defendant had been canvassed to determine if he knew elements of first degree murder,
record established that defendant admitted commission of such crime; and (4) absent
indication of any impact of alleged improper remarks by district attorney at sentencing the
sentence would not be disturbed.
Affirmed.
Paul H. Schofield, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General; Robert J. Miller, District Attorney, and James N.
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where a guilty plea is accepted the record should affirmatively show that certain minimal requirements
are met; generally, such requirements are an understanding waiver of constitutional rights
and privileges, absence of coercion by threat or promise of leniency, understanding of
consequences of the plea and range of punishments and an understanding of the
charge, i.e., elements of the offense. NRS 174.035, subd. 1.
2. Criminal Law.
requirements are an understanding waiver of constitutional rights and privileges, absence of coercion by
threat or promise of leniency, understanding of consequences of the plea and range of punishments and an
understanding of the charge, i.e., elements of the offense. NRS 174.035, subd. 1.
2. Criminal Law.
Where prior to guilty plea to murder of the first degree defendant was informed that he could be
sentenced up to life imprisonment without possibility of parole and stated that he was fully aware of such
fact it could not be said that defendant, sentenced to life imprisonment without possibility of parole, did not
understand the range of punishment; although at the time one possible punishment was death sentence if
aggravating circumstances were found the plea was not deficient for failure to advise defendant of death
penalty especially as no evidence of aggravating circumstances was introduced. NRS 174.035, subd. 1.
3. Criminal Law.
Unless a defendant either admits that he committed the crime charged or that he entered the plea knowing
what the elements of the crime were, a guilty plea must be set aside. NRS 174.035, subd. 1.
4. Criminal Law.
Constitutional requirements and guilty plea statute demands either a showing that a defendant himself,
not just his attorney, understood the elements of the offense to which the plea was entered or a showing that
defendant himself made factual statements to the court which constituted an admission to the offense pled
to. NRS 174.035, subd. 1.
5. Criminal Law.
To take counsel's word that elements of the criminal offense have been dutifully explained does not
abide by principles governing taking of guilty pleas nor comply with requirement that defendant be
addressed personally concerning the nature of the charge. NRS 174.035, subd. 1.
6. Criminal Law.
Although there was no record evidence that at time of guilty plea to murder of the first degree defendant
had been canvassed to determine if he knew the elements of the offense, although counsel stated that he had
explained elements of the crime, plea was nevertheless entered knowingly, voluntarily and understandingly
where at plea hearing defendant admitted that he had abducted victim by use of gun and was aware that
victim was not going to be allowed back to the town and testified that he heard gun shots and thereafter
aided another abductor in disposing of victim's body. NRS 174.035, subd. 1, 200.030.
7. Criminal Law.
Even if defendant, whose former attorneys testified that the State had absolutely not agreed to stand
silent, with district attorney testifying that he made it clear to defendant that the State reserved the right to
argue, mistakenly believed that the State would stand mute at time of sentencing such was insufficient to
invalidate guilty plea as unknowing. NRS 174.035, subd. 1.
8. Criminal Law.
Where defendant did not object to alleged plea bargain violation during sentencing hearing he had
waived any right of appeal on the issue. NRS 174.035, subd. 1.
9. Criminal Law.
Where from the record as it stood without presentence report there was no indication of any impact of
alleged improper remarks by prosecutor at sentencing the reviewing court would not interfere with the
sentence.
OPINION
On March 2, 1978, several days into a jury trial in which he was being tried for murder and
kidnapping, appellant Gramby Andrew Hanley, Sr., decided to plead guilty to murder in the
first degree. On that day there was presented to the court a written plea agreement,
approved by Hanley's counsel and signed by Hanley, in which it was agreed that Hanley
would plead guilty to Count Two of the Information filed in the above-entitled case, the
degree of the crime specifically to be Murder of the First Degree. . . . In exchange for such a
plea, the district attorney agreed that kidnapping charges against Hanley would be dismissed.
At the time set for entry of judgment and sentencing, April 25, 1978, Hanley himself
addressed the court and made a request to withdraw the agreed-to plea of guilty entered on
March 2. His request was made on the ground that he was forced into a plea of guilty by
reason of a state of mind at the time of the plea which was brought about by conditions in the
Clark County jail and aggravated by his wife's having been assaulted on the third day of trial.
When inquiry was made as to how he claimed to have been forced into a plea of guilty,
Hanley responded by saying that he suffered from a detachment from reality which was
similar to brainwashing.
The court rather summarily dismissed this request, noting that such possibilities had been
carefully gone into at the plea hearing. The court recalled that at the plea hearing Hanley
appeared to be lucid and in full control of his facilities (sic).
After denying the request for change of plea and after hearing from Hanley's counsel and
from Hanley himself, the court, at the conclusion of the April 25 hearing, sentenced Hanley to
life imprisonment without possibility of parole. Formal judgment of conviction with
accompanying sentence was filed on May 3, 1978.
After judgment and sentencing, Hanley filed a number of post-conviction motions and a
petition for writ of habeas corpus, all going to the same issue: whether or not defendant
knowingly, voluntarily and understandingly entered his plea of guilty to murder in the
first degree.
knowingly, voluntarily and understandingly entered his plea of guilty to murder in the first
degree. Claims of coercion and brainwashing were not pursued below and are not urged in
this appeal.
[Headnote 1]
This court has held in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), in harmony
with the United States Supreme Court decision, Boykin v. Alabama, 395 U.S. 238 (1969),
that in cases where a guilty plea is accepted, the record should affirmatively show that
certain minimal requirements are met. These are, generally:
1. An understanding waiver of constitutional rights and privileges,
2. Absence of coercion by threat or promise of leniency,
3. Understanding of consequences of the plea, the range of punishments, and
4. An understanding of the charge, the elements of the offense.
The first two of these requirements are not issues in this appeal. Appellant claims that
the second two requirements, understanding of the consequences of his plea and
understanding of the charge, have not been met.
Such requirements are codified in NRS 174.035(1) which prohibits the court's acceptance
of a guilty plea without first addressing the defendant personally and determining that the
plea is made voluntarily with understanding of the nature of the charge and consequences of
the plea.
[Headnote 2]
With regard to understanding of the consequences of the plea and the range of punishment
following therefrom, appellant was asked at the time of entry of plea on March 2, 1978:
Then you do understand that by virtue of your plea of guilty today, that the Court could
impose a sentence of up to life imprisonment without the possibility of parole? Hanley's
answer to this question was: I am fully aware of it. Under such circumstances, this court
simply cannot find that Hanley did not understand the range of punishment. He certainly
understood the maximum,
1
and that maximum became his ultimate sentence. If there were
any failure of understanding in this case, it was not in relation to the possible penalty.
____________________

1
Appellant claims error because at the time the range of punishments for murder in the first degree included
not only life in prison with the possibility of parole or without the possibility of parole, but also included the
death sentence if aggravating circumstances were found. Because of
The most substantial point raised by appellant is his claim that the court failed to
ascertain defendant Hanley's understanding of the nature of the charge itself and particularly
the elements of the crime of first degree murder.
In discussing this point, we adopt principles declared in Henderson v. Morgan, 426 U.S
637 (1976), cited and relied on by Appellant in both of his briefs. The United States Supreme
Court
2
recalled in Henderson the long-accepted principle that a guilty plea must provide a
trustworthy basis for believing that the defendant is in fact guilty. Thus, the constitutional
rule relevant to such cases is that the defendant's guilt is not deemed established by entry of
a guilty plea, unless he either admits that he committed the crime charged, or enters his plea
knowing what the elements of the crime charged are.
[Headnote 3]
We accept this constitutional rule and hold that unless appellant either (1) admitted that
he committed the crime charged, first degree murder, or (2) that he entered the plea knowing
what the elements of this crime were, the plea must be set aside.
There is no evidence in this record that at the time of the entry of his plea, appellant had
been canvassed in order to determine if he knew what the elements of first degree murder
were. In the course of the court's canvass appellant's attorney was asked if he had explained
to appellant the elements of the crime with which he is charged in Count II of the
Information in this case? Counsel replied in the affirmative, and this was followed by
questions to the appellant as to whether he had such discussions with his attorney and
whether he understood what his attorney was saying to him. His answer to the court was that
yes he had had such discussions, that he understood what was said to him and that he had
no further questions in the matter.
There was no mention of murder in the first degree or any other crime in this portion of the
canvassing; there was no mention of the elements of first degree murder or any other crime;
there was no statement as to what, if anything, was explained, nor what, if anything, the
defendant understood as a result of such explanation.
____________________
this Appellant contends that he was not advised of the range of punishment. If evidence of aggravating
circumstances had been thereafter introduced and the death penalty assessed, certainly appellant would have a
cognizable grievance. Under cited circumstances, we see no legitimate complaint on this score.

2
Concurring opinion of White, Stewart, Blackman and Powell, JJ., pp. 648-649.
a result of such explanation. As a showing that defendant under the stated circumstances
knew or understood what the elements of the crime he was pleading to were, the record is
completely deficient.
Any claimed showing of an understanding on the part of the appellant of the elements
of the crime with which he is charged is further complicated by the fact that first degree
murder can be committed in any of three distinct and separable ways; that is, by (1)
commission by poison, or lying in wait, torture, or any other kind of willful deliberate and
premeditated killing; (2) commission in the perpetration or attempted perpetration of sexual
assault, kidnapping, arson, robbery, burglary or sexual molestation of a child under the age of
14 years, or (3) commission to avoid or prevent lawful arrest. NRS 200.030. A complex of
questions thus arises: What was explained? What elements? What did he understand?
Answers to such questions certainly are not affirmatively shown in this record.
[Headnotes 4, 5]
Although we have disclaimed the necessity for articulation of talismanic phrases,
Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973), in plea hearings and have declined to
impose upon our trial judges the rigid requirements imposed upon federal judges when pleas
are taken under Federal Rules Criminal Procedure, rule 11, Wynn v. State of Nevada, 96 Nev.
673, 615 P.2d 946 (1980), we would hold that constitutional requirements and the statutory
requirement of NRS 174.035(1) demand either a showing that the defendant himself (not just
his attorney) understood the elements of the offense to which the plea was entered or a
showing that the defendant, himself, has made factual statements to the court which constitute
an admission to the offense pled to.
3

[Headnote 6]
Since there is no adequate showing of an understanding of the charge and particularly an
understanding of the elements of the offense, we must look to see whether or not the
record shows that the appellant admitted commission of the crime charged.
____________________

3
In Henderson, supra, the concurring opinion of White, Stewart, Blackman and Powell, JJ., expresses a
refusal to permit a guilty plea to be entered against the defendant solely on the consent of defendant's agent--his
lawyer. Our cases make absolutely clear that the choice to plead guilty must be the defendant's: it is he who must
be informed of the consequences of his plea and what it is that he waives when he pleads. Boykin v. Alabama,
395 U.S. 238 (1969); and it is on his admission that he is in fact guilty that his conviction will rest. ((426 U.S.
at 650); emphasis in original.) Simply to take the attorney's word that the elements of the criminal offense had
been dutifully explained does not seem to abide by these principles nor comply with the statutory requirement
that the defendant be addressed personally concerning the nature of the charge.
the charge and particularly an understanding of the elements of the offense, we must look to
see whether or not the record shows that the appellant admitted commission of the crime
charged. It seems that he did.
We note that Appellant signed a plea agreement formally agreeing to plead guilty to first
degree murder. Hanley's present, appellate counsel tells us: Effectively, MR. HANLEY
admitted to kidnapping Mr. Bramlet. . . . (although he stated that he had nothing to do with
shooting him.) At the March 2, 1978 plea hearing, in response to the deputy district attorney's
questioning, Mr. Hanley tells us: And I was at McCarran Airport, and I did abduct Al
Bramlet * * * I stuck a gun in his back and warned him that if he resisted, I would shoot
him. During the course of the kidnapping activity, Hanley became aware that Mr.
Bramlet was not going to be allowed to go back to town. Hanley testified that he heard the
gunshots and was thereafter, with the aid of one of the other abductors, engaged in
undressing Mr. Bramlet and moving his body. Next Hanley began to secrete, seclude it
(Bramlet's body) by means of placing stones over it. . . .
We find the foregoing to constitute a very clear admission to first degree murder,
committed in the perpetration . . . of . . . kidnapping. . . . as defined by NRS 200.030, in
effect at the time of commission of the offense.
As a consequence of the admissions made by appellant during the canvassing process at
his plea hearing, we must find that his plea was entered knowingly, voluntarily,
understandingly and in conformity with constitutional and statutory requirements.
We do not see from this record that appellant was ever deprived of effective counsel and
reject his contention that the delay in granting an evidentiary hearing placed him in a
perilous paradoxical position. If there be any error here, it is not substantial or prejudicial.
Appellant also claims that his agreement to plead guilty was made on the basis of some
parole understanding and reliance that the prosecutor would stand mute during sentencing.
The only corroborating evidence presented by Hanley to support this contention at the
evidentiary hearing was a letter purportedly sent by Hanley and his father to their attorney on
March 8, 1978. His father testified that the prosecution had promised to stand mute.
However, this testimony was stricken.
[Headnote 7]
Hanley's former attorneys testified at the evidentiary hearing that the state had absolutely
not agreed to stand silent. The deputy district attorney who negotiated the agreement
testified that it was made clear to Hanley that the State reserved the right to argue.
deputy district attorney who negotiated the agreement testified that it was made clear to
Hanley that the State reserved the right to argue. The plea agreement which was signed by
Hanley states that the State reserves the right to argue at the time of sentencing. Even if
Hanley mistakenly believed that the State would stand mute, it is not sufficient to invalidate
the plea as unknowing. Rouse v. State, 91 Nev. 677, 541 P.2d 643 (1975).
[Headnote 8]
Hanley did not object to the alleged plea bargain violation during the sentencing hearing,
thereby waiving any rights of appeal on this issue. Bishop v. Warden, 94 Nev. 410, 581 P.2d
4 (1978).
The final point made by appellant is that the deputy district attorney's remarks at
sentencing were so improper as to require reversal.
The State furnished Hanley with a copy of the presentence report three and one-half hours
before the hearing. The case at bar is distinguished from U.S. v. Woody, 567 F.2d 1553 (5th
Cir., 1978), relied on by appellant, because in that case undisclosed portions of the
presentence report were unauthorized under Federal Rules Criminal Procedure, rule 32(c)(3).
The presentence report is omitted from the record on appeal thereby precluding its review
by this court. See Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975).
At the conclusion of the evidentiary hearing, the judge who had imposed sentence stated
that when he was determining sentence, he tried to justify a lesser sentence but was unable to
do so because of Hanley's criminal history. No mention was made of the impact of the district
attorney's argument at sentencing.
[Headnote 9]
Since there is no indication of any such impact from the record as it stands without the
presentence report, this court may refrain from interfering with the sentence imposed. Silks v.
State, 92 Nev. 91, 545 P.2d 1159 (1976).
In all respects, the judgment of the district court is affirmed.
____________
97 Nev. 138, 138 (1981) Robertson v. State
EARLY JAMES ROBERTSON, Appellant, v.
No. 11142
March 24, 1981 625 P.2d 565
Appeal from a conviction of second degree murder upon a jury verdict, Eighth Judicial
The Supreme Court held that instruction that burden of proving circumstances of
self-defense devolved on defendant unless proof on part of prosecution sufficiently
manifested that crime committed only amounted to manslaughter or that defendant was
justified or excused in committing homicide was prejudicially erroneous in that it may have
caused jury to conclude that prosecution did not have burden of persuasion throughout trial to
prove every element of crime beyond a reasonable doubt and to believe incorrectly that, on
basis of self-defense, burden of persuasion shifted to defendant.
Reversed and remanded for a new trial.
James R. Crockett, Jr., Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Robert Miller, District Attorney,
Clark county, for Respondent.
1. Criminal Law.
Trial court's decision on voluntariness of inculpatory statement made by defendant while in custody was
final, absent evidence that it was plainly untenable.
2. Criminal Law.
Instruction that burden of proving circumstances of self-defense devolved on defendant unless proof on
part of prosecution sufficiently manifested that crime committed only amounted to manslaughter or that
defendant was justified or excused in committing homicide was prejudicially erroneous in that it may have
caused jury to conclude that prosecution did not have burden of persuasion throughout trial to prove every
element of crime beyond a reasonable doubt and to believe incorrectly that, on basis of self-defense,
burden of persuasion shifted to defendant. NRS 200.170.
OPINION
Per Curiam:
A jury found appellant Robertson guilty of second degree murder. On appeal, he contends
the district court erred (1) by denying his motion to suppress statements he made while in
custody, and {2) by giving certain jury instructions, and rejecting a proposed alternative
instruction.
custody, and (2) by giving certain jury instructions, and rejecting a proposed alternative
instruction. We find no error in the district court's denial of appellant's motion to suppress.
However, we reverse appellant's conviction because of prejudicial error in instructing the
jury.
[Headnote 1]
1. A trial court's decision on the voluntariness of an inculpatory statement is final unless
such finding is plainly untenable. Sparks v. State, 96 Nev. 26, 604 P.2d 802, 804 (1980);
McRoy v. State, 92 Nev. 758, 759, 557 P.2d 1151 (1976). In the instant case, the record does
not impel us to conclude that the district court erred.
2. Appellant objected to Instructions Nos. 25 and 26, which read as follows:
25. The killing of the deceased named in the Indictment by the Defendant being
proved, the burden of proving circumstances of self-defense will devolve on the
Defendant, unless the proof on the part of the prosecution sufficiently manifest that the
crime committed only amounts to Manslaughter, or that the accused was justified, or
excused in committing the Homicide.
26. A defendant has met his burden of proving circumstances of mitigation or that
justify the homicide if, after consideration of all the evidence, there is a reasonable
doubt in your mind that the defendant is guilty.
The appellant proposed the following instruction as a substitute for instructions 25 and 26:
If, after consideration of all of the evidence, you have a reasonable doubt as to whether or
not the defendant acted in self-defense, you must return a verdict of acquittal.
[Headnote 2]
The trial court's instruction 25 is obviously patterned after the language found in NRS
200.170.
1
This court and the courts of California, a state with a similar statutory provision,
have repeatedly said that such language should never be used as a jury instruction in a murder
case. Kelso v. State, 95 Nev. 37, 43, 588 P.2d 1035 (1979); Phillips v. State, 86 Nev. 720,
475 P.2d 671 {1970); White v. State, S2 Nev. 304, 417 P.2d 592 {1966); People v.
Deloney, 264 P.2d 532 {Cal. 1953); People v. Letourneau, 211 P.2d S65 {Cal. 1949). Its
use may cause the jury to conclude that the prosecution does not have the burden of
persuasion throughout the trial to prove every element of the crime beyond a reasonable
doubti.e., to believe incorrectly that, on the issue of self-defense, the burden of
persuasion shifts to the defendant.
____________________

1
NRS 200.170 reads as follows:
Burden of proof when killing proved. The killing of the deceased named in the indictment or
information by the defendant being proved, the burden of proving circumstances of mitigation, or that
justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the
prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the
accused was justified, or excused in committing the homicide.
P.2d 671 (1970); White v. State, 82 Nev. 304, 417 P.2d 592 (1966); People v. Deloney, 264
P.2d 532 (Cal. 1953); People v. Letourneau, 211 P.2d 865 (Cal. 1949). Its use may cause the
jury to conclude that the prosecution does not have the burden of persuasion throughout the
trial to prove every element of the crime beyond a reasonable doubti.e., to believe
incorrectly that, on the issue of self-defense, the burden of persuasion shifts to the defendant.
See Deloney, cited above, at 538.
We must therefore decide whether, upon a consideration of the entire case, Instruction No.
25 resulted in prejudice to appellant's substantial rights. State v. Fitch, 65 Nev. 668, 200 P.2d
991 (1948). Here the trial court, by the giving of Instruction No. 26, did attempt to explain
away the ambiguity in Instruction No. 25 concerning the burden of persuasion in criminal
actions. However, Instruction No. 26 is itself ambiguous, and it is quite possible that a typical
juror would not understand it as reaffirming the court's other instructions on reasonable
doubt.
Furthermore, unlike in Kelso, cited above, here the appellant's claim of self-defense did
not lack all plausibility. That claim was neither in conflict with the physical evidence, nor
with statements of any witnesses concerning the homicide. The only statements proffered
concerning the homicide were those of appellant to police upon his arrest, and those of
appellant at the trial itself. Therefore, because the jury could reasonably have believed
appellant's claim of self-defense, the giving of Instruction No. 25 may not be deemed
harmless.
Accordingly, we reverse the appellant's conviction and remand this matter for a new trial.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Forman, D. J.,
2
concur.
____________________

2
The Governor designated The Honorable William Forman, Judge of the Second Judicial District Court, to
____________
97 Nev. 141, 141 (1981) Joseph F. Sanson Inv. v. Cleland
JOSEPH F. SANSON INVESTMENT CO., Appellant, v. C. R. CLELAND, C. R.
CAVANAUGH, TITLE INSURANCE AND TRUST COMPANY, and EUGENE L.
BUCKLEY, Respondents.
No. 12042
March 25, 1981 625 P.2d 566
Appeal from an order denying permanent injunction and reformation of a promissory note
and deed of trust, Eight Judicial District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that the evidence sustained the district court's finding that there
was no oral modification of the promissory note and that the mortgagees had not waived
eventual payment of the note.
Affirmed.
Wiener, Goldwater, Waldman & Gordon, Las Vegas, for Appellant.
Nitz, Schofield & Nitz; Paul L. Larsen, Las Vegas, for Respondents.
1. Contracts.
Although parties to written contract may orally modify it and parol evidence of subsequent agreement is
not summarily excluded, all parties must agree to new terms.
2. Reformation of Instruments.
In action for reformation of a promissory note and deed of trust, evidence sustained district court's
finding that there was no oral modification of promissory note and that promisee had not waived eventual
payment on that note.
Findings of fact by trial court will not be disturbed where supported by substantial evidence. NRCP
52(a).
4. Mortgages.
Second mortgagees' waiver of their right to foreclose so as to allow mortgagor to reduce obligation on
first deed of trust did not waive right of foreclosure for all time.
OPINION
Per Curiam:
Joseph F. Sanson Investment Co., a limited partnership (Sanson), bought a trailer park in
North Las Vegas, Nevada, from C. R. Cleland and C. R. Cavanaugh in July, 1971.
from C. R. Cleland and C. R. Cavanaugh in July, 1971. The purchase agreement provided
that Sanson would assume an existing promissory note secured by a first deed of trust on the
property, and also required that Sanson execute a second deed of trust in favor of Cleland and
Cavanaugh to secure a second promissory note in the amount of $100,000. The note was
without interest and payable in yearly installments of $10,000, beginning June 30, 1973. No
payment was made on the note. The record indicates insufficient revenue from the trailer park
to pay both the notes secured by the first and second deeds of trust. No action was taken by
Cleland and Cavanaugh to foreclose the note secured by the second deed of trust.
In December of 1978 the note secured by the second deed of trust was assigned to Eugene
L. Buckley, who had notice that it was in default. Buckley paid Cleland $50,000 for the note:
$10,000 cash as a down payment, and executed his note for $40,000 at 8% on the unpaid
balance. Buckley then commenced foreclosure proceedings with the sale noticed for April 30,
1979.
The district court granted a preliminary injunction against foreclosure until the June, 1979,
installment became due. The court found that from 1972 Cleland, on behalf of himself and
Cavanaugh, had expressly waived their right to foreclose and that Sanson had reduced the
obligation on the note secured by the first deed of trust by $100,000 and for six and one-half
years Sanson had acted in reliance upon Cleland and Cavanaugh's forebearance to foreclose.
The trial court denied the Sanson motion for permanent injunction, finding no oral
modification of the promissory note had taken place, and no waiver of eventual payment of
the second note.
Appellant contends that the trial court erred when it failed to find the promissory note
secured by the second deed of trust had been modified by a subsequent verbal agreement
between Sanson and Cleland binding Buckley.
[Headnote 1]
Although parties to a written contract may orally modify it and parol evidence of the
subsequent agreement is not summarily excluded, all parties must agree to the new terms.
Silver Dollar Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923 (1964); Holland v. Crummer
Corp., 78 Nev. 1, 368 P.2d 63 (1962).
[Headnotes 2, 3]
Here, the evidence does not establish a novation as a matter of law and supports the
district court's finding that there was no oral modification of the promissory note. NRCP
52(a).
Findings of fact by a trial court will not be disturbed where supported by substantial evidence.
NRCP 52(a). Carcione v. Clark, 96 Nev. 808, 618 P.2d 346 (1980).
[Headnote 4]
Even though respondents Cleland and Cavanaugh by inaction waived their right to
foreclose through 1978, that right was not waived for all time. Buckley, as assignee, had the
right to foreclose after the preliminary injunction terminated in June of 1979.
The order of the district court denying a permanent injunction is affirmed.
1
concur.
____________________

1
____________
97 Nev. 143, 143 (1981) Occhiuto v. Occhiuto
JOE OCCHIUTO, Appellant, v. GRACE
OCCHIUTO, Respondent.
No. 12340
March 25, 1981 625 P.2d 568
Appeal from order dismissing complaint, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Ex-husband brought action against ex-wife. Ex-wife moved to dismiss. The district court
dismissed complaint with prejudice, and appeal was taken. The Supreme Court, Batjer, J.,
held that: (1) close relationship between current case and previous divorce proceeding
brought it within exception to general rule that courts should not take judicial notice of the
records in another and different case even though cases are connected and justified district
court to take judicial notice of prior divorce proceedings; (2) district court's dismissal with
prejudice of two of ex-husband's causes of action constituted error; and (3) ex-husband failed
to state cause of action against ex-wife for her failure to reconvey to him one-half of her real
property when they reconciled and resumed cohabitation, although ex-husband contended that
ex-wife orally agreed that upon any subsequent separation, she would reconvey him one-half
of her real property.
Reversed in part, affirmed in part, and remanded.
Embry & Shaner, Patricia A. Trent, Las Vegas, for Appellant.
Nitz, Schofield & Nitz, Las Vegas, for Respondent.
1. Evidence.
Generally, court should not take judicial notice of the records in another and different case, even though
cases are connected, but this rule is not so inflexible in its application that under no circumstances can
judicial notice be invoked to take cognizance of record in another case. NRS 47.150.
2. Evidence.
Close relationship between current case brought by ex-husband against ex-wife and previous divorce
proceedings brought it within exception to general rule that courts should not take judicial notice of the
records in another and different case, even though cases are connected, and justified the district court
taking judicial notice of prior divorce proceedings. NRS 47.150.
Trial court erred in dismissing with prejudice two causes of action of ex-husband against ex-wife,
although ex-husband did not state claimed fraud with particularity. NRCP 9(b).
4. Husband and Wife.
Ex-husband failed to state cause of action against ex-wife for her failure to reconvey to him one-half of
her real property when they separated after having reconciled and resumed cohabitation, although
ex-husband contended that ex-wife had orally agreed that upon any subsequent separation, she would
reconvey to him one-half of her real property, in light of statute precluding creation of interest in land
except by written instrument. NRS 111.205, subd. 1, 111.220, subd. 3, 123.270.
OPINION
Appellant and respondent were divorced in February, 1977. Incorporated into the divorce
decree was a property settlement agreement distributing several parcels of real property and
some personal property. Pursuant to the terms of that agreement, appellant executed several
quit claim deeds in favor of respondent.
Several months after the entry of the judgment of divorce, the parties reconciled, resumed
cohabitation and held themselves out as husband and wife. They never remarried, but lived
together until May, 1979.
In June, 1979, appellant filed a motion to modify the 1977 divorce decree insofar as it
related to the division of the community property of the parties. This motion to modify the
divorce decree was denied on July 19, 1979, and no appeal was taken.
On September 6, 1979, appellant filed a complaint alleging four causes of action.
Respondent moved to dismiss on the grounds that: (1) the action was barred by the doctrine
of res judicata, (2) by appellant's failure to institute suit within six months after entry of
judgment as required by NRCP 60(b), and (3) that the complaint alleged no extrinsic fraud.
Attached to the motion was an uncertified copy of the decree of divorce entered in February,
1977.
This appeal is from the district court's order entered on October 25, 1979, dismissing
appellant's complaint with prejudice. The order did not state the reason(s) for the dismissal.
Appellant contends that the trial court erred when it (1) took judicial notice of the parties'
first divorce proceedings, (2) applied the doctrine of res judicata, (3) found this action barred
by the six-month limitation of NRCP 60(b)(2), and (4) allowed the Statute of Frauds as it
relates to marriage contracts to support dismissal of appellant's causes of action.
1

[Headnotes 1, 2]
Appellant initially contends that it was error for the district court to consider respondent's
motion under NRCP 12(b) instead of a motion for summary judgment (NRCP 56) because
the court took judicial notice of the parties' prior divorce proceeding. A judge or court may
take judicial notice whether requested or not. NRS 47.150. It is a general rule that courts
should not take judicial notice of their records in another and different case, even though the
cases are connected, but this rule is not so inflexible in its application that under no
circumstances can judicial notice be invoked to take cognizance of the record in another case.
Giannopulos v. Chachas, 50 Nev. 269, 257 P. 618 (1927). The close relationship between this
case and the previous divorce proceeding brings it within the exception to the general rule
and justifies the district court taking judicial notice of the prior proceedings. See In re
adoption of K., 417 S.W.2d 702 (Mo.App. 1967).
[Headnote 3]
Upon the authority of Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963) (the
six-month limitation has no application when extrinsic fraud is alleged), and Savage v.
Salzmann, 88 Nev. 193, 495 P.2d 367 (1972) (upon proof [allegation] of extrinsic fraud the
normal six-month limitation of NRCP 60(b) has no application), we hold that the district
court's dismissal of appellant's first two causes of action was error and reverse.2
____________________

1
While the motion to dismiss does not include a fourth claim, the memorandum of points and authorities
attached to respondent's motion includes the claim that the action is barred by NRS 123.270, the Statute of
Frauds, regarding marriage contracts.
court's dismissal of appellant's first two causes of action was error and reverse.
2

Although appellant has not stated the claimed fraud with particularity and thus has failed
to comply with NRCP 9(b)
3
upon the authority of Savage v. Salzmann, supra, A failure to
plead with sufficient particularity does not warrant a dismissal of the action with prejudice.
[Headnote 4]
We need not address the issue of res judicata, but we must determine whether appellant's
remaining causes of action state a claim upon which relief may be granted. NRCP 12(b)(5).
We perceive that they do not.
____________________

2
This court's interpretation of fraud, as that term is used in NRCP 60(b)(2), and the term fraud upon the
court, also used in NRCP 60(b), is completely out of step with the treatment afforded those same terms by the
federal courts in their interpretation of the Federal Rules of Civil Procedure 60(b). This difference can hardly be
justified by the fact that the word fraud in FRCP 60(b)(3) is followed by the words (whether heretofore
denominated intrinsic or extrinsic).
Federal cases construing FRCP 60(b) make it clear that fraud upon the court under the savings clause is
distinguishable from fraud . . . misrepresentation, or other misconduct under FRCP 69(b)(3).
In United States v. International Telephone & Tel. Corp., 349 F.Supp. 22, 29 (D.Conn. 1972), aff'd without
opinion, 410 U.S 919, (1973), the trial court explained:
Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a
jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud
on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed.
1250 (1944); Root Refin. Co. v. Universal Oil Products, 169 F.2d 514 (3d Cir. 1948); 7 J. W. Moore,
Federal Practice, 60.33 at 510-11. Less egregious misconduct, such as nondisclosure to the court of
facts allegedly pertinent to the matter before it will not ordinarily rise to the level of fraud on the court.
See Kupferman v. Consolidated Research & Mfg. Co., 459 F.2d 1072 (2d Cir. 1972); see also England v.
Doyle, 281 F.2d 304, 310 (9th Cir. 1960).
[I]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b) . . . it is
necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its
decision. England v. Doyle, supra, 281 F.2d at 309. See also United States v. Standard Oil Co. of California,
73 F.R.D. 612, 615 (N.D.Cal. 1977).
The motion to set aside on this ground is addressed to the sound discretion of the trial court. Title v. United
States, 263 F.2d 28 (9th Cir. 1959); Siberell v. United States, 268 F.2d 61 (9th Cir. 1959). And the burden is on
the moving party to establish fraud by clear and convincing evidence. Atchison, Topeka & Santa Fe Railway Co.
v. Barrett, 246 F.2d 846 (9th Cir. 1957). England v. Doyle, 281 F.2d 304, 309-310 (9th Cir. 1960).

3
NRCP 9(b) provides:
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred
generally.
In the remaining causes of action there are no allegations that any of the conduct of the
parties was either done or withheld in contemplation of marriage and for that reason neither
NRS 123.270
4
or NRS 111.220(3) bear upon this case.
Other than his allegations of fraud, the entire thrust of appellant's complaint is his
contention that respondent orally agreed that upon any subsequent separation, she would
reconvey to him one-half of her real property.
The law of this state specifically precludes the creation of any interest in land except by a
properly executed written instrument. NRS 111.205(1).
5

The case is remanded to the district court with instructions to afford appellant an
opportunity to plead his first two causes of action with sufficient particularity. Savage v.
Salzmann, supra.
That part of the order of the district court dismissing appellant's third and fourth causes of
action with prejudice is affirmed.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and Young, D. J.,
6
concur.
____________________

4
All marriage contracts or settlements must be in writing, and executed and acknowledged or proved in
like manner as a conveyance of land is required to be executed and acknowledged or proved.

5
NRS 111.205(1) provides:
No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or
power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned,
surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or
conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring
the same, or by his lawful agent thereunto authorized in writing.

6
____________
97 Nev. 147, 147 (1981) Gavin v. Rhoden
JUNE A. GAVIN, Special Administratrix of the Estate of Annette Gano Lummis, Appellant,
v. HAROLD RHODEN, Substitute Executor for Noah Dietrich, Estate of Howard R. Hughes,
Jr., Deceased, Respondent.
No. 11359
March 25, 1981 625 P.2d 571
Appeal from an order denying costs, Eighth Judicial District Court, Clark County; Keith
C. Hayes, Judge.
In a pre-probate will contest, special administratrix of estate appealed from an order of the
district court assessing costs against the estate.
against the estate. The Supreme Court held that the pre-probate will contest was a special
proceeding and costs were not assessable against the estate, but were awardable to the
prevailing party from the losing party.
Reversed.
Andrews, Kurth, Campbell & Jones, Houston, Texas, and Morse-Foley, Las Vegas, for
Appellant.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Respondent.
States; Wills.
Pre-probate will contest was special proceeding and costs were not assessable against the estate, but
were awardable to prevailing party from losing party. NRS 18.020, subd. 4, 18.090.
OPINION
Per Curiam:
This appeal involves the award of costs in a pre-probate will contest. NRS 137.020(3).
This is a companion case to Rhoden v. First Nat'l Bank of Nev., 96 Nev. 654, 615 P.2d 244
(1980) and involves the validity of the so-called Mormon Will and its relationship to the
Estate of Howard R. Hughes, Jr.
After a trial by jury, a verdict was rendered in favor of appellant. The district court also
awarded costs to appellant. That court, however, did not indicate the amount. Appellant
subsequently submitted a memorandum of costs which totalled $122,878.27. Respondent
filed a motion to deny, retax and settle costs. At that time respondent argued that NRS 18.090
1
should apply and the costs should be assessed against the estate. Appellant responded and
argued that a pre-probate will contest is a special proceeding, that NRS 18.020
2
should be
applied, and that costs should be awarded to the prevailing party against the respondent.
____________________

1
In an action prosecuted or defended by an executor, administrator, trustee of express trust, or a person
expressly authorized by statute, costs may be recovered as in an action by and against a person
prosecuting and defending in his own right; but such costs shall, by the judgment, be made chargeable
only upon the estate, fund, or party represented, unless the court shall direct the same to be paid by the
plaintiff or defendant, personally, for mismanagement or bad faith in the action or defense.

2
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.
2. In an action to recover the possession of personal property, where
applied, and that costs should be awarded to the prevailing party against the respondent. The
district court denied appellant's memorandum of costs and granted respondent's motion. This
appeal followed.
In the Rhoden case, which concerned the award of attorney's fees in a pre-probate will
contest, this court characterized the instant will contest as litigation between private parties
and not litigation involving an executor of an estate. Applying the same logic, it appears that
NRS 18.090 does not apply to the award of costs in a pre-probate will contest, since the
litigation does not involve an executor.
This court has also characterized a will contest as a special proceeding, see Wainwright
v. Bartlett, Judge, 51 Nev. 170, 271 P. 689 (1928). Thus, NRS 18.020(4) applies to a
pre-probate will contest and [c]osts must be allowed of course to the prevailing party against
any adverse party against whom judgment is rendered.
Accordingly, we reverse the order of the district court and remand the matter for further
proceedings consistent with this opinion.
Gunderson, C. J., and Manoukian, Batjer, and Springer, JJ., and Gregory, Sr. D. J.,
3
concur.
____________________
the value of the property amounts to $750 or over. 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 $750 or
over.
4. In a special proceeding.
5. In an action which involves the title or possession 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.

3
The Governor designated The Honorable Frank B. Gregory, Senior District Judge, to sit in this case in the
place of The Honorable John C. Mowbray, Justice. Nev. Const. art. 6, 4; SCR 10.
____________
97 Nev. 149, 149 (1981) Little v. State
JAMES LITTLE, Appellant, v. THE STATE
No. 11193
March 26, 1981 625 P.2d 572
Appeal from a conviction after jury trial for sale of a controlled substance and from the
denial of defendant's motion for a new trial, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
The Supreme Court held that: (1) although record showed facts tending to discredit
informant, her testimony, as supported by that of police officer, if believed, constituted
sufficient evidence to support conviction of sale of a controlled substance, and (2) though
affidavits were admitted for limited purpose of showing concealment of actual bias on part of
jurors, where nothing in record compelled a finding of intentional concealment by jurors, trial
court acted well within its discretion in determining that a new trial was not warranted.
Affirmed.
Richard H. Bryan, Attorney General, Carson City, and Robert Miller, District Attorney,
1. Drugs and Narcotics.
Although record showed facts tending to discredit informant, her testimony, as supported by that of
police officer, if believed, constituted sufficient evidence to support conviction of sale of a controlled
substance.
2. Criminal Law.
When it is claimed a juror has answered falsely on voir dire about a matter of potential bias or prejudice,
affidavits of other jurors revealing such improper conduct may be received to impeach their verdict.
3. Criminal Law.
Though affidavits were admitted for limited purpose of showing concealment of actual bias on part of
jurors, where nothing in record compelled a finding of intentional concealment by jurors, trial court acted
well within its discretion in determining that a new trial was not warranted.
OPINION
Per Curiam:
Appellant was convicted of the sale of a controlled substance to a police informant. On
appeal, appellant contends (1) that insufficient evidence was adduced against him, and (2)
that the district court erred in refusing to grant his motion for a new trial grounded on charges
of jury misconduct. We find these contentions to be without merit.
1. On appeal, the issue is not whether this court would have found appellant guilty, but
whether the jury properly could. Anstedt v. State, 89 Nev. 163, 165, 509 P.2d 968 (1973);
Wheeler v. State, 91 Nev. 119, 120, 531 P.2d 1358 (1975); Hulett v. State, 92 Nev. 140, 141,
546 P.2d 1293 (1976); Crawford v. State, 92 Nev. 456, 457, 552 P.2d 137S {1976). "The
jury is the sole and exclusive judge of the credibility of the witnesses and the weight to be
given the evidence." King v. State, S7 Nev. 537, 53S, 490 P.2d 1054 {1971); Wheeler,
cited above; Cross v. State, S5 Nev. 5S0, 5S2, 460 P.2d 151 {1969). "Where there is
substantial evidence to support a verdict in a criminal case, . . . [this] court will not
disturb the verdict nor set aside the judgment."
Crawford v. State, 92 Nev. 456, 457, 552 P.2d 1378 (1976). The jury is the sole and
exclusive judge of the credibility of the witnesses and the weight to be given the evidence.
King v. State, 87 Nev. 537, 538, 490 P.2d 1054 (1971); Wheeler, cited above; Cross v. State,
85 Nev. 580, 582, 460 P.2d 151 (1969). Where there is substantial evidence to support a
verdict in a criminal case, . . . [this] court will not disturb the verdict nor set aside the
judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206 (1974); Crawford, cited above;
Hulett, cited above.
[Headnote 1]
In the instant matter the jury could well have decided to discount Little's testimony
entirely. Doing so and choosing to credit instead the testimony of the informant and officer
Hawkins was certainly within the jury's prerogative. King, cited above, and Wheeler, cited
above. Although the record shows facts tending to discredit the informant,
1
her testimony as
supported by that of officer Hawkins, if believed, constitutes sufficient evidence to convict
the appellant of the crime of sale of a controlled substance. Anstedt, cited above; Hulett, cited
above; and Sanders, cited above. The jury could properly conclude that the appellant was
guilty of the crime charged. Anstedt, cited above.
[Headnote 2]
2. In general, this court has adhered to the traditional rule which rejects jurors' affidavits to
impeach their own verdict. See, McNally v. Walkowski, 85 Nev. 696, 699, 462 P.2d 1016
(1969). However, in McNally we relaxed this exclusionary rule by holding that, when it is
claimed a juror has answered falsely on voir dire about a matter of potential bias or prejudice,
then affidavits of other jurors revealing such improper conduct may be received to impeach
their verdict. This court also declared in McNally, and it has reiterated its declaration on
several occasions, that [i]n the final analysis, the determination of what result should follow
the failure of a juror to answer fully a question touching upon his qualification turns upon
whether or not he was guilty of an intentional concealment. The determination of that
question must be left with the sound discretion of the trial court. McNally v. Walkowski, 85
Nev. at 701, 462 P.2d at 1019; Walker v. State, 95 Nev. 321, 323, 594 P.2d 710 (1979).
____________________

1
The informant, the primary witness for the prosecution, was accurately portrayed to the jury as a six-year
heroin addict, a full-time prostitute, and an ex-felon (breaking and entering, armed robbery) who, at the time of
the incident involving Little, was known to the Las Vegas police as a probation violator from the State of
Massachusetts.
[Headnote 3]
Here the trial court, following the McNally guideline, admitted affidavits for the limited
purpose of showing concealment of actual bias.
2
However, nothing in the record compels a
finding of intentional concealment by the jurors. Consequently, the trial court acted well
within its discretion when it determined that a new trial was not warranted. McNally, cited
above, and Walker, cited above.
In Walker v. State, cited above, we declined to extend the McNally exception so as to
require a new trial if potential bias or prejudice is unintentionally concealed. Id., at 323. The
district court did not err when it denied the appellant's motion for a new trial.
Affirmed.
Gunderson, C.J., and Manoukian, Batjer, and Mowbray, JJ., and Beko, D. J.,
3
concur.
____________________

2
Specifically, several jurors are alleged not to have revealed their disbelief in the presumption of innocence,
and to have failed to take to heart the court's instructions (1) that it was the State's duty to prove guilt beyond a
reasonable doubt, and (2) that only evidence admitted in court should be considered.

3
____________
97 Nev. 152, 152 (1981) Davenport v. Republic Insurance Co.
CLIFTON DAVENPORT, Jr., Appellant, v. REPUBLIC
INSURANCE COMPANY, Respondent.
No. 12021
March 26, 1981 625 P.2d 574
Appeal from an order granting a motion for summary judgment, Eighth Judicial District
Court, Clark County; Robert G. Legakes, Judge.
Insured brought action against insurer to recover money allegedly due under homeowner's
policy for burglary loss. The district court granted insurer's motion for summary judgment,
and insured appealed. The Supreme Court, Gunderson, C. J., held that: (1) action was not
barred by clause in policy requiring any suit to be commenced within 12 months next after
inception of loss, and (2) insurer substantially complied with proof of loss requirement and
could thus bring action.
Reversed.
David Allen and R. Paul Sorenson, Las Vegas, for Appellant.
Fitzgibbons, Beatty & Phillips, Las Vegas, for Respondent.
1. Insurance.
Insured's action to recover money allegedly due under homeowner's policy for burglary loss was not
barred by policy clause requiring any suit to be commenced within 12 months next after inception of loss in
view of fact that such clause was ambiguous and to be construed against insurer to allow period of
limitations to run from date of casualty, but period would be tolled from time insured gave notice of loss
until insurer formally denied liability and in instant case insured immediately notified insurer of burglary
and insurer never formally denied its liability.
2. Insurance.
Insured, by completing and returning all necessary forms to insurer after burglary of his home,
substantially complied with proof of loss provision of homeowner's policy and his action to recover money
allegedly due under homeowner's policy for burglary loss was thus not precluded by proof of loss
requirement of policy.
OPINION
Appellant Davenport brought this action against respondent Republic Insurance Company
to recover money allegedly due under a homeowner's policy for a burglary loss. The district
court granted Republic's motion for a summary judgment. Davenport has appealed.
A summary judgment is proper only when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. NRCP 56. Judges should
exercise great care in granting motions for summary judgment. A litigant has a right to trial
where there is the slightest doubt as to the facts. Short v. Hotel Riviera, Inc., 79 Nev. 94, 103,
378 P.2d 979 (1963). In reviewing a summary judgment, this court accepts as true all
evidence favorable to the party against whom the judgment was rendered. Id.
Republic premised its motion for a summary judgment on contentions (1) that Davenport
had not instituted his action within the policy's twelve-month limitation period, and (2) that
Davenport had not seasonably filed a sworn proof of loss statement. On these grounds, the
district court determined Republic to be entitled to judgment as a matter of law. We do not
agree.
[Headnote 1]
1. The district court erred when it determined Davenport's action was barred by a clause in
the policy which requires any suit to be commenced within twelve months next after
inception of the loss.
1
In Clark v. Truck Ins. Exchange, 95 Nev. 544, 598 P.2d 628 (1979),
this court construed an identical clause in an action brought to recover for a fire loss. We
found the clause to be ambiguous and, therefore, to be construed against the insurer. We
declared that the clause should be construed to allow the period of limitations to run from
the date of the casualty, but the period will be tolled from the time appellant gave notice of
the loss until respondent formally denies liability. 95 Nev. at 546, 598 P.2d at 629 (emphasis
added).
Here, the record indicates that Davenport immediately notified Republic of the burglary,
and that Republic has never formally denied its liability. Therefore, the district court erred
insofar as its grant of summary judgment rests on Davenport's failure to comply with the
policy's twelve-month limitation period for commencement of suits. Id.
2

[Headnote 2]
2. The district court also erred in holding that failure to comply with the policy's proof of
loss requirement precluded any possibility of recovery. See Clark v. London Assurance
Corp., 44 Nev. 359, 195 P. 809 (1921), but see Engelman v. Royal Insurance Co., 56 Nev.
319, 51 P.2d 417 (1935). In the Clark case, a proof of loss clause identical to the one
contested here was construed. This court noted first that, [t]here is no provision in the policy
to the effect that the insured shall forfeit his rights thereunder in case proof of loss is not
rendered within sixty days after a loss. . . . 44 Nev. at 363, 195 P. at 810. Then, noting that
forfeitures are not favored, we declared that clauses relied on as creating them should be
strictly construed, 44 Nev. at 364, 195 P. at 810, and affirmed a judgment for the insured
despite his technical non-compliance with the proof of loss clause. In sum, we held such a
clause does not preclude recovery, at least where the insured has attempted to comply
substantially with it, or where the insurer waived its conditions. See Engelman, cited above,
at 329.
____________________

1
The theft of Davenport's property occurred on October 13, 1976. He commenced his suit against Republic
on October 20, 1978.

2
In Clark v. Truck Ins. Exchange, cited above, the insured party filed a formal proof of loss statement.
Whether Davenport did so is uncertain. However, our holding was grounded on the fact of an actual notice of
loss, and is not limited to circumstances in which there has been a formal, sworn proof of loss statement.
Here, Davenport by affidavit averred that he could not remember whether he submitted a
proof of loss. He claimed, however, that he had completed and returned all forms sent to him
by Republic. As noted, when contemplating a summary judgment, these assertions must be
accepted as true. Had the district court done so, we think it would have found evidence that
Davenport had complied substantially with theproof of loss provision, and also that
Republic had waived such provision.
Accordingly, we reverse and remand this matter for further proceedings.
Manoukian, Batjer, and Mowbray, JJ., and Beko, D. J.,
3
concur.
____________________

3
____________
97 Nev. 155, 155 (1981) 20th Century Hotel v. County of Clark
20th CENTURY HOTEL & CASINO, LTD., d/b/a THE TREASURY HOTEL & CASINO,
and 20th CENTURY HOTEL & CASINO CORPORATION, Appellants, v. COUNTY OF
CLARK, a Political Subdivision of the State of Nevada; CLARK COUNTY FAIR AND
RECREATION BOARD, a Political Subdivision of the County of Clark, State of Nevada,
Respondents.
No. 12266
March 26, 1981 625 P.2d 576
County; Keith C. Hayes, Judge.
County brought action against owner-lessor of hotel property seeking room taxes that had
accrued during tenure of lease. The district court held that owner-lessor of hotel was liable for
room taxes, and owner-lessor appealed. The Supreme Court, Manoukian, J., held that
owner-lessor of hotel property was an operator and, thus, would be liable for room taxes
that had accrued during tenure of the lease.
Affirmed.
Goodman, Oshins, Brown & Singer, Las Vegas, for Appellants.
Robert Miller, District Attorney, and S. Mahlon Edwards, Deputy District Attorney, Clark
County, for Respondents.
Innkeepers.
Under Clark County Code, owner-lessor of hotel property is an operator and, thus, liable for room
taxes that have accrued during tenure of the lease.
OPINION
In this appeal from the order granting summary judgment to respondents, we are required
to determine whether under section 4.08.010 of the Clark County Code, the owner-lessor of a
hotel property is an operator and thus liable for room taxes that have accrued during the
tenure of the lease. The trial court ruled that it is and we affirm that determination.
Appellants, hereinafter referred to as 20th Century, owned and operated the 20th Century
Hotel and Casino in Las Vegas. On February 6, 1978, 20th Century entered into an agreement
with JNS Hotel Enterprises, Inc., hereinafter JNS, whereby 20th Century leased for 5 years
the hotel portion of the facility to JNS, retaining operational control of the casino.
Under the lease, JNS agreed to comply with the laws, ordinances and regulations of all
government entities, and to assume sole responsibility for all room taxes and sales taxes
assessed against [JNS] activities. 20th Century agreed to remain solely responsible for all
real and personal property taxes.
During the eleven months in which JNS operated the hotel, although JNS collected the
room taxes, it failed to pay to respondents, hereinafter referred to as Clark County,
approximately $52,000 in room taxes. Consequently, respondents recorded a tax lien against
the hotel property and instituted suit against JNS. Thereafter, 20th Century commenced the
present action for declaratory relief, wherein it sought a determination that it, as owner of the
property, was not subject to a lien for taxes incurred by its lessee, JNS. Clark County
counter-claimed, seeking a determination that the lien and assessment were valid.
Subsequently, both parties filed motions for summary judgment, and the court below
rendered judgment in favor of Clark County.
Section 4.08.010 of the Clark County Code provides in part:
There are fixed and imposed license taxes for revenues, . . . on the operators of
hotels, . . . within the county and located and situated outside the limits of incorporated
cities and towns therein, in addition to license taxes heretofore fixed and imposed:
(a) Five percent of all monies received from room rentals by resort hotels.
(Emphasis added.) 20th Century contends that the lessee is solely responsible for the tax
indebtedness as the "operator" of the hotel.
solely responsible for the tax indebtedness as the operator of the hotel. Although the term
operator has not been explicitly defined by the county, a review of the entire enactment
supports a determination that the owner-lessor is accountable for the hotel room tax.
We must construe an act in light of its purpose and as a whole. Acklin v. McCarthy, 96
Nev. 520, 523, 612 P.2d 219, 220 (1980); Thomas v. State, 88 Nev. 382, 384, 498 P.2d 1314,
1315 (1972). Evidence of intent not to focus merely on management is found in the title of
the enactment adopting section 4.08.010, AN ORDINANCE FIXING AND IMPOSING
LICENSE TAXES FOR REVENUE UPON HOTELS AND MOTELS . . . . In addition,
Clark County code section 4.08.010(a) defines a resort hotel as an establishment renting
rooms. . . and having a casino containing no less than three games. The section continues by
providing that:
It shall be immaterial as to whether or not the rooms and the casino are separately
operated and/or whether separately owned and operated or not, the combination of
rooms and casino shall be deemed to be one establishment and the five percent rate
shall apply.
Id. Our determination is reinforced on consideration of NRS 244.335(3) and NRS 269.170(2),
which refer to the room tax as constituting a lien upon the real property. This is compelling
evidence of legal intent and it, coupled with the fact that the tax revenue is to be used for the
acquisition of a convention center within Clark County, which facility would benefit both the
management by increased business and the owner by the enhanced value of the investment, is
most convincing. Moreover, an interpretation relieving owner-lessors of liability would
spawn governmental difficulties in enforcement which were not contemplated, and which
would be counter to the purpose of the ordinance. Therefore, to effectuate the purposes of the
ordinance, as well as its terms, we conclude that operator includes both the lessor-owner
and the lessee-manager. Compare, Magee v. Whiteacre, 60 Nev. 202, 213, 106 P.2d 751, 753
(1940) (lien allowed for improvements made by irrigation district).
1

We affirm the summary judgment.
Gunderson, C. J., and Batjer and Mowbray, JJ., and Beko, D. J.,
2
concur.
____________________

1
This opinion is not intended to affect the rights, obligations, or remedies as between lessor and lessee.

2
____________
97 Nev. 158, 158 (1981) Obermeyer v. State
ROGER OBERMEYER, Appellant, v. THE STATE
No. 11182
March 26, 1981 625 P.2d 95
Appeal from judgment of conviction and sentences of Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Defendant was convicted in the district court of first degree arson, grand larceny,
malicious destruction of property, burglary, and carrying a concealed weapon. Defendant
appealed. The Supreme Court, Gunderson, C. J., held that: (1) property found in defendant's
rented hotel room was lawfully seized; (2) police officers' obligation to conduct inventory
search of automobile in defendant's possession was not negated merely because likelihood
existed that some property in need of protection in automobile might have belonged to
another; (3) fruits of search of defendant's briefcase, including property and testimony
obtained through private detective, should have been excluded; and (4) to the extent that the
trial court admitted unconstitutionally seized evidence against defendant, error was harmless
beyond reasonable doubt.
Affirmed.
Richard Bryan, Attorney General, Carson City, and Robert Miller, District Attorney, Clark
1. Searches and Seizures.
Property found in defendant's rented hotel room was lawfully seized where rental period defendant had
contracted for had expired and rent was past due and owing when officer and victim entered the rented
room looking for victim's property.
Police officers' obligation to conduct inventory search of automobile in defendant's possession was not
negated merely because likelihood existed that some property in need of protection in automobile might
have belonged to another individual.
3. Criminal Law.
Fruits of search of defendant's briefcase, including property and testimony obtained through a private
detective, should have been excluded in prosecution for first degree arson, grand larceny,
malicious destruction of property, burglary, and carrying a concealed weapon.
excluded in prosecution for first degree arson, grand larceny, malicious destruction of property, burglary,
and carrying a concealed weapon.
4. Criminal Law.
Where constitutional error has been committed, a conviction of guilty may be allowed to stand if error is
determined to be harmless beyond a reasonable doubt.
5. Criminal Law.
To the extent that trial court in criminal prosecution admitted unconstitutionally seized evidence against
defendant, error was harmless beyond reasonable doubt in view of fact that it appeared that minds of
average jury would not have found the state's case significantly less persuasive had the unconstitutionally
seized evidence been excluded. NRS 177.255, 178.598.
OPINION
A jury convicted appellant Obermeyer of first degree arson, grand larceny, malicious
destruction of property, burglary, and carrying a concealed weapon. On appeal, appellant
seeks to question the propriety of warrantless searches of his hotel room, Volkswagen van,
and briefcase. He contends that these searches violated his Fourth Amendment rights, and
that therefore the district court erred in allowing evidence thus obtained to be introduced
against him at trial. In our view, to the extent the court below admitted unconstitutionally
seized evidence against appellant, the error was harmless beyond a reasonable doubt. Cf.
Chapman v. California, 386 U.S. 18, 24 (1967).
During the summer of 1977, the appellant lived in the apartment of a Ms. Daniel in Las
Vegas. Ms. Daniel decided that she no longer wished to live with appellant and asked him to
move. When he had gone, she locked her apartment and drove to California.
On July 30 and 31, a neighbor observed appellant inside Ms. Daniel's apartment. The
neighbor also testified that, while appellant was there on July 31, she heard strange noises
coming from the apartment, smelled smoke for several hours, and observed furniture,
clothing, rugs and appliances being thrown out of the windows. When appellant left, she
telephoned the police. In the early evening of July 31, investigating officers located appellant
and arrested him for carrying a concealed weapon.1 Then, they had appellant's VW van
towed to a police impound yard.
weapon.
1
Then, they had appellant's VW van towed to a police impound yard. In their
booking search of appellant, they found two Hilton Hotel room keys in his pants' pocket.
Late on the night of Sunday, July 31, Ms. Daniel returned and discovered that extreme
damage had been done to her apartment and belongings. Her sofa had been cut and burned.
Dishes, pots, clocks, and mirrors had been destroyed. The front door and a window were
broken. A closet wall was scorched. Her clothes had been doused with bleach. In addition,
her jewelry, a color TV, a glass topped dining room table and chairs, and a portable stereo
had been stolen.
On Tuesday, August 2, Metro police officer Sudbury picked up Ms. Daniel and took her
with him to the Hilton Hotel. They ascertained that appellant had rented room No. 1204 and
that his rent was past due. Officer Sudbury and Ms. Daniel accompanied hotel security
officers to room No. 1204. There, Ms. Daniel and Officer Sudbury recovered two GMC
automobile keys, one gold chain necklace and a wishbone type ornament, all belonging to
Ms. Daniel.
Officer Sudbury and Ms. Daniel then proceeded to the police impound yard, ostensibly to
inventory the contents of appellant's van. There, in plain view, they found Ms. Daniel's stereo,
some of her crystal, and a pinkslip to her car. While in the van, Officer Sudbury also found
and opened appellant's briefcase, which contained an agreement executed between appellant
and a private detective.
As consideration for the detective's services, the agreement listed a television set and a
dining room table and chairs. Officer Sudbury and Ms. Daniel proceeded to the detective's
office, and there found Ms. Daniel's missing TV and dining room ensemble. The detective,
who later testified at appellant's trial, described meeting with appellant in Ms. Daniel's
apartment on July 30. He described those premises as being in a total shambles. He also
testified that he had asked appellant what had happened, and that appellant had responded: .
. . if I can't have this stuff that bitch will not get it either.
[Headnote 1]
1. [A] guest in a hotel or motel loses his reasonable expectation of privacy and
consequently any standing to object to an unauthorized search of the premises' after his
rental period has terminated. And this is true even though he may have left property in the
hotel room. United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978); United States v.
Akin, 562 F.2d 459, 463 {7th Cir.
____________________

1
There appears to be no serious claim that appellant's arrest and conviction for carrying a concealed weapon
is tainted by unconstitutional police action.
459, 463 (7th Cir. 1977); United States v. Parizo, 514 F.2d 52, 54-55 (2d Cir. 1975); United
States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970).
It stands uncontroverted that the rental period appellant contracted for with the Hilton
Hotel had expired, and that rent was past due and owing when Officer Sudbury and Ms.
Daniel entered room No. 1204 looking for her property. Consequently, appellant then had no
reasonable expectation of privacy concerning the hotel room. Thus, it seems clear that
property found there was lawfully seized.
[Headnote 2]
2. The police officer, when there is just cause, has a duty not only to impound a car from
the public highway for its own protection, but also to inventory the contents so that they may
be safeguarded for the owner. Heffley v. State, 83 Nev. 100, 103, 423 P.2d 666 (1967).
Further, in the instant case, we do not believe obligation to conduct such an inventory was
negated merely because a likelihood existed that some property in need of protection might
belong to Ms. Daniel, rather than appellant.
Hence, in our view, the district court was not constrained to find that the recovery of Ms.
Daniel's property from appellant's van resulted from an unduly exploratory search.
[Headnote 3]
3. [T]he warrant requirement of the Fourth Amendment applies to personal luggage
taken from an automobile to the same degree it applies to such luggage in other locations.
Thus, insofar as the police are entitled to search such luggage without a warrant, their actions
must be justified under some exception to the warrant requirement other than that applicable
to automobiles stopped on the highway. Where--as in the present case--the police, without
endangering themselves or risking loss of the evidence, lawfully have detained one suspected
of criminal activity and secured his suitcase, they should delay the search thereof until after
judicial approval has been obtained. In this way, constitutional rights of suspects to prior
judicial review of searches will be fully protected. Arkansas v. Sanders, 442 U.S. 753, 766
(1979).
Therefore, arguably, fruits of searching appellant's briefcase, including property and
testimony obtained through the private detective, should all have been excluded. See Wong
Sun v. United States, 371 U.S. 471 (1963).
[Headnotes 4, 5]
4. Nonetheless, NRS 178.598 requires that, [a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded."
defect, irregularity or variance which does not affect substantial rights shall be disregarded.
NRS 177.255 provides that, [a]fter hearing the appeal, the court shall give judgment without
regard to technical error or defect which does not affect the substantial rights of the parties.
Where a constitutional error has been committed, a conviction of guilty may be allowed to
stand if the error is determined to be harmless beyond a reasonable doubt. Allen v. State, 91
Nev. 78, 81, 530 P.2d 1195 (1975); cf. Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275
(1976). In this case, as to all of the Information's several counts, it appears that the minds of
an average jury' would not have found the State's case significantly less persuasive had the
[evidence derived from searching appellant's briefcase] been excluded. Schneble v. Florida,
405 U.S. 427, 31 L.Ed.2d 340, 345 (1972).
As to Count V, which alleges burglary, for example, the testimony of Ms. Daniel's
neighbor convincingly established that appellant had unlawfully entered Ms. Daniel's
apartment; similarly, the stolen property lawfully recovered from appellant's van and hotel
room clearly proved his intent to commit larceny therein. Count II, grand larceny, likewise
was clearly proved by purloined property lawfully recovered from appellant's van and room.
Although Count II also referred to certain items discovered in the private detective's
possession, we do not believe these circumstances of recovery were crucial to the jury's
deliberations. From other admissible evidence, the jury knew all property referred to in Count
II had been stolen from Ms. Daniel's apartment at about the same time as those items lawfully
recovered from appellant's van and room. Similarly, concerning the arson charge alleged in
Count I, the neighbor's testimony established that on July 31, when the fire occurred,
appellant was unlawfully in Ms. Daniel's apartment. This evidence, corroborated by
appellant's possession of property contemporaneously stolen from the apartment,
convincingly linked him to the arson. The State's case would not have been substantially less
persuasive, without the private detective's testimony that appellant had been in Ms. Daniel's
apartment destroying property on the previous day also. Id. The same may be said of Count
III, the charge of malicious destruction of property.
The judgment is affirmed in all respects.
Manoukian, Batjer, and Mowbray, JJ., and Beko, D. J.,
2
concur.
____________________

2
The Governor designated the Honorable William P. Beko, Judge of the Fifth Judicial District Court, to sit in
the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 163, 163 (1981) Golden Press, Inc. v. Pacific Freeport
GOLDEN PRESS, INC., a Corporation; WAYNE WAREHOUSING CORPORATION,
Appellants, v. PACIFIC FREEPORT WAREHOUSE COMPANY, a Nevada Corporation,
Respondent.
No. 10987
March 27, 1981 625 P.2d 578
Appeal from an initial judgment and from a subsequent order denying motions for a new
trial and to modify judgment, Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action was brought to recover money allegedly due to respondent under contract for
warehousing services. The district court entered judgment in favor of respondent, and appeal
was taken. The Supreme Court, Gunderson, C. J., held that trial court erred by allowing the
shipping section of the parties' rate schedule, which was reduced to writing on April 25, 1967,
to be altered by parol proof, in that rate schedule appeared absolute in its terms, and
respondent did not allege fraud or mistake in its complaint, and it proffered no proof of either
fraud or mistake at trial.
Bissett & Logar, Reno, for Appellants.
Vargas, Bartlett & Dixon, Reno, for Respondent.
1. Evidence.
Trial court erred in action to recover money allegedly due to respondent under contract for warehousing
services by allowing the shipping section of the parties' rate schedule, which was reduced to writing on
April 25, 1967, to be altered by parol proof, in that rate schedule appeared absolute in its terms, and
respondent did not allege fraud or mistake in its complaint, and it proffered no proof of either fraud or
mistake at trial.
2. Evidence.
A party may be permitted to prove the existence of a separate, independent and contemporaneous oral
agreement by parol; however, such proof by parol may only be of matters on which the existing written
agreement is silent, and the terms of the alleged oral agreement must be consistent with those of the written
agreement.
OPINION
Respondent Pacific Freeport Warehouse Company brought this action against appellants
Golden Press, Inc., and Wayne Warehousing Corp.
Warehousing Corp. (hereafter Golden Press), to recover money allegedly due to respondent
under a contract for warehousing services. The district court entered a judgment in favor of
respondent Pacific Freeport. Golden Press has appealed from the initial judgment, and from a
subsequent order denying motions for a new trial and for modification of the judgment.
On appeal, the central issue is whether the district court erred in considering parol
evidence that Golden Press had guaranteed Pacific Freeport a $2,800,000 yearly invoice
volume. In our view the court did err, given the nature of the parties' agreement.
1. This court long ago stated:
When parties reduce their contract to writing, all oral negotiations and agreements
are merged in the writing, and the instrument must be treated as containing the whole
contract, and parol proof is not admissible to alter its terms, or to show that, instead of
being absolute, as it purports to be, it was in reality conditional, unless the party
attacking the instrument can establish fraud or mistake in its execution.
Gage v. Phillips, 21 Nev. 150, at 153 (1891).
1

[Headnote 1]
Here, the parties reduced their contract to writing in the RATE SCHEDULE they executed
on April 25, 1967. From its terms, the RATE SCHEDULE appears absolute. Pacific Freeport
did not allege fraud or mistake in its complaint, and it proffered no proof of either fraud or
mistake at trial. Therefore, under the rule articulated in Gage, and thereafter consistently
followed by this court, the district court erred by allowing the shipping section of the parties'
RATE SCHEDULE to be altered by parol proof.
2

2. In Alexander v. Simmons, 90 Nev. 23, 518 P.2d 160 (1974) we declared that, [t]he
case law is clear that the mere existence of a written contract is insufficient to prevent a
party from showing a separate and independent contemporaneous oral agreement.
____________________

1
In the past ninety years we have frequently reaffirmed this rule. See, e.g., Daly v. Del E. Webb Corp., 96
Nev. 359, 609 P.2d 319 (1980); Widett v. Bond Estate, Inc., 79 Nev. 284, 286, 382 P.2d 212 (1963); Sims v.
Grubb, 75 Nev. 173, 176-77, 336 P.2d 759 (1959); Tallman v. First Nat. Bank, 66 Nev. 248, 257, 208 P.2d 302
(1949); Chiquita M. Co. v. F. M. & Co., 60 Nev. 142, 153, 104 P.2d 191 (1940).

2
The district court in effect did this by grounding its judgment on a finding that, . . . plaintiff and defendants
agreed that defendants would supply plaintiff a minimum volume of 2.8 million dollars for each year the contract
was in existence. The RATE SCHEDULE's shipping section refers only to . . . 6.3% of Invoice value up to
$3,000,000 per calendar year. . .
[t]he case law is clear that the mere existence of a written contract is insufficient to
prevent a party from showing a separate and independent contemporaneous oral
agreement. Douglass v. Thompson, 35 Nev. 196, 127 P. 561 (1912). Undoubtedly the
existence of a separate oral agreement as to any matter on which a written contract is
silent, and which is not inconsistent with its terms, may be proven by parol, if under the
circumstances of the particular case it may properly be inferred that the parties did not
intend the written paper to be a complete and final statement of the whole of the
transaction between them.
Id., at 24 (emphasis added).
[Headnote 2]
Thus, under the rule in Alexander, a party may be permitted to prove the existence of a
separate, independent and contemporaneous oral agreement by parol. However, such proof by
parol may only be of matters on which the existing written agreement is silent, and the terms
of the alleged oral agreement must be consistent with those of the written agreement. As
noted above, the RATE SCHEDULE had a specific term which required Golden Press to pay
6.3% of Invoice value up to $3,000,000 per calendar year, etc. In our view, entertaining
parol evidence to show an alleged $2,800,000 guarantee creates a fundamental
inconsistency with the contract's explicit terms.
We therefore hold that in the circumstances of this case, where the parties had reduced
their contract to writing, and no evidence of fraud or mistake was proffered, the district court
erred in admitting parol evidence to alter the express term of the parties' RATE SCHEDULE.
Other assignments of error need not be considered.
Manoukian, Batjer, and Mowbray, JJ., and Christensen, D. J.,
3
concur.
____________________

3
The Governor designated The Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.
____________
97 Nev. 166, 166 (1981) Cohen v. State
MELVIN COHEN, Appellant, v. THE
No. 11595
March 30, 1981 625 P.2d 1170
Appeal from judgment of convictions, after a jury trial, for burglary, attempted grand
larceny, possession of stolen property, and from adjudication as an habitual criminal, Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
The Supreme Court, held that: (1) trial judge did not conduct any examination of
defendant to determine whether his waiver of his right to counsel was valid, and therefore his
conviction was required to be reversed; (2) imposition of two sentences upon defendant, one
for the habitual criminal charge, and the other for the primary offenses, was error; and (3)
where exemplified copies of two of three prior convictions of defendant failed to indicate
either the presence of counsel or a valid waiver of the right to counsel during the proceedings,
adjudication of defendant as an habitual criminal based upon the three prior convictions was
improper.
William N. Dunseath, Public Defender, N. Patrick Flanagan, Deputy Public Defender,
Washoe County, for Appellant.
Calvin R.X. Dunlap, District Attorney, Edward B. Horn, Deputy District Attorney,
1. Criminal Law.
While a defendant in a criminal trial has a Sixth Amendment right to represent himself, and may therefore
waive his right to counsel, his relinquishment of the right must be an intelligent waiver. U.S.C.A.Const.
Amend. 6.
2. Criminal Law.
Where trial judge in prosecution of defendant for burglary, attempted grand larceny and possession of
stolen property did not conduct any examination of defendant to determine whether his waiver of his right
to counsel was valid, defendant's conviction was required to be reversed. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Imposition of two sentences upon defendant, one for an habitual criminal charge, and the other for the
primary offenses of burglary, attempted grand larceny and possession of stolen property, was error, as the
purpose of the habitual criminal statute is not to charge a separate substantive crime but to allege a fact
which may enhance the punishment.
4. Criminal Law.
Burden is upon the State to prove that, with respect to use of prior conviction to adjudicate a
defendant as an habitual criminal, an attorney was either present or that defendant
validly waived his right to counsel in the prior criminal proceedings.
97 Nev. 166, 167 (1981) Cohen v. State
prior conviction to adjudicate a defendant as an habitual criminal, an attorney was either present or that
defendant validly waived his right to counsel in the prior criminal proceedings. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Where exemplified copies of two of three prior convictions of defendant failed to indicate either the
presence of counsel or a valid waiver of defendant's right to counsel, adjudication of defendant as an
habitual criminal based upon the three prior convictions was improper. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
A jury found the appellant, Melvin Cohen, guilty of burglary, attempted grand larceny and
possession of stolen property. Appellant was also adjudicated an habitual criminal.
The district judge at the time of the appellant's arraignment offered to assign counsel to
represent him. Appellant advised the court that he desired to make his own summation to the
jury. The judge then, in effect, told him he could either represent himself throughout the trial
or have an attorney do so.
1
Appellant now claims that the waiver of his right to counsel
was not intelligently made.
____________________

1
The colloquy between the district judge and the appellant is set forth below:
THE COURT: Is there anything else now of preliminary issues?
DEFENSE COUNSEL: Your Honor, Mr. Cohen indicated to me that he would like to represent
himself, although I'm not sure if he wants to represent himself through the entire course of the trial or just
through certain matters in the trial.
THE DEFENDANT: Just for the summation, your Honor.
THE COURT: Well, let me explain something to you sir. In this court, you can either represent
yourself or you can have an attorney, but you can't do both. In other words, if you are going to represent
yourself, you conduct the trial.
THE DEFENDANT: I see.
THE COURT: If you are not going to represent yourself, then you have an attorney, and he conducts
the trial.
THE DEFENDANT: Well, then if that's the case, as it is, your Honor, I want to defend myself. I
think I can convince you I'm capable and competent.
THE COURT: You have an absolute constitutional right to defend yourself, if that is what you want.
THE DEFENDANT: Well, I'm requesting it.
THE COURT: All right.
THE DEFENDANT: One thing more.
THE COURT: I will require Mr. .............. (Defense Counsel) to be here and sit at counsel table with
you and answer questions, if you have any, but he will not participate in the trial, and he will not be
responsible for your defense if you defend yourself; you understand that?
THE DEFENDANT: Yes, sir. One more request, if it is permissible. Can I request the absence of Mr.
.............. (Defense Counsel)? I don't have any need for his services.
THE COURT: You don't want to have an attorney present at all?
97 Nev. 166, 168 (1981) Cohen v. State
Appellant now claims that the waiver of his right to counsel was not intelligently made. He
also challenges the validity of his habitual criminal adjudication.
[Headnotes 1, 2]
1. While a defendant in a criminal trial has a sixth amendment right to represent himself,
Faretta v. California, 422 U.S. 806 (1975), and, hence, may waive his right to counsel, the
United States Supreme Court has held that the relinquishment of a known right must be an
intelligent waiver. Johnson v. Zerbst, 304 U.S. 458 (1938). In a similar situation we held that
To be valid such waiver must be made with an apprehension of the nature of the charges, the
statutory offenses included within them, the range of allowable punishments thereunder,
possible defenses to the charges and circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter. A judge can make certain that an
accused's professed waiver of counsel is understandingly and wisely made only from a
penetrating and comprehensive examination of all the circumstances under which such a plea
is tendered. Garnick v. Miller, 81 Nev. 372, 376, 403 P.2d 850, 853 (1965), citing Von
Moltke v. Gillies, 332 U.S 708, 724 (1948). See also, Reynolds v. Warden, 84 Nev. 941, 478
P.2d 574 (1970); Lawrence v. Warden, 84 Nev. 554, 445 P.2d 156 (1968); Bundrant v.
Fogliani, 82 Nev. 388, 419 P.2d 293 (1966). There is no indication from the record that the
trial judge conducted any canvass to determine whether appellant's waiver was valid.
2
Therefore, the conviction must be reversed.
____________________
THE DEFENDANT: Yes.
THE COURT: All right. That's the way it will be.
THE PROSECUTOR: Your Honor, perhaps, if I might, in light of the recent publicity that the
Knipmeyer trial has received in regards to the ability of a defendant to knowledgeably--
THE COURT: I don't think it makes any difference whether he is knowledgeable. The Supreme
Court said if the man wants to defend himself, he is entitled. Isn't that the understanding?
THE PROSECUTOR: That is fine, your Honor.

2
During the settling of instructions, the defendant inquired about the possible sentences he might receive:
MR. COHEN: What is the least a judge can give a person in my case?
THE COURT: Do you know what the possible sentences are for these three offenses?
THE PROSECUTOR: Your Honor, I believe it's one to ten on the burglary charge, one to ten on the
grand larcenyexcuse meone to five on the attempted grand larceny charge, and I believe possession
of stolen property is one to six.
THE COURT: If his recollection is correct, you could get twenty-one years.
MR. COHEN: Could?
THE COURT: Could.
97 Nev. 166, 169 (1981) Cohen v. State
[Headnote 3]
2. At oral argument, the state conceded the invalidity of appellant's adjudication as an
habitual criminal: two sentences were imposed upon appellant, one for the habitual criminal
charge, and the other for the primary offense. This was error; the purpose of the habitual
criminal statute is not to charge a separate substantive crime, but to allege a fact which may
enhance the punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932). Only one
sentence may be imposed. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
[Headnotes 4, 5]
Appellant's second argument regarding his adjudication as an habitual criminal has merit.
Exemplified copies of two of the three convictions upon which the habitual criminal
adjudication was based failed to indicate either the existence of counsel, or a valid waiver of
the right to counsel. The burden is upon the state to prove that, in the prior criminal
proceedings, an attorney was either present or that the defendant validly waived his right to
counsel. Fournier v. State, 95 Nev. 591, 600 P.2d 213 (1979); Hamlet v. State, 85 Nev. 385,
455 P.2d 915 (1969).
For these reasons the judgment of conviction is reversed and the case is remanded for a
new trial.
____________
97 Nev. 169, 169 (1981) Vincent v. State
JACK T. VINCENT, Appellant, v. THE STATE
No. 12213
March 30, 1981 625 P.2d 1172
Appeal from judgment of conviction for attempted burglary, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
The Supreme Court held that trial court should have charged on effect defendant's alleged
intoxication might have had on his ability to form specific intent to commit attempted
burglary and its failure to do so constituted reversible error.
Reversed.
Morgan D. Harris, Public Defender, Terrence M. Jackson, Deputy Public Defender, Clark
Richard H. Bryan, Attorney General, Carson City; Robert J.
J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
The defendant in a criminal proceeding is entitled to have the jury instructed on his theory of case if it
finds support in the evidence. NRS 175.161, 193.220.
2. Criminal Law.
Trial court should have charged on effect defendant's alleged intoxication might have had on his ability to
form specific intent to commit attempted burglary and its failure to do so constituted reversible error. NRS
175.161, 193.220.
OPINION
Per Curiam:
Convicted of attempted burglary, Jack T. Vincent contends, inter alia, that the district
court erred by refusing to give a proposed jury instruction. We agree and for reasons
expressed hereafter reverse.
Although admitting the commission of certain acts at trial, appellant argued that he lacked
the requisite intent to commit a burglary by reason of intoxication. He proposed a jury
instruction regarding the effect of intoxication on the issue of intent. This instruction was
refused by the court.
NRS 193.220 reads as follows:
No act committed by a person while in a state of voluntary intoxication shall be
deemed less criminal by reason of his condition, but whenever the actual existence of
any particular purpose, motive or intent is a necessary element to constitute a
particular species or degree of crime, the fact of his intoxication may be taken into
consideration in determining such purpose, motive or intent. (Emphasis added.)
[Headnote 1]
The effect appellant's alleged intoxication may have had on his ability to form the specific
intent for the crime charged was relevant to the issues raised by the facts in the case at bar. It
is the duty of a district court to instruct the jury on the general principles of law relevant to
the issues raised by the facts of the case before it. People v. Wiley, 554 P.2d 881 (Cal. 1976);
see NRS 175.161. Furthermore, the defendant in a criminal proceeding is entitled to have the
jury instructed on his theory of the case if it finds support in the evidence as here. Adler v.
State, 95 Nev. 339, 594 P.2d 725 (1979).
[Headnote 2]
The jury was not informed as to the possible effect of intoxication upon the formation of
criminal intent. This was reversible error. People v. Lundborg, 570 P.2d 1303 (Colo.App.
1977); State v. Conklin, 489 P.2d 1130 (Wash. 1971). The case is, therefore, reversed and
remanded for a new trial.
____________
97 Nev. 171, 171 (1981) Adams v. Warden
JIM MICHAEL ADAMS, Appellant, v. WARDEN,
No. 12374
March 30, 1981 626 P.2d 259
Appeal from denial of petition for post-conviction writ of habeas corpus, First Judicial
District Court; Michael E. Fondi, Judge.
The Supreme Court held that where while on probation for conviction for attempted grand
larceny, defendant committed burglary and subsequently, pursuant to plea negotiations, pled
guilty to attempted burglary, defendant's sentence for attempted burglary was to run
consecutively to defendant's sentence for attempted grand larceny.
Affirmed.
Norman Y. Herring, State Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; John C. DeGraff, Deputy Attorney
General, for Respondent.
1. Criminal Law.
Although for purposes of determining good time credits, probation is not equivalent to imprisonment,
probationer, like parolee, is under sentence of imprisonment for purposes of determining order in which
two or more sentences are to be served. NRS 176.035, 176.035, subds. 1, 2, 176.185.
2. Criminal Law.
Where, while on probation for conviction for attempted grand larceny, defendant committed burglary and
subsequently, pursuant to plea negotiations, pled guilty to attempted burglary, defendant's sentence for
attempted burglary was to run consecutively to defendant's sentence for attempted grand larceny. NRS
176.035, subd. 2.
OPINION
Per Curiam:
While on probation from a conviction for attempted grand larceny, appellant committed a
burglary.
larceny, appellant committed a burglary. After plea negotiations appellant pled guilty to
attempted burglary, his probation was revoked, and the prior sentence was executed.
Appellant was subsequently sentenced to serve five years for the latter crime. At the
sentencing on the latter charge the district court failed explicitly to state whether appellant's
second sentence was to run concurrently with or consecutively to the first sentence.
In his petition for a post-conviction writ of habeas corpus, appellant contends, inter alia,
that since the district court failed to specify that his sentences were to be served
consecutively, they must run concurrently, pursuant to NRS 176.035(1).
1
Respondent, on the
other hand, contends that the sentence falls under NRS 176.035(2), which provides for
consecutive sentences [w]henever a person under sentence of imprisonment commits
another crime constituting a felony and is sentenced to another term of imprisonment for such
felony.
This court has held that the consecutive sentence provision of NRS 176.035(2) does not
apply when a defendant was merely in custody, prior to conviction, when a felony was
committed. Forbes v. State, 96 Nev. 17, 604 P.2d 799 (1980). On the other hand, in Founts v.
Warden, 91 Nev. 353, 535 P.2d 1291 (1975), we suggested that the provision would apply to
a defendant who commits a felony while on parole.
Appellant relies on Van Dorn v. Warden, 93 Nev. 524, 569 P.2d 938 (1977) for his
contention that a person who is on probation should not be considered a person under
sentence of imprisonment. In that case this court stated that for the purposes of good time
credits probation is not intended to be the equivalent of imprisonment. Id. at 526.
Respondent points out that probation is actually a suspension of execution of the sentence
and not a suspension of the sentence. See NRS 176.185. Thus, a person on probation while
not imprisoned is actually under a sentence of imprisonment the execution of which has
been suspended. We agree.
____________________

1
1. Except as provided in subsection 2, whenever a person is convicted of two or more offenses, and
sentence has been pronounced for one offense, the court in imposing any subsequent sentence may, in its
discretion, provide that the sentences subsequently pronounced shall run either concurrently or
consecutively with the sentence first imposed. . . .
2. Whenever a person under sentence of imprisonment commits another crime constituting a felony
and is sentenced to another term of imprisonment for such felony, such latter term shall not begin until
the expiration of all prior terms.
. . . .
[Headnotes 1, 2]
Although for purposes of determining good time credits, probation is not equivalent to
imprisonment, we hold that a probationer, like a parolee, is under sentence of imprisonment
for purposes of determining the order in which two or more sentences are to be served.
Pursuant to NRS 176.035(2), therefore, appellant's sentence for attempted burglary is to run
consecutively to appellant's sentence for attempted grand larceny.
Appellant's remaining contentions are without merit. Accordingly, we affirm the judgment
of the district court.
____________
97 Nev. 173, 173 (1981) 268 Limited v. Sanson
268 LIMITED, a Limited Partnership, Appellant, v. JOSEPH F. SANSON, an Individual, and
JOSEPH F. SANSON INVESTMENT CO., a California Limited Partnership, Respondents.
No. 12358
March 30, 1981 625 P.2d 1173
Appeal from an order granting involuntary dismissal, NRCP 41(b), Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
Purchaser's assignee brought action against vendor seeking specific performance of alleged
contract to purchase a number of fourplex buildings. The district court dismissed complaint,
and plaintiff appealed. The Supreme Court held that complaint alleged cause of action for
specific performance of alleged contract to purchase the buildings in question.
Callister & Reynolds, Las Vegas, for Appellant.
Wiener, Goldwater, Waldman & Gordon, Las Vegas, for Respondents.
In considering a motion for involuntary dismissal, the court is obliged to draw all permissible inferences
for plaintiff and is not to weigh the evidence at that juncture. NRCP 41(b).
Complaint filed by purchaser's assignee alleged cause of action against vendor for specific
performance of alleged contract for the purchase of a number of fourplex buildings.
against vendor for specific performance of alleged contract for the purchase of a number of fourplex
buildings.
OPINION
Per Curiam:
This is an appeal from an order granting respondents-defendants' NRCP 41(b) Motion to
Dismiss appellant-plaintiff's complaint for specific performance predicated on an alleged
contract to purchase a number of fourplex buildings.
Appellant's assignor entered into a contract with respondent Joseph F. Sanson for the
purchase of the property. Before the escrow closed, a dispute arose whether the land upon
which the buildings were situated was included in the contract of sale, as the record of title
reflected that the land was owned by Joseph F. Sanson Investment Co., a limited partnership;
the general partner being a corporation headed by Joseph F. Sanson, president.
After a tender of performance, appellant commenced this action for specific performance.
Respondent Joseph F. Sanson Investment Co. moved under the provisions of NRCP 41(b) for
dismissal of the action; the district court granted the motion and dismissed the action against
both the Investment Company and Sanson, individually. We reverse and remand for trial.
[Headnote 1]
In considering a NRCP 41(b) motion the court is obliged to draw all permissible
inferences for the plaintiff and is not to weigh the evidence at that juncture. Martin v. Ross,
96 Nev. 916, 917, 620 P.2d 866, 867 (1980).
[Headnote 2]
One of he principal issues in the instant case was whether Sanson could bind the
Investment Company. The testimony, as the record appears before us, suggests that Sanson
could do so. Sanson testified that he has such authority.
1
Such evidence, if believed, supports
a prima facie plaintiff's case. A motion for an involuntary dismissal admits the truth of a
plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and the
evidence must be interpreted in the light most favorable to the plaintiff."
____________________

1
Sanson testified as follows:
Q: Who owns the lease?
A: Joseph F. Sanson Investment Company, a limited partnership.
Q: Do you have any interest in that limited partnership?
A: As the general partner. I own the corporation. I am the major stockholder in the corporation as
the general partner.
Q: Do you have the authority to bind that limited partnership?
A: As the general partneras the president I would. General partner of a limited partner, yes.
an involuntary dismissal admits the truth of a plaintiff's evidence and all inferences that
reasonably can be drawn therefrom, and the evidence must be interpreted in the light most
favorable to the plaintiff. Gunlock v. New Frontier Hotel, 78 Nev. 182, 183-184, 370 P.2d
682, 683-684 (1962). The court erred in granting the Rule 41(b) dismissal. Lagrange Constr.
v. Kent Corp., 83 Nev. 277, 429 P.2d 58 (1967).
The case is reversed and remanded for trial.
____________
97 Nev. 175, 175 (1981) Poole v. State
CECIL POOLE, aka CECIL LEONARD POOLE, Appellant,
No. 12247
March 30, 1981 625 P.2d 1163
Appeal from judgment of conviction of murder; Seventh Judicial District Court, White
Pine County; Merlyn H. Hoyt, Judge.
Defendant, who had been 13 years of age at time of charged offense, was convicted before
the district court of second degree murder, and he appealed. The Supreme Court held that: (1)
juvenile court had no jurisdiction to treat defendant as a juvenile; (2) even if district attorney's
remark that . . . I feel this line of questioning will go directly to the credibility of this
particular witness and will demonstrate that he is covering up facts was improper, reversal of
conviction was not warranted; (3) permitting State to use defendant's grandfather's taped
statement, which assertedly had not been seen by defense counsel, for purpose of impeaching
grandfather was not error; (4) evidence sufficiently established that defendant knew the
wrongfulness of his act; (5) Court would decline to reject McNaughten rule and adopt new
test for insanity; and (6) refusal to give proposed instruction that you may consider evidence
which tends to prove any lesser degree of mental disorder other than insanity on the question
of the state of mind of the defendant was proper.
Affirmed.
Byron L. Bilyeu, Elko, for Appellant.
Richard Bryan, Attorney General; Robert Johnston, District Attorney, White Pine County,
for Respondent.
97 Nev. 175, 176 (1981) Poole v. State
1. Infants.
Legislature had power to remove murder and attempted murder from Juvenile Court Act. NRS 62.040,
subd. 1 (c)(1).
2. Infants.
Juvenile court had no jurisdiction over 13-year-old defendant who was charged with murder. NRS
62.040, subd. 1(c)(1).
3. Criminal Law.
In proceeding in which defendant was convicted of second degree murder, even if district attorney's
remark, in response to defense counsel's objection, that . . . I feel this line of questioning will go directly
to the credibility of this particular witness and will demonstrate that he is covering up facts was improper,
reversal of conviction would not be warranted, in light of fact that evidence against defendant was
substantial. NRS 178.598.
4. Criminal Law.
Discovery order does not require district attorney to actively seek out defense counsel and present
statements to him, but, rather, counsel has duty to go to district attorney's office and obtain the statements
himself.
5. Criminal Law.
In proceeding in which defendant was convicted of second degree murder and in which a discovery order
required full disclosure of statements by defendant or about him, permitting State to use defendant's
grandfather's taped statement, which assertedly had not been seen by defense counsel, to impeach
grandfather was not error, in light of fact that defense counsel knew of the tape prior to trial and that the
tape had been available for inspection by defense counsel.
6. Homicide.
In proceeding wherein defendant, who had been 13 at time of the offense, was convicted of second
degree murder, evidence, including evidence that defendant hid murder weapon and other pieces of
evidence, that he fabricated stories in attempting to create an alibi, that he claimed that the shooting had
been accidental and that he testified that he knew killing people was wrong, was sufficient to establish that
he knew the wrongfulness of his act. NRS 194.010, subd. 2.
7. Criminal Law.
On appeal from conviction of second degree murder, Supreme Court would decline to reject the
McNaughten rule and adopt a new test for insanity.
8. Homicide.
In proceeding in which defendant was convicted of second degree murder, refusal to give proposed
instruction that you may consider evidence which tends to prove any lesser degree of mental disorder
other than insanity on the question of the state of mind of the defendant was proper, in light of fact that
there was not exculpatory lesser degree of mental disorder other than insanity and that no premeditation,
deliberation or other specific intent was involved in second degree murder.
OPINION
Per Curiam:
This is an appeal from the conviction of Cecil Poole (Poole) for second degree murder.
Poole was thirteen at the time of the murder.
97 Nev. 175, 177 (1981) Poole v. State
There are six assignments of error on appeal.
1. Juvenile Court Jurisdiction. Appellant claims the district court had discretion to treat
him as a juvenile even though he was charged and convicted of murder.
[Headnote 1]
The legislature has removed murder and attempted murder from the juvenile court act. It
clearly has the power to do so. NRS 62.040(1)(c)(1); Lehmann v. Warden, 87 Nev. 24, 480
P.2d 155 (1971).
[Headnote 2]
NRS 62.050 gives the court no discretion to treat the matter in any way other than was
done. The juvenile court has no jurisdiction.
[Headnote 3]
2. Prosecutor's Improper Statements. During cross-examination of Albert Henroid, the
Appellant's grandfather, by the district attorney, defense counsel entered an objection. The
district attorney responded in the following manner: Your honor, I feel this line of
questioning will go directly to the credibility of this particular witness and will demonstrate
that he is covering up facts.
Defense Counsel objected to such a comment and moved for mistrial. The motion was
denied.
Even if we were to assume that the remark was improper, reversal on this point would not
be in order. In Pickworth v. State, 95 Nev. 547, 598 P.2d 626 (1979), this court held that an
improper remark by the prosecutor will not require reversal if the evidence supporting the
conviction is substantial. Poole admitted shooting the victim. His counsel conceded that in all
probability Poole was not legally insane at the time of the homicide. It is very difficult to
label this comment as being improper at all; in any event since the evidence against Poole
was substantial, the improper statement was harmless error. NRS 178.598; Pickworth v.
State, supra.
3. Violation of Discovery Order. Poole contends that the district court should have
prohibited the state from using a taped statement of Albert Henroid to impeach Henroid. A
discovery order required full disclosure of statements by Poole or about him. Poole's brief
seems to allege that defense counsel was unaware of the taped statement of Albert Henroid.
The record does not bear out this contention. During a preliminary hearing on confessions and
evidence, Officer Bernie Romero testified that the police had interviewed Henroid and that
the interview had been recorded. He also testified on cross-examination that the tapes were
available. When the state sought to impeach Henroid with the tape, defense counsel
admitted that he had been given access to it.
97 Nev. 175, 178 (1981) Poole v. State
sought to impeach Henroid with the tape, defense counsel admitted that he had been given
access to it.
[Headnotes 4, 5]
Clearly defense counsel knew of the tape prior to trial. A discovery order does not require
the district attorney to actively seek out defense counsel and present statements to him; rather,
counsel has the duty to go to the district attorney's office and obtain the statements himself.
See People v. Garner, 367 P.2d 680 (Cal. 1961). Even if the tape provided an alibi for Poole,
the doctrine of Brady v. Maryland, 373 U.S 82 (1963), does not apply, since defense counsel
knew of the statement prior to trial. Cf. O'Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972)
(district court erred in refusing to grant continuance where state failed to reveal evidence
favorable to defendant until the middle of trial).
[Headnote 6]
4. Knowledge of Wrongfulness of Acts. Children between the ages of eight years and
fourteen years are not liable to punishment absent clear proof that at the time of committing
the crime they knew of its wrongfulness. NRS 194.010(2). Poole claims that there is
insufficient evidence to show that he had knowledge of the wrongfulness of his acts. This
contention is without merit. Poole hid the murder weapon, as well as other pieces of
evidence. He fabricated stories in attempting to create an alibi. He claimed the shooting had
been accidental; and he testified that he knew killing people was wrong. There was ample
evidence that Poole knew the wrongfulness of his act.
[Headnote 7]
5. Insanity Test. With no real argument to support his urging, Appellant asks that we
reject the McNaughten rule and adopt a new test for insanity. In 1979 we reaffirmed this
jurisdiction's use of that test for criminal insanity. Clark v. State, 95 Nev. 24, 588 P.2d 1027
(1979). We again, in this case, decline to make a change.
[Headnote 8]
6. Jury Instruction. The trial judge refused to give the following proposed instruction:
You may consider evidence which tends to prove any lesser degree of mental disorder other
than insanity on the question of the state of mind of the Defendant.
The proposed instruction is unintelligible. Under McNaughten, there is no exculpatory
lesser degree of mental disorder other than insanity. No premeditation, deliberation or other
specific intent is involved in second degree murder, so that no mental condition other than
general capacity, mens rea, is in issue.
97 Nev. 175, 179 (1981) Poole v. State
mental condition other than general capacity, mens rea, is in issue. Thus, the judge was
correct in refusing to give this instruction.
All of appellant's assignments of error are without merit. Judgment is affirmed.
____________
97 Nev. 179, 179 (1981) Jackson v. State
ROBERT JACKSON, Jr., Appellant, v. THE
No. 12625
March 30, 1981 625 P.2d 1165
Appeal from judgment of conviction as habitual criminal, Eighth Judicial District Court,
County of Clark; James A. Brennan, Judge.
The Supreme Court held that: (1) if there were any merit to defendant's contention that
only the district attorney, and not a deputy, could authorize institution of habitual criminal
proceeding, it was waived by failure to move to dismiss; (2) evidence sufficiently established
that defendant was the same person named in exemplified copies of prior convictions; and (3)
strong and convincing proof necessary to overcome presumption of effective assistance of
counsel was not manifest in defendant's appeal.
Affirmed.
John J. Graves, Jr., Las Vegas, for Appellant.
Richard H. Bryan, Attorney General; Robert J. Miller, District Attorney, Clark County, for
Respondent.
1. Criminal Law.
If there were any merit to defendant's contention that only the district attorney, and not a deputy, could
authorize institution of proceedings under habitual criminal statute, it was waived by failure to move to
dismiss. NRS 174.075, subd. 2, 207.010.
2. Criminal Law.
Evidence sufficiently established that defendant was person named in exemplified copies of prior
convictions to sustain defendant's habitual criminal conviction. NRS 207.010.
3. Criminal Law.
Strong and convincing proof necessary to overcome presumption of effective assistance of counsel was
not manifest in defendant's appeal of his habitual criminal conviction. NRS 207.010.
97 Nev. 179, 180 (1981) Jackson v. State
OPINION
Per Curiam:
Appellant has been convicted as an habitual criminal under NRS 207.010.
[Headnote 1]
The first assignment of error is that only the district attorney himself, and not a deputy,
may authorize the institution of proceedings under NRS 207.010. If there were any merit to
this contention, it was waived by failure to move to dismiss under NRS 174.075(2). Ex Parte
Esden, 55 Nev. 169, 28 P.2d 132 (1934).
[Headnote 2]
The second assignment of error is that it was not clearly established that appellant Robert
Jackson was the same Robert Jackson named in the exemplified copies of prior convictions.
During the habitual status hearing appellant admitted to the prior felony convictions. At
the time he did not contest his identity as being the subject of the convictions evidenced by
the exemplified copies.
In Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966), the question of the degree of
proof required to establish defendant's identity as the perpetrator of previous offenses is
raised. In Hollander the record of conviction, together with the subject's unusual last name
and identical first name were considered as justification of conviction. At least this measure
of proof has been established in the present case.
[Headnote 3]
The final assignment of error is lack of competent and effective counsel.
There is a presumption of effective assistance of counsel. Rusling v. State, 96 Nev. 755,
616 P.2d 1108 (1980). Although this presumption may be overcome by strong and convincing
proof, such proof is not manifest in this appeal.
Affirmed.
____________
97 Nev. 181, 181 (1981) Avery v. Gilliam
CHARLES AVERY and ARLETTE GIBSON, Appellants, v. RALPH
LEE GILLIAM, Jr., and MERCY AMBULANCE, Respondents.
No. 11954
March 30, 1981 625 P.2d 1166
Appeal from judgment upon a jury verdict for respondents in a personal injury action,
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
The Supreme Court, Mowbray, J., held that where plaintiff passengers had right-of-way
entering intersection and defendants ambulance, without sounding its siren, ran a red light
and struck plaintiff's vehicle, verdict for defendants was manifestly and palpably contrary to
the evidence.
Ashleman, Sabbath & Rohay, Las Vegas, Sherman and Abrams, Los Angeles, California,
for Appellants.
Reid & Alverson, Las Vegas, for Respondents.
Failure of plaintiffs to move for directed verdict did not preclude review of question of sufficiency of the
evidence in case where there was obvious disregard by the jury of instructions, resulting in manifest
injustice. NRCP 50(a).
Though, where there is a conflict in the evidence, Supreme Court will not disturb verdict or decision
below, it will not hesitate to do so where there is no substantial conflict in the evidence on any material
point and the verdict or decision is manifestly contrary to the evidence.
3. Automobiles.
Where plaintiff passengers had right-of-way entering intersection and defendants ambulance, without
sounding its siren, ran a red light and struck plaintiff's vehicle, verdict for defendants was manifestly and
palpably contrary to the evidence.
OPINION
The appellants, Charles Avery and Arlette Gibson, commenced this action to recover
damages for injuries they received as passengers in a vehicle that was struck by a Mercy
Ambulance driven by respondent Ralph Lee Gilliam, Jr.
A jury returned a verdict for respondents. Appellants' motion for a judgment
notwithstanding the verdict or for a new trial was denied. This appeal followed.
THE FACTS
In January, 1975, the appellants, on vacation from Los Angeles, were traveling as
passengers in an automobile in Las Vegas. The driver of the passenger automobile stopped
the vehicle for a red light at the intersection of Washington and D Streets. When the light
turned green, the passenger car proceeded into the intersection. Meanwhile, respondent
Gilliam was operating the ambulance of respondent Mercy Ambulance toward the same
intersection, in response to an emergency call. Gilliam had placed the ambulance siren in
manual position requiring him to push the horn whenever he wished the siren to sound. He
saw appellants' vehicle in the intersection, but the record indicates that he did not activate his
siren and that he entered the intersection on a red light. The ambulance struck the appellants'
vehicle broadside, and the appellants suffered numerous injuries.
THE INSTRUCTIONS
The jury was instructed that NRS 484.607 permits an emergency vehicle to be equipped
with a siren, and also imposes a duty on the drivers of emergency vehicles: the driver of the
vehicle shall sound the siren when necessary to warn pedestrians and other drivers of the
approach thereof. NRS 484.607(5). The jury was also instructed on the privilege afforded
the drivers of authorized emergency vehicles to proceed against traffic signals only when
making use of audible and visual signals as required by law. NRS 484.261(3). The jurors
were finally instructed that the violation of a state statute is presumed to be negligence as a
matter of law, unless the presumption is overcome by evidence indicating reasonable
behavior on the part of the infractor.
The uncontroverted testimony was that appellants entered the intersection on a green light.
Police Officer Ladner, who happened to be standing at the intersection and observed the
collision, testified unequivocally that while the red light of the ambulance was on, its siren
was silent.
1
Driver Gilliam, the only defense witness called, testified that he could not
remember whether the siren was on at the time of the impact.2
____________________

1
Officer Ladner testified as follows:
Q: Did the ambulance have its red lights on?
A: Yes, it did.
Q: Did it have its siren on?
A: No.
Q: It did not have the siren on?
A: No.
only defense witness called, testified that he could not remember whether the siren was on at
the time of the impact.
2

[Headnote 1]
Respondents urge that since appellants failed to move for a directed verdict, NRCP 50(a),
the question of the sufficiency of the evidence is not reviewable. However, as this court held
in Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837, 841 (1969): an exception to this rule is
found where there is plain error in the record or if there is a showing of manifest injustice.
DeFonce Construction Company v. City of Miami, 256 F.2d 425 (5 Cir. 1958). This case
comes within the exception to the rule. The obvious disregard, by the jury, of the court's
instructions resulting in a verdict which is shocking to the conscience of reasonable men is
nothing short of manifest injustice. The same reasoning is applicable in the instant case.
[Headnote 2]
Although it has long been the rule that where there is a conflict in the evidence this court
will not disturb the verdict or decision below, we have not hesitated to do so where there is
no substantial conflict in the evidence on any material point and the verdict or decision is
manifestly contrary to the evidence. Price v. Sinnott, supra; Kitselman v. Rautzahn, 68 Nev.
342, 232 P.2d 1008 (1951); Cram v. Wes Durston, Inc., 68 Nev. 503, 237 P.2d 209 (1951);
Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951); Stephens v. First Nat. Bank of
Nevada, 65 Nev. 352, 196 P.2d 756 (1948); Valverde v. Valverde, 55 Nev. 82, 26 P.2d 233
(1933); Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629 (1932); Walker Brothers
Bankers v. Janney, 52 Nev. 440, 290 P. 413 (1930); Smith v. Goodin, 46 Nev. 229, 206 P.
1067 (1922); Watt v. Nevada Cen. R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726 (1896);
Beck v. Thompson, 22 Nev. 109, 36 P. 562 (1894); Dalton v. Dalton, 14 Nev. 419 (1880).
[Headnote 3]
Here the evidence established that the appellants had the right of way entering the
intersection; that the ambulance, without sounding its siren, ran a red light and struck the
appellants' vehicle, causing the collision. The verdict strikes us as manifestly and palpably
contrary to the evidence. Therefore, we reverse and remand for a new trial.
Gunderson, C. J., Manoukian, Batjer, and Springer, JJ., concur.
____________________

2
Mr. Gilliam testified as follows:
Q: Can you tell me whether or not the siren was on at the time of the impact? Yes or no?
A: I can't remember.
____________
97 Nev. 184, 184 (1981) Rottman v. Kent
DICK L. ROTTMAN, Commissioner, Division of Insurance, Department of Commerce,
State of Nevada, Appellant, v. DAVID KENT, Respondent.
No. 11174
March 30, 1981 625 P.2d 1168
Appeal from Judgment. Eighth Judicial District Court, Clark County; Paul S. Goldman,
Judge.
State appealed from the district court which held that respondent's admissions of payoff
and perjury in grand jury testimony could not be used against him in administrative
proceedings to revoke his license as a bail bondsman. The Supreme Court, Springer, J., held
that even though respondent, a bail bondsman who had allegedly paid off municipal judge in
return for preferential treatment and gave perjurious testimony to grand jury concerning
payoffs, had received immunity from use of testimony given in grand jury proceeding
concerning such misconduct or information derived therefrom in any criminal proceeding
against him in any court, testimony could be admitted in administrative proceeding to revoke
respondent's license as a bail bondsman, in that proceeding was based on a statutory scheme
which was designed not to punish licensees but to regulate professional conduct and to
protect the public, and it was therefore proper for the state to revoke respondent's license and
to levy administrative fines.
Reversed.
Richard Bryan, Attorney General, and Wayne D. Wilson, Deputy Attorney General, Carson
City, for Appellant.
Michael R. Zervas, Las Vegas, for Respondent.
Bail.
Even though respondent, a bail bondsman who had allegedly paid off municipal judge in return for
preferential treatment and gave perjurious testimony to grand jury concerning payoffs, had been given
immunity from use of testimony given by him in grand jury proceedings concerning such misconduct or
information derived therefrom in any criminal proceeding against him in any court, testimony could be
used in administrative proceedings to revoke respondent's license as a bail bondsman, in that administrative
proceeding was based on statutory scheme designed not to punish licensees but to regulate professional
conduct in order to protect the public, and it was therefore proper for state to revoke respondent's license
and to levy administrative fine. NRS 683A.450, 697.090, 697.150.
97 Nev. 184, 185 (1981) Rottman v. Kent
OPINION
After a proper hearing, the state revoked David Kent's license as a bailbondsman and
levied against him administrative fines totaling $1,000.00. The two grounds for revocation
were that he paid off a municipal judge in return for preferential treatment and that he gave
perjurious testimony to the grand jury concerning those payoffs.
Evidence of such misconduct was taken entirely from admissions made in grand jury
testimony given by Kent, who was granted federal immunity under 18 U.S.C. 6002. By
virtue of that immunity, no testimony or information derived from it can be used in any
criminal proceeding against him in any court.
The district judge held that the immunity prohibited the use of his previous testimony in
these license revocation proceedings and that, therefore, the revocation and administrative
fines must be set aside. The state appeals from this ruling.
The rationale of the district judge's decision was that the administrative hearing was
punitive and therefore criminal in nature. Accordingly, he held that Kent's admissions of
payoff and perjury could not be used against him. This is incorrect.
It is rather clear to us that the administrative proceedings in this case were based on a
statutory scheme (NRS 697.090, 697.150, 683A.450) which is designed not to punish
licensees but rather to regulate professional conduct in order to protect the public. Laman v.
Nevada R.E. Adv. Commission, 95 Nev. 50, 589 P.2d 166 (1979); Childs v. McCord, 420
F.Supp. 428 (D.Md. 1976).
Administrative fines are not absolute indicia of punitive intent and have been held in
revocation proceedings comparable to this to be a civil penalty rather than criminal in nature.
Burley v. DEA, 443 F.Supp. 619 (D.Tenn. 1977).
We find that Kent was not immunized against the subsequent use of his testimony in this
civil proceeding; that it was proper for the commissioner to receive evidence of admitted
misconduct and that it was proper for the state to revoke Kent's license and to levy
administrative fines.
The judgment of the district court is reversed. The findings and decision of the insurance
commissioner are reinstated.
____________
97 Nev. 186, 186 (1981) Casentini v. Hines
ANSEL CASENTINI, Appellant, v. THOMAS K.
HINES, Respondent.
No. 11113
March 31, 1981 625 P.2d 1174
Appeal from judgment, First Judicial District Court, Douglas County; Michael E. Fondi,
Judge.
Defendant appealed from an order of the district court granting plaintiff's motion to
compel compliance with oral stipulation. The Supreme Court held that trial court erred in
ordering compliance with the oral stipulation to settle the case, where the stipulation was not
made the subject of a minute order and the record revealed that the judge who was hearing the
case when the stipulation was entered into had ordered the stipulation to be reduced to
writing.
Reversed.
A. J. Bayer Jr., Carson City, for Appellant.
Bergmann & Mollath, and Keith S. K. Ching, Reno, for Respondent.
Stipulations.
Trial court erred in ordering compliance with oral stipulation to settle case, where the stipulation was not
made the subject of a minute order and the record revealed that the judge, who was hearing the case when
stipulation was entered into, had ordered the stipulation to be reduced to writing.
OPINION
Per Curiam:
Respondent Hines filed separate actions against appellant Casentini and Ron Kincade. The
actions were consolidated for purposes of trial. Prior to the completion of jury selection, the
parties entered into an oral stipulation to settle the dispute. The stipulation was made in open
court before District Judge Noel Manoukian. The stipulation appears in the transcript of the
proceedings, but it was not entered in the minutes in the form of an order. In fact, the only
order made by Judge Manoukian was that the stipulation be reduced to writing.
Thereafter, the parties were unsuccessful in their attempt to arrive at a written stipulation.
However, Kincade complied with the oral stipulation, and the action was dismissed as to him.
Casentini continually refused to sign a written stipulation. Hines filed a motion to compel
compliance with stipulation.
97 Nev. 186, 187 (1981) Casentini v. Hines
Since Judge Manoukian had been elevated to the Supreme Court, the motion came on before
Judge Fondi. Finding that the oral stipulation made in open court was clear and binding,
Judge Fondi ordered Casentini to comply therewith and entered judgment in Hines' favor.
This appeal followed.
No stipulation will be regarded unless it is entered in the minutes in the form of an order or
unless it is in writing subscribed by the party against whom the stipulation is alleged. DCR 24
(current version DCR 16); see Engelstad v. Matheson, 90 Nev. 204, 522 P.2d 1018 (1974). In
this case, the stipulation was not in writing subscribed by Casentini. Furthermore, the
stipulation was not made the subject of a minute order.
In addition, the record reveals that Judge Manoukian specifically ordered that the
stipulation be reduced to writing. It is also apparent that Judge Manoukian intended to review
the written stipulation before approving it. Under these circumstances, we conclude that it
was error to grant Hines' motion to compel compliance with the oral stipulation.
Reversed.
Gunderson, C. J., and Batjer, Springer, and Mowbray, JJ., and Torvinen, D. J.,
1
concur.
____________________

1
The Governor designated The Honorable Roy L. Torvinen, Judge of the Second Judicial District Court, to
sit in the place of The Honorable Noel E. Manoukian, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
97 Nev. 187, 187 (1981) Zupancic v. Sierra Vista Recreation
FRANK ZUPANCIC, d/b/a F & Z CONSTRUCTION COMPANY, ELIZABETH
ZUPANCIC, BUFFALO REALTY, INC., a Nevada Corporation, PATRICIA HILLIARD and
DOES I Through X, Appellants, v. SIERRA VISTA RECREATION, INC., a Nevada
Corporation, Respondent.
No. 11694
April 1, 1981 625 P.2d 1177
Appeal from judgment granting permanent and mandatory injunctions, Eighth Judicial
Successor declarant, designated to enforce conditions, covenants and restrictions of
residential subdivision declaration, brought action for mandatory injunction to remove
portable structure, used as realty sales office, as in violation of restrictive covenant.
covenant. The district court consolidated the hearing on preliminary injunction with the trial
on the merits, granted a mandatory injunction, and defendants appealed. The Supreme Court,
Manoukian, J., held that: (1) owner of portable structure was not prejudiced by trial court's
consolidation of hearing on preliminary injunction with trial on the merits, even though no
notice was provided before the consolidation took place, and (2) evidence was sufficient to
support grant of a mandatory injunction.
Affirmed.
Gunderson, C. J., dissented.
Morton R. Galane, A Professional Corporation, and James J. Jimmerson, Las Vegas, for
Appellants.
Nitz, Schofield & Nitz, Las Vegas, for Respondent.
Although the preferred manner of consolidation of hearing for preliminary injunction with the trial on the
merits would include advance notice to the parties, mere fact that party may be surprised that his day in
court has arrived is alone not a sufficient basis for reversal; prejudice must also be shown. NRCP
65(a)(2).
Burden of showing that prejudice resulted from lack of advance notice that hearing on preliminary
injunction would be consolidated with trial on the merits rests on party against whom the injunction was
sought, which party must show that the consolidation affected his substantial rights or prejudiced his right
to have his day in court. NRCP 61, 65(a)(2).
Party against whom preliminary injunction was sought did not make sufficient showing of prejudice from
lack of advance notice that hearing on preliminary injunction and trial on the merits would be consolidated,
where the hearing was plenary and detailed and included extensive direct and cross-examination
testimony, the issues presented by motion for preliminary injunction were virtually the same as those
relevant to a final determination, the facts involved were known intimately by all parties, and the evidence
adduced during preliminary hearing demonstrated that there was no serious conflict of material fact that
would justify a full and formal hearing on the merits. NRCP 56, 61, 65(a)(2).
4. Appeal and Error; Trial.
Hearing and trial procedures, such as consolidation and the scheduling of hearings, so long as within the
parameters of the governing rules, are matters vested in the sound discretion of the trial court, and absent
an abuse of discretion and/or substantial prejudice to the complaining parties' rights, Supreme Court will
not interfere with trial court's exercise of that discretion. NRCP 61, 65(a)(2).
5. Injunction.
Trial court must apprise the parties prior to or during course of hearing in clear and unambiguous terms
of the consolidation of the hearing on the application for preliminary injunction with the trial on the merits.
NRCP 65(a)(2).
6. Injunction.
Although rule providing for consolidation of hearing on preliminary injunction with trial on the merits
does not require a formal written order or notice, it does require some form of notice to the litigants that
their final day in court has come and the notice should be sufficient to afford the parties an opportunity to
present their respective cases. NRCP 65(a)(2).
Where a deficit of notice, relative to the consolidation of the trial on the merits with hearing on motion
for a preliminary injunction precludes the complaining party from developing a sufficient record requisite
to a final disposition, and where the state of the record is such that meaningful appellate review of the
issues of either lack of fair notice or resulting prejudice is thereby prevented, a remand is appropriate.
8. Injunction.
Despite lack of seasonable notice that the parties were expected to present their entire case at the hearing
on preliminary injunction, evidence demonstrated that plaintiff was entitled to prevail on the merits as to
permanent and mandatory injunctive relief irrespective of any additional proof which defendant might have
produced if he had had seasonable notice. NRCP 65(a)(2).
9. Injunction.
In action to remove portable structure used as realty sales office in violation of subdivision restrictive
covenants, evidence was sufficient to support trial court's grant of mandatory injunction to remove the
portable building.
OPINION
In this appeal we are asked to determine whether or not the trial court erred in
consolidating the hearing for a preliminary injunction with the trial on the merits and whether
or not there is substantial evidence to support the mandatory injunction. We conclude that no
error was committed, that there was substantial evidence to justify the granting of the
injunction, and accordingly, we affirm.
Western Industries, Inc., a Nevada corporation, created Sierra Vista Ranchos, Unit No. 1, a
Clark County residential subdivision in 1961 and recorded concurrently with the subdivision
plat a Declaration of Protective Conditions, Covenants and Restrictions. Western Industries
subsequently changed its name to Torginol Industries, Inc. Western Industries, Inc., was the
developer and owner of all of the real estate in the subdivision and was, as is common,
designated as the "declarant" in the Declaration of Protective Conditions, Covenants and
Restrictions.
the developer and owner of all of the real estate in the subdivision and was, as is common,
designated as the declarant in the Declaration of Protective Conditions, Covenants and
Restrictions. (CC & R's.) On April 14, 1966, Torginol amended the CC & R's and designated
Sierra Vista Recreation, Inc., plaintiff below, as the successor declarant who thereafter
undertook the responsibility to preserve and maintain the common recreational areas,
including the enforcement of the CC & R's.
Frank Zupancic, the principal defendant below, purchased lots from time to time during
the 1960's and in 1969, in addition to purchasing three lots, he acquired an option to purchase
45 more lots within the subdivision. He subsequently exercised those options thereby
acquiring the properties. Zupancic testified that he presently owned approximately 14 lots in
the subdivision which included the lot upon which his personal residence was located and Lot
Number 7 in Unit 2 which is where the A-frame building known as the sales office was
situated.
Zunpancic acknowledged that it was his understanding that the function and purpose of
Sierra Vista was to manage, preserve and maintain the common recreational areas and to
enforce the CC & R's for the benefit of the membership of Sierra Vista, which consisted of all
of the owners of lots in the subdivision. He further testified that he had used the building in
question as a sales office for the purposes of advertising his construction business since 1963,
and had continuously conducted sales activities at that location to sell Sierra Vista
subdivision lots which he personally owned. Buffalo Realty, Inc., through
defendant-appellant Patricia Hilliard, its President, used the office as Zupancic's exclusive
sales agent to sell Zunpancic's remaining lots in the subdivision.
In the hearing for a preliminary injunction below, Zupancic unsuccessfully raised the
following affirmative defenses: estoppel, based upon 15 years of implied acquiescence in the
building's location together with Zupancic's expenditures in buying his lots; waiver; and, that
the balance of equities warrants denial of relief to Sierra Vista.
Following the presentation of the evidence during the hearing on the motion, the trial court
consolidated the hearing and the trial on the merits, upon a motion by Sierra Vista over
Zupancic's objections. From that judgment, Zupancic appeals.
Although the issue of when notice must be given the parties in an action when
consolidation under NRCP 65(a)(2) may result in a final adjudication has been considered
by several federal courts, it is a question of first impression in this state.1
result in a final adjudication has been considered by several federal courts, it is a question of
first impression in this state.
1

The federal cases have been strict in their interpretation of Fed. R. Civ. P. 65(a)(2)
requiring that clear and unambiguous notice be given either before the hearing commences
or at a time which will still afford the parties a full opportunity to present their respective
cases. Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir.
1972); T.M.T. Trailer Ferry, Inc. v. Union DeTronquistas De Puerto Rico, Local 901, 453
F.2d 1171, 1172 (1st Cir. 1971). The purpose advanced for this required notice is the concern
that a party may be denied his full day in court, Nationwide Amusements, Inc. v. Nattin, 452
F.2d 651, 652 (4th Cir. 1971), a concern so strong that even in Nationwide Amusements,
where a number of witnesses appeared for [the] appellant, . . . the case was developed in
some detail, and the issues presented by the motion for preliminary injunction were similar
if not the same as those raised for final determination, id. at 652, Fed. R. Civ. P. 65(a) was
held to require some form of notice to the parties that their final day in court has come. Id.
These cases seemingly culminated in Gellman v. State of Maryland, 538 F.2d 603, 605 (4th
Cir. 1976) wherein the court concluded that generally notice is insufficient if given after the
evidentiary hearing has been concluded.
[Headnote 1]
We agree with those cases standing for the proposition that the preferred manner of
consolidation would include advance notice to the parties, but the mere fact that a party may
be surprised that his day in court has arrived is alone not a sufficient basis for reversal;
prejudice must also be shown. See generally Eli Lilly and Company v. Generix Drug Sales,
Inc., 460 F.2d 1096, 1106 (5th Cir. 1972); Nationwide Amusement, Inc. v. Nattin, 452 F.2d at
652. See also Gellman v. State of Maryland, 538 F.2d at 605-06.
2

____________________

1
NRCP 65(a)(2) is identical to Fed. R. Civ. P. 65(a)(2), which provides in part:
Before or after the commencement of the hearing of an application for a preliminary injunction, the court
may order the trial of the action on the merits to be advanced and consolidated with the hearing of the
application.
(Emphasis added.)

2
In Gellman, inter alia, the defendant-respondents had not filed a responsive pleading; there had been no
opportunity for the plaintiff-appellant to complete discovery that had already been initiated; there had been no
formal notice prior to the hearing for preliminary injunction, that the trial court intended to consolidate that
hearing with a proceeding on the merits; and, counsel for the plaintiff vigorously contended that his client had
additional evidence that, on the merits, would be presented.
[Headnotes 2, 3]
This burden properly rests upon the appellant Zupancic, who must show that the
consolidation affected his substantial rights, NRCP 61, or prejudiced his right to have his
day in court. Nationwide Amusement, supra. Zupancic has shown no such prejudice or any
such denial. In this case an answer had been filed, the hearing was plenary and detailed, and
included extensive direct and cross-examination testimony from the several material
witnesses for both sides. The case is uncomplicated, the issues presented by the motion for
preliminary injunction are virtually the same as those relevant to a final determination; the
facts involved were known intimately by all the parties, militating against Zupancic's
objection that other evidence could be developed in this case upon many of the issues raised
by the pleadings which required discovery;
3
the trial briefs and arguments were ably
presented by counsel; and the findings of fact and conclusions of law were detailed.
Analogous support for this position is found in cases which involve the granting of
summary judgment when there exists no material issue of fact. NRCP 56; Fed. R. Civ. P. 56.
In the present case, the evidence adduced during the preliminary hearing demonstrates that
there was no serious conflict of material fact that would justify a full and formal trial on the
merits. In our view, appellants' rights to a full trial were not prejudiced. See United States v.
Meredity, 596 F.2d 1353, 1358 (8th Cir. 1979). See also Hurwitz v. Directors Guild of
America, Inc., 364 F.2d 67, 70 (2nd Cir.), cert. denied, 385 U.S. 971 (1966).
[Headnotes 4-6]
Hearing and trial procedures, such as consolidation and the scheduling of hearings, so long
as within the parameters of the governing rules, are matters vested in the sound discretion of
the trial court. Absent an abuse of discretion and/or substantial prejudice to the complaining
parties' rights, see NRCP 61, we will not interfere with the trial court's exercise of that
discretion.
____________________

3
Neither the record nor briefs reflect or suggest just what other relevant evidence might have been produced
by Zupancic following the two day proceeding below. There was neither an offer of proof nor any pre or
post-judgment motion suggesting what relevant evidence appellants expected to gain from discovery. Indeed, a
statement by appellants' trial counsel tends to refute the prospect of anything new being presented. Counsel
indicated in his closing argument:
What I would have in mind is not discussing the final merits of the case. Much of the contents of the
points and authorities, as I view it, was directed to the merits of the litigation rather than some very
serious problems relating to the motion for preliminary injunction
. . .
(Emphasis added.) See Pughsley v. 3750 Lake Shore Drive Cooperative Bldg. 463 F.2d at 1057 (Knoch, S.C.J.,
dissenting).
we will not interfere with the trial court's exercise of that discretion. Casino Operations, Inc.
v. Graham, 86 Nev. 764, 476 P.2d 953 (1970). The record in the instant case is devoid of any
such demonstration. Cf. Eli Lily and Company v. Generix Drug Sales, Inc., 460 F.2d at 1105
(affirmed on consolidation issue even though trial proceedings had commenced without
notice of intent to consolidate and with knowledge that a litigant had recently noticed the
taking of several depositions); and Nationwide Amusement, Inc. v. Nattin, 452 F.2d at 652
(reversed on consolidation issue as serious federal constitutional claim raised but not
considered by the trial court).
4

[Headnotes 7, 8]
Eli Lilly is instructive that where a deficit of notice precludes a complaining party from
developing a sufficient record requisite to a final disposition, and that when the state of the
record is such that meaningful appellate review of the issues of either lack of fair notice or
resulting prejudice is thereby prevented, a remand is appropriate. In the instant case, however,
we can accurately determine both issues from the record. See Stover v. Las Vegas
International Country Club, 95 Nev. 66, 589 P.2d 671 (1979). Here, despite the lack of
seasonable notice that the parties were expected to present their entire case, the evidence
demonstrates that respondent was entitled to prevail on the merits as to permanent and
mandatory injunctive relief irrespective of any additional proof which Zupancic might have
produced.
[Headnote 9]
Zupancic's second major assignment of error is his contention that the trial court erred in
entering the mandatory injunction requiring the removal of the portable structure because the
balance of the equities favors appellants. This claim is essentially a challenge to the
sufficiency of the evidence supporting the trial court's granting of the mandatory injunction.
This claim is without merit.
Zupancic testified that he presently owned approximately fourteen lots in Sierra Vista and
that he had, while a member of the Board of Directors of Sierra Vista, enforced the
restrictive covenants against other lot owners.
____________________

4
Notwithstanding, we wish to make clear that our trial court's must apprise the parties, as they are required to
do under NRCP 65(a)(2), prior to or during the course of the hearing in clear and unambiguous terms of the
consolidation of the hearing on the application for preliminary injunction with the trial on the merits. Although
we do not interpret the Rule as requiring a formal written order or notice, it does require some form of notice to
the litigants that their final day in court has come. Puerto Rican Farm Workers ex rel. Vidal Eatmon, 427 F.2d
210, 211 (5th Cir. 1970). The notice should be sufficient enough to afford the parties a full opportunity to
present their respective cases.
the Board of Directors of Sierra Vista, enforced the restrictive covenants against other lot
owners. The building in controversy is a portable building, and was moved from a prior
location in Sierra Vista to its present location.
In examining restrictive covenants, we have held that as long as the original purpose of
the covenants can still be accomplished and substantial benefit will inure to the restricted area
by their enforcement, the covenants stand even though the subject property has a greater value
if used for other purposes. [Citations omitted]. Western Land Co. v. Truskolaski, 88 Nev.
200, 205, 495 P.2d 624, 627 (1972). The preservation of the residential character of the
neighborhood is a purpose that we recognized in Western Land Co. as one being of real and
substantial value to the home owners in the subdivision. Id. at 204, 495 P.2d at 626. Sierra
Vista, in its capacity as successor declarant, in seeking removal of a building which is
nonconforming in both size and purpose to the restrictive covenants is rightfully attempting to
effectuate such a purpose.
Zupancic's claims were resolved by the lower court in favor of Sierra Vista upon
conflicting evidence. There being substantial evidence supporting this resolution by the trial
court, we will not disturb it on appeal. Id. at 205, 495 P.2d at 627; Bangston v. Brown, 86
Nev. 653, 473 P.2d 829 (1970); Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147
(1979).
The remaining claims of error being without merit, we affirm the judgments of the lower
court granting the permanent and mandatory injunction.
Batjer and Mowbray, JJ., and Fondi, D. J.,
5
concur.
Gunderson, C. J., dissenting:
With all due deference, I cannot agree that, to justify an objection, a party must show
prejudice affirmatively when, without proper notice, he is surprised that his day in court has
arrived. Cf. State v. McFadden, 43 Nev. 140, 182 P. 745 (1919).
1

____________________

5
The Governor designated The Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit

1
If the application to reset the case for trial on an earlier date . . . is to be regarded or considered as a motion
. . . confessedly the application was not in accordance with the statute or the said rule as to the requirement that
such motion must be noticed at least five days before the date specified for a hearing. Attempt is made to
maintain the action of the court upon the ground that courts have inherent power to regulate their own docket
and control their own business. This position is not tenable in face of the explicit and unconditional direction of
the statute and said rule of court. . . . Id.
____________
97 Nev. 195, 195 (1981) Mays v. Todaro
DAVID MAYS and CONNIE GRIFFO, Appellants, v. ANGELO TODARO
and LISA TODARO, Husband and Wife, Respondents.
No. 10820
April 6, 1981 626 P.2d 260
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Property owners, following purchasers' default, brought suit against brokers to recover
balance of purchasers' deposit which brokers were withholding as commission, to recover
attorney fees, and to recover for loss of business, income and profits, goodwill, and special
damages due to purchasers' occupying the premises which was allegedly occasioned by
brokers' misrepresentation of purchasers' financial condition. The district court rendered
judgment for property owners, and brokers appealed. The Supreme Court, Batjer, J., held
that: (1) language in purchase agreement regarding brokers' fees was ambiguous and the trial
court, in order to render the agreement fair and rational, gave the clause its most reasonable
interpretation in ruling that the property owners were not to pay brokers their $10,000
commission unless and until the entire downpayment of $65,000 had been paid into escrow;
(2) prejudgment interest is not damages for delay in payment of a contractual obligation
and should not be included with principal in calculating eligibility of plaintiff as prevailing
party for an award of attorney's fees within the provisions of statute stating that court may
make an allowance of attorney's fees to plaintiff as prevailing party when plaintiff has not
recovered more than $10,000; and (3) statutory requirements for award of an expert witness
fee were met in the instant case and no abuse of discretion appeared in the court's including in
the costs assessed an expert witness fee in the amount of $250, regardless whether any weight
was given to the witness' testimony.
Affirmed.
George W. Abbott, Minden, for Appellants.
Bergmann & Mollath, Reno, for Respondents.
1. Costs.
Although a defendant as prevailing party in a lawsuit is entitled to allowance of an attorney's fee when
plaintiff has not sought recovery in excess of $10,000, plaintiffs in the instant suit did seek recovery in
excess of $10,000 and, therefore, defendants would not have been entitled to an attorney's fee, even if they
had prevailed. NRS 18.010, subd. 2(c).
97 Nev. 195, 196 (1981) Mays v. Todaro
2. Brokers.
Language in purchase agreement regarding broker's fees was ambiguous and the trial court, in order to
render the agreement fair and rational, gave the clause its most reasonable interpretation in ruling that the
property owners were not to pay brokers their $10,000 commission unless and until the entire
downpayment of $65,000 had been paid into escrow.
3. Costs.
Prejudgment interest is not damages for delay in payment of a contractual obligation and should not be
included with principal in calculating eligibility of a plaintiff as prevailing party for an award of attorney's
fees within the provisions of statute stating that the court may make an allowance of attorney's fees to
plaintiff as prevailing party when plaintiff has not recovered more than $10,000; overruling Jones v. Jones,
86 Nev. 879, 478 P.2d 148 (1970). NRS 18.010, subd. 3(a) (Renumbered as 18.010, subd. 2(a)),
18.110.
4. Appeal and Error; Costs.
Subject to statutory limitations, the taxing of costs rests largely in the sound discretion of the trial court
which will be reversed only in the event of abuse.
5. Costs.
Statutory requirements for the award of an expert witness fee, i.e., the trial judge may award reasonable
fees of not more than three expert witnesses in an amount of not more than $250 for each witness, were
met in the instant case and no abuse of discretion appeared in the trial court's including in the costs
assessed an expert witness fee in the amount of $250, regardless whether any weight was given to the
witness' testimony. NRS 18.005, subd. 5.
OPINION
Appellants Griffo and Mays, real estate agents, contacted the Todaros, respondents, in
May of 1974, indicating that they represented a buyer who was interested in purchasing
respondents' property located in Incline Village, Nevada, known as Angelo's Back Door Bar
& Restaurant. The asking price for the property was $285,000, requiring a down payment of
$65,000. Soon after the down payment of $65,000 was agreed upon, appellants informed
respondents that the buyer would not be able to pay that amount in a single payment.
On June 16, 1974, an agreement for the down payment was reduced to writing requiring a
$1,000 earnest money deposit, $19,000 cash to open escrow, and $30,000 cash to be paid 90
days prior to closing of escrow. An additional sum of $15,000 cash was to be paid within
ninety days of the opening of the escrow.
Following a standard provision in the agreement covering a broker's commission upon a
buyer's default, appellants added a handwritten provision,1 the interpretation of which is a
central issue in this case.
97 Nev. 195, 197 (1981) Mays v. Todaro
a handwritten provision,
1
the interpretation of which is a central issue in this case.
Respondents relinquished possession of the property to the buyers, who paid $20,000 of
the agreed $65,000, then defaulted. The escrow never closed and respondents were unable to
regain possession of the property until the buyers eventually executed an agreement of
forfeiture.
Respondents then requested appellants to surrender the $20,000 they were holding. (The
buyers had deposited this sum with the appellants rather than into the escrow.) In response,
appellants returned only $10,000, claiming the retained $10,000 as their commission.
Respondents subsequently brought suit against appellants for: (1) The sum of $9,500
($10,000 less $500 which they acknowledged as the broker's commission); (2) attorney fees;
and (3) $62,344 for the loss of business, income and profits, good will, and special damages
due to the buyers occupying the premises which they alleged was occasioned by the
appellants' misrepresentations of buyers' financial condition. Judgment was entered against
appellants in the amount of $9,500 plus interest and costs, together with an attorney's fee in
the amount of $2,500.
In their appeal
2
appellants claim the trial court misinterpreted the meaning of the
provision allowing a broker's commission, and erred when it granted an attorney's fee and
allowed an expert witness fee as part of the costs. Appellants further contend that they and
not respondents should have been awarded an attorney's fee.
[Headnote 1]
1. Appellants' contention that they are the parties entitled to an attorney's fee is specious.
____________________

1
The provision for a broker's commission in event of buyer default, initialed by the parties, reads as follows:
The undersigned accepts the above offer based on the terms and conditions herein, and agrees to pay
the above signed broker as commission the sum of $10,000.00 or one-half of the deposit should same be
forfeited by buyer, provided said amount shall not exceed the full amount of said commission. To be paid
after final payment of $65,000 has been deposited. [The words underlined were handwritten.]

2
Actually appellants only appeal from the order of the district court entered on January 24, 1978, denying
their motion for a new trial or for amendment of judgment, and there is nothing in the record prior to the filing of
appellants' brief with this court to indicate an appeal from the judgment entered by the district court on
December 20, 1977. Although appellants have not complied with NRAP 3(c), we deem the appeal to be from the
judgment upon the authority of Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d 953 (1970).
97 Nev. 195, 198 (1981) Mays v. Todaro
to an attorney's fee is specious. A defendant as a prevailing party in a law suit is entitled to
the allowance of an attorney's fee when the plaintiff has not sought recovery in excess of
$10,000. NRS 18.010(2)(c). In this case, the plaintiffs (respondents) sought recovery in
excess of $10,000. Thus defendants (appellants) would not have been entitled to an attorney's
fee even if they had prevailed.
[Headnote 2]
2. The language in the clause regarding broker's fees is ambiguous and the trial court, in
order to render the agreement fair and rational, gave the clause its most reasonable
interpretation. See Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947). The extrinsic
evidence in the record supports this interpretation. Both parties to the agreement testified that
it was their intention that respondents would not pay appellants the $10,000 commission
unless and until the entire down payment of $65,000 had been paid into escrow.
[Headnote 3]
3. As appellants contend, the judgment favored respondents in the amount of $11,710,
including principal and prejudgment interest. If we follow the rule announced in Jones v.
Jones, 86 Nev. 879, 478 P.2d 148 (1970), where both principal and prejudgment interest were
included in calculating eligibility for attorney's fees under NRS 18.010(3)(a),
3
we would be
compelled to reverse the award to respondents. Upon reflection and reconsideration, we
believe that the part of Jones requiring both principal and prejudgment interest to be
calculated was incorrectly decided. We conclude that prejudgment interest is not damages
for delay in payment of a contractual obligation, Jones, and should not be included with the
principal in calculating the eligibility of a plaintiff as a prevailing party for an award of
attorney's fees within the provisions of NRS 18.010(3)(a).
Here, the judgment, without taking into account interest or costs, was in the amount of
$9,500. The award of an attorney's fee to respondents in the amount of $2,500 is affirmed.
4. Included in the costs assessed was an expert witness fee in the amount of $250.
Appellants claim it was error for the trial court to allow the fee because no weight was
given to the witness' testimony.4
____________________

3
NRS 18.010(2)(a), 1977 Stats. ch. 401 4, former NRS 18.010(3)(a):
The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000;
97 Nev. 195, 199 (1981) Mays v. Todaro
trial court to allow the fee because no weight was given to the witness' testimony.
4

[Headnote 4]
Subject to statutory limitations, the taxing of costs rests largely in the sound discretion of
the trial court which will be reversed only in the event of abuse. Euler v. Waller, 295 F.2d
765 (10th Cir. 1961); Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967); Frampton v. Wilson,
605 P.2d 771 (Utah 1980).
[Headnote 5]
A trial judge is authorized by statute to award [r]easonable fees of not more than three
expert witnesses in an amount of not more than $250 for each witness, NRS 18.005(5), to a
party in whose favor judgment is rendered, if the witness had been sworn and testified. Cf.
Maxwell v. Amaral, 79 Nev. 323, 383 P.2d 365 (1963). Here the statutory requirements for
the award of an expert witness fee have been met and no abuse of discretion appears.
To the extent that Jones v. Jones, 86 Nev. 879, 478 P.2d 148 (1970), is in conflict with this
opinion, it is hereby overruled.
The judgment is affirmed.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and Thompson, D. J.
5
concur.
____________________

4
Neither party proceeded properly to bring the questions of costs before the trial court. Nevertheless, that
court allowed costs to respondents. Although respondents filed a memorandum of costs with the clerk of the
court, the record does not reveal that appellants were ever served with that memorandum. NRS 18.110. On the
other hand, appellants made no move to retax and settle costs pursuant to NRS 18.110, cf. Securities Investment
v. Donnelley, 89 Nev. 341, 513 P.2d 1238 (1973), but instead raised the issue in their points and authorities in
support of their motion for amendment of judgment.

5
The Governor designated The Honorable J. Charles Thompson, Judge of the Eighth Judicial District Court,
to sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 200, 200 (1981) Gray Line Tours v. Public Serv. Comm'n
GRAY LINE TOURS OF SOUTHERN NEVADA (Formerly Tanner Motor Tours of
Nevada, Ltd.), a Nevada Corporation, Appellant, v. THE PUBLIC SERVICE COMMISSION
OF NEVADA; NOEL A. CLARK, Chairman, EVO A. GRANATA and HEBER HARDY, as
Members of Said Commission; and LAS VEGAS-TONOPAH-RENO STAGELINE, INC., a
No. 11214
April 8, 1981 626 P.2d 263
Appeal from a judgment of the First Judicial District Court, Carson City, affirming an
order of the Public Service Commission; Frank B. Gregory, Judge.
Protesting motor carrier sought judicial review of ruling of Public Service Commission
allowing competing motor carrier to expand its services. The district court affirmed and
appeal was taken. The Supreme Court held that: (1) Commission was not required to find
existing services to be inadequate before authorizing competing service; (2) evidence
sustained finding of Commission; and (3) competitor's due process rights were not violated
solely on basis that Commission took four years to issue its decision.
Affirmed.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas for Appellant.
Richard H. Bryan, Attorney General; Hampton M. Young, Jr., Deputy Attorney General,
Carson City; Smith & Gamble, Carson City; R. Y. Schureman, Los Angeles, for Respondent.
1. Automobiles.
Public Service Commission is not required to find existing services to be inadequate before it can
authorize competing service by another motor carrier.
2. Automobiles.
Evidence was sufficient to sustain order of Public Service Commission allowing motor carrier to expand
its services to carry passengers to and from airport in competition with protesting carrier.
There was no denial of due process arising, per se, from delay of four years by Public Service
Commission in deciding whether to grant motor carrier's application to expand its services.
OPINION
Per Curiam:
In 1969, 1971 and 1972, Respondent Las Vegas-Tonopah-Reno Stageline, Inc. (LTR) filed
applications with the Nevada Public Service Commission (PSC) to expand its services. One
of the requested expansions was a proposal to carry passengers to and from McCarran Airport
in competition with appellant Gray Line Tours of Southern Nevada (Grayline).
Public hearings on the applications were held by the PSC in September and November of
1972 during which Grayline was given full opportunity to be heard and present evidence as to
why LTR's application should be denied. Four years later, on September 30, 1976, an opinion
and compliance order were issued by the PSC granting LTR a certificate of public
convenience and necessity to operate to and from McCarran Airport.
In its accompanying opinion the PSC stated that although LTR had circumvented the law
by providing unauthorized service, the public has had the benefit of such operations and
should not be deprived of this needed service. The PSC also found, under NRS 706.391, that
LTR was fit, willing, and able to perform the requested services, that extended service
would be in the public interest and that protestants (including Grayline) will not be
unreasonably affected by the authority granted herein.
Grayline sought judicial review of the PSC ruling in a complaint filed October 22, 1976
urging that the PSC order and certificate be set aside. The complaint raises many issues, three
of which have been presented in this appeal.
These issues are:
1. Whether the PSC must find existing services to be inadequate before it can
authorize competing service.
2. Whether the PSC order, which was issued in 1976 and based on evidence of
conditions presented in 1972, was founded on any relevant evidence.
3. Whether Grayline's due process rights were violated solely on the basis of the
PSC's having taken four years to issue its decision.
1. Inadequacy of Existing Service as a Prerequisite to Granting a Certificate. There are
no Nevada decisions on this point NRS 706.391(2) states:
Before granting a certificate of public convenience and necessity to an applicant, the
commission shall take into consideration:
(a) Other authorized transportation facilities in the territory for which a certificate is
sought; {b) The public necessity and convenience to be accorded by the service
offered by such applicant; and
(b) The public necessity and convenience to be accorded by the service offered by
such applicant; and
(c) Whether the applicant is fit, willing and able to perform the services . . . and
whether the proposed operation will be consistent with the legislative policy set forth in
NRS 706.151.
The portion of NRS 706.151 which is relevant to this issue states that it is the purpose of
the Legislature to promote adequate and efficient service without unfair or destructive
competitive practices. NRS 706.151(1)(c).
[Headnote 1]
Grayline argues that a showing of the inadequacy of existing service is a prerequisite to the
granting of a certificate. The applicable statutes, quoted above, do not support this position.
The PSC correctly considered the impact that authorizing LTR to serve the airport would
have and found that Grayline would not be unreasonably affected. This is all that it was
required by law to do.
The language of NRS 706.151(1)(c) is almost identical to that contained in the National
Transportation Policy which prefaces the Interstate Commerce Act, 49 USC. In
Trans-American Van Service, Inc. v. U.S., 421 F.Supp. 308 at 320-321 (1976), the Court
stated:
A showing of inadequacy of existing service is neither indispensible [sic] for, nor a
condition precedent to, a grant of authority (citations omitted). It is to be given no more
weight than any other element (citation). To hold otherwise would be to vest the
carriers with a property right to protection from competition, a notion which has been
specifically rejected.
If arguing that, as a previously authorized carrier, it should have been entitled to a
preferential opportunity to satisfy existing service requirements, Grayline relies on three
PSC decisions. Two of these, CPC A-2059 and CPC A-2052, were decided in 1967, and one,
Ray & Ross Transport, was decided in 1979, three years after this case. CPC A-2059 contains
a gratuitous statement that reasonable service is all that can be required, but the case was
decided on other grounds. CPC A-2052 reiterates this statement and continues, the existence
of such reasonable service can preclude a satisfactory showing of public convenience and
necessity.
In the most recent PSC case, Ray & Ross Transport, the Commission found that
Applicant has failed to carry its burden of proving that public convenience and necessity
would be served by authorizing applicant to provide tours to areas already covered."
served by authorizing applicant to provide tours to areas already covered. The Commission
continued, however, that it had also considered the other factors contained in NRS 706.391.
In Ray & Ross Transport, LTR and Grayline successfully intervened, and the applicant was
denied a certificate, not because it was found that certification of the applicant would result in
destructive competition, but because the Commission was not convinced of his fitness and
ability to perform the requested services.
None of the above three cases indicates that the PSC has unequivocally interpreted NRS
706.391(2) as requiring that public convenience and necessity cannot be shown if an existing
carrier is providing reasonable service. In any case, administrative agencies are not bound by
the doctrine of stare decisis, Northern Pacific Railway Co. v. U.S., 41 F.Supp. 439 (D.Minn.
1941).
Grayline admits that the PSC is not bound by the doctrine of stare decisis, but argues that
under NRS 233B.125
1
the PSC was required to give an explanation for its change in
policy. In the first place, as stated above, it is not clear that the decision in this case was, in
fact, a change in policy. Further, although the findings and conclusions of the PSC are not
separately stated, they are quite thorough and are preceded by a nineteen page review of
testimony and discussion which adequately displays the Commission's reasoning in
sufficient detail to permit judicial review. See State Department of Commerce v. Hyt, 96
Nev. 494, 611 P.2d 1096 (1980).
[Headnote 2]
2. Sufficiency of Evidential Support for Public Service Commission Order. The district
court admitted that it could have nullified the PSC's order on the basis of the state of the
record, citing Atlantic Greyhound Corp. v. PSC, 54 S.E.2d 169 (W.Va. 1949). However, it
also noted that Grayline failed to present any evidence, either to the PSC or the court, of
changed circumstances and stated:
In any event, because of the long passage of time and the abuse and negligence of all
parties in disposing of this action, it would be incorrect to dismiss it now. Everyone has
waited too long as it is for some disposition. To further delay, forcing the parties to
refile and relitigate this entire matter would work to everyone's disadvantage,
especially the public's {citations).
____________________

1
NRS 233B.125. A decision or order adverse to a party in a contested case shall be in writing and stated in
the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of
fact and decisions shall based on substantial evidence. Findings of fact, if set forth in statutory language, shall be
accompanied by a concise and explicit statement of the underlying facts supporting the findings. . . .
entire matter would work to everyone's disadvantage, especially the public's (citations).
In Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281,
294-296 (1974), the Court commented on the five years it took the ICC to issue a decision,
stating that since there was no indication that if the record was reopened it would not once
again become stale, the court would decline to require a remand, because there had been no
showing of exceptional circumstances.
Presumably, the only change in circumstances between the time of the hearing and the
decision was an increase in tourism and population in Las Vegas, a factor which could be
detrimental to Grayline's position that there was no need for additional service.
[Headnote 3]
3. Due Process. The district court in its memorandum of decision criticized the PSC for
taking four years to decide this case, stating it was a completely unwarranted abuse of power
and dereliction of duty. Still, this does not support Grayline's contention that it was denied
due process. In its own briefs, Grayline has been unable to cite any authority for the
proposition that the requirements of fair and open hearings includes a requirement that
administrative agencies produce decisions within a reasonable time. Grayline merely argues
again that the order was based on no relevant evidence and therefore violated the due process
clause. Since none of the parties adequately complied with NRAP 28(a)(3) in that they did
not support their contentions with references to the record, which is well over 1200 pages in
length, the district court's findings that Plaintiffs did not challenge the factual basis for the
PSC decision and failed to present substantial evidence that the PSC legally erred in issuing
its decision . . . should stand.
It is hard to read this record without sharing some of the misgivings expressed by the trial
judge in this case, but we decline to make further comment. Holding, as we do, that a
showing of inadequacy of service is not a prerequisite to the granting of another certificate in
the area, that the trial court's findings and order are supported by substantial evidence and that
there is no denial of due process arising, per se, from the long delay, we are compelled to
affirm the ruling of the trial court.
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in the place of
The Honorable Cameron Batjer, Justice, who was disqualified. Nev. Const. art. 6 19; SCR 10.
____________
97 Nev. 205, 205 (1981) Borders Electronic Co. v. Quirk
BORDERS ELECTRONIC CO., INC., HARRIET GREENFIELD, MARY TENDRICH,
ARTHUR ROSS and WILLIAM ZIMINISKI, Appellants, v. JOHN QUIRK, Respondent.
No. 12539
April 10, 1981 626 P.2d 266
Appeal from judgment of dismissal, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
The district court, dismissed nonresidents' civil action for failure to file cost bond, and
plaintiffs appealed. The Supreme Court held that there was no abuse of discretion where only
excuse offered for 19-day delay in filing security for costs was that due to press of other
business appellants' New York attorney was unable to contact him sooner and plaintiffs never
sought an extension of time within which to file the cost bond.
Affirmed.
John G. Spann, Las Vegas, for Appellants.
Foley Brothers, Las Vegas, for Respondent.
1. Costs.
Whether to dismiss a nonresident's complaint for untimely filing of security for costs and charges is a
discretionary determination to be made by the trial judge. NRS 18.130, 18.130, subd. 1.
2. Costs.
It was not abuse of discretion to dismiss nonresidents' complaint for untimely filing of undertaking for
costs and charges where only excuse offered for 19-day delay in filing security was that due to the press of
other business New York attorney was unable to contact plaintiffs sooner and plaintiffs never sought an
extension of time within which to file the cost bond, either before or after the 30-day limit passed. NRS
18.130, subds. 1, 4.
OPINION
Per Curiam:
On August 29, 1979, appellant Borders Electronic Co., Inc., a foreign corporation, and the
four above-named individual nonresident appellants filed a complaint against respondent
John Quirk. Thereafter, appellants filed a substantially similar amended complaint. On
November 9, 1979, respondent served notice upon each nonresident appellant that surety
for costs would be required pursuant to NRS 1S.130.1
notice upon each nonresident appellant that surety for costs would be required pursuant to
NRS 18.130.
1

On December 18, 1979, 39 days after service upon appellants, respondent moved to
dismiss the complaint for failure to file the cost bond. Appellants made an untimely filing of a
cost bond on December 28, 1979, but did not seek leave of court to file late. After a hearing
on respondent's motion, the district court dismissed appellants' complaint with prejudice. This
appeal followed.
[Headnote 1]
NRS 18.130(1) allows a defendant to require a nonresident plaintiff to file security for
costs. NRS 18.130(4) sets a time limit for filing a cost bond:
After the lapse of 30 days from the service of notice that security is required, or of an
order for new or additional security, upon proof thereof, and that no undertaking as
required has been filed, the court or judge may order the action to be dismissed.
(Emphasis added.)
Thus, whether to dismiss a complaint for untimely filing of the undertaking is a discretionary
determination to be made by the trial judge. See Fourchier v. McNeil Const. Co., 68 Nev.
109, 227 P.2d 429 (1951). Citing Fourchier, appellants contend that the harsh sanction of
dismissal with prejudice amounts to an abuse of discretion in this case.
In Fourchier, a complaint was filed by 40 plaintiffs, one of whom was a Nevada resident.
The general rule is that no cost bond may be required if at least one plaintiff is a resident.
Assuming incorrectly that this rule applied, the 39 nonresident plaintiffs believed that no cost
bond could be required or, in the alternative, that the one cost bond would be sufficient for all
of them. The nonresident plaintiffs timely filed one cost bond. However, since each plaintiff
had a separate and distinct cause of action, they each should have filed a cost bond. Without
giving the nonresident plaintiffs an opportunity to correct their good faith error, the district
court dismissed the complaint as to all but the one resident plaintiff. On appeal, this court
held that the dismissal constituted an abuse of discretion.
____________________

1
NRS 18.130(1) provides in pertinent part:
When a plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs
and charges which may be awarded against such plaintiff may be required by the defendant, by the filing
and service on plaintiff of a written demand therefor within the time limited for answering the
complaint.
[Headnote 2]
The instant case lacks the compelling facts of Fourchier. Here, there was no good faith
misunderstanding. Rather, appellants simply neglected to comply with the 30-day time limit.
The only excuse offered for the 19-day delay in filing security for costs was that due to the
press of other business their New York attorney was unable to contact them sooner.
Appellants never sought an extension of time within which to file the cost bond, either before
or after the 30-day limit passed. Under these circumstances, we cannot say that the district
court abused its discretion in dismissing the complaint with prejudice.
Affirmed.
____________
97 Nev. 207, 207 (1981) Hewitt v. Glaser Land & Livestock
THELMA P. HEWITT, Appellant, v. GLASER LAND &
LIVESTOCK CO., a Nevada Corporation, Respondent.
No. 11215
April 10, 1981 626 P.2d 268
Appeal from order granting summary judgment. Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Grantee of quitclaim deed brought action to quiet title against purchaser by sheriff's sale.
The district court granted purchaser's motion for summary judgment and entered decree
quieting title. Grantee appealed. The Supreme Court held that: (1) grantee was not a bona fide
purchaser in that sheriff's certificate of sale to purchaser was recorded before quitclaim deed
to grantee and therefore grantee had notice of purchaser's claim to property before
conveyance was made to her, and (2) grantee was on notice to inquire further into purchaser's
possible claim where purchaser's title was entered under grantor's name in grantee-grantor
index, even though sheriff's certificate of sale misdescribed property.
Affirmed.
Scotty Gladstone, Las Vegas, for Appellant.
Vaughan, Hull, Marfisi & Copenhaver, Elko, for Respondent.
To claim status as bona fide purchaser, purchaser of real property must show, inter alia, that conveyance
of legal title was made without notice of outstanding equities.
2. Deeds.
Description of property is adequate if property referred to can be identified with certainty by aid of
extrinsic evidence.
Grantee by quitclaim deed was not bona fide purchaser where sheriff's certificate of sale to purchaser was
recorded before deed to grantee and therefore grantee had notice of purchaser's claim to property before
conveyance to her was made, notwithstanding partial misdescription of property in sheriff's certificate of
sale.
Grantee of real property lacked standing to assert grantor's right to argue that execution on property by
grantor's judgment creditor before execution of quitclaim deed to grantee was unconstitutional because
grantor was not accorded due process in notification of execution sale. NRS 21.130, subd. 3;
OPINION
Per Curiam:
The property at issue in this case, located in Elko County, was formerly owned by John
Rudbach. A default judgment, in an action unrelated to the present case, was entered against
Rudbach in the Eighth Judicial District Court in 1973. Pursuant to that default judgment the
property at issue here was attached and executed upon under the instructions of the judgment
creditor (not a party to this case), and on June 20, 1973, a sheriff's certificate of sale was
recorded in Elko County showing the sale under execution of Rudbach's interest to
respondent Glaser Land & Livestock Company. On June 21, 1974, after the redemption
period had expired, Rudbach executed a quitclaim deed of his interest in the property to
appellant Hewitt. In 1977, Hewitt commenced this action to quiet title in the property in
herself. Glaser counterclaimed to quiet title in itself, and both parties moved for summary
judgment. The district court granted Glaser's motion and entered a decree quieting title.
Hewitt appeals.
[Headnote 1]
Hewitt claims entitlement to the property as a bona fide purchaser. To claim this status, a
purchaser must show, inter alia, that the conveyance of legal title was made without notice of
outstanding equities. See Brophy M. Co. v. B. & D. M. Co., 15 Nev. 101 (1880). In this case,
it is undisputed that the sheriff's certificate of sale to Glaser was recorded before the deed to
Hewitt was executed by Rudbach. This document, as the district court concluded, imparted
notice of Glaser's claim to the property. NRS 111.320; see Allison Steel Mfg. Co. v.
Bentonite, Inc., 86 Nev. 494, 471 P.2d 666 (1970).
[Headnotes 2, 3]
Hewitt argues that the sheriff's certificate could not impart notice to her because of a
misdescription of the land in the recorded documents. A description of property is adequate if
the property referred to can be identified with certainty by the aid of extrinsic evidence. See
American Spiritualist Ass'n v. City of Dallas, 366 S.W.2d 97 (Tex.Civ. 1963). There is no
dispute that the property in question was the only land owned by Rudbach in Elko County,
and that the documents showing Glaser's title were entered under Rudbach's name in the
grantee-grantor index. NRS 247.150, 247.190. The partial misdescription in the sheriff's
certificate of sale can be corrected by the description of the property in the deed from
Rudbach's predecessor in interest to him, which was in the record before the district court.
Moreover, it is undisputed that even the misdescription in the sheriff's certificate of sale
included part of the land which Rudbach attempted to convey to Hewitt. Thus Hewitt was on
notice of Glaser's claim to at least part of the property, and was therefore on notice to inquire
further. See Allison Steel Mfg. Co. v. Bentonite, Inc. supra. Accordingly, Hewitt cannot
claim the status of a bona fide purchaser. Brophy M. Co. v. B. & D. M. Co., supra.
[Headnote 4]
Hewitt argues that the execution on the property by Rudbach's judgment creditor was
unconstitutional because Rudbach was not accorded due process in the notification of the
execution sale. See Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950). Hewitt is
without standing to assert Rudbach's rights in arguing that the notice provisions of NRS
21.130(3) as they existed in 1973,
1
were infirm under the Fourteenth Amendment to the
United States Constitution. See United States v. Raines, 362 U.S 17 (1960); see also Swartz
v. Adams, 93 Nev. 240, 563 P.2d 74 (1977) (rights of bona fide purchasers not voided by
constitutional defects in execution sale); cf. Dombrowski v. Pfister, 380 U.S 479 (1965)
(standing to assert jus tertii under First Amendment).
Accordingly, the judgment of the district court is affirmed.
____________________

1
NRS 21.130 was amended in 1975 to provide for notice by mail, 1975 Nev. Stats. ch. 433 1, at 651.
____________
97 Nev. 210, 210 (1981) Unionamerica Mtg. v. McDonald
UNIONAMERICA MORTGAGE AND EQUITY TRUST, a California Real Estate
Investment Trust, Now Known as THE UMET TRUST, Appellant, v. JOSEPH F.
McDONALD, Jr.; YOUNG ELECTRIC SIGN COMPANY, a Foreign Corporation,
Respondents.
No. 12117
April 10, 1981 626 P.2d 1272
Appeal from a judgment by the trial court finding appellant liable for liquidated damages,
Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Lessor of electric sign erected on shopping center brought action against mortgagor
seeking judgment under liquidated damage clause contained in lease agreement covering the
sign. Mortgagor filed third-party complaint against mortgagee seeking indemnification for
any judgment lessee might be awarded against mortgagor. The district court entered judgment
against mortgagee, and mortgagee appealed. The Supreme Court held that: (1) there was no
evidence that mortgagee assumed obligations under the sign lease, and thus mortgagee was
not liable for liquidated damages as provided in the lease contract, and (2) there were no facts
supporting judgment against mortgagee predicated upon theory of unjust enrichment.
Reversed.
Howard L. Cunningham, Esq., Reno, for Appellant.
Hale, Lane, Peek, Dennison and Howard; Gregg W. Zive, Esq. Reno, for Respondent
Joseph F. McDonald, Jr.
Johnson, Belaustegui and Robison, Reno, for Respondent Young Electric Sign Company.
A finding of fact may not be put aside unless clearly erroneous. NRCP 52(a).
2. Mortgages.
Evidence indicated that mortgagee did not assume obligations under electric sign lease held by mortgagor
when, in lieu of foreclosing on its deed of trust, mortgagee accepted from mortgagor a deed covering
mortgaged shopping center, and thus mortgagee was not liable for liquidated damages as provided in the
lease contract.
3. Implied and Constructive Contracts.
Unjust enrichment occurs whenever a person has and retains a benefit which in equity and good
conscience belongs to another.
4. Implied and Constructive Contracts.
Even though electric sign remained on shopping center for at least two years after the center was deeded
to mortgagee in lieu of foreclosure without mortgagee making any payments on the sign lease, there
were no facts supporting judgment against mortgagee in favor of sign's lessor upon a
theory of unjust enrichment.
lease, there were no facts supporting judgment against mortgagee in favor of sign's lessor upon a theory of
unjust enrichment.
OPINION
Per Curiam:
Respondent Young Electric Sign Company commenced this action against respondent
Joseph F. McDonald, Jr. seeking a judgment under a liquidated damage clause contained in
an electric sign lease agreement between Young and McDonald.
McDonald answered the complaint and then filed a third-party complaint against appellant
Unionamerica Mortgage and Equity Trust seeking indemnification for any judgment Young
might be awarded against McDonald. After a trial on the merits, the court below entered a
$28,946.02 judgment against Union.
1
We reverse.
McDonald obtained a loan from Union to build the Centennial Square Shopping Center.
The loan was secured by a deed of trust covering the Center. Later, McDonald signed an
eight-year agreement with Young to lease a pylon pole and an electric sign which were
erected on the property. McDonald defaulted on his loan to Union. In lieu of foreclosing on
its deed of trust, Union accepted from McDonald a grant, bargain and sale deed covering the
Center.
The issues in this appeal are (1) whether Union assumed the obligations under the Young
lease when it received the deed for the Center from McDonald, and (2) whether Young may
recover damages for the unjust enrichment of Union: the sign remained on the property for at
least two years after the Center was deeded to Union.
1. The trial court held that Union impliedly contracted to assume all of the obligations of
the Centennial Square Shopping Center. The court supported this conclusion with the factual
finding that Union intended to assume the obligations of the Center.
[Headnote 1]
A finding of fact may not be put aside unless clearly erroneous. NRCP 52(a); Kockos v.
Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 (1974). The United States Supreme Court has
defined the clearly erroneous standard under FRCP 52(a):
A finding is clearly erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed."
____________________

1
The damage award was determined in accordance with the liquidated damage clause of the lease that fixed
such damages at 75 percent of the total remaining unpaid rentals.
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed. United States v.
Gypsum Co., 333 U.S. 364, 395 (1948).
[Headnote 2]
In the case at bar, there is no evidence supporting the finding of an assumption of the lease
by Union. The testimony of McDonald indicates that the first discussion he had with Union
regarding the sign occurred after he had deeded the Center to Union on September 13, 1974.
The only lease payments made were in September and October, 1974. The second payment
was made by McDonald on October 8, 1974, after he had deeded the Center to Union.
Viewing the entire evidence before us, we are left with the definite and firm conviction that
mistake has been committed, United States v. Gypsum Co., supra. The conclusion that
Union assumed the obligations under the Young lease cannot rest on a factual finding which
is clearly erroneous. Accordingly, Union is not liable for liquidated damages as provided in
the lease contract.
2. The trial court also concluded that UMET (Union) would be unjustly enriched because
it received the benefit of the sign without having to pay for such benefit.
[Headnote 3]
The terms restitution and unjust enrichment are the modern counterparts of the
doctrine of quasi-contract. Smith v. Smith, 511 P.2d 294 (Idaho 1973). The purpose of
quasi-contractual relief is to do justice to the parties regardless of their intention. Trollope v.
Koerner, 470 P.2d 91 (Ariz. 1970).
The essential elements of quasi contract are a benefit conferred on the defendant by
the plaintiff, appreciation by the defendant of such benefit, and acceptance and
retention by the defendant of such benefit under circumstances such that it would be
inequitable for him to retain the benefit without payment of the value thereof. Dass v.
Epplen, 424 P.2d 779, 780 (Colo. 1967).
Unjust enrichment occurs when ever a person has and retains a benefit which in equity and
good conscience belongs to another. L & A Drywall, Inc. v. Whitmore Const. Co. Inc., 608
P.2d 626 (Utah 1980).
[Headnote 4]
In the instant case, appellant received the property with the sign on it. Union's officials
informed Young that the sign was of no interest to Union and that Young could remove the
sign at Young's pleasure. Union also advised Young it would not make the monthly
payments under the sign lease.
make the monthly payments under the sign lease. Nothing prevented Young from removing
the sign immediately; their lease allowed removal of the sign upon breach of the agreement.
We find no facts supporting a judgment against Union predicated upon a theory of unjust
enrichment.
Since the record will not support the court's finding that Union either assumed the
McDonald-Young lease agreement or that Union was unjustly enriched, we must reverse the
judgment below. It is so ordered.
____________
97 Nev. 213, 213 (1981) Lucini v. Lucini
M. ELIZABETH LUCINI, Appellant, v.
GUIDO F. LUCINI, Respondent.
No. 11059
April 10, 1981 626 P.2d 269
Appeal from judgment and decree distributing marital property, Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
The Supreme Court held that: (1) trial court did not abuse its discretion in applying Van
Camp method in apportioning former husband's stock in closely held corporation, and (2)
substantial evidence supported trial court's findings that community and separate income and
expenditures were traceable.
Affirmed.
Breen, Young, Whitehead, Terzich & Belding, Chartered, Reno, for Appellant.
Petersen & Petersen, Reno, for Respondent.
1. Divorce.
In divorce proceeding, trial court did not abuse its discretion in utilizing Van Camp method to apportion
husband's stock in closely held corporation. NRS 125.150, subd. 1(b).
Rebuttable presumption that, with certain exceptions all property acquired after marriage by either spouse
is community property gains strength when any claimed separate property has been extensively
intermingled with community property. NRS 123.220.
3. Divorce.
Substantial evidence in divorce action supported trial court's finding that community and separate income
and expenditures were traceable. NRS 123.220.
OPINION
Per Curiam:
In this appeal we must decide (1) whether the trial court abused its discretion in applying
the Van Camp method in apportioning certain marital property, and (2) whether the trial court
erred in failing to find that there had been a substantial commingling of the parties' assets. We
find no error and affirm.
Respondent, Guido Lucini, deceased, commenced this divorce action against
defendant-appellant, M. Elizabeth Lucini.
1
The divorce was granted, and subsequently, the
court rendered a decision settling the property rights of the parties.
The property in question was Mr. Lucini's ownership in Lucini & Associates, a closely
held subchapter S corporation. When the parties were married in 1966, Mr. Lucini was
president and majority stockholder of Lucini & Associates; throughout the marriage he
together with all other stockholders and employees were paid salaries for their services. All
excess capital was dispersed to the stockholders annually.
Lucini & Associates had materially changed throughout the course of the 11 year marriage.
Mr. Lucini decreased his ownership of stock in the corporation from 51 percent to 30.08
percent, and additional members had joined the corporation, so that in addition to
respondent's original partner, Remo Fratini, there are now three other members, Mr. Mayer,
Mr. Talbot, and Mr. Bowers. The trial court made no finding as to the value of Lucini &
Associates or the increase in value of respondent's stock during this period.
1. The Van Camp Apportionment Method.
NRS 125.150(1)(b) requires that in making a disposition of community property the court
shall divide the property in a just and equitable manner. To effectuate such a result in cases
where a spouse devotes his or her time, labor, and skill to the production of income from
separate property, we adopted the methods of apportionment from the California cases of
Pereira v. Pereira, 103 P. 488 (Cal. 1919) and Van Camp v. Van Camp, 199 P. 885 (Cal.App.
1921). See Schulman v. Schulman, 92 Nev. 707, 558 P.2d 525 (1976); Wells v. Bank of
Nevada, 90 Nev. 192, 522 P.2d 1014 (1973).
In Cord v. Neuhoff, 94 Nev. 21, 26, 573 P.2d 1170, 1173 (1978), we held that the
preferred method is that suggested in Pereira unless the owner of the separate estate can
establish that a different allocation is more likely to accomplish justice. See Johnson v.
Johnson, 89 Nev. 244, 247, 510 P.2d 625, 627 {1973).
____________________

1
Mr. Lucini died during the pendency of this appeal and a suggestion of death has since been filed with the
court.
(1973). In Wells v. Bank of Nevada, 90 Nev. at 195, 522 P.2d at 1017, we held
apportionment pursuant to the Van Camp method proper to achieve substantial justice, when
the community was fully compensated for the . . . community labor through [the husband's]
annual salary and related benefits.
[Headnote 1]
In this case the trial court's determination that respondent received full value in salary,
profit distributions and fringe benefits is supported by the record. The trial court therefore did
not abuse its discretion in utilizing the Van Camp method to apportion the Lucini assets.
2. Commingling of Assets.
Appellant's remaining contention is that commingling of the community and separate
property assets was so extensive that Mr. Lucini failed to sustain the burden of proof
demonstrating that his separate property was not thereby transmuted to community property.
Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950).
[Headnote 2]
There is a rebuttable presumption that with certain exceptions, all property acquired after
marriage by either spouse is community property. NRS 123.220. This presumption gains
strength when any claimed separate property has been extensively intermingled with
community property. Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965).
In the case before us, the character of the property was established through the tracing of
funds contained in two bank accounts that had been maintained throughout the marriage. One
account was a separate account of respondent's, called the Wells-Ryland account, the other
was a joint account for appellant and respondent. There was some commingling of assets
between these accounts. However, accountants for both parties testified in detail on a year by
year basis regarding transfers between the joint account and the separate account,
expenditures for community and separate property, and deposits from unaccounted for
sources.
[Headnote 3]
The record reflects the thoroughness with which both parties' accountants reviewed the
commingled funds and expenditures from both accounts, and even though some funds are
unaccounted for, there exists substantial evidence to support the trial court's finding that
community and separate income and expenditures were traceable. Kelly v. Kelly, 86 Nev.
201, 307, 468 P.2d 359, 363 (1970).
We affirm the judgment of the trial court.
____________
97 Nev. 216, 216 (1981) Deeds v. State
RICHARD THOMAS DEEDS, Appellant, v. THE
No. 12546
April 10, 1981 626 P.2d 271
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County, James
A. Brennan, Judge.
Defendant was convicted before the district court of two counts of sexual assault, and he
appealed. The Supreme Court held that: (1) evidence was sufficient to sustain conviction, and
(2) separate and distinct acts of sexual assault, which consisted of forced fellatio and forced
sexual intercourse, could be charged as separate counts and convictions could be entered
thereon, though the acts were part of a single criminal encounter.
Affirmed.
1. Rape.
Jury may convict on uncorroborated testimony of victim in a rape case.
2. Rape.
Evidence, including victim's testimony that she saw defendant face to face for over 30 minutes and that he
committed sexual assault on her, was sufficient to sustain his convictions of two counts of sexual assault.
3. Criminal Law.
When there is substantial evidence to support verdict in a criminal case, reviewing court will neither
disturb verdict nor set aside the judgment.
4. Criminal Law; Indictment and Information.
Separate and distinct acts of sexual assault, which consisted of forced fellatio and forced sexual
intercourse, could be charged as separate counts and convictions could be entered thereon, though such
acts were committed as part of a single criminal encounter.
OPINION
Per Curiam:
Appellant was convicted by a jury of two counts of sexual assault. One assault, forced
fellatio, occurred in the victim's living room; the other assault, forced sexual intercourse,
occurred in the bedroom.
97 Nev. 216, 217 (1981) Deeds v. State
occurred in the bedroom. Appellant contends that the evidence was contradictory and
insufficient to support conviction and that the court erred in finding him guilty of two counts
of sexual assault.
[Headnotes 1, 2]
It is well established law in Nevada that in a rape case, a jury may convict upon the
uncorroborated testimony of the victim. Henderson v. State, 95 Nev. 324, 594 P.2d 712
(1979); May v. State, 89 Nev. 277, 510 P.2d 1368 (1973); Bennett v. Leypoldt, 77 Nev. 429,
366 P.2d 343 (1961). Here the victim testified that she saw the appellant face to face for over
thirty minutes and that the appellant committed sexual assault upon her. The jury was entitled
to believe this testimony.
[Headnote 3]
This court has often stated that where there is conflicting testimony presented at a criminal
trial, it is within the province of the jury to determine the weight and credibility of the
testimony. Wicker v. State, 95 Nev. 804, 603 P.2d 265 (1979); Hankins v. State, 91 Nev. 477,
538 P.2d 167 (1975). When there is substantial evidence to support a verdict in a criminal
case, as there is in this case, the reviewing court will neither disturb the verdict nor set aside
the judgment. Gatlin v. State, 96 Nev. 303, 608 P.2d 1100 (1980); Sanders v. State, 90 Nev.
433, 529 P.2d 206 (1974).
[Headnote 4]
Concerning claimed error in the double conviction Wicker v. State, supra, is controlling.
The great weight of authority supports the proposition that separate and distinct acts of sexual
assault committed as a part of a single criminal encounter may be charged as separate counts
and convictions entered thereon. See Hamill v. State, 602 P.2d 1212 (Wyo. 1979); People v.
Perez, 23 Cal.3d 545, 153 Cal. Rtpr. 40, 591 P.2d 63 (1979); People v. Saars, 584 P.2d 622
(Colo. 1978); People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978); State v. Hill,
104 Ariz. 238, 450 P.2d 696 (1969).
Since neither of appellant's contentions has merit, we affirm the judgment of the trial
court.
____________
97 Nev. 218, 218 (1981) Jeaness v. District Court
CHARLES JEANESS and IRENE JEANESS, Petitioners, v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 12725
April 10, 1981 626 P.2d 272
Original proceedings in mandamus and prohibition.
Parties brought original proceedings in mandamus and prohibition against district court.
The Supreme Court, Springer, J., held that judge empowered to hear cause had power, in his
discretion, to request another judge to assume jurisdiction of said cause and writ of
mandamus was not issue to invalidate order of transfer signed by two district judges.
Petition denied.
C. Frederick Pinkerton and Nancyann Leeder, Reno, for Petitioners.
John Sanchez and Jack Sullivan Grellman, Reno, for Respondent.
1. Judges.
Acceptance of peremptory challenge of a judge is precluded at any time after 30 days preceding date set
for trial or any time after three days preceding date set for hearing of any pretrial matter; failure to file
before said time limitations results in waiver of right to make peremptory challenge. SCR 48.1(3).
2. Judges.
District judge who had heard and ruled upon several motions before trial had authority, in his discretion,
to request another judge to assume jurisdiction of the cause. DCR 18(1).
3. Mandamus.
A writ of mandamus is issued only to compel performance of act which law especially enjoins as a duty
resulting from an office, trust or station.
4. Prohibition.
Writ of prohibition will not issue unless court sought to be restrained has exceeded its jurisdiction and a
clear question of law is presented to Supreme Court.
5. Mandamus; Prohibition.
Writ of mandamus or prohibition would not issue to invalidate order of transfer of cause signed by two
district judges where record did not show that either judge failed to perform act especially enjoined and
that either should be restrained for having exceeded his jurisdiction.
OPINION
Petitioners make application for Writ of Mandate . . . for the reason that the judge of the
Second Judicial District Court of the State of Nevada, the Honorable John W. Barrett, has
recused himself from acting further in the case (namely, Besnilian v. Church, et al., No.
79-1300) and has assigned the case to Department 6, the Honorable James Guinan, after
plaintiffs Besnilian moved for peremptory challenge against Judge Barrett. The peremptory
challenge to which petitioners refer was filed after Judge Barrett had heard and ruled upon a
motion for appointment of a receiver, a motion to amend the prayer of the complaint and
motions for protective orders, but more than thirty days before trial was scheduled to begin.
Both District Judges Barrett and Guinan signed the order transferring the case to Judge
Guinan's department. Although the order recites the filing of a peremptory challenge against
Judge Barrett, it is not entirely clear whether Judge Barrett voluntarily recused himself, as
stated above, or was removed pursuant to the peremptory challenge recited in the order. In
either event we are asked to issue a writ of mandate invalidating an order of transfer signed
by two district judges.
First considered will be the matter of the timeliness of a peremptory challenge of a judge
made under Nevada Supreme Court Rule 48.1(3):
3. Except as provided in subsection 4, the peremptory challenge shall be filed:
(a) Not less than 30 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
[Headnote 1]
Respondent contends that a challenge may be filed at any time so long as it is not within
thirty days of the trial date or during the three day period before any of a series of pretrial
hearings. While conceding the ambiguity of the language of the rule, we reject this position as
inconsistent with the policy behind the requirement that such challenges be presented before
contested proceedings have commenced. We interpret the rule as precluding the acceptance of
a peremptory challenge at any time after the thirty days preceding the date set for trial or at
any time after three days preceding the date set for a hearing of any pretrial matter. In other
words the time at which filing of a peremptory challenge is foreclosed is set in two ways:
failing to file within thirty days of the trial date, or failing to file within three days of the
first pretrial hearing.
filing of a peremptory challenge is foreclosed is set in two ways: failing to file within thirty
days of the trial date, or failing to file within three days of the first pretrial hearing. Failure to
file within either of these time strictures results in waiver of the right to make a peremptory
challenge.
In this case there was failure to file a timely challenge, and the order in question therefore
cannot be viewed as an application of SCR 48.1.
As previously indicated, however, it is entirely possible in this case that Judge Barrett was
simply recusing himself, voluntarily, pursuant to district court rules. When a judge enters
upon a hearing of any cause or makes any ruling therein, no other judge shall do any act
or thing in or about such cause . . . unless upon the written request of the judge who shall
have first entered upon the trial or hearing of such cause. DCR 18(1). We have held that
(t)here arises from the language of the rule the necessary inference that a judge empowered
to hear a cause has the power, in his discretion, to request another judge to assume
jurisdiction of such cause. State v. Blackwell, 65 Nev. 405, 411, 198 P.2d 280, 283 (1948).
The only possible limitation upon such power would be found in our ruling in Ham v.
District Court, 93 Nev. 409, 566 P.2d 420 (1977), in which we disapproved of a judge's
voluntary recusal where it was expressly indicated that there was no justification for the
withdrawal. Ham, supra, at 416, 566 P.2d at 425.
The judge in Ham had been assigned to sit by the chief justice, and after over three years
of activity in the case decided to withdraw from his assignment following allegations of bias
and prejudice, while expressly stating that he entertained no such bias or prejudice.
[Headnote 2]
DCR 18(1) is the rule; Ham is the narrow exception. In Ham it was emphasize(d) that this
case is decided on these facts alone. We do not find that the facts of this case cause it to fall
within that narrow range of cases in which extraordinary intervention by this court would be
warranted.
Moreover, under the Rules of Practice for the Second Judicial District Court, the calendar
judge is the chief judge as referred to in NRS 3.025 and Supreme Court Rule 8. NRS 3.025
gives express authority to the chief judge to assign cases to each judge in the district. Even
were Judge Barrett's recusal, his voluntary withdrawal, not justified, the order of the chief
judge would appear to be unchallenged and unchallengable.
[Headnotes 3, 4]
A writ of mandamus is issued only to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station. Lewis v. Smart, 96 Nev.
846, 619 P.2d 1212 (1980); NRS 34.160. A writ of prohibition will not issue unless the court
sought to be restrained has exceeded its jurisdiction, Goicoechea v. District Court, 96 Nev.
287, 607 P.2d 1140 (1980). We will not exercise our discretion to grant such writ unless a
clear question of law is presented. Bottorff v. District Court, 96 Nev. 606, 614 P.2d 7 (1980).
[Headnote 5]
We cannot find in this record support for a finding that either judge has failed to perform
an act especially enjoined or that either should be restrained for having exceeded his
jurisdiction. The writ must be denied.
____________
97 Nev. 221, 221 (1981) Sigler v. Director, Prisons
RALPH EDWARD SIGLER, Appellant, v. DIRECTOR,
NEVADA DEPARTMENT OF PRISONS, Respondent.
No. 13010
April 10, 1981 626 P.2d 275
Appeal from order denying post conviction writ of habeas corpus, First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Defendant who had been convicted of grand larceny pursuant to guilty plea sought writ of
habeas corpus. The district court denied relief, and defendant appealed. The Supreme Court
held that transcript of canvass on taking guilty plea did not demonstrate that elements of
offense pleaded guilty to were known to defendant or that he made factual admissions to
court which constituted elements of crime charged.
Norman Y. Herring, State Public Defender, and Thomas J. Ray, Special Deputy Public
Carson City, for Respondent.
97 Nev. 221, 222 (1981) Sigler v. Director, Prisons
Habeas Corpus.
Where transcript of canvass on taking of guilty plea did not demonstrate that elements of offense to which
he pleaded guilty were known to defendant, or that he made factual admissions to court which constituted
elements of crime charged, denial of writ of habeas corpus sought on grounds that plea was not voluntary
would be reversed and case remanded with directions to issue such writ, without prejudice to state's right to
prosecute again.
OPINION
Per Curiam:
Sigler was convicted of grand larceny pursuant to a guilty plea. He sought a writ of habeas
corpus in the district court, contending that his plea was not voluntary. The district court
denied relief on the authority of Wynn v. State, 96 Nev. 673, 615 P.2d 946 (1980). Sigler
appeals.
The transcript of the canvass on the taking of the guilty plea does not demonstrate that the
elements of the offense he pleaded guilty to were known to Sigler, or that he made factual
admissions to the court which constitute the elements of the crime charged. Hanley v. State,
97 Nev. 130, 624 P.2d 1387 (1981). Accordingly, we are constrained to reverse the judgment
of the district court and remand the case with directions to issue a writ of habeas corpus,
without prejudice to the state's right to prosecute appellant again. See Austin v. State, 87 Nev.
578, 491 P.2d 724 (1971); Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967).
____________
97 Nev. 222, 222 (1981) Isbell v. State
CLIFFORD DARRELL ISBELL, Appellant, v. THE
No. 10672
April 15, 1981 626 P.2d 1274
Appeal from judgment of conviction for possession of a cheating device and conspiracy to
cheat at gambling, Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
The Supreme Court, Young, D. J., held that: (1) evidence supported conviction of
conspiracy to cheat at gambling; (2) substantial evidence existed to show that private
conversations between jurors and third parties concerning evidence, deliberations and trial
procedures were not prejudicial to defendant; and {3) evidence supported trial court's
finding that juror had not maintained a bias against defendant which she had concealed
in voir dire.
and (3) evidence supported trial court's finding that juror had not maintained a bias against
defendant which she had concealed in voir dire.
Affirmed.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, Las Vegas, for
Respondent.
1. Conspiracy.
Evidence supported conviction of conspiracy to cheat at gambling by defrauding owner of slot machine.
NRS 199.480, subd. 2(d), 199.490.
2. Criminal Law.
Any private communication with juror in criminal case on any subject connected with trial is
presumptively prejudicial and burden is on state to show that such communications had no prejudicial
effect on jurors.
3. Criminal Law.
Hearing before trial court is proper procedure to determine whether private communication with juror in
criminal case was prejudicial.
4. Criminal Law.
Whether evidence rebuts presumption of prejudice arising from private communication with juror in
criminal case on subject connected with trial is a factual determination and, if supported by substantial
evidence, determination will not be disturbed.
5. Criminal Law.
Substantial evidence existed to show that private conversations between jurors in criminal case and third
parties concerning evidence, deliberations and trial procedures were not prejudicial to defendant.
6. Criminal Law.
After jury has given its verdicts, has been polled in open court and has been discharged, individual juror's
change of mind or claim that he was mistaken or unwilling to assent to verdict comes too late and does not
warrant granting of new trial.
7. Criminal Law.
Determination of question of intentional concealment of bias by juror on voir dire is determination of fact
by trial court and cannot be overturned when substantial evidence exists to support it.
8. Criminal Law.
Evidence supported trial court's finding that juror had not maintained a bias against defendant which she
had concealed on voir dire.
9. Criminal Law.
Admissibility of demonstration evidence depends upon foundation or showing of substantial similarity
between test conducted and actual conditions and decision whether to allow demonstration rests largely in
discretion of trial judge whose decision will not be overturned on appeal, absent clear showing of abuse of
discretion.
10. Criminal Law.
In prosecution for possession of cheating device based on use of wire in playing slot machine, trial court
did not abuse its discretion in permitting gaming commission employee to demonstrate methods of cheating
slot machines, where he testified that slot machine used in demonstration was manufactured by same
company as slot machine involved in case, that the machines were mechanically and electronically the
same, and that, while he did not know whether circuitry of the two machines were similar, the machines
could be cheated, irrespective of any difference in circuitry. NRS 199.480, subd. 2(d), 199.490.
OPINION
By the Court, Young, D. J.:
1

The facts show that appellant, Cliff Isbell, was observed in Big Daddy's Casino with Billy
Allen on September 16, 1977. The two men engaged in several conversations with the club's
bartender, Gerri Lawrence, and purchased $5.00 worth of quarters, stating they would not
need that many but would take them anyway. Mrs. Lawrence observed appellant playing with
a copper-colored wire. The wire broke, and appellant told Allen that he made inferior tools,
and they would have to go get another one, which they proceeded to do.
Upon returning to the casino, Gerri Lawrence observed appellant approach a slot machine
with a silver-colored wire in his hand. With Allen standing nearby, appellant inserted the wire
into the left side of the slot machine. The two men stayed near the machine for several
minutes. During this time Mrs. Lawrence heard and saw the slot machine pay off several
times.
During the time interval when appellant and Allen left to get another wire, Mrs. Lawrence
called her employer, Dr. Miller, owner of Big Daddy's Casino, to relay what she had
observed. Dr. Miller in turn called the police. The police arrived while appellant was playing
the slot machine. When appellant observed the police, he removed the wire from the machine
and walked into the next room which contained pinball machines. Gerri Lawrence watched
appellant get down on his knees and deposit the wire under a pinball machine. When
appellant left the room where the pinball machine was located, he returned to the bar and sat
down with Allen. The police approached the two men and asked to see them outside. The
wire was retrieved from under the pinball machine by Mrs. Lawrence and given to the police.
____________________

1
sit in the place of The Honorable Gordon Thompson, Justice, Nev. Const. art. 6, 4.
Allen and appellant were subsequently arrested. A three-count indictment was handed
down by the grand jury charging them with cheating at gambling (Count I), conspiracy to
cheat a gambling (Count II), and possession of a cheating device (Count III). Allen
disappeared while on bail and was never brought to trial.
During the trial the state called Jim Haddad from the gaming commission to demonstrate
certain methods of cheating a slot machine. Haddad brought a slot machine manufactured by
the same company that manufactured the machine played by appellant in the casino. Haddad
testified that the two machines were substantially similar in that they were mechanically and
electronically the same. Although no evidence was presented that appellant used two wires to
cheat the machine, Haddad used two wires in his demonstration. Earlier, however, Haddad
testified that these slot machines could be cheated by one wire. This testimony was
corroborated by George Thompson, Director of Slot Machines for Argent Corporation.
On January 9, 1978, the jury found the appellant guilty on Count II (conspiracy to cheat at
gambling) and Count III (Possession of a cheating device). Count I (cheating at gambling)
was dismissed.
On the day following completion of the trial, Renee Ellis, a juror, called the defense
attorney and stated that she did not feel the verdict was fair and that she was not convinced
that the defendant was guilty of any count. Subsequent to this conversation, affidavits of
several jurors were taken. Juror Ellis, in her affidavit, stated that she went home on January 9,
1978 (the day the jury foreman signed the verdict, but the day before the verdicts were read in
court), and discussed the evidence and deliberations with her husband. In addition, Juror Ellis
stated that she had heard Mrs. McBride, another juror, make a statement to the effect that the
defendant had to be guilty or the grand jury would not have indicted him. Juror Torry, in her
affidavit, also said that she had discussed trial procedures with a third party. Juror Torry also
alleged that she heard Juror McBride's statement concerning the grand jury indictment. Upon
discovery of the alleged jury misconduct, the appellant made a motion for a new trial. The
motion was denied. This appeal followed.
[Headnote 1]
Appellant first contends that there is insufficient evidence to support the conspiracy
conviction. According to NRS 199.480(2)(d), whenever two or more persons conspire to
cheat or defraud another out of any property by unlawful or fraudulent means, each is
guilty of a gross misdemeanor.
or defraud another out of any property by unlawful or fraudulent means, each is guilty of a
gross misdemeanor. Generally, no overt act need be shown for a conspiracy to exist.
2
From
the actions of appellant and Allen discussed above, a jury could find that there was an
agreement to defraud the owner of the slot machine, a conspiracy. Where, as here, there is
substantial evidence to support the jury's verdict, it will not be disturbed on appeal.
Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (178); Sanders v. State, 90 Nev. 433, 529
P.2d 206 (1974).
[Headnotes 2, 3]
Appellant next contends that the trial court erred in denying his motion for new trial on the
basis of juror misconduct. Any private communication with a juror in a criminal case on any
subject connected with the trial is presumptively prejudicial. Remmer v. United States, 347
U.S. 227 (1954); Conforte v. State, 77 Nev. 269, 362 P.2d 274 (1961). The burden is on the
respondent to show that these communications had no prejudicial effect on the jurors.
Remmer v. United States, supra; Parsons v. State, 74 Nev. 302, 329 P.2d 1070 (1958). A
hearing before the trial court is the proper procedure to determine whether a communication
is or is not prejudicial. Remmer v. United States, supra. The district court, after a hearing,
made a determination that the jurors' communications were not prejudicial. At the hearing,
both jurors testified that the persons to whom they spoke had no connection with the case.
They stated that neither was threatened, induced, nor advised to render a certain verdict. The
court properly concluded that these conversations were monologues rather than discussions,
and that jurors were merely venting frustrations concerning trial procedures rather than
inducing responses from third parties.
[Headnotes 4-6]
Determining whether the evidence presented rebuts a presumption of prejudice is a factual
determination, and if supported by substantial evidence, will not be disturbed. Conforte v.
State, supra. Substantial evidence exists to show that the conversations were not prejudicial.
3
Appellant also challenges the denial of the motion for new trial on the ground that Juror
McBride maintained a bias against him which she concealed on voir dire.
____________________

2
NRS 199.490 states:
In any such proceeding for violation of NRS 199.480, it shall not be necessary to prove that any
overt act was done in pursuance of such unlawful conspiracy or combination.

3
Furthermore, the jurors' change of mind came too late. The unauthorized communications occurred on the
evening of January 9, 1978, after the jury foreman had signed the verdicts on Counts II and III. Both jurors
requested the jury to reconsider the verdicts on the morning of January 10, 1978, but the issue was not presented
forcefully enough for another vote to be taken. The verdicts were read in open court and the members of the jury
polled; all agreed with the verdict of guilty. After a jury has given
Appellant also challenges the denial of the motion for new trial on the ground that Juror
McBride maintained a bias against him which she concealed on voir dire. The bias alleged is
contained in Mrs. McBride's statement that appellant must be guilty or the grand jury would
not have indicted him. Mrs. Torry and Mrs. Ellis testified at the hearing that they, as well as
other jurors, heard her statement. Six other jurors, by affidavit, stated that they did not hear
Mrs. McBride, or any other juror, make such a statement. McBride, in her post-trial affidavit,
denied making such a statement.
4
In fact, she stated that she was very careful to observe the
jury instruction and the presumption of innocence. A questionnaire sent to the jury foreman
during deliberations revealed that after six ballots on Count I, the jury had reached a twelve to
zero decision to acquit. Had Count I not been dismissed by stipulation, the defendant would
have been acquitted as to that count. This shows that no member of the jury was biased since
none rendered a guilty vote on Count I.
[Headnotes 7, 8]
Based on these facts, the trial judge concluded that no actual bias existed. The trial court,
therefore, logically concluded that no intentional concealment of a bias existed. The
determination of the question of intentional concealment is a determination of fact by the trial
court which cannot be overturned when substantial evidence exists to support the decision of
the judge. See Walker v. State, 95 Nev. 321, 594 P.2d 710 (1979); McNally v. Walkowski, 85
Nev. 696, 462 P.2d 1016 (1969). The facts presented support the trial court's finding.
[Headnote 9]
Finally, appellant asserts that the trial court abused its discretion in allowing the
demonstration of cheating crimes on a slot machine without a proper foundational showing.
Admissibility of evidence depends upon a foundational showing of substantial similarity
between the tests conducted and actual conditions. The decision whether to allow a
demonstration rests largely in the discretion of the trial judge, and his decision will not be
overturned on appeal absent a clear showing of an abuse of discretion. Smith v. State, 87
Nev. 84, 482 P.2d 302 (1971).
____________________
its verdicts, has been polled in open court and has been discharged, an individual juror's change of mind or claim
that he was mistaken or unwilling to assent to the verdict comes too late. United States v. Schroeder, 433 F.2d
846 (8th Cir. 1970), cert. denied, 401 U.S. 943 (1971). As the jurors' actions in this case could be considered
merely a change of mind subsequent to the verdict, they do not warrant the granting of a new trial.

4
The affidavits of the six jurors and Mrs. McBride are not a part of the record on appeal. They are referred to
in the trial judge's decision.
[Headnote 10]
Mr. Haddad, who conducted the demonstration, testified that the slot machine used in the
demonstration was manufactured by the same company as the slot machine in question in Big
Daddy's. Mr. Haddad further stated that the machines were mechanically and electronically
the same. While Haddad had no knowledge as to whether the circuitry of the two machines
was similar, he did state that the machine could still be cheated, irrespective of any difference
in the circuitry. From the above facts, the judge ruled that the foundation requirements had
been met. The evidence supports the trial court's conclusion.
The judgment of the trial court is affirmed.
____________
97 Nev. 228, 228 (1981) Payne v. District Court
RUSSELL PAYNE, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPARTMENT
NO. XI THEREOF, THE HONORABLE ADDELIAR D. GUY, PRESIDING,
Respondents.
No. 12975
April 21, 1981 626 P.2d 1278
Original petition for writ of mandamus.
In original proceeding, petitioners sought writ of mandamus compelling district court to
vacate order dismissing petitioners' complaint under doctrine of forum non conveniens. The
Supreme Court held that where the motion was supported by a specific application of the
factors to be considered in ruling on such a motion and district court had reviewed the
application and heard oral argument on the matter, mandamus was not available to review
court's discretion in granting the motion.
Petition denied.
Reid & Alverson; Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Petitioner.
Johnson, Pilkington & Reynolds, Las Vegas, for Respondents.
1. Courts.
Ordinarily, application of doctrine of forum non conveniens involves an exercise in judicial
discretion requiring a balancing of many factors.
involves an exercise in judicial discretion requiring a balancing of many factors.
2. Mandamus.
Errors committed in exercise of judicial discretion will not be made subject to review or be corrected by
writ of mandamus.
3. Mandamus.
Where motion for dismissal on basis of doctrine of forum non conveniens was supported by a specific
application of the factors to be considered in ruling on such a motion and district court reviewed the
application and heard oral argument on the matter, mandamus was not available to review court's discretion
in granting the motion.
OPINION
Per Curiam:
Riker Laboratories, defendant below, filed a motion in the district court to dismiss
petitioner's complaint. The motion contended that under the doctrine of forum non conveniens
the district court was not the proper forum for trial of the action in that all transactions giving
rise to the lawsuit occurred in the state of Wyoming and all evidence and a significant number
of witnesses remained in the state of Wyoming. The district court found the doctrine of forum
non conveniens applicable to the litigation and dismissed the action. Petitioner seeks a writ of
mandamus compelling the district court to vacate the order of dismissal.
[Headnote 1]
The extraordinary writ of mandamus has been declared a proper remedy where the district
court wrongfully or erroneously divested itself of jurisdiction over a resident corporation,
Buckholt v. District Court, 94 Nev. 631, 584 P.2d 672 (1978), and where dismissal upon the
ground of forum non conveniens was granted despite the lack of a factual showing to support
such action. Eaton v. District Court, 96 Nev. 773, 616 P.2d 400 (1980). Ordinarily, however,
application of the doctrine of forum non conveniens, remains an exercise in judicial discretion
requiring a balancing of many factors. Eaton v. District Court, supra.
[Headnote 2]
Errors committed in the exercise of judicial discretion will not be made the subject of
review or be corrected by a writ of mandamus. Wilmurth v. District Court, 80 Nev. 337, 393
P.2d 302 (1964). So long, therefore, as the proper factual showing in support of a forum non
conveniens motion has been made, a district court's discretionary determination will not be
reviewed herein.
[Headnote 3]
The instant motion for forum non conveniens dismissal was supported by a specific
application of the factors to be considered in such a motion to the case at bar. The district
court reviewed the support and heard oral argument on the matter. Mandamus is therefore not
available to review the district court's discretion in determining the outcome of the balancing
procedure.
Petition denied.
____________
97 Nev. 230, 230 (1981) Hickey v. Kaye Real Estate Co.
JOHN D. HICKEY, Appellant, v. NORMAN KAYE REAL ESTATE
COMPANY, Realtor, a Nevada Corporation, Respondent.
No. 11245
April 30, 1981 627 P.2d 399
Appeal from judgment awarding brokers commission, Eighth Judicial District Court,
Clark County; George E. Marshall, Judge.
Broker brought suit for commission pursuant to listing agreement. The district court
awarded commission, and vendor appealed. The Supreme Court held that absent showing of
consent by holder of first deed of trust to assignment, proposed purchaser failed to qualify as
able buyer as would obligate vendor to pay broker agreed commission due under listing
agreement.
Reversed.
Manzonie & Massi, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent.
Brokers.
Absent showing of consent by holder of first deed of trust to assignment, proposed purchaser failed to
qualify as able buyer as would obligate vendor to pay broker agreed commission due under listing
agreement.
OPINION
Per Curiam:
In this appeal we are required to determine whether the trial court erred in determining the
purchaser, introduced to appellant Hickey by respondent Kaye, was a ready, willing and able
buyer, thereby obligating Hickey to pay Kaye the agreed broker's commission due under
the listing agreement.
97 Nev. 230, 231 (1981) Hickey v. Kaye Real Estate Co.
buyer, thereby obligating Hickey to pay Kaye the agreed broker's commission due under the
listing agreement. We determine that the proposed purchaser was not an able buyer and
reverse.
On June 12, 1973, John Hickey, one of three co-owners of the Del Rey Motel, signed a
listing agreement with respondent, under which respondent was to obtain a buyer for the
aforementioned property. On July 20, 1973, an offer and acceptance was signed by
respondent and a purported buyer. On July 24, 1973, appellant countered the offer and on July
26, 1973, he, by telegram, purportedly revoked the listing with respondent. The sale never
occurred, and when negotiations terminated, respondent made demand for a commission
pursuant to the listing agreement, then commenced this action. From judgment awarding the
broker's fee, Hickey appeals.
It was known by all parties that there existed a first deed of trust encumbering the property,
which was subject to an acceleration clause, and was assumable only upon renegotiation with
the holder. There was no showing that the holder had agreed to the assumption of the debt by
the proffered buyer, indeed the broker testified that negotiations with the holder did not
commence until sometime after the July 20 offer and acceptance was submitted to the seller.
Absent a showing of the holder's consent to this assignment, the purchaser failed to qualify as
an able buyer. Cf. Fleshman v. Hendricks, 93 Nev. 103, 104, 560 P.2d 1350, 1351 (1977)
(lessor refused to approve assignment of lease to purchaser, who therefore failed to qualify as
an able buyer). Since the proposed purchaser was not an able buyer, there can be no
commission due under the listing agreement. Ferrara v. Firsching, 91 Nev. 254, 533 P.2d
1351 (1975).
The above issue being dispositive, we need not consider appellant's other assignments of
error. Accordingly, we reverse the judgment of the district court.
____________
97 Nev. 231, 231 (1981) Daniels v. Las Vegas Transfer & Stge.
CHARLES DANIELS, Appellant, v. LAS VEGAS
TRANSFER & STORAGE, Respondent.
No. 11247
April 30, 1981 627 P.2d 400
Appeal from order granting defendant's cross-motion for summary judgment and
dismissing lawsuit with prejudice. Eighth Judicial District Court, Clark County; Keith C.
Hayes, Judge.
Store employee brought action for personal injuries against common carrier employed by
store to deliver and unload merchandise when loading ramp collapsed under employee. The
district court granted common carrier's cross motion for summary judgment, and employee
appealed. The Supreme Court held that depositions which presented conflicting testimony
concerning nature of working relationship between common carrier and employer raised
substantial fact issue of whether common carrier was immune from tort liability under NIIA
statute limiting liability where employee is eligible for compensation to third parties other
than employer or person in the same employ, precluding summary judgment.
Reversed.
Vargas, Bartlett & Dixon, Reno, for Respondent.
Judgment.
In personal injury action against common carrier employed by employer to deliver and unload
merchandise when employee was injured when ramp, allegedly negligently placed by common carrier
employee, collapsed, depositions which presented conflicting testimony concerning nature of working
relationship between common carrier and employer raised substantial fact issue of whether common carrier
was immune from tort liability under NIIA statute limiting liability where employee is eligible for
compensation to third parties other than employer or person in the same employ, precluding summary
judgment. NRS 616.560.
OPINION
Per Curiam:
Charles Daniels, (Daniels), an employee of Woolco Stores, was injured in a fall from a
collapsing loading ramp. The loading ramp was owned by respondent Las Vegas Transfer &
Storage (LVTS), a common carrier, which was employed by Woolco to deliver and unload
merchandise. LVTS supplied both the truck and the workers and charged Woolco at an hourly
rate for their service. Employees of LVTS were required only to unload the appliances at
Woolco's receiving dock; however, LVTS workers and Woolco personnel commonly worked
together to move the merchandise onto the floor to a location designated by a Woolco
salesman. During the course of the unloading process, Daniels was wheeling a large appliance
down the ramp from the truck when the ramp collapsed. Daniels sued LVTS for negligence
claiming that the ramp was negligently placed by a LVTS employee.
After the accident, Daniels was awarded compensation under N.I.I.A. LVTS's
cross-motion for summary judgment argued that it was immune from liability under NRS
616.560 and that Daniels's acceptance of N.I.I.A. benefits precluded his negligence cause of
action.
The district judge granted LVTS's cross-motion, finding that at the time of the accident
Woolco and LVTS employees were in joint or common employment and that therefore
LVTS was immune from tort liability under NRS 616.560, which limits liability in cases
where an employee is eligible for compensation under the N.I.I.A. to third parties other than
the employer or a person in the same employ.
Under these facts the granting of the summary judgment was improper, especially in view
of the similarities between the employment in this case and that in McDowell Constr. Supply
v. Williams, 90 Nev. 75, 518 P.2d 604 (1974), in which this court held that circumstances did
not indicate sufficient control by the injured worker's employer over the defendant's negligent
employee to warrant immunity.
The depositions contained in the record indicate that if this matter were to be tried, there
would be conflicting testimony concerning the nature of the working relationship. In the
absence of a clearly established N.I.I.A. defense, we cannot justify summary judgment on the
assumption that the trial will show nothing to create a jury question on a legal theory
consistent with the pleadings. Ortolano v. Las Vegas Convention Center, 96 Nev. 308, 310,
608 P.2d 1102, 1105 (1980).
The summary judgment is reversed.
____________
97 Nev. 233, 233 (1981) Phipps v. City of McGill
ILENE PHIPPS and KYLE PHIPPS, Appellants, v. CITY OF McGILL, NEVADA;
RUTH-McGILL WATER CO.; STATE OF NEVADA DEPARTMENT OF
HIGHWAYS, Respondents.
No. 11350
April 30, 1981 627 P.2d 401
Appeal from order granting motion for summary judgment, Seventh Judicial District
Court, White Pine County; Merlyn H. Hoyt, Judge.
Action was brought against city and Department of Transportation for injuries plaintiff
sustained as a result of tripping on an alleged hazard in the road surface of the state highway
in the city. The district court granted summary judgment in favor of the defendants, and
plaintiff appealed.
of the defendants, and plaintiff appealed. The Supreme Court held that: (1) plaintiff could not
recover from the city, as the city had no duty with respect to the allegedly defective condition,
and (2) plaintiff could not recover from the Department of Transportation, in the absence of
an indication that the Department had knowledge of the alleged hazardous condition at the
time of the accident.
Appeal dismissed.
Manzonie & Massi, Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, and Norman C. Robison, Deputy Attorney General,
Carson City; Thorndal, Gentner, Backus, Lyle & Maupin, Ltd., Las Vegas; and Allison,
Brunetti, MacKenzie & Taylor, Ltd., Carson City, for Respondents.
1. Highways.
Plaintiff could not recover from city for injuries she sustained as a result of tripping on an alleged hazard
in the road surface of a state highway in the city, as the city had no duty with respect to the allegedly
defective condition. NRS 408.285.
2. States.
State is immune from suit for negligence with respect to dangerous conditions of which it does not have
notice. NRS 41.033.
3. Highways.
Plaintiff could not recover from the Department of Transportation for injuries she sustained as a result of
tripping on an alleged hazard in the road surface of a state highway, in the absence of an indication that the
Department had knowledge of the alleged hazardous condition at the time of the accident. NRS 41.033.
OPINION
Per Curiam:
1

The district court granted summary judgment as to respondents City of McGill and the
Department of Transportation
2
of the State of Nevada on appellants' negligence claim and
certified the judgment under NRCP 54(b). Appellants contend that questions of fact exist
which preclude summary judgment.
[Headnote 1]
The injuries of appellant Ilene Phipps occurred as the result of tripping on an alleged
hazard in the road surface of Highway 93 in McGill, Nevada. All parties to this action admit
that Highway 93 is a state highway, exclusively within the jurisdiction of the State of
Nevada Department of Transportation.
____________________

1
This opinion was originally issued on March 30, 1981, as an unpublished order dismissing appeal. At the
request of respondent Department of Transportation we are publishing this order.

2
Formerly the Department of Highways, 1979 Nev. Stats. ch. 683.
Highway 93 is a state highway, exclusively within the jurisdiction of the State of Nevada
Department of Transportation. NRS 408.285. Summary judgment was therefore proper as to
the City of McGill, as it had no duty with respect to the allegedly defective condition.
LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972).
[Headnotes 2, 3]
Summary judgment was also proper as to the Department of Transportation. The state is
immune from suit for negligence with respect to dangerous conditions of which it does not
have notice. See NRS 41.033; Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979).
Nothing in the record before the district court on the motion for summary judgment indicated
that the Department of Transportation had any knowledge of the alleged hazardous condition
at the time of the accident. See State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976).
Furthermore, appellants did not support their opposition to the motion for summary judgment
with any affidavits or other material establishing that a hazardous condition existed at all. See
NRCP 56(e). Accordingly, summary judgment in favor of the Department of Transportation
was appropriate.
Respondent City of McGill has requested this court to award it attorney fees and costs on
appeal against the appellants. NRAP 38. We do not feel such an award is appropriate in this
case.
As this appeal is without merit, however, we order it dismissed.
____________
97 Nev. 235, 235 (1981) Woodall v. State
FREDERICK LAFFAYETTE WOODALL, Appellant, v.
No. 12132
April 30, 1981 627 P.2d 402
Appeal from a judgment entered upon a jury verdict, Eighth Judicial District Court, Clark
Defendant was convicted before the district court of possessing a firearm as an ex-felon,
and he appealed. The Supreme Court held that reversal was required where evidence failed to
show that defendant possessed or exercised dominion or control over the firearm, which was
found in truck occupied by defendant and a companion.
Reversed.
Redmon & McGimsey, and Brian Breedlove, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
David Schwartz, Deputy, District Attorney, Clark County, for Respondent.
Weapons.
Evidence was insufficient to convict defendant of possessing a weapon as a felon where evidence failed
to show that defendant possessed or exercised dominion and control over the firearm with such certainty
that a rational trier of fact would be convinced of guilt beyond a reasonable doubt, in that weapon was
discovered in truck occupied by defendant and companion and circumstances did not resolve who place the
weapon there and companion acknowledged that weapon was his and that defendant knew nothing of its
existence. NRS 202.360, subd. 2.
OPINION
Per Curiam:
Appellant, an ex-felon, was convicted of the crime of possessing a firearm. On appeal,
appellant contends that the judgment entered against him must be reversed because (1) a
State's witness was permitted to comment on his post-arrest silence; (2) the prosecutor made
impermissible remarks during his closing argument; and (3) insufficient evidence was
presented to sustain his conviction. We find the evidence insufficient, and upon this
dispositive issue we reverse appellant's conviction. Accordingly, we see no need to resolve
other issues.
Appellant was charged with violating NRS 202.360(2) which provides, in pertinent part,
that [n]o person who has been convicted of a felony . . . shall own or have in his possession
or under his custody or control any pistol, revolver or other firearm capable of being
concealed upon the person.
In our view, evidence adduced at trial fails to show appellant possessed or exercised
dominion and control over the firearm in question, with such certainty that a rational trier of
fact would be convinced of appellant's guilt beyond a reasonable doubt. Wilkins v. State, 96
Nev. 367, 609 P.2d 309 (1980); see also Jackson v. Virginia, 443 U.S. 307 (1979). The
weapon was discovered in a truck occupied by both appellant and his companion. The
circumstances do not resolve who placed it there: appellant, his companion, or perhaps both
of them. Inferably, either of them may have had possession of the gun. Appellant's
companion, however, acknowledged that the weapon was his and that appellant knew nothing
about its existence.
Because all facts were totally consistent with the companion's admission, and because the
jury was obligated to accord appellant the benefit of all reasonable doubt, it appears to us that
a rational trier of fact could not reject a plausible explanation consistent with appellant's
innocence, and thereupon infer appellant to be guilty based on evidence from which only
uncertain inferences may be drawn. Cf. Konold v. Sheriff, 94 Nev. 289, 579 P.2d 768 (1978);
Oxborrow v. Sheriff, 93 Nev. 321, 565 P.2d 652 (1977); Glispey v. Sheriff, 89 Nev. 221, 510
P.2d 623 (1973); State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971).
We reverse appellant's conviction because the State has not adequately proved a material
element of the crime charged.
____________
97 Nev. 237, 237 (1981) Burns v. District Court
JANET BURNS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT of the State of
Nevada, in and for the County of Washoe, and THE HONORABLE JOHN W. BARRETT,
Judge of the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, Respondents.
No. 12629
April 30, 1981 627 P.2d 403
Original proceedings in mandamus.
Automobile lessee, who was injured when automobile overturned, brought mandamus
action to require district court to assert personal jurisdiction over foreign leasing corporation.
The Supreme Court held that exercise of personal jurisdiction over foreign automobile
leasing corporation was not unreasonable if foreign corporation was properly served under
long-arm statutes where corporation purposely availed itself of privilege of acting in state by
allowing lessee to bring vehicle to state and requiring lessee to insure and register it in state in
the name of foreign corporation.
Petition granted.
Durney, Guinan & Brennan, Reno, for Petitioner.
Hibbs & Newton, and Frank H. Roberts, Reno, for Respondents.
1. Courts.
Exercise of jurisdiction under long-arm statutes, consistent with due process clause of Fourteenth
Amendment, is predicated upon existence of minimum contacts between defendant
and forum state.
due process clause of Fourteenth Amendment, is predicated upon existence of minimum contacts between
defendant and forum state. NRS 14.065, 14.080; U.S.C.A.Const. Amend. 14.
2. Corporations.
Exercise of personal jurisdiction over foreign automobile leasing corporation was not unreasonable if
foreign corporation was properly served under long-arm statutes where corporation purposely availed itself
of privilege of acting in state by allowing lessee to bring vehicle to state and requiring lessee to insure and
register it in state in the name of foreign corporation. NRS 14.065, 14.080; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
In this mandamus proceeding, petitioner contends the district court should be required to
assert personal jurisdiction over a non-resident defendant, Gold Coast Leasing Company, in
an action involving personal injuries. The claim for relief against Gold Coast and other
defendants is based on products liability and negligence.
Billie Ruiz, while a resident of California, leased an International Scout from Gold Coast
Leasing Company, a California corporation. Ruiz subsequently notified Gold Coast of his
intent to move to Nevada. He continued to lease the Scout from Gold Coast, mailing the lease
payments from Nevada. Pursuant to agreement with Gold Coast, Ruiz also obtained insurance
on the vehicle in Nevada and registered the vehicle here in the name of Gold Coast.
On April 1975, Ruiz was driving the Scout near Fallon when it overturned. At the time of
the accident petitioner was a passenger in the Scout. She sustained injuries and later sued
Gold Coast, among others, for damages, contending the vehicle had been altered so as to be
defective. The action was filed in Nevada. Gold Coast filed a motion to quash service of
process on the grounds that it had insufficient contacts with the state and therefore the court
had no basis upon which to assert personal jurisdiction over it. The court granted the motion
and this original proceeding followed.
1

[Headnote 1]
Petitioner argues that Gold Coast's acceptance of the lease payments for a vehicle insured,
registered and located in Nevada was a contact sufficient enough to subject Gold Coast to the
personal jurisdiction of the Nevada court under NRS 14.065 or 14.0S0.2 The exercise of
jurisdiction under such long arm statutes, consistent with the Due Process Clause of the
Fourteenth Amendment, is predicated upon the existence of minimum contacts between
the defendant and the forum state.
____________________

1
Mandamus is the appropriate means by which an order quashing service of process may be challenged.
Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976).
to the personal jurisdiction of the Nevada court under NRS 14.065 or 14.080.
2
The exercise
of jurisdiction under such long arm statutes, consistent with the Due Process Clause of the
Fourteenth Amendment, is predicated upon the existence of minimum contacts between the
defendant and the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286
(1980). See Basic Food Indus., Inc. v. District Court, 94 Nev. 111, 575 P.2d 934 (1978). In
World-Wide Volkswagen, the plaintiffs were injured in an automobile accident in Oklahoma.
They had purchased their automobile in New York and attempted to sue the automobile
retailer and its wholesaler, both New York corporations, in Oklahoma. The Court held that
the Oklahoma court could not assert personal jurisdiction over the nonresident defendants,
stating, id. at 295:
[W]e find in the record before us a total absence of those affiliating circumstances that
are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on
no activity whatsoever in Oklahoma. They close no sales and perform no services there.
They avail themselves of none of the privileges and benefits of Oklahoma law. They
solicit no business there either through salespersons or through advertising reasonably
calculated to reach the State. Nor does the record show that they regularly sell cars at
wholesale or retail to Oklahoma customers or residents or that they indirectly, through
others, serve or seek to serve the Oklahoma market. In short, respondents seek to base
jurisdiction on one, isolated occurrence and whatever inferences can be drawn
therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York
or New York residents, happened to suffer an accident while passing through
Oklahoma.
____________________

2
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated
in this subsection thereby submits himself and, if an individual, his personal representative to the
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business or negotiating any commercial paper within this state;
(b) Committing a tortious act within this state[.]
1. Any company, firm, partnership, corporation or association created and existing under the laws of
any other state, territory, foreign government or the Government of the United States, which
manufactures, produces, makes, markets or otherwise supplies directly or indirectly any product for
distribution, sale or use in this state may be lawfully served with any legal process in any action to
recover damages for injury to person or property resulting from such distribution, sale or use in this state
in the manner prescribed in this section.
York or New York residents, happened to suffer an accident while passing through
Oklahoma.
In his order granting the motion to quash, the district judge relied on World-Wide
Volkswagen, stressing Gold Coast's lack of on-going business activity in Nevada and
concluding that:
[Gold Coast] has no connection with Nevada, other than the mere foreseeability that
one of its leased vehicles might end up here. The unilateral activity of Ruiz in moving
to Lovelock, Nevada, and making lease payments from there simply does not provide
the requirement that [Gold Coast] have contact with Nevada greater than this mere
foreseeability.
[Headnote 2]
However, in our view, World-Wide Volkswagen is distinguishable from this case. Here,
Gold Coast purposely availed itself of the privilege of acting in Nevada by allowing Ruiz to
bring the vehicle to Nevada and requiring him to insure and register it here in the name of
Gold Coast. Cf. Hanson v. Denckla, 357 U.S. 235 (1958); McGee v. International Life Ins.
Co., 355 U.S. 220 (1957). Thus, there is a distinction between Gold Coast's activities in the
state and those present in World-Wide Volkswagen. Under these circumstances, the exercise
of personal jurisdiction over Gold Coast by the Nevada court would not be unreasonable if
Gold Coast is properly served with process pursuant to NRS 14.065 or 14.080. See
Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971).
Accordingly, the petition for a writ of mandamus is granted. The district court shall accept
personal jurisdiction over Gold Coast in the proceedings below.
____________
97 Nev. 240, 240 (1981) Watson v. Housing Authority
ELSIA MAXINE WATSON, Appellant, v. HOUSING AUTHORITY
OF THE CITY OF NORTH LAS VEGAS, Respondent.
No. 12641
April 30, 1981 627 P.2d 405
Appeal from the denial of a petition for a writ of certiorari, NRS 34.020, Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
City housing authority employee sought reversal of order of the district court denying her
application for writ of certiorari seeking review of her termination by housing authority. The
Supreme Court, Mowbray, J., held that due process rights of employee were violated
when she received termination letter which contained only general, broad allegations of
misconduct which did not apprise her of specific instances of misconduct for which she
was terminated, particularly as lack of specificity was compounded by fact that she was
not afforded opportunity to confront allegations before her dismissal.
Supreme Court, Mowbray, J., held that due process rights of employee were violated when
she received termination letter which contained only general, broad allegations of misconduct
which did not apprise her of specific instances of misconduct for which she was terminated,
particularly as lack of specificity was compounded by fact that she was not afforded
opportunity to confront allegations before her dismissal.
[Rehearing denied June 26, 1981]
Marilyn V. Romanelli, Las Vegas, for Appellant.
George E. Franklin, City Attorney, North Las Vegas, for Respondent.
1. Certiorari.
As application for writ of certiorari to review exercise of judicial functions by inferior tribunal shall be
granted whenever that lower body exceeds its jurisdiction. NRS 34.020, subd. 2.
Due process is not a rigid concept; due process is flexible and calls for such procedural protections as
particular situation demands. U.S.C.A.Const. Amend. 5.
Due process rights of city housing authority employee were violated when she received termination letter,
which contained only general, broad allegations of misconduct which did not apprise her of specific
instances of misconduct for which she was terminated, particularly as lack of specificity was compounded
by fact that employee was not afforded opportunity to confront allegations before her dismissal.
OPINION
Appellant seeks reversal of the lower court's denial of an application for a writ of certiorari
seeking review of her termination by the North Las Vegas Housing Authority. We reverse and
remand.
THE FACTS
Appellant worked as a tenant relations officer for the Housing Authority of the City of
North Las Vegas for eleven years. On September 1, 1978, she was given a termination letter
containing four reasons for her dismissal.
1
The termination was effective that day; she was
afforded two weeks' severance pay.
____________________

1
The reasons given were:
(1) The inability of this administration to trust you with field assignments or tenant placements as
demonstrated by past occurrences, thereby
effective that day; she was afforded two weeks' severance pay. Upon application to the
Housing Authority Commission, a hearing was held in order to determine the propriety of the
dismissal. At the hearing, no evidence was taken; appellant argued that she was deprived due
process of law because the letter dismissing her lacked sufficient specificity regarding the
charges. The Commission ruled, however, that her due process rights were not violated and
upheld appellant's dismissal.
Appellant filed an application for a writ of certiorari in the district court contending that
the Housing Authority Commission exceeded its jurisdiction by approving the pretermination
dismissal. The district court denied the application for the writ, and this appeal followed.
DUE PROCESS
[Headnote 1]
An application for a writ of certiorari to review the exercise of judicial functions by an
inferior tribunal shall be granted whenever that lower body exceeds its jurisdiction NRS
34.020(2). In this context, jurisdiction has a broader meaning than the concept of jurisdiction
over the person and subject matter: it includes constitutional limitations. See Auto Equity
Sales, Inc. v. Superior Court, 369 P.2d 937 (Cal. 1962). If the Housing Authority
Commission's approval of appellant's termination violated her due process rights, the
Commission exceeded its jurisdiction and the writ should have been granted.
[Headnote 2]
Due process is not a rigid concept: due process is flexible and calls for such procedural
protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481
(1972); State ex rel. Sweikert v. Briare, 94 Nev. 752, 588 P.2d 542 (1978). As a minimum,
these preremoval safeguards must include notice of the proposed action, the reasons therefor,
a copy of the charges and materials upon which the action is based, and the right to respond,
either orally or in writing, to the authority initially imposing discipline. Skelly v. State
Personnel Board, 539 P.2d 774, 788, 789 (Cal. 1975).
____________________
greatly decreasing your ability to carry out the job duties required as a Tenant Relations Officer.
(2) Poor attitude which has resulted in much dissension within the office, thereby making it difficult
for other employees to carry out their duties.
(3) Poor tenant relationship which sometimes results in bad feelings toward yourself in particular and
the Housing Authority in general.
(4) Your inability to communicate sufficiently as required by a Tenant Relations Officer, both
verbally and written.
[Headnote 3]
The letter given to appellant contained only general, broad allegations of misconduct
which did not apprise her of the specific instances of misconduct for which she was
terminated. This lack of specificity is compounded by the fact that she was not afforded an
opportunity to confront the allegations before her dismissal. Therefore, we must conclude that
her right to due process of law was not honored.
Therefore, we reverse the order of the district court, and remand in accordance with the
views expressed herein.
Gunderson, C.J., and Manoukian, Batjer, and Springer, JJ., concur.
____________
97 Nev. 243, 243 (1981) Coty v. State
DAWN COTY, Appellant, v. THE STATE OF
NEVADA, Respondent
No. 10982
April 30, 1981 627 P.2d 407
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Defendant was convicted before the district court of grand larceny, and she appealed. The
Supreme Court held that defendant was entitled to new trial on basis of lower court's ruling
that evidence of defendant's previous arrests and related criminal behavior would be
admissible on rebuttal to prove identity if defendant took stand and denied she was
perpetrator of crime charged since characteristics of prior crimes, although resembling those
of crime charged, did not show a modus operandi common to the charged offense and
previous, uncharged offenses which would tend to identify defendant as perpetrator of
charged offense and since evidence of prior criminal activity was of very low probative value.
Michael Kennedy, San Francisco, California, and Kermitt L. Waters, Las Vegas, for
Appellant.
Ira H. Hecht, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence of prior criminal behavior may only be admitted to prove identity when its prejudicial
effect is outweighed by the evidence's probative value and when that prior behavior
demonstrates characteristics of conduct which are unique and common to both the
defendant and the perpetrator whose identity is in question.
97 Nev. 243, 244 (1981) Coty v. State
prove identity when its prejudicial effect is outweighed by the evidence's probative value and when that
prior behavior demonstrates characteristics of conduct which are unique and common to both the defendant
and the perpetrator whose identity is in question.
2. Criminal Law.
Defendant was entitled to new trial on basis of lower court's ruling that evidence of defendant's previous
arrests and related criminal behavior would be admissible on rebuttal to prove identity if defendant took
stand and denied she was perpetrator of crime charged since characteristics of prior crimes, although
resembling those of crime charged, did not show a modus operandi common to the charged offense and
previous, uncharged offenses which would tend to identify defendant as perpetrator of charged offense and
since evidence of the prior criminal activity was of very low probative value.
OPINION
Per Curiam:
Appellant Dawn Coty was arrested on December 8, 1977 in connection with a grand
larceny that occurred on October 6, 1977. The larceny occurred when appellant, a prostitute,
left the victim's hotel room with $600. Prior to trial, defense counsel presented a motion in
limine seeking a ruling preventing the admission of evidence of appellant's previous arrest
and related criminal behavior. The court below relied on the identity exception to the general
rule that on the trial of a person accused of crime, proof of a distinct independent offense is
inadmissible. State v. Nester, 75 Nev. 41, 46, 334 P.2d 524, 526 (1959). The trial judge
ruled that the evidence would be inadmissible as to the state's case in chief but would be
admissible on rebuttal to prove identity if the appellant took the stand and denied she was the
perpetrator of the crime.
1
Because of this ruling, appellant did not testify on her own behalf.
Appellant now asks this court to reverse her conviction and order a new trial on grounds that
the district court's ruling deprived her of a fair trial.
[Headnotes 1, 2]
Evidence of prior criminal behavior may only be admitted to prove identity when its
prejudicial effect is outweighed by the evidence's probative value and when that prior
behavior demonstrates characteristics of conduct which are unique and common to both the
defendant and the perpetrator whose identity is in question. Mayes v. State, 95 Nev. 140, 591
P.2d 250 (1980). Here,
the characteristics of the prior crimes, although resembling those of the crime charged, do not
show a modus operandi common to the charged offense and previous uncharged offenses
which would tend to identify the appellant as the perpetrator of the charged offense.
____________________

1
See NRS 48.045(2).
97 Nev. 243, 245 (1981) Coty v. State
operandi common to the charged offense and previous uncharged offenses which would tend
to identify the appellant as the perpetrator of the charged offense. Evidence of prior criminal
activity in this case is of a very low probative value and certainly does not justify the
prejudice resulting from its introduction. Because such evidence is inadmissible in this case,
the trial judge erred in denying appellant's motion in limine.
Since the district judge's ruling prevented appellant from testifying in her own behalf, the
degree of prejudice arising from the error is unascertainable, and the normal rules of harmless
and reversible error do not apply. Mann v. State, 96 Nev. 62, 605 P.2d 209 (1980). Because
the jury may have reached a different verdict after hearing appellant's version of the facts, we
reverse the judgment and remand the cause for a new trial. Other contentions need not be
considered.
____________
97 Nev. 245, 245 (1981) Corbin v. State
WILLIAM CORBIN, Appellant, v. THE STATE
No. 12442
May 6, 1981 627 P.2d 862
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of two counts of robbery and two counts of
kidnapping, each count committed with use of a deadly weapon, and he appealed. The
Supreme Court held that statement allegedly made by defendant's nontestifying codefendant
which may have implicated him violated his Sixth Amendment right to confront witnesses
against him and should not have been admitted but, in light of victims' positive identification
of defendant as perpetrator of crimes with which he was charged, the error was harmless
beyond reasonable doubt.
Affirmed.
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Statement allegedly made by defendant's nontestifying codefendant which may have implicated him
violated his Sixth Amendment right to confront witnesses against him and should not have been admitted
but, in light of victims' positive identification of defendant as perpetrator of crimes with which he was
charged, the error was harmless beyond reasonable doubt. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant, William Corbin, was convicted of two counts of robbery and two counts of
kidnapping, each count committed with the use of a deadly weapon. In this appeal Corbin
contends, among other things, that his Sixth Amendment right of confrontation was violated
when an incriminating statement of his codefendant was admitted at the trial.
Evidence presented at the trial established the following. On the night of April 10, 1979,
two men entered a house in Las Vegas occupied by David Shaw and Angela Adams. The two
men detained Shaw and Adams in the house and threatened them with death unless they
handed over money and jewelry. Shaw and Adams complied. Approximately one hour later
appellant arrived at the house. Appellant forced Shaw and Adams, under the threat of death,
to promise to give the three men additional money and jewelry. Appellant provided Shaw
with a telephone number where he (appellant) could be contacted when the money and
jewelry were obtained. The three men then left the premises.
1. Appellant and one of his confederates were tried jointly. Appellant argues that error
occurred at the trial when a police officer testified that the codefendant, in response to
questioning by the police officer about culpability regarding some of the events of April 10,
1979, replied, It was Will. Both appellant and the third assailant (who was not a defendant
at the trial) are named Will.
Appellant contends admission of his codefendant's statement requires reversal under
Bruton v. United States, 391 U.S. 123 (1968). In Bruton the Court held that at a joint trial
where one defendant does not testify, the introduction into evidence of a nontestifying
defendant's confession, which inculpated the codefendant, violated the codefendant's Sixth
Amendment right to confront witnesses against him. Here, the statement It was Will,
allegedly made by appellant's nontestifying codefendant, may have implicated appellant and
therefore should not have been admitted. See State v. Swaney, 178 S.E.2d 399 {N.C. 1971),
appeal dismissed, 402 U.S. 1006 {1971).
S.E.2d 399 (N.C. 1971), appeal dismissed, 402 U.S. 1006 (1971).
However, the mere finding of a violation of the right to confront witnesses does not
automatically require reversal of the conviction. In some cases the properly admitted evidence
of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so
insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use
of the admission was harmless error. Schneble v. Florida, 405 U.S. 427 (1972); see Davies v.
State, 95 Nev. 553, 598 P.2d 636 (1979). In this case, Shaw and Adams positively identified
appellant as the perpetrator of the crimes with which he was charged. The state's case against
[appellant] was not woven from circumstantial evidence,' [Harrington v. California, 395 U.S.
250, 254 (1969)], but was predicated upon testimony of eyewitnesses to the [crimes]. Erving
v. Sigler, 327 F.Supp. 778, 785 (D. Neb. 1971), affirmed, 453 F.2d 843 (8th Cir. 1972), cert.
denied, 406 U.S. 976 (1972). Accordingly, the error was harmless beyond a reasonable doubt.
See, e.g., Simpson v. Wainwright, 439 F.2d 948 (5th Cir. 1971), cert. denied, 402 U.S. 1011
(1971); United States v. Clayton, 418 F.2d 1274 (6th Cir. 1969), cert. denied, 399 U.S. 931
(1970).
2. Appellant's remaining contentions are without merit.
Affirmed.
____________
97 Nev. 247, 247 (1981) Ybarra v. State
BERNARD ANTHONY YBARRA, Appellant, v. THE
No. 11668
May 13, 1981 628 P.2d 297
Appeal from order denying motion for new trial, Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Movant, who had been convicted of first-degree murder, filed motion for new trial based
on newly discovered evidence. The district court denied the motion as untimely, and movant
appealed. The Supreme Court, Christensen, D. J., held that date of final judgment, within
meaning of statute which provided that motion for new trial based on newly discovered
evidence could be made only within two years after final judgment, was the last date for
taking an appeal if no appeal was taken, or, if an appeal was taken, the last date when the
appeal was terminated.
William N. Dunseath, Public Defender, and N. Patrick Flanagan, Deputy Public Defender,
1. Statutes.
Generally, statute adopted from another jurisdiction will be presumed to have been adopted with
construction placed on it by the courts of that jurisdiction before its adoption.
2. New Trial.
Date of final judgment, within meaning of statute which provided that motion for new trial based on
newly discovered evidence could be made only within two years after final judgment, was the last date for
taking an appeal if no appeal was taken, or, if an appeal was taken, the date when the appeal was
terminated. NRS 176.515, subd. 3.
OPINION
By the Court, Christensen, D. J.:
1

Bernard Anthony Ybarra was convicted of murder in the first degree on April 30, 1975.
Judgment was entered, and he was sentenced to life in prison with the possibility of parole.
His appeal was dismissed by this court on September 30, 1976. A petition for rehearing was
denied on November 8, 1976.
On August 11, 1978, appellant filed a motion for a new trial based on newly discovered
evidence. The motion was denied by the district court as untimely under NRS 176.515(3),
which provides in pertinent part: A motion for a new trial based on the ground of newly
discovered evidence may be made only before or within 2 years after final judgment. . . .
Appellant had argued that while the judgment was final for purposes of pursuing an appeal,
the judgment was not final for purposes of filing a motion for a new trial until the appellate
process was terminated. In rejecting this argument, the district court held that the judgment
was final when entered by the trial court.
We are faced with the issue of when a judgment is final for purposes of a motion for a
new trial based on newly discovered evidence.
[Headnote 1]
The statute in question here, NRS 176.515(3), was taken verbatim from Fed. R. Crim. P. 33.
Layton v. State, 89 Nev. 252, 510 P.2d S64 {1973).
____________________

1
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6 4.
510 P.2d 864 (1973). The general rule in Nevada is that a statute adopted from another
jurisdiction will be presumed to have been adopted with the construction placed upon it by
the courts of that jurisdiction before its adoption. See United States v. State ex rel. Beko, 88
Nev. 76, 493 P.2d 1324 (1972). Therefore, it is important to consider the construction which
the federal courts have placed upon Fed. R. Crim. P. 33.
[Headnote 2]
Federal case law is unanimous in holding that when an appeal is taken, the date of final
judgment, for purposes of the filing of a motion for new trial on the ground of newly
discovered evidence, is the date on which the appellate process is terminated. See United
States v. White, 557 F.2d 1249 (8th Cir. 1977), cert. denied, 434 U.S. 870 (1977); United
States v. Holman, 436 F.2d 863 (9th Cir. 1970), cert. denied, 402 U.S. 913 (1971); United
States v. Granza, 427 F.2d 184 (5th Cir. 1970); Casias v. United States, 337 F.2d 354 (10th
Cir. 1964); Smith v. United States, 283 F.2d 607, 610 (D.C. Cir. 1960) (concurring opinion);
United States v. Crawley, 32 F.R.D. 168 (W.D.S.C. 1963). It would be inconsistent to
disregard unanimous federal authorities in interpreting NRS 176.515(3), which was derived
from the federal rule.
We hold that the meaning of the term final judgment for purposes of NRS 176.515(3),
should be:
(1) the last date for taking an appeal, if no appeal is taken; or
(2) if an appeal is taken, the date when the appeal is terminated.
Since appellant filed his motion for a new trial within two years of the termination of the
appellate process, the district court erred in denying it as untimely.
Reversed and remanded for further proceedings.
____________
97 Nev. 250, 250 (1981) Dutt v. Duvall
VIRGIL D. DUTT, Appellant, v. BLANCHE
DUVALL, Respondent.
No. 11068
May 15, 1981 628 P.2d 298
Judge.
Assignee of a garage construction contract brought action against garage owner to recover
balance of contract. The district court entered judgment denying recovery, and assignee
appealed. The Supreme Court held that garage's builder had satisfactorily completed garage,
and was entitled to receive balance due under contract, minus amount paid by owner to
remove materialman's lien, despite decision of bank to forego collection on balance due on
construction loan to builder following builder's default, since such decision did not affect
builder's right to recover amount due him under contract; thus, assignee was entitled to
amount due under contract.
Paul J. Williams, Reno, for Appellant.
Fran Archuleta, Reno, for Respondent.
Contracts.
Decision of bank to forego collection on balance due on construction loan issued to builder to finance
construction of a garage pursuant to construction contract, following builder's default, did not affect
builder's right to recover amount due him under contract.
OPINION
Per Curiam:
Appellant Virgil Dutt is the assignee of a garage construction contract between Storey
Improvement Company (Storey) and respondent Blanche Duvall. The original contract price
was $2,800, with a down payment of $300 by Duvall, and the balance to be financed.
After a trial before the court, the district judge found that Storey, as part financing, had
borrowed $1,900 from the Nevada National Bank, that it proceeded to construct the garage
and did so in a workman-like manner, and that the garage was constructed according to the
contract between the parties. A lien of $1,045 was placed on the property by the lumber
supplier because Storey had failed to pay for the lumber and respondent was required to
satisfy the lien.
97 Nev. 250, 251 (1981) Dutt v. Duvall
The district court determined that the respondent owed a balance of $1,754.11 on the
contract. However, judgment was entered denying recovery to either party because Storey had
defaulted on repayment of the $1,900 to the bank and rather than pursue the matter,the bank
had written off the loan.
The district court reasoned, as a matter of law, that Storey had the benefit of the $1,900
and therefore was not entitled to compensation under the contract. This was error. Storey had
satisfactorily completed the garage, and was entitled to receive the balance due under the
contract, minus the amount paid by respondent to remove the materialman's lien. The
decision of the bank to forego collection on the balance due on the loan to Storey does not, as
a matter of law, affect Storey's right to recover the amount due to it under the contract. Fuller
v. United Electric Co., 70 Nev. 448, 273 P.2d 136 (1954).
The matter is reversed and remanded for the limited purpose of allowing the district court
to enter a judgment for $1,754.11, plus interest, in favor of appellant and against respondent.
In all other respects the judgment of the district court is affirmed.
____________
97 Nev. 251, 251 (1981) Brown v. Eiguren
WILFRED P. BROWN and MARY E. BROWN, Appellants, v. SHARON LYNN MACKIE
EIGUREN and NED TURNER, Co-Administrators of the Estate of JOE MACKIE,
Deceased, Respondents.
No. 11914
May 19, 1981 628 P.2d 299
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Creditor claimants, whose claim for wrongful death against decedent's estate was formally
rejected by the administrator of the estate, commenced an action for wrongful death. The
administrator moved for summary judgment on the ground that the action was barred by the
general statutes of limitation. The district court granted summary judgment against the
claimants, and claimants appealed. The Supreme Court, Manoukian, J., held that where
claimants timely filed their claim with administrator of decedent's estate but administrator did
not formally reject claim for three years, during which time general statutes of limitation on
wrongful death actions would have run, statutes of limitation were tolled until administrator
had acted upon claim, and thus action which was commenced in court within 60 days of
creditor claimants' receipt of administrator's notice of rejection was not barred.
in court within 60 days of creditor claimants' receipt of administrator's notice of rejection was
not barred.
Reversed.
Guild, Hagen & Clark, Ltd., and C. David Russell, Reno, for Appellants.
Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, for Respondents.
Executor and Administrators.
Where creditor claimants timely filed their claim for wrongful death with administrator of decedent's
estate, but administrator did not formally reject claim for three years, during which time general statutes of
limitation on wrongful death actions would have run, statutes of limitation were tolled until administrator
had acted upon claim, and thus action which was commenced in court within 60 days of creditor claimants'
receipt of administrator's notice of rejection was not barred, though claimants could have filed complaint
anytime after claim was deemed rejected by failure of administrator to act on it within 15 days. NRS
11.190, subd. 4(e), 11.310, 147.130, subd. 1.
OPINION
The question confronting us is whether the trial court erred in granting summary judgment
in favor of respondents-co-administrators upon the ground that the general statute of
limitations had run. We conclude that the statute had not run and reverse.
This case involved a wrongful death action brought by plaintiffs-appellants, Wilfred P.
Brown and Mary E. Brown, husband and wife, against the estate of Mackie,
defendant-respondent, with reference to their son, Richard P. Brown, and grandson, Bradley
P. Brown.
On December 22, 1974, an aircraft piloted by Joe Thomas Mackie, a resident of Humboldt
County, Nevada, crashed in California resulting in the death of Mackie, Richard Brown,
Bradley Brown, and others. On January 27, 1975, Sharon Lynn Mackie Eiguren was
appointed Administratrix of the estate of Joe Mackie in Humboldt County. On that same date,
the notice to creditors was filed and publication thereof commenced on February 5, 1975.
On March 14, 1975, Ned Turner, by district court order, was appointed co-administrator of
the estate. Thereafter, on May 5, 1975, a creditor's claim was filed on behalf of appellants,
which was neither allowed nor rejected until March S, 197S at which time it was formally
rejected.
which was neither allowed nor rejected until March 8, 1978 at which time it was formally
rejected.
On May 3, 1978, the Browns commenced the instant action and on August 7, 1978, the
administrators of Mackie's estate filed a motion to dismiss claiming that the statute of
limitations (NRS 11.190(4)(e) and 11.310) had run. The district court, in granting the motion,
treated it as one for summary judgment.
In California, a wrongful death action must be filed within one year (Cal. Civ. Pro.
340.3), differing from the two year period in Nevada (NRS 11.190(4)(e)). Both California and
Nevada have statutes that provide that if the general statute of limitation has not run, even
though the person against whom the action may be brought dies, an action may be
commenced against his representatives [Nev. executors or administrators'] after the
expiration of that time within one [1] year of the issuing of letters testamentary or of
administration. Cal. Civ. Pro. 353; NRS 11.310(2). Absent a tolling of the limitation
period or an estoppel, under the limitation period in either state, this case would be untimely.
1

Appellants in this case timely filed their claim with the clerk of the court in which the
probate action was pending within 90 days after the publication of the notice to creditors.
NRS 147.040(1). However, the administrators of respondent estate failed to act on the claim
for approximately three years, contrary to NRS 147.110(3), and now assert that appellant's
action is barred by the failure to timely commence an action.
We reject respondent's assertion that because NRS 147.110(3) provides that if the estate's
representatives fail to act on a claim within 15 days, that the claim is deemed rejected, and
that the running of the one year limitation period was tolled only for those 15 days, if at all.
As we stated in a similar context in Wells v. Bank of Nevada, 87 Nev. 145, 148, 483 P.2d
205, 207 (1971),
The deemed rejection statute is directed primarily to the conduct of the estate's
personal representative, rather than to any duty on the part of the creditor. The statute
merely provides that if the administrator or executor does not act on the claim within
the 15-day period the claim shall be deemed rejected and the creditor may, thereafter,
commence an action to recover the claim in district court, provided it is not barred by
the general statute of limitations . . . He need not, however, bring the action within 30
days.
____________________

1
Although our decision is unaffected by the length of either states' general statute of limitation, we conclude
that California's statute is controlling. Alberding v. Brunzell, 601 F.2d 474, (9th Cir. 1979); NRS 11.020.
To rule otherwise would emasculate the notice provisions of NRS 147.130 . . . which
specify that the . . . special statute shall commence to run when the claim has been
rejected by the personal representative and notice of the rejection has been given to the
creditor.
(Emphasis added.) We noted that to rule otherwise, would mean that every creditor or
claimant would be duty bound to commence an action in district court within a set period
after the time for filing claims had expired if the personal representative had not acted upon
the claim entailing additional litigation and costs to the estate. Id.
Although no disablement or legal impediment appears from the record, and appellants
could have filed their wrongful death complaint at any time during the period set forth in
NRS 11.310(2) or at any time after their estate claim may have been deemed rejected under
NRS 147.110(3); cf. 147.130(1), we believe that it was the purpose of the legislature to afford
to creditor claimants who comply with the claim statute, protection against the general statute
of limitations. Here, appellants were not notified of the claim's rejection as required by NRS
147.130(1). The time within which the claimant must file his complaint only begins to run on
the date when the executor notifies the claimant of the rejection. We find nothing in our
statutes expressly setting forth a special statute of limitations that would bar this suit.
Additionally, appellants complied with the statutory requirement by commencing suit within
60 days after notice of rejection. NRS 147.130(1).
We perceive no practical distinction between the case before us and Wells, and hold that
the time within which an action must be commenced does not begin to run until the claim has
been actually rejected; that inaction of the estate's representative operates to toll the running
of the general statute of limitations, provided the claim is filed within the 90 days required by
NRS 147.040(1) and prior to that time the action is not already barred by the running of the
applicable limitation period. NRS 147.090.
2
To hold otherwise would result in additional
litigation, inconvenience and costs to the estate. Moreover, if the statute of limitations were to
continue to run during the pendency of the claim until after its rejection, the claim could be
defeated as a result of inaction. In re Estate of Feinberg, 223 N.E.2d 780 (N.Y. 1966). This
would be unjust.
____________________

2
Nevertheless, we express no opinion relative to the result in future cases, should an estate's representative
fail to affirmatively plead the statute of limitations or laches as a defense. See NRCP 8 (c).
The order granting summary judgment was erroneously entered. We reverse and remand
for trial.
Gunderson, C. J., and Batjer, Springer, and Mowbray, JJ., concur.
____________
97 Nev. 255, 255 (1981) Nev. St. Bd., Dental Exam'rs v. Toogood
THE NEVADA STATE BOARD OF DENTAL EXAMINERS, Appellant,
v. GARY D. TOOGOOD, D.D.S., Respondent.
No. 11304
May 26, 1981 628 P.2d 301
Appeal from judgment. Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
State Board of Dental Examiners appealed from a judgment of the district court which
vacated Board's order suspending dentist from practice for three months on basis of a finding
that dentist had furnished drugs to a patient outside the practice of dentistry. The Supreme
Court, Batjer, J., held that: (1) it was unnecessary for district court to reach questions of the
over-broadness and vagueness of the section of the Dental Act which defines dishonorable
or unprofessional conduct, in that dentist's conduct fell within subdivision of such section
which includes Willful negligence in the practice of dentistry within the definition of
dishonorable or unprofessional conduct, and thus court's finding of unconstitutionality
amounted to a nullity, and (2) Board did not act in an arbitrary or capricious manner or abuse
its discretion in imposing the three-month suspension.
Reversed.
Diehl, Recanzone & Evans, Fallon, for Appellant.
Petersen & Petersen, and Johnson, Belaustegui & Robison, Reno, for Respondent.
It was unnecessary for district court to reach questions of over-broadness or vagueness of statute which
defines dishonorable or unprofessional conduct under Nevada Dental Act in proceeding brought by State
Board of Dental Examiners against dentist on basis of charge that dentist had furnished drugs to a patient
outside the practice of dentistry and that such conduct constituted dishonorable and unprofessional
conduct, in that dentist's conduct fell within subdivision of statute including within definition of
dishonorable or unprofessional conduct "Willful negligence in the practice of dentistry,"
and thus district court's finding of unconstitutionality amounted to a nullity.
unprofessional conduct Willful negligence in the practice of dentistry, and thus district court's finding of
unconstitutionality amounted to a nullity. NRS 631.050, 631.050, subds. 1(o), 2.
2. Physicians and Surgeons.
In proceeding brought by State Board of Dental Examiners against dentist on basis of charge that dentist
furnished drugs to a patient outside the practice of dentistry and that such conduct constituted dishonorable
and unprofessional conduct, Board did not act in an arbitrary or capricious manner or abuse its discretion
in imposing a three-month suspension from the practice of dentistry. NRS 233B.140, subd. 5, 631.010 et
seq.
OPINION
The Nevada Board of Dental Examiners (Board), appellant, filed an administrative
complaint on November 16, 1976, against respondent Gary D. Toogood, a licensed dentist.
The complaint alleged that Toogood was guilty of dishonorable and unprofessional conduct,
as defined in Chapter 631 of the Nevada Revised Statutes. Subsequently, the Board held a
hearing on the charges.
A patient who was also a friend of the respondent's asked the doctor if he would allow him
to order schedule II controlled substances through his office enabling the patient to secure the
drugs at wholesale prices. See NRS 453.171. The patient represented to the respondent that he
wanted the drugs for his father, who was ill. From June, 1971, to January, 1976, the patient
secured large quantities of schedule II controlled substances, including secobarbital, chloral
hydrate, APC with codeine phosphate, Woltussin A.C. syrup, amphetamine sulphate, codeine
sulphate, amphetamines, and butabrarbital sodium.
The respondent testified that he furnished the drugs to the patient and that they were not
furnished as part of any medical treatment of the patient. (An investigator for the Nevada
State Division of Investigations and Narcotics testified at the Board's hearing that he
interviewed the patient's father's doctor who emphatically denied that the patient's father had
taken the furnished drugs.) Respondent also testified that he did not keep track of the quantity
of drugs or the frequency with which the patient was ordering them. However, he did say that
he knew that the patient was ordering drugs.
The Board found that respondent had furnished the drugs to the patient outside the practice
of dentistry and that his conduct constituted dishonorable and unprofessional conduct as
provided in NRS Chapter 631. He was suspended from the practice of dentistry for three
months commencing May 15, 1977, and was required to relinquish his license to obtain
and dispense controlled substances.
practice of dentistry for three months commencing May 15, 1977, and was required to
relinquish his license to obtain and dispense controlled substances.
Respondent filed a petition for judicial review under NRS 233B in the district court. The
district court found the Board's requirement that respondent relinquish his license to dispense
controlled substances fair, just and proper punishment.
1
It went on to find NRS 631.050(2)
to be unconstitutionally overbroad and vague as applied in this case, and vacated the Board's
order suspending Toogood from practice for three months upon the ground that the order was
arbitrary and capricious. It is from this ruling that the Board appeals.
The Board contends that the district court erred when it (1) found NRS 631.050 to be
unconstitutional as applied to this case and (2) when it substituted its judgment for that of the
Board in the matter of discipline.
[Headnote 1]
1. Although concluding that NRS 631.050(2) is constitutional on its face, the district court
found it to be unconstitutional as applied in this case. It found that in the absence of a
conviction involving moral turpitude or at least the establishment of the commission of acts
which clearly involve moral turpitude, the term unprofessional conduct as used in NRS
631.050(2) is unconstitutionally overbroad and vague as applied in this case.
NRS 631.050(1),
2
subsections (a) through (r), expressly enumerate certain acts which
constitute dishonorable or unprofessional conduct under the Nevada Dental Act.
____________________

1
The State Board of Pharmacy and Toogood stipulated that Toogood relinquish his narcotic dispensing
license. That portion of the Board's decision is not in issue on this appeal.

2
1. As used in this chapter, dishonorable or unprofessional conduct is declared to include:
(a) Conviction of a felony or misdemeanor involving moral turpitude, or conviction of any criminal
violation of this chapter; or
(b) Employing, directly or indirectly, any student or any suspended or unlicensed dentist to perform
operations of any kind in treating or correction of the teeth or jaws, except as provided in this chapter; or
(c) The publication or circulation, directly or indirectly, of any fraudulent, false or misleading
statement as to the skill or method of practice of any dentists; or
(d) The use of advertising in which reference is made to any anesthetic, drug, formula, material,
medicine, method or system used or to be used; or the advertising of the performance of any dental
operation without causing pain; or the advertising of any free dental service or examination as an
inducement to secure dental patronage; or the advertising of price, cost, charge, fee or terms of credit for
the services performed or to be performed, or for material used or to be used, by any person engaged as
sional conduct under the Nevada Dental Act. NRS 631.050(2)
3
generally provides that the
enumeration of the acts in subsection 1 shall not be construed as a complete definition of
dishonorable or unprofessional conduct or as limiting or restricting the Board from
holding that other or similar acts constitute unprofessional or dishonorable conduct.
____________________
principal or agent in the practice of dentistry; or the advertising of a guarantee for any dental services; or
the advertising of artificial teeth or dentures with or without the use of any representation of a tooth,
teeth, bridgework or denture, or of any portion of the human head, or the exhibition or use of specimens
of dental work, large display signs, glaring light signs, electric or neon, or any signs, posters or other
media calling attention of the public to any person engaged in the practice of dentistry. Any person taking
up or retiring from the practice of dentistry, changing his place of business or business telephone, or who
intends to absent himself from, or return to, his place of business may advertise such fact in a newspaper
for not more than 3 successive publications, which advertisement shall not exceed 2 column inches; or
(e) The claiming or inferring of professional superiority over neighboring practitioners; or
(f) The giving of a public demonstration of skill or methods of practicing upon or along the streets or
highways or any place other than the office where the licensee is known to be regularly engaged in his
practice; or
(g) Fraud or misrepresentation in connection with the securing of a license; or
(h) Willful or repeated violations of the rules of the board of health; or
(i) Division of fees or agreeing to split or divide the fees received for services with any person for
bringing or referring a patient, without the knowledge of the patient or his legal representative, but this
shall not be construed to forbid licensed dentists from practicing in a partnership and sharing professional
fees, to forbid a licensed dentist from employing another licensed dentist or dental hygienist, or to forbid
a licensed dentist from rendering services as a member of a nonprofit professional service corporation; or
(j) Employing, procuring, inducing, aiding or abetting a person not licensed or registered as a dentist
to engage in the practice of dentistry; but the patient practiced upon shall not be deemed an accomplice,
employer, procurer, inducer, aider, or abettor within the meaning of this chapter; or
(k) Professional connection or association with, or lending his name to, anyone who is engaged in the
illegal practice of dentistry; professional connection or association with any person, firm or corporation
holding himself, themselves, or itself out in any manner contrary to this chapter; or
(l) Use of the name clinic, institute, or other title or designation that may suggest a public or
semipublic activity; or
(m) Failure to pay license fees; or
(n) Chronic or persistent inebriety, or addiction to a controlled substance as defined in chapter 453 of
NRS, to such an extent as to render him unsafe or unreliable as a practitioner, or such gross immorality as
tends to bring reproach upon the dental profession; or
(o) Willful negligence in the practice of dentistry or dental hygiene; or
(p) Practice by a dental hygienist in any place not authorized by this chapter; or
(q) Practice while his license is suspended or without a renewal certificate; or
(r) Practicing under a false or assumed name.

3
The enumeration of the acts in subsection 1 shall not be construed as a
orable or unprofessional conduct or as limiting or restricting the Board from holding that
other or similar acts constitute unprofessional or dishonorable conduct.
Appellant claims that NRS 631.050 does not require conduct involving moral turpitude
and in fact only subsections (a), (g) and (o) contain any implication of moral turpitude.
A review of the record in this case clearly establishes unprofessional and dishonorable
conduct on the part of respondent. See NRS 631.050.
The furnishing of schedule II controlled substances to someone who is not a patient is
contrary to NRS 453.381. There was never a question that the respondent willfully allowed
the patient carte blanche authority to secure the drugs wholesale. The respondent admitted
that he failed to supervise his office personnel adequately so as to know the extent of which
the patient was ordering the drugs. See Moore v. Board of Trustees, 88 Nev. 207, 495 P.2d
605 (1972).
We believe that the respondent's conduct clearly falls within NRS 631.050(1)(o): Willful
negligence in the practice of dentistry . . . The action of the Board can be affirmed on that
ground. It was unnecessary for the district court to reach the questions of the constitutionality
of NRS 631.050(2), and its finding of unconstitutionality amounts to a nullity.
[Headnote 2]
2. The district court found:
That the Petitioner has already suffered substantial prejudice and punishment as a result
of press publicity in connection with attempted criminal charges arising from the same
alleged conduct which was the subject of the administrative complaint against him, and
the mental anguish and concern arising from such criminal charges which were
ultimately dismissed as being without sufficient legal basis.
The appellant argues that the district court substituted its judgment for that of the Board's
as to the punishment appropriate for Toogood. Appellant's contention has merit.
The district court, in its decision, states:
The ultimate issue presented to this court is what should be the appropriate result and
punishment to be imposed herein? The standard of judicial review within NRS 233B
as set forth in NRS 233B.140{5)4 precludes the reviewing court from substituting
its judgment for that of the agency.
____________________
complete definition of dishonorable or unprofessional conduct, or as authorizing or permitting the
performance of other and similar acts, or as limiting or restricting the board from holding that other or
similar acts constitute unprofessional or dishonorable conduct.
The standard of judicial review within NRS 233B as set forth in NRS 233B.140(5)
4
precludes the reviewing court from substituting its judgment for that of the agency.
Our review of the record fails to show that the Board acted in an arbitrary or capricious
manner or abused its discretion in imposing the three month suspension. Accordingly, the
district court's modification of that suspension is reversed and the Board's findings of fact,
conclusions of law and decision filed April 11, 1977, is reinstated.
____________________

4
NRS 233B.140(5) provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact. The court may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been
prejudiced before the administrative findings, inferences, conclusions or decision are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon lawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
____________
97 Nev. 260, 260 (1981) County of Clark v. City of Las Vegas
COUNTY OF CLARK, by and Through its Board of County Commissioners, THALIA
DONDERO, Chairman, DAVID CANTER, Vice Chairman, ROBERT N. BROADBENT,
SAM BOWLER, RICHARD RONZONE, MANUEL CORTEZ, and JACK PETITTI,
Constituting said Board, and Sheriff of Clark County, RALPH J. LAMB, Appellants, v. CITY
OF LAS VEGAS, NEVADA, by and Through its Board of City Commissioners, WILLIAM
H. BRIARE, RON LURIE, PAUL J. CHRISTENSEN, ROY WOOFTER and MYRON E.
LEAVITT, Constituting said Board, Respondents.
No. 12626
May 26, 1981 628 P.2d 1120
Appeal from order granting partial summary judgment. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
City filed suit for declaratory relief against county challenging constitutionality of statutes
mandating consolidation of county and city police agencies in any city which is the county
seat of a county having a population of 200,000 or more.
county and city police agencies in any city which is the county seat of a county having a
population of 200,000 or more. The district court granted partial summary judgment for city,
and county appealed. The Supreme Court, Batjer, J., held that: (1) statute mandating
consolidation of county and city police agencies in any city which is the county seat of a
county having a population of 200,000 or more is constitutional, and (2) statutory finding
formula, as amended, specifies rather than classifies and is therefore unconstitutional; thus,
law as it existed prior to amendments was controlling.
Robert J. Miller, District Attorney, Scott W. Doyle, Deputy District Attorney, Clark
County, for Appellants.
George F. Ogilvie, City Attorney, John H. Howard, Jr., Deputy City Attorney, Las Vegas,
for respondents City of Las Vegas and Board of City Commissioners.
Legislative enactments enjoy presumption of constitutionality; burden is upon attacking party to show
questioned statute to be unconstitutional.
2. Statutes.
Statute with a population classification which applies to a few counties, or even one county, is not in
contravention violation of State Constitution article forbidding enactment of local or special laws if
classification applies prospectively to all counties which might come within its designated class. Const.
Art. 4, 20, 21.
3. Statutes.
Statute with a population classification which applies to a few counties is not in violation of State
Constitution article requiring a uniform system of county and township government as long as use of
population criteria is rationally related to subject matter of statute and does not create odious or absurd
distinction. Const. Art. 4, 25.
4. Statutes.
Statute mandating consolidation of a county law enforcement agency with law enforcement agency of a
city which is the county seat of a county having a population of 200,000 or more is constitutional since
required consolidation is rationally related to legitimate legislative purpose of reducing duplication of
functions and expenses and of coordinating law enforcement efforts throughout metropolitan areas,
population limitation is prospectively applicable to all counties and county seats which might come within
its designated class, and limitations are neither odious, absurd, or bizarre and comport favorably with
established law. Const. Art. 4, 20, 21, 25; NRS 280.100.
5. Statutes.
Statutory funding formula, as amended, for statutorily mandated consolidation of county and city police
agencies in any city which is county seat of a county having a population of 200,000 or more specifies
rather than classifies and is therefore in violation of State Constitution article forbidding
enactment of local or special laws.
State Constitution article forbidding enactment of local or special laws. Const. Art. 4, 21; NRS
280.201, subd. 1(a).
6. Statutes.
Where amendments to statutory funding formula for statutorily mandated consolidation of county and
city police agencies in any city which is county seat of a county having a population of 200,000 or more
were unconstitutional, but original finding formula was constitutional, law as it existed prior to
amendments was controlling. NRS 280.201, subd. 1(a).
OPINION
The City of Las Vegas (City) and F. D. Houston,
1
a resident of Las Vegas, Nevada, filed
suit for declaratory relief against Clark County (County) challenging the constitutionality of
Chapter 280 of the Nevada Revised Statutes. That chapter mandates consolidation of county
and city police agencies in any city which is the county seat of a county having a population
of 200,000
2
or more. The legislation was first enacted in 1973 and the Legislature has
amended portions thereof during each successive legislative session.
In the district court the county moved for partial summary judgment based upon its
contention that NRS Chapter 280 did not constitute special or local legislation. The City filed
a cross-motion for partial summary judgment asking that NRS Chapter 280 be held
unconstitutional as a matter of law.
The district court granted partial summary judgment for the City, declaring portions of
NRS 280.100 and NRS 280.201 to be unconstitutional, granted the County's motion for
certification pursuant to NRCP 54(b) and ordered the parties stayed from implementing any
changes relating to the partial summary judgment pending appeal.
The County claims that the district court erred when it found NRS 280.100 and NRS
280.201 to be special or local legislation prohibited by the Nevada Constitution, art. 4, 20,
21 and 25, and therefore unconstitutional.
[Headnote 1]
Legislative enactments enjoy the presumption of constitutionality. The burden is upon the
attacking party to show the questioned statute to be unconstitutional.
____________________

1
F. D. Houston has not participated in this appeal.

2
NRS 280.100, which became effective in 1980 when the decennial census was reported, raised the county
population figure to 250,000.
questioned statute to be unconstitutional. Anthony v. State of Nevada, 94 Nev. 337, 341, 580
P.2d 939, 941 (1978); Damus v. County of Clark, 93 Nev. 512, 516, 569 P.2d 933, 935
(1977); Viale v. Foley, 76 Nev. 149, 152, 350 P.2d 721, 722 (1960).
1. The district court declared NRS 280.100 to be unconstitutional as originally enacted
because it included the date of July 1, 1973.
3
The court found upon a fair reading that the
date operated as an absolute cutoff beyond which no additional cities or counties would be
compelled by law to merge. Since Clark County and Las Vegas were the only entities meeting
the requirements on that date, the court found the statute to be impermissible special
legislation. This conclusion was erroneous because by Chapter 572 of the 1979 Statutes of
Nevada, the legislature deleted the date which, according to the ruling of the district court,
rendered NRS 280.100(1) unconstitutional. If the original insertion of July 1, 1973 into
NRS 280.100(1) rendered that section unconstitutional, its deletion by amendment cured the
defect. McCormick v. District Court, 69 Nev. 214, 221, 246 P.2d 805, 808 (1952).
[Headnote 2]
2. NRS 280.100 mandates consolidation of a county law enforcement agency with the law
enforcement agency of a city which is the county seat, if the county's population is 200,000 or
more. The district court found NRS 280.100 to be illusory because it was not reasonably
and rationally related to a legitimate legislative purpose and therefore unconstitutional. This
was error. If the Legislature enacts a statute with a population classification which applies to
a few counties, or even to one county, it is not necessarily in contravention of the Nevada
Constitution, art. 4, 20 and 21, which forbids the enactment of local or special laws. Viale
v. Foley, supra.
If the classification applies prospectively to all counties which might come within its
designated class, it is neither local nor special. Reid v. Woofter, 88 Nev. 378, 380, 498 P.2d
361, 367 (1972); Fairbanks v. Pavlikowski, 83 Nev. 80, 83, 423 P.2d 401 (1967).
____________________

3
NRS 280.100 formerly read:
1. Each county which has a population of 200,000 or more and the city which is the county seat of each
such county shall comply with the provisions of this chapter on July 1, 1973. Any other city in any such
county may comply with provisions of this chapter on or after July 1, 1973.
2. Each county which has a population of less than 200,000, and any city or cities located in the county
may comply with the provisions of this chapter on or after July 1, 1973.
[Headnote 3]
Nor is such an enactment in violation of the Nevada Constitution, art. 4, 25, which
requires a uniform system of county and township government as long as the use of the
population criteria is rationally related to the subject matter and does not create an odious or
absurd distinction. Anthony v. State of Nevada, 94 Nev. 338, 341, 580 P.2d 939, 941 (1978).
Although the district court correctly found the intended legislative purpose as expressed in
Chapter 568 of the 1973 Statutes of Nevada was to reduce duplication of functions and
expenses and to coordinate law enforcement efforts throughout the metropolitan areas, it
nevertheless went on to determine the legislative purpose would not be served by the
population based mandatory merger provisions of NRS 280.100, both as originally enacted
and as amended by Chapter 338, 1979 Statutes of Nevada. See NRS 280.010.
For nearly a century this court has continued to approve use by the legislature of a
population criterion in effecting laws which may nevertheless be deemed general.
4
State v.
Donovan, 20 Nev. 75, 15 P. 783 (1887); Damus v. County of Clark, supra; Anthony v. State,
supra; accord, Reid v. Woofter, supra.
However, the use must be rationally related to the subject matter and must not create
odious or absurd distinctions. Anthony v. State of Nevada, supra.
[Headnote 4]
Here, the required consolidation of law enforcement agencies of the county seat and the
county within the population limitations is as rationally related to the subject matter and the
purpose of the act as were the relationships in the previously decided cases. NRS 280.010.
The population limitation is prospectively applicable to all counties and county seats which
might come within its designated class. Furthermore, the limitations are neither odious,
absurd or bizarre and comport favorably with established law. As a result, we reverse the
district court and find NRS 280.100 to be constitutional.
[Headnotes 5, 6] {1SS5); Anthony, supra, at 342, 5S0 P.2d at 942.
3. We turn now to consider the funding formula and find that NRS 280.201(1)(a) specifies rather than classifies
and is therefore constitutionally impermissible and in contravention of Nevada Constitution, art. 4, 21. State v.
Boyd, 19 Nev. 43
____________________

4
The general power to make a classification of counties based upon a voting population, is expressly
recognized in Young v. Hall, 9 Nev. 212 (1874); State v. Woodbury, 17 Nev. 337 (1883).
(1885); Anthony, supra, at 342, 580 P.2d at 942. The unconstitutional specification did not
appear in the original enactment of 1973,
5
but was added in the amendments of 1977
6
and
1979.
7
Because these specifications in the plan for apportionment of expenses, as amended,
are unconstitutional, the law as it existed prior to the amendments will be controlling.
Johnson v. Goldman, 94 Nev. 6, 9, 575 P.2d 929, 930 (1978).
4. Although both the City and the County, in briefs filed with this court, extensively
discuss the question of the constitutionality of those particular sections of Chapter 338, 1979
Statutes of Nevada, which raised the population classification factor from 200,000 to
250,000, that question is not now before us. In the order granting partial summary judgment,
the district court specifically found those sections of Chapter 338, 1979 Statutes of Nevada,
which change the population classification factor in NRS Chapter 280 from 200,000 to
250,000, to be unconstitutional. The County has chosen not to appeal from that finding, and
has specifically conceded the unconstitutionality of the change from 200,000 to 250,000.
Upon that issue the partial summary judgment of the district court remains in full force and
effect.
The judgment of the district court is affirmed in part and reversed in part in conformance
with this opinion.
____________________

5
1973 Nev. Stats. Ch. 568, 21 at 918:
1. Commencing with the preparation of the budget for the first fiscal year after merger and annually
thereafter, the governing bodies of the various participating political subdivisions shall, in determining
the amounts of their respective budget items allocated to law enforcement, apportion among all the
participating political subdivisions the total anticipated capital and operating costs of the department, as
submitted by the police commission, on the basis of a formula which has been approved by the Nevada
tax commission.

6
1977 Nev. Stats. Ch. 196, 3(1)(a) at 363:
In those counties which have:
Only one participating city, the county and the city shall pay equal shares of the total capital and
operating costs of the department.

7
1979 Nev. Stats. Ch. 518, 1(a) at 1002:
In those counties which have:
(a) Only one participating city, the county shall pay 53 percent and the city shall pay 47 percent of the
total capital and operating costs of the department.
____________
97 Nev. 266, 266 (1981) Walker v. State
FREDDIE MARTIN WALKER, Appellant, v. THE
No. 11339
May 27, 1981 628 P.2d 680
Appeal from judgment of conviction for first degree murder after a jury trial, Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that where the prosecution knew that its key witness had testified
falsely, although perhaps unwittingly, on a point highly relevant to his credibility, the
existence of a plea bargain agreement, and where the prosecution failed to correct the
falsehood, the conviction was constitutionally infirm.
Heaton and Wright, Las Vegas, for Appellant.
James Tufteland and Gary Weinberger, Deputy District Attorneys, Clark County, for
Respondent.
Criminal Law.
Where prosecution knew that its key witness had testified falsely, although perhaps unwittingly, on point
highly relevant to his credibility, the existence of a plea bargain agreement, and prosecution failed to
correct the falsehood, conviction was constitutionally infirm.
OPINION
Per Curiam:
A jury convicted appellant Walker of first degree murder. On appeal, appellant contends
that the prosecution's failure to reveal a plea bargain agreement with a key witness, one
Thomas, denied appellant due process of law. We agree.
Appellant had informed the police that another man, whom he identified as perpetrating
the crime, had sold the murder weapon to Thomas. The police found the gun in Thomas'
possession, but Thomas asserted that appellant, rather than the man named by appellant, had
sold him the weapon. Thomas' attorney then negotiated a plea bargain agreement to the effect
that, if Thomas were later convicted on certain other criminal charges, the State would
recommend probation for Thomas. In sum, by testifying against appellant, Thomas not only
avoided any charges arising from the murder in question, but also avoided the possibility
of imprisonment on the other unrelated felony charges.
97 Nev. 266, 267 (1981) Walker v. State
sum, by testifying against appellant, Thomas not only avoided any charges arising from the
murder in question, but also avoided the possibility of imprisonment on the other unrelated
felony charges.
At appellant's trial, Thomas testified pursuant to his counsel's advice, asserting that he had
purchased the murder weapon from the appellant, rather than from the person appellant
identified. On cross-examination, Thomas admitted that a felony charge was pending against
him; however, he denied the existence of a plea bargain agreement with the district attorney's
office. The State asserts that Thomas' answers on cross-examination were not perjurious,
because neither his attorney nor the district attorney had disclosed the agreement to him.
However, it is clear the prosecutor knew that Thomas' testimony was not true, and that a plea
bargain agreement in fact existed.
In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court declared:
The partiality of a witness is subject to exploration at trial, and is always relevant as
discrediting the witness and affecting the weight of his testimony. 3A J. Wigmore,
Evidence 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure
of a witness' motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.
Id., at 316-17. This court has declared that, [i]f the state knows that its witness has testified
falsely on a point relevant to the credibility of that witness, and fails to correct that falsehood,
the conviction is constitutionally infirm. Hanley v. Sheriff, 85 Nev. 615, 617, 460 P.2d 162
(1969).
Here, the prosecution knew that its key witness had testified falsely, although perhaps
unwittingly, on a point highly relevant to his credibility. Nonetheless, the prosecution failed
to correct that falsehood. Therefore, appellant's conviction is constitutionally infirm.
Reversed and remanded for a new trial.
____________
97 Nev. 268, 268 (1981) Noland v. Westinghouse Elec. Corp.
DOUGLAS NOLAND, Appellant, v. WESTINGHOUSE
ELECTRIC CORPORATION, Respondent.
No. 10998
May 28, 1981 628 P.2d 1123
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Employee of subcontractor brought suit against another subcontractor which was
manufacturer and installer of elevator to recover damages for injuries he sustained on
construction project as result of elevator free-fall. The district court granted summary
judgment in favor of manufacturer, and plaintiff appealed. The Supreme Court, Batjer, J.,
held that: (1) plaintiff and defendant were coemployees for purpose of Industrial Insurance
Act, and (2) defendant, as statutory coemployee of plaintiff, was entitled to immunity
afforded by Industrial Insurance Act.
Affirmed.
Daryl Engebregson, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondent.
1. Workers' Compensation.
Plaintiff, who as employee of subcontractor, sustained injuries on construction project as a result of
elevator free-fall, and defendant which was manufacturer and installer of elevator pursuant to subcontract
with general contractor, were coemployees for purpose of Industrial Insurance Act. NRS 616.085.
2. Workers' Compensation.
Subcontractor which was manufacturer and installer of elevator pursuant to subcontract with general
contractor was, as statutory coemployee of plaintiff employee of another subcontractor who sustained
injuries on construction project as a result of elevator free-fall, entitled to immunity afforded by Industrial
Insurance Act, despite contention that court should adopt dual capacity doctrine, which would allow
injured employee to assert products liability claim against elevator manufacturer because manufacturer was
not acting merely as another subcontractor. NRS 6161.085.
OPINION
Appellant, Douglas Noland, brought suit to recover damages for injuries he sustained on a
construction project as a result of an elevator free-fall during the building of the Jockey Club
in Las Vegas, Nevada. A subcontractor, Bob Craig & Associates, Inc., employed appellant.
Another subcontractor, Westinghouse Electric Corporation {Westinghouse), was the
manufacturer and installer of the elevator pursuant to a subcontract with B.C.E., Inc., the
general contractor.
Club in Las Vegas, Nevada. A subcontractor, Bob Craig & Associates, Inc., employed
appellant. Another subcontractor, Westinghouse Electric Corporation (Westinghouse), was
the manufacturer and installer of the elevator pursuant to a subcontract with B.C.E., Inc., the
general contractor.
On the date of this accident, both Westinghouse and appellant's employer were insured
under the Nevada Industrial Insurance Act (NIIA). Appellant filed a claim for and received
benefits under the NIIA.
Appellant contends that the district court erred in granting summary judgment in favor of
Westinghouse because it remains to be determined whether Westinghouse was a fellow
servant of his under NRS 616.085.
Appellant further contends that this court should adopt the dual capacity doctrine,
1
which would allow him to assert a products liability claim against Westinghouse because
Westinghouse was not acting merely as any other subcontractor, but was also the
manufacturer, seller, supplier, installer and maintainer of the elevator equipment.
Respondent counters with the argument that there is no material issue of fact in the case
and that this court's holding in Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754
(1969), is dispositive.
____________________

1
This theory, known as the dual capacity doctrine, has been defined in the following terms:
[A]n employer normally shielded from tort liability by the exclusive remedy principle may become liable
in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that
confers on him obligations independent of those imposed on him as employer. 2A A. Larson, Workmen's
Compensation 72.80, at 14-112 (1976).
See also Kelly, Workmen's Compensation and Employer Suability: The Dual-Capacity Doctrine, 5 St. Mary's
L.J. 818 (1973-1974); A. Lambert, Manufacturer's Liability as a Dual Capacity of an Employer, 12 Akron
L.Rev. 747 (1979).
That doctrine has not been applied in Nevada. It has been applied in a few jurisdictions where highly unusual
fact situations have occurred. Reed v. The Yaka, 373 U.S. 410 (1963); Marcus v. Green, 300 N.E.2d 512 (Ill.
1973); Douglas v. E. & J. Gallo Winery, 137 Cal.Rptr. 797 (Cal.App. 1977); Bell v. Industrial Vangas, Inc., 168
Cal.Rptr. 41 (Cal.App. 1980). Cf. Provo v. Bunker Hill Company, 393 F.Supp. 778 (D.Idaho 1975) (dual
capacity doctrine recognized but not adopted). But see People v. Chrysler Corp., 296 N.W.2d 237 (Mich.App.
1980); Longever v. Revere Copper & Brass, Inc., 408 N.E.2d 857 (Mass. 1980); Schlenk v. Aerial Contractors,
Inc., 268 N.W.2d 466 (N.D. 1978). Contra State v. Purdy, 601 P.2d 258 (Alaska 1979) where that court said:
. . . [B]ecause of the persuasiveness of case law from other jurisdictions rejecting it, we reject the dual capacity
doctrine as the law of this state.
[Headnote 1]
1. As a matter of law, appellant and Westinghouse are coemployees and there can be no
remaining question of fact on that issue. NRS 616.085.
2

2. We turn now to consider the dual capacity argument. A rejection of that argument in
this case compels affirmance because absent the application of that doctrine, appellant's
exclusive remedy is within the NIIA.
No case has been called to our attention, nor has independent research discovered any
case, where statutory immunity of coemployees has been abrogated by the dual capacity
doctrine. One of the principal purposes of the NIIA and similar workmen's compensation
acts is to protect employees from the possible financial burden arising from injuries to
coemployees as a result of their negligence.
[Headnote 2]
We perceive no valid reason to deny Westinghouse, as the statutory coemployee of
appellant, the immunity afforded by NIIA, merely because it might have been serving the
general contractor in a capacity different than that of appellant who was injured. See
McCormick v. Caterpillar Tractor Co., 402 N.E.2d 412 (Ill.App. 1980).
In Aragonez v. Taylor Steel Co., supra, this court said, Nevada's Industrial Insurance Act
is uniquely different from the industrial insurance acts of other states in that independent
contractors and subcontractors by NRS 616.115
3
and NRS 616.085 are accorded the status
of employees. Id. at 720, 462 P.2d at 755.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and Breen, D. J.,
4
concur.
____________________

2
NRS 616.085:
Subcontractors and their employees shall be deemed to be employees of the principal contractor.

3
NRS 616.115:
Subcontractors shall include independent contractors.

4
The Governor designated The Honorable Peter I. Breen, Judge of the Second Judicial District, to sit in the
place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 271, 271 (1981) Eberhard Mfg. Co. v. Baldwin
EBERHARD MANUFACTURING COMPANY, a Division of EASTERN COMPANY, a
Corporation, Appellant, v. DANIEL CRAIG BALDWIN, a Minor Child, and ROBERT
BALDWIN and SHARON BALDWIN, Guardians ad Litem for DANIEL CRAIG
BALDWIN, Respondents.
No. 10838
DANIEL CRAIG BALDWIN, a Minor Child, and ROBERT BALDWIN and
SHARON BALDWIN, Guardians ad Litem for DANIEL CRAIG BALDWIN,
Appellants, v. PIEDMONT EQUIPMENT COMPANY, a Corporation, Respondent.
No. 10859
June 2, 1981 628 P.2d 681
Appeal from jury verdict in favor of Piedmont Equipment Company and against Eberhard
Manufacturing Company; from denial of Eberhard's Motion for New Trial and from denial of
Baldwins' Motion for Judgment Notwithstanding the Verdict, Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Appeal was taken from jury verdict entered in the district court in an action for injuries
sustained by child when he came into contact with an open high voltage electrical fuse box.
The Supreme Court, Manoukian, J., held that the parties waived the right to claim verdict
irregularity, where they failed to raise the objection before the jury was discharged,
notwithstanding that certain of the parties submitted alternative verdict forms, which, if
given, would have prevented the claimed inconsistent verdicts.
Affirmed.
Wiener, Goldwater & Waldman, Las Vegas, for Appellant Eberhard Mfg. Co.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondents-Appellants Baldwins.
Paul C. Parraguirre, Las Vegas, for Respondent Piedmont Equip. Co.
Appeal and Error.
Parties waived the right to claim verdict irregularity on appeal, where they failed to raise the objection
before the jury was discharged, notwithstanding that certain of the parties submitted alternative verdict
forms which, if given, would have prevented the claimed inconsistent verdicts.
OPINION
In this appeal, we are required to decide whether in assuming inconsistencies in the jury's
verdicts, appellant Eberhard, nevertheless now has standing to challenge the same, and
whether the trial court erred in its denial of appellants Baldwins' motion for judgment
notwithstanding the verdict. In affirming, we conclude that irrespective of whether the
verdicts were inconsistent, both appellants waived the right to claim verdict irregularity.
Appellant, Daniel Baldwin, age six, suffered severe personal injuries on January 25, 1972,
when he came into contact with an open high voltage electrical fuse box. After a protracted
trial, jury verdicts were entered in the sum of $806,000.00 against defendants Nevada Power
Company, the owner of the box, on a theory of negligence, and against Eberhard
Manufacturing Co., the designer and manufacturer of the locking mechanism for the fuse box
door, on a theory of strict products liability. The jury also returned a verdict against Baldwin
in favor of Piedmont Equipment Company, one of Eberhard's distributors. Baldwin timely
moved for Judgment Notwithstanding the Verdict, which was denied, as was Eberhard's
Motion for a New Trial. Eberhard and Baldwin appeal. The remaining defendants have not
appealed.
The trial court, in sustaining the jury verdicts found that there were procedural reasons for
denying defendants Eberhard and Kearney's motions. Even assuming the jury's verdicts are
inconsistent as a matter of law, the court reasoned, the parties were under a duty to raise the
objection before the jury was discharged so that any inconsistency or irregularity could have
been corrected at that time, citing Bradley v. Fessenden, 208 N.E.2d 828 (Mass. 1965). We
agree.
Had the parties timely entered objection when the verdicts were returned, the trial court
could have determined the validity of the objections. If it found merit in them, the court could
have further instructed the jury and sent it back for additional deliberation. Cf. Priest v.
Cafferata, 57 Nev, 153, 157-58, 60 P.2d 220, 221 (1936) (plaintiff's failure to object promptly
upon the jury's return to the courtroom constituted a waiver of misconduct as grounds for a
new trial.) Appellants Baldwins did submit alternative verdict forms which, if given, would
have prevented the claimed inconsistent verdicts. They contend that by doing so, they raised
sufficient objection to retain standing to challenge the verdicts.1 However, given the policy
considerations favoring the correction of any such error or irregularities at the trial level
and prior to the discharge of the jury, and the analogous precedent of Priest v. Cafferata,
supra, we conclude that Eberhard and the Baldwins waived the ground of an inconsistent
verdict in support of their motions, as a result of their failure to timely object to the filing
of the verdict or to move that the case be resubmitted to the jury. See Stucker v. Bibble,
442 S.W.2d 57S {Ky. 1969); Park v. Security Bank and Trust Co.,
standing to challenge the verdicts.
1
However, given the policy considerations favoring the
correction of any such error or irregularities at the trial level and prior to the discharge of the
jury, and the analogous precedent of Priest v. Cafferata, supra, we conclude that Eberhard
and the Baldwins waived the ground of an inconsistent verdict in support of their motions, as
a result of their failure to timely object to the filing of the verdict or to move that the case be
resubmitted to the jury. See Stucker v. Bibble, 442 S.W.2d 578 (Ky. 1969); Park v. Security
Bank and Trust Co., 512 P.2d 113 (Okl. 1973); Smith v. Shreeve, 551 P.2d 1261 (Ut. 1976).
An opposite result would be counter to our primary objective of the promotion and efficient
administration of justice. See Marko v. Stop and Shop, Inc., 364 A.2d 217 (Conn. 1975);
Barlow v. International Harvester Co., 522 P.2d 1102 (Idaho 1974); Bradley v. Fessenden,
supra.
Eberhard's contention regarding its rejected jury instructions on the question of proximate
cause is without merit, see Village Development Co. v. Filace, 90 Nev. 305, 314, 526 P.2d
83, 88 (1974), as is its contention that the jury verdicts were excessive. See Patton v.
Henrikson, 79 Nev. 197, 202-03, 380 P.2d 916, 918-19 (1963).
We affirm.
Gunderson, D. J., and Batjer, Springer, and Mowbray, JJ., concur.
____________________

1
In our view, the fact that the Baldwins submitted alternative verdict forms is merely indicative of a
pre-verdict awareness of potential irregularity which should have been objected to when the jury subsequently
rendered its verdicts.
____________
97 Nev. 273, 273 (1981) Dicus v. District Court
ERIC ALAN DICUS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, and THE
HONORABLE PETER I. BREEN, a District Judge Thereof, Respondents.
No. 12816
June 2, 1981 625 P.2d 1175
Original proceeding was instituted for extraordinary relief mandating that district court
transfer case and record to juvenile division. The Supreme Court held that case concerning
petitioner, who was under indictment for attempted murder alleged to have been committed
when he was 17 years old, was not subject to being transferred to juvenile division where
statute containing requirement that district court "forthwith transfer the case and record
to the juvenile division" contained an exception with respect to a charge of murder or
attempted murder.
not subject to being transferred to juvenile division where statute containing requirement that
district court forthwith transfer the case and record to the juvenile division contained an
exception with respect to a charge of murder or attempted murder.
Petition denied.
[Reporter's note: Opinion in the matter of Dicus v. District Court, No. 12816, filed April 1,
1981, 97 Nev. Adv. Op. 68 (625 P.2d 1175), was recalled June 2, 1981]
William Dunseath, Public Defender, and Lew W. Carnahan, Deputy Public Defender,
Washoe County, for Petitioner.
and Donald K. Coppa, Deputy District Attorney, Washoe County, for Respondent.
1. Infants.
Case concerning petitioner, who was under indictment for attempted murder alleged to have been
committed when he was 17 years old, was not subject to being transferred to juvenile division where statute
containing requirement that district court forthwith transfer the case and record to the juvenile division
contained an exception with respect to a charge of murder or attempted murder. NRS 62.050.
2. Infants.
When the adult court acquires jurisdiction in the prosecution of an offense excluded from juvenile court
jurisdiction, jurisdiction is maintained to convict of the charged crime and its lesser included offenses.
Whether battery with the use of a deadly weapon is a lesser included offense within the crime of
attempted murder depends on facts of each case.
4. Homicide.
Attempted murder can be committed with or without an assault or battery.
OPINION
Per Curiam:
Petitioner Dicus seeks extraordinary relief mandating that the district court forthwith
transfer the case and record to the juvenile division. Dicus is under indictment for attempted
murder alleged to have been committed when he was seventeen years old.
The words, forthwith transfer the case and record to the juvenile division are taken
directly from NRS 62.050, which is also cited in the body of the petition before us.
also cited in the body of the petition before us. NRS 62.050 reads as follows:
62.050. Transfer of cases to juvenile division. If, during the pendency of a criminal
or quasi-criminal charge, except a charge of murder or attempted murder, brought
against a person in any court, it is ascertained that the person was under the age of 18
years when the alleged offense was committed, the court shall forthwith transfer the
case and record to the juvenile division. The court making such transfer shall order the
child to be taken forthwith to the place of detention designated by the juvenile division
or to that court itself, or release the child to the custody of some suitable person, to be
brought before the court at a time designated.
[Headnote 1]
The statute excepts a charge of murder or attempted murder; the minor is under
indictment for attempted murder, so there can be no transfer to the juvenile division as
requested in the petition. See Lehmann v. Warden, 87 Nev. 24, 480 P.2d 155 (1971).
Although it is not requested in the prayer of the petition, petitioner states in the body of the
petition that he is seeking specific performance of his plea bargain. There was a plea
bargain in which Dicus agreed to plead guilty to a supplemental information charging battery
with the use of a deadly weapon. After the plea the trial judge had second thoughts, brought
Dicus and counsel back into court and, after concluding that there was not jurisdiction to
accept the plea, dismissed the supplemental information.
[Headnote 2]
It would appear that since the supplemental charge is for a criminal offense other than
murder or attempted murder, the matter must fall within the exclusive original jurisdiction
of the juvenile court. NRS 62.040. However, a number of jurisdictions have examined this
question and have concluded that when the adult court acquires jurisdiction in a prosecution
of an offense excluded from juvenile court jurisdiction, jurisdiction is maintained to convict
of the charged crime and its lesser included offenses. Gray v. State, 253 A.2d 395 (Md. 1969)
[Headnotes 3, 4]
Whether battery with the use of a deadly weapon is a lesser included offense within
attempted murder depends on the facts of each case.
of each case. Attempted murder can be committed with or without an assault or battery.
Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966).
Since this determination remains for the district court to make, extraordinary relief is
denied. The district court should proceed in a manner consistent with this opinion.
____________
97 Nev. 276, 276 (1981) Uzelac v. State
MIKE JOSEPH UZELAC, Appellant, v. THE
No. 10882
June 12, 1981 628 P.2d 1125
Appeal from conviction and judgment of the Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Howard Ecker, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
OPINION
Per Curiam:
For the reasons set forth in Bernier v. State, 96 Nev. 670, 614 P.2d 1079 (1980), we
reverse the judgment of conviction entered against appellant by the district court.
____________
97 Nev. 276, 276 (1981) Valley Bank of Nev. v. Dobson
VALLEY BANK OF NEVADA, Appellant, v. JOYCE MARIE
DOBSON and DONALD DOBSON, Respondents.
No. 12473
June 12, 1981 629 P.2d 229
Appeal from judgment against garnishee, Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Wife of beneficiary of profit sharing retirement plan sought writ of garnishment against
husband's portion of profit sharing retirement plan for judgments due her from husband and
named trustee of pension sharing retirement plan as garnishee, and trustee objected.
named trustee of pension sharing retirement plan as garnishee, and trustee objected. The
district court ordered execution upon beneficiary's portion of retirement plan, and garnishee
appealed. The Supreme Court held that inasmuch as husband did not have access to proceeds
in hands of trustee at this time, his wife was not entitled to them as garnishor.
Reversed.
Beckley, Singleton, DeLoney & Jemison, Las Vegas, for Appellant.
Clark and Zubel, Las Vegas, for Respondent Joyce Marie Dobson.
Freedman & Whelton, Las Vegas, for Respondent Donald Dobson.
Divorce.
Where beneficiary of profit sharing retirement plan did not have access to proceeds of retirement plan
until his employment relationship had been severed by retirement, termination, disability or death, where
there were no debts due him from garnishee at this time, and where his wife, garnishor, stood in same
position as he did as against garnishee, since beneficiary of retirement plan did not have access to proceeds
in hands of trustee, his wife was likewise not entitled to them as garnishor. NRS 31.390.
OPINION
Per Curiam:
Respondent Donald Dobson is employed by Exber, Inc., dba El Cortez Hotel and Casino.
Donald participates in the El Cortez Hotel and Casino Profit Sharing Retirement Plan of
which appellant is the trustee. At the time pertinent to this case, Donald's portion of the profit
sharing retirement plan totaled $107,000. According to the terms of the profit sharing
retirement plan, Donald is not entitled to disbursement of his portion of the fund until he
either retires, terminates his employment, is disabled, or dies. The profit sharing plan also
contains a spendthrift clause.
Respondent Joyce Marie Dobson has accumulated judgments against Donald for alimony
and child support payments totaling $17,535.98. Joyce Marie sought a writ of garnishment
against Donald's portion of the profit sharing retirement plan for the judgments due her from
Donald. Joyce Marie named appellant, the trustee of the pension sharing retirement plan, as
the garnishee.
the garnishee. Appellant objected to the garnishment action by Joyce Marie. The district
court, however, granted her request and ordered immediate execution upon Donald's portion
of the profit sharing plan.
Appellant contends that the district court erred when it ordered execution upon Donald
Dobson's portion of the retirement plan.
1
We agree.
This court has stated that garnishment invests a plaintiff-garnishor with the right to satisfy
his claim against a defendant with the debts due from a third-person, the garnishee, to the
defendant. As against the garnishee, plaintiff-garnishor occupies the same position as the
defendant. See McKelvey v. Crockett, 18 Nev. 238, 2 P. 386 (1884).
In the case at bar, Donald, defendant below, does not have access to the proceeds of the
retirement plan until his employment relationship with Exber, Inc., has been severed by
retirement, termination, disability, or death. There are no debts due him from the garnishee at
this time. Respondent Joyce Marie, plaintiff-garnishor, stands in the same position as Donald
as against the garnishee, appellant Valley Bank. Since Donald does not have access to the
proceeds in the hands of the trustee, it follows that Joyce Marie is likewise not entitled to
them as garnishor. See McKelvey v. Crockett, supra. See also Fordyce v. Fordyce, 365
N.Y.S.2d 323 (Sup.Ct. 1974). Cf. Lerner v. Williamsburg Savings Bank, 386 N.Y.S.2d 906
(Sup.Ct. 1976) (Keogh retirement plan subject to execution by former wife who is judgment
creditor when judgment debtor retained an interest in principal).
When the contingency occurs which will enable the proceeds to be disbursed to Donald,
Joyce Marie may be entitled to execution upon Donald's portion of the fund. See NRS 31.390.
We decline, however, to render a decision upon that issue at this time.
Accordingly, we reverse the order of the district court.
____________________

1
It should be noted that respondent Donald Dobson has filed a brief in which he states that he agrees with
the appellant's position in this appeal.
____________
97 Nev. 279, 279 (1981) Latham v. State
DAVID JOSEPH LATHAM, Appellant, v. THE
No. 12405
June 15, 1981 629 P.2d 780
Appeal from conviction, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Defendant was convicted in the district court of possession of controlled substance, and he
appealed. The Supreme Court held that issuance of search warrant based upon canine
investigation which indicated defendant's van might contain drugs was proper.
Affirmed.
Kevin Karp, Reno, for Appellant.
and Richard F. Cornell, Deputy District Attorney, Washoe County, for Respondent.
Drugs and Narcotics.
Issuance of search warrant based upon canine investigation which indicated defendant's van might
contain drugs was proper, although defendant contended that use of narcotic detection dog was
unreasonable exploratory search and that affidavit failed to mention that there was an anonymous tip with
respect to the defendant, in light of fact that affidavit indicated that prior to use of dog, there was suspicion
that controlled substances were located within van, affidavit did not indicate there was an indiscriminate
canine exploratory search, and indicated that dog was used as corroboration of suspicions or preknowledge
of police. U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
Appellant was convicted of possession of a controlled substance, NRS 453.336, after a
trial before the bench. Appellant was sentenced to a prison term of three years.
On May 31, 1979, police received an anonymous call from an acquaintance of appellant.
The caller stated that appellant would be traveling to California that night in an orange van
with brown striping for the purpose of picking up two pounds of marijuana. The caller
informed police that appellant would return to work on June 1, and that appellant's van would
probably be parked in his employer's parking lot on that day. On June 1, 1979, the police,
after securing the permission of appellant's employer, took a dog trained in narcotics
detection to the parking lot.
June 1, 1979, the police, after securing the permission of appellant's employer, took a dog
trained in narcotics detection to the parking lot. After the dog indicated that an orange van
with brown striping might contain controlled substances, the police obtained a search warrant
based upon an affidavit which contained the qualifications of the dog, the description of the
vehicle, and the results of the canine investigation.
After obtaining the search warrant the police approached appellant as appellant walked to
his vehicle. The police showed appellant the warrant and asked appellant to open the van.
Appellant opened the van and the dog continued his investigation within the vehicle. The dog
indicated that a locked briefcase might contain a controlled substance. Appellant stated that
he did not own the briefcase and that he did not have the key. While still in the parking lot,
police obtained the necessary tools and pried open the briefcase. The briefcase contained
eight bags of marijuana.
In a pretrial motion to suppress, appellant challenged the issuance of the search warrant
based upon the canine investigation. The district court found that the warrant was properly
issued and denied the motion. Appellant has appealed that determination.
Appellant contends that since the affidavit in support of the issuance of the search warrant
does not contain reference to the anonymous tip, the use of the narcotic detection dog was an
unreasonable exploratory search.
1
We do not agree.
Appellant primarily relies upon three California appellate decisions, People v. Evans, 134
Cal.Rptr. 436 (Cal.App. 1977), People v. Williams, 124 Cal.Rptr. 253 (Cal.App. 1975), and
People v. Furman, 106 Cal.Rptr. 366 (Cal.App. 1973). Those cases indicate that a search
with canines conducted without some preknowledge or reasonably strong suspicion that
contraband is to be found in a particular location is a constitutionally impermissible invasion
of the suspects' reasonable expectations of privacy and consequently a violation of the Fourth
Amendment. People v. Evans, supra at 441.
Appellant also cites United States v. Solis, 536 F.2d 883 (9th Cir. 1976). That case is
factually similar to the case at bar. It states that trained dogs may be used as a basis for
probable cause in appropriate cases. See also United States v. Fulero, 49S F.2d 74S {D.C.Cir.
____________________

1
Appellant also contends on appeal that a search warrant must be obtained prior to searching a locked or
closed container found during a lawful search of an automobile. We note that appellant abandoned this argument
at the hearing on the motion to suppress. Thus, we will not consider it on appeal. See Van Valkenberg v. State,
95 Nev. 317, 594 P.2d 707 (1979) (court declines to review jury instruction where record indicates that counsel
not only failed to object to instruction but also agreed to it).
498 F.2d 748 (D.C.Cir. 1974); United States v. Meyer, 536 F.2d 963 (1st. Cir. 1976); United
States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976); United
States v. Painter, 480 F.Supp. 282 (W.D.Mo. 1979).
The cases cited by appellant, when applied to the instant case, do not indicate that
appellant's fourth amendment rights have been violated. In the case at bar although the
affidavit does not mention the anonymous tip, it does indicate that prior to the use of the
narcotic detection dog, there was a suspicion that controlled substances were located within
a 1976 Dodge van, orange in color, bearing Nevada license WGV776. While it is true that
the affidavit could have been more carefully drawn, it appears that this affidavit is sufficient
even under the California standard. The affidavit does not indicate that there was an
indiscriminate canine exploratory search. The affidavit indicates that the dog was used as
corroboration of the suspicions or preknowledge of the police. Use of the dog for such
corroboration was reasonable under the circumstances. See United States v. Solis, supra.
The decision of the district court is affirmed.
____________
97 Nev. 281, 281 (1981) A Minor v. Juvenile Division
A MINOR, Appellant, v. JUVENILE DIVISION OF THE SEVENTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF LINCOLN,
Respondent.
No. 12482
A MINOR, Appellant, v. JUVENILE DIVISION, THIRD JUDICIAL
DISTRICT COURT, COUNTY OF CHURCHILL, Respondent.
No. 12645
June 16, 1981 630 P.2d 245
Consolidated appeals from Orders of Commitment; Third Judicial District Court,
Churchill County; Stanley A. Smart, Judge; and Seventh Judicial District Court, Lincoln
County; Merlyn H. Hoyt, Judge.
The Supreme Court, Springer, J., held that only children who have been adjudicated by
juvenile court to be delinquent may be committed to juvenile correctional institution and that
juveniles before court had not been properly convicted of delinquency.
Reversed.
Norman Y. Herring, Nevada State Public Defender; J. Gregory Damm, Chief Deputy,
Carson City, for Appellants.
John McGimsey, District Attorney, Lincoln County and John S. Hill, District Attorney,
Churchill County, respectively, for Respondents.
1. Infants.
It is doubtful that juvenile's admission that he missed some classes could be accepted when charge is
that he refuses to attend. NRS 62.040, subd. 1(b), (c), 201.090.
2. Infants.
Having a poor attitude is so obviously vague that it must be rejected as basis for deprivation of
juvenile's liberty. NRS 62.040, subd. 1(b), (c), 201.090.
3. Infants.
Only children who have been adjudicated by juvenile court to be delinquent may be committed to
juvenile correctional institution. NRS 62.010 et seq., 62.040, subd. 1 (b), (c), 210.010, subd. 3, 210.180,
210.580, subd. 1.
4. Infants.
Record failed to establish that juveniles who were committed to juvenile correctional institution were
validly adjudicated to be delinquents. NRS 62.040, subd. 1(b), (c), 62.193, 210.010 et seq.
5. Infants.
Juvenile correctional institutions are clearly to some degree punitive in nature. NRS 210.010, subd. 3,
210.180, 210.580, subd. 1.
6. Infants.
Nondelinquent children coming within jurisdiction of juvenile court may not be committed to juvenile
correctional institutions. NRS 62.040, subd. 1(b), (c), 62.193, 210.010 et seq.
7. Infants.
Even if statute did not limit training center commitment to children found to be delinquent, juvenile
courts would not have power to commit nondelinquent children to the punitive institution. NRS 62.040,
subd. 1(b), (c), 62.193, 210.010 et seq.
8. Infants.
Legislature could punish youthful violators in criminal justice system. NRS 62.040, subd. 1(b), (c),
62.193, 210.010 et seq.
9. Infants.
State has inherent power to punish delinquent children by committing them involuntarily to correctional
institution but does not have such power over nondelinquent children. NRS 62.040, subd. 1(b), (c),
62.193, 210.010 et seq.
10. Infants.
Juvenile court's jurisdiction over nondelinquent children is derived not from criminal law but from equity
and application of doctrine of parens patriae. NRS 62.040, subd. 1(b), (c), 62.193, 210.010 et seq.
11. Infants.
Nondelinquent children must be treated by state so that they may be helped and not punished. NRS
62.040, subd. 1(b), (c), 62.193, 210.010 et seq.
12. Infants.
To sustain adjudication of delinquency under statute providing for such adjudication where juvenile has
violated order of court there must be notice that child is charged as delinquent and thus subject to possible
incarceration, proper adjudication as child in need of supervision, intelligible order of court accompanying
determination of child in need of supervision status, proven or admitted willful violation of court's order,
and formal adjudication of delinquent status based on admitted or proven violation of order. NRS
62.040, subd. 1(c)(2), 62.193, subd. 4.
13. Infants.
Requirement that child be given notice of delinquency charge can be met only by inclusion in charging
portion of juvenile court petition a statement that delinquency adjudication is the object of petition and
charge. NRS 62.040, subd. 1(c)(2).
14. Infants.
Before child can be committed to juvenile correctional institution there must be a finding of delinquency.
NRS 62.040, subd. 1(c)(2).
15. Infants.
Motion filed by juvenile officer could not support delinquency charge. NRS 62.128, subd. 1.
16. Infants.
Record sustained finding that juvenile girl was properly adjudicated child in need of supervision. NRS
62.040, subd. 1(c)(2).
17. Infants.
Record did not sustain adjudication that juvenile boy was child in need of supervision.
18. Infants.
Child in need of supervision jurisdiction is dependent upon showing, not of violation of criminal law, but
rather upon showing of status or condition of subject minor. NRS 62.040, subd. 1(b).
19. Infants.
A child subjects himself to adjudication as child in need of supervision if he is habitually truant, or is
habitually disobedient and unmanageable, or is a runaway. NRS 62.040, subd. 1 (b).
20. Infants.
To support a finding of child in need of supervision under statute relating to unmanageable child, there
should have been charge and findings that juvenile habitually disobeyed reasonable and lawful demand of
parents and was unmanageable, and was in need of care or rehabilitation. NRS 62.040, subds. 1(b),
1(b)(2).
21. Infants.
Where petition referred to juvenile's isolated act of disobedience and there was no allegation or mention
of need of care or rehabilitation, there could not be adjudication of child in need of supervision. NRS
62.040, subds. 1(b), 1(b)(2).
22. Infants.
Gist of delinquency charge under statute relating to violation of court order is willful violation of lawful
court order. NRS 62.040, subd. 1(c)(2).
23. Infants.
Innocent or inadvertent failure to conform to probation order cannot form basis for delinquency
adjudication. NRS 62.040, subd. 1(c)(2).
For minor to admit delinquent act and accept the consequences of delinquency, due process requires that
admission be voluntarily and understandingly given. NRS 62.140, subd. 1(c); U.S.C.A.Const. Amend.
14.
25. Infants.
Admission by juvenile's counsel that juvenile missed some classes and had some attitude and cooperation
problems at school were insufficient to form basis for delinquency adjudication. NRS 62.040, subd.
1(c)(2).
26. Infants.
Admission by juvenile's counsel that juvenile was in court because of her inability to function in program
to which court had committed juvenile did not form a basis for a delinquency adjudication. NRS 62.040,
subd. 1(c)(2).
Due process requires that admission of delinquent conduct must be given in a voluntary and
understanding manner. NRS 62.040, subd. 1(c)(2); U.S.C.A.Const. Amend. 14.
28. Infants.
Stipulation which was filed by juvenile's counsel some three months after filing of appeal and which
stated that juvenile court had found juvenile to be delinquent although court's order was devoid of such
finding could not alone be relied on to support delinquency adjudication. NRS 62.040, subd. 1(c)(2).
OPINION
These two consolidated appeals challenge the legality of the commitments of two children
to Nevada's juvenile correctional institutions, the Nevada Youth Training Center and the
Nevada Girls Training Center.
STATEMENT OF FACTS
Appeal No. 12842, Ivan:
Ivan was brought before the juvenile division of the Seventh Judicial District Court,
Lincoln County, by a petition filed November 13, 1979 by one Roland Simmons. The petition
states that on or about November 6, 1979, in Caliente Nevada, IVAN . . . disregarded proper
directions from his parent . . . by becoming intoxicated and is beyond her control, and is
consequently [sic] a child in need of supervision as defined by NRS 201.090.
1
Ivan
appeared before the juvenile court on November 20, 1979, and "elected to represent
himself."
____________________

1
There was another charge, COUNT II, in the same words except for the date, November 9, rather than
November 6. This charge was dismissed by the district attorney.
Ivan appeared before the juvenile court on November 20, 1979, and elected to represent
himself. After an unreported hearing in which testimony was presented, the court found that
sufficient evidence was presented to prove that the said minor child committed the act of
delinquency and found therefore that he committed the act and is a child in need of
supervision. At the same hearing and on the same date, Ivan was placed on indefinite
probation.
Later, on December 6, 1979, the court issued a more formal, detailed supplemental order
placing minor on probation. In this order it was found that the child had violated NRS
201.090 [and] is a Child in Need of Supervision.
The dispositional order of December 6 was quite explicit. It ordered the child to attend
school regularly and not to be tardy or absent unless a good and sufficient reason exists.
On January 16, 1980, another petition was filed in this matter by one Sandy Prince. As
with the first petitioner, Roland Simmons, neither the title nor capacity of Sandy Prince is
stated in the petition. This second petition states that Ivan has been found to have been a
child in need of supervision, that he had been placed on probation and that he had violated
the rules of probation in a number of particulars. The petition prays that probation of the
above-named minor be terminated, and that the said minor be committed to the Nevada
Youth Training Center at Elko, Nevada.
[Headnotes 1, 2]
On January 25, 1980, the minor appeared before the court to plead to the January 16
petition. A public defender was appointed to represent Ivan. A Transcript of Tape of this
hearing appears in the record. From this transcript we find appointed counsel saying on behalf
of the minor; [We] do admit that he has missed some classes and has had some attitude and
cooperation problems at school. Such a statement was in apparent response to charges of
probation violation made in the petition that Ivan refuses to attend some of his classes
2
and that he exhibits a poor attitude at school.
3
There was never any subsequent order
indicating adjudication of delinquency, probation violation or other status.
____________________

2
It is doubtful that an admission that he missed some classes can be accepted when the charge is that he
refuses to attend. In the transcript we find Ivan responding to the court's inquiry about missing classes in this
way: OK on the first class first period class they she kicked me out and told me I couldn't come back to school
because on (sic) not bringing my materials to school. (Court's emphasis.)

3
Having a poor attitude is so obviously vague that it must be rejected out-of-hand as a basis for deprivation
of Ivan's liberty.
On February 8, 1980, Ivan appeared before the court for disposition. His attorney was not
present, but the order recites that his attorney was made a part of the proceeding by virtue of a
conference call. The probation officer recommended a structured setting (but not the Elko
training center). The consulting psychologist recommended rehabilitative care, custody,
treatment and education . . . short of continued incarceration and institutionalization . . . The
court ORDERED that IVAN P. be committed to the Nevada Youth Training Center at Elko,
Nevada, and further ordered that the commitment be suspended during placement in the
Nevada Children's Home.
Ivan appeals from the order committing him to the Nevada Youth Training Center.
Appeal No. 12645, Sandee:
The first juvenile court petition in Sandee's case was filed on December 12, 1979. The
petition is filed by Robert A. Hettinger, designated in the petition as a Juvenile Probation
Officer. The petition clearly states that the child is alleged to be a child in need of
supervision.
Pending hearing on the petition, the child was temporarily placed with her grandmother.
The placement did not work out, as, according to the juvenile probation officer, the child
became uncontrollable and a run-away threat. This situation resulted in her being detained on
February 6, 1980, in the Churchill County detention facility.
Although there is no transcript of the event, it appears in a recital in the Order filed
February 21, 1980, that on February 14, 1980, Sandee, with her attorney, appeared before the
court and admitted that she was an unmanageable child. Based upon that admission, the court
found that Sandee was a child in need of supervision as defined by the Juvenile Court Act.
As appears from the formal order relating to that hearing, the court, without directing the
preparation of a predisposition study and report,
4
proceeded directly to the dispositional
phase declaring Sandee to be a ward of the court, placing the child on probation in the care of
the Cenikor Foundation, Denver, Colorado, and ordering that she abide by the rules and
regulations of the Cenikor program.
____________________

4
NRS 62.197 requires that the court shall direct that a predisposition study and report to the court be made
in writing by a probation officer or another agency authorized by law, concerning the child, his family, his
environment and other matters relevant to the need for treatment or disposition of the case. It has been held
that it is error to commit a juvenile without such a report. In Interest of R. D., 405 N.E.2d 460 (Ill.App. 1980).
On April 29, 1980, Probation Officer Hettinger signed and filed an unverified Motion to
Modify Order. The motion recited the adjudication and disposition set forth in the previous
order and stated that the Cenikor Foundation had informed him that Sandee had become
unmanageable. On this basis Officer Hettinger moved the court for an order that the minor
be returned to the Churchill County Probation Department for further proceedings.
Sandee was returned to Churchill County on April 10, 1980, and remained in detention
until May 5, 1980, at which time the Motion to Modify Order filed by Officer Hettinger
came on for hearing. Sandee's counsel stated: I admit that Sandee is back here pursuant to
her inability to function in that program.
Without there having been filed a delinquency petition and without benefit of a
predisposition study and report, the court proceeded to disposition on the Motion to Modify
Order. Sandee's attorney called it to the court's attention that there has never been a
determination in this case that Sandee is a delinquent child.
The court made this observation:
All right. Well the statute provides, I believe, that when a child has been declared a
child in need of supervision, and who has been afforded probation, and probation is
subsequently revoked for a violation of the terms and conditions of probation, in spite
of the fact that there has been no finding of delinquency, that a commitment to Caliente
is permissible.
It was then ordered that probation be revoked and that she be remanded to the care,
custody and control of the Superintendent of the Nevada Girls' Training Center at Caliente,
Nevada, for an indefinite period of time.
DECISION
[Headnote 3]
The decision in this case requires the answering of two questions. The first question is:
What children may be properly, legally and constitutionally committed to Nevada's juvenile
correctional institutions? The answer to this question is: Only children who have been
adjudicated by the juvenile court to be delinquent may be so committed.
[Headnote 4]
The second question is: Have the children before us, Ivan and Sandee, been properly,
lawfully and constitutionally adjudicated by the juvenile court to be delinquents.
adjudicated by the juvenile court to be delinquents. The answer to this question is: No.
1. Who May be Committed to Training Centers?
Nevada's training centers are provided for in the crimes and punishment portion of our
criminal code, particularly in NRS Chapter 210, entitled Juvenile Correctional Institutions.
The Nevada Youth Training Center, to which Ivan was committed, is established and
maintained for the care of minors adjudged delinquent and committed
5
thereto. NRS
210.010(3). (Court's emphasis.)
Under the heading Inmates NRS 210.180 provides for the commitment of delinquents
and declares it lawful for the courts to commit to the school those minor persons between
the ages of 8 and 18 years whom they have found to be delinquents as provided by law.
(Court's emphasis.)
Sandee faces a similar incarceration as an inmate in a juvenile correctional institution,
where, under NRS 210.580(1) it is declared lawful to commit girls found to be
delinquent as provided by law.
[Headnote 5]
Whatever else these correctional institutions might be, they are clearly to some degree
punitive in nature. [H]owever euphemistic the title, a receiving home' or an industrial
school' [or a training center] for juveniles is an institution of confinement in which the
child is incarcerated for a greater or lesser time. An inmate's world is peopled by guards,
custodians, state employees, and delinquents' confined with him . . . In re Gault, 387 U.S. 1,
27 (1967).
[Headnote 6]
Training centers are meant to house delinquents and delinquents only. We hold that
nondelinquent children
6
coming within the jurisdiction of the juvenile court may not be
committed to the juvenile correctional institutions, the training centers, described in Chapter
210, NRS.
[Headnote 7]
Even if the statute did not limit training center commitment to children "found to be
delinquent," we should have to hold on other legal and constitutional grounds that the
juvenile courts do not have the power to commit nondelinquent children to these punitive
institutions.
____________________

5
commitment, n. * * * 2. Official consignment, as to a prison or mental hospital. 3. Law. A court order
authorizing consignment to a prison; mittimus . . . THE AMERICAN HERITAGE DICTIONARY OF THE
AMERICAN LANGUAGE, 268, New College Edition, (1978).

6
In addition to jurisdiction over delinquents juvenile courts have jurisdiction over nondelinquent children
who are neglected, abandoned, in need of commitment to an institution for the mentally retarded or in need of
supervision. The latter child, the so-called CHINS, is expressly excluded from consideration as a delinquent.
NRS 62.040(1)(b).
to children found to be delinquent, we should have to hold on other legal and constitutional
grounds that the juvenile courts do not have the power to commit nondelinquent children to
these punitive institutions.
[Headnote 8]
There is a sound legal and philosophical basis for the incarceration of delinquents. The
state has plenary power to control criminal activity and to punish criminals. Even though our
present juvenile court act (NRS 62.193) provides that proceedings against any child shall not
be deemed to be criminal in nature, the legislature could, if it chose, repeal this legislation
and punish youthful violators in the criminal justice system as was done in the past.
[Headnote 9]
The state, then, has the inherent power to punish delinquent children by committing them
involuntarily to correctional institutions. It does not, however, have such power over
nondelinquent children.
[Headnotes 10, 11]
Nondelinquent children within the jurisdiction of the juvenile court have, by definition,
committed no punishable crime. Jurisdiction over these kinds of children is derived not from
the criminal law but rather from equity and application of the equitable doctrine, parens
patriae. Such children, then, must be treated by the state in a manner consistent with its
inherent and sovereign parens patriae power; that is, they must be helped and not punished.
Because these children have committed no crimes and are brought under the protective
arm of the court for help, it has been held to be an unconstitutional and invidious
discrimination to treat them as we do criminals by punishment and incarceration. Harris v.
Calendine, 233 S.E.2d 318 (W.Va. 1977). Incarceration of nondelinquent children has also
been held to be a denial of substantive due process because of the lack of rational connection
between punitive incarceration and the proclaimed ends of parens patriae jurisdiction,
namely the protection and rehabilitation of dependent and neglected children and of troubled
and rebellious yet noncriminal children. See Harris, above.
The conclusion is inescapable that commitment of nondelinquent children to Nevada's
training centers cannot be approved. We must, then, proceed to examine the second question,
that relating to the adjudication of delinquency.
2. Has Ivan or Sandee Been Found to be Delinquent?
In this state delinquency is a status created by a child's commission of a criminal offense or
by an unlawful violation of "an order of court" by a child who has been determined to be a
child in need of supervision.
an order of court by a child who has been determined to be a child in need of supervision.
NRS 62.040(1)(c).
7

Before a child can be adjudicated to be a delinquent, there must be a formal and specific
charge of acts constituting delinquency and the sustaining of such charge by voluntary
admission or proof beyond a reasonable doubt. NRS 62.193(4).
Since the cases before us do not involve the commission of criminal offenses, delinquency
adjudication is possible only under NRS 62.040(1)(c)(2), delinquency arising out of the
express violation of an order of court by a child already under juvenile court jurisdiction as a
child in need of supervision.
[Headnote 12]
To sustain an adjudication of delinquency under NRS 62.040(1)(c)(2) and thereby justify
commitment to a training center, there must be:
(1) notice that he child is being charged as a delinquent and thus subject to possible
incarceration;
(2) proper adjudication of the child as a child in need of supervision;
(3) an express and intelligible order of court accompanying the determination of
CHINS
8
status;
(4) a proven or admitted willful violation of the court's order;
(5) formal adjudication of delinquent status based on admitted or proven violation of
the court's order.
Each of the two cases before us is lacking in one or more of these requisites; thus there can
be no delinquency adjudication and therefore no lawful commitment order in either case.
Taken point by point:
[Headnotes 13-15]
(a) Charging delinquency. A minor must be put on notice that he is being charged with
delinquency.
____________________

7
NRS 62.040(1)(c) provides:
62.040 Exclusive original jurisdiction of court.
1. Except as otherwise provided in this chapter, the court has exclusive original jurisdiction in
proceedings:
(c) Concerning any child living or found within the county who has committed a delinquent act. A
child commits a delinquent act if he:
(1) Commits an act designated a crime under the law of the State of Nevada except murder or
attempted murder, or violates a county or municipal ordinance or any rule or regulation having the force
of law; or
(2) Violates the terms or conditions of any order of court determining that he is a child in need of
supervision.

8
CHINS is the commonly used abbreviation for the phrase child in need of supervision.
that he is being charged with delinquency. This can be done fairly and adequately only by the
inclusion in the charging portion of the juvenile court petition a statement that delinquency
adjudication is the object of the petition and the charge. This notice of charges lets the
juvenile know that his liberty is now in jeopardy and puts into operation the constitutional
protections and procedural requirements imposed by the rulings in Kent, Gault, Winship and
McKeiver.
9

Neither child in these cases was charged with delinquency; therefore, neither can be
adjudicated a delinquent.
10

[Headnotes 16, 17]
(b) CHINS Adjudication. On the record, liberally construed, Sandee was properly
adjudicated as a child in need of supervision; Ivan was not.
Ivan is charged under a criminal statute, NRS 201.090. He was thereafter found to have
violated NRS 201.090, to have committed the act of delinquency, and, then,
paradoxically, to be a Child in Need of Supervision.
The adjudicatory phase of Ivan's proceedings were not reported, and it is not clear whether
he admitted the CHINS petition or was found by the court to have this status. In any event,
the record does show that Ivan's CHINS adjudication was in the opinion of the court based on
sufficient evidence . . . to prove . . . that he committed the act of delinquency charged in
Count 1 of the petition.
This entanglement of charges, weaving bits and pieces of delinquency, status offense and
violation of the criminal law, brings about a level of confusion which renders it impossible to
sustain any kind of consequent adjudication. Most certainly there is not to be found any
jurisdictional basis for a CHINS adjudication.
[Headnotes 18, 19]
CHINS jurisdiction is dependent upon a showing, not of the violation of the criminal law,
but rather upon a showing of a status or condition of the subject minor.
____________________

9
Kent v. U.S. 383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970);
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

10
We note here the error of the trial court in Sandee's case in commenting, as quoted in the statement of facts
above, to the effect that commitment is justified by mere probation violation and revocation in spite of the fact
there has been no finding of delinquency. State v. Doe, 619 P.2d 194 (N.M.App. 1980). There, of course, must
be a finding of delinquency. Such finding must be based on a delinquency petition prepared and
countersigned by the district attorney. NRS 62.128(1). Obviously the motion filed by Officer Hettinger could
not support a delinquency charge even if one had been made.
status or condition of the subject minor. A child subjects himself to adjudication as a child in
need of supervision if he (1) is habitually truant, or (2) is habitually disobedient and
unmanageable or (3) is a runaway. If a child falls within any of the three enumerated
categories and is in need of care or rehabilitation, he may be adjudicated to be a child in
need of supervision; [s]uch a child shall not be considered a delinquent. NRS 62.040(1)(b).
(Court's emphasis.)
[Headnote 20]
Ivan's petition does state that he disregarded proper directions from his parent . . . by
becoming intoxicated and is beyond her control. A finding of CHINS status could then relate
only to the category of unmanageability provided for in NRS 62.040(1)(b)(2). To support a
finding under this subsection, it should have been charged and found that Ivan:
1. Habitually disobeys the reasonable and lawful demands of his parents . . .
2. and is unmanageable; . . .
3. and is in need of care or rehabilitation.
[Headnote 21]
The petition refers not to Ivan's habitual disobedience but rather to an isolated act of
disobedience (becoming intoxicated on November 6, 1979). There is no allegation or
mention of any need of care or rehabilitation. With good reason the legislature does not
permit the juvenile court to take jurisdiction over children in cases of single or isolated
instances of disobedience; otherwise there would not be a child in the state immune from
juvenile court intervention.
For these reasons,
11
Ivan has not been properly adjudicated a child in of supervision;
consequently there is no possibility of his being adjudicated a delinquent under NRS
62.040(1)(c)(2).
(c) Court Order Stating Specific Terms or Conditions. This factor is adequately presented
in both cases.
[Headnotes 22, 23]
(d) Violation of Court Order. The gist of a delinquency charge under NRS 62.040(1)(c)(2)
is a willful violation of a lawful court order. It is akin to criminal contempt. An innocent or
inadvertent failure to conform to a probation order cannot form the basis for delinquency
adjudication because the necessary mental component, a juvenile court analogue of mens
rea, would be absent.
____________________

11
We note other defects in the proceedings in Ivan's case which, although not jurisdictional or dispositive,
are worthy of mention for the guidance of juvenile courts in these matters. One such defect is the failure of the
petition to recite the capacity of the petitioner. Only certain persons may sign a CHINS petition. NRS 62.130(2).
This capacity does not appear on the face of the petition. The other defect is failure to append an explanation of
the contents of NRS 62.275 relating to sealing of juvenile records. NRS 62.205.
inadvertent failure to conform to a probation order cannot form the basis for delinquency
adjudication because the necessary mental component, a juvenile court analogue of mens rea,
would be absent.
In the instant cases admissions on the part of the minors provide the only possible basis for
a finding of delinquent violations of court orders.
Since neither minor stands accused of delinquency, it is obviously impossible for either to
have been found guilty of delinquency. Still we are constrained to remark concerning the
nature and form of the so-called admissions in these cases.
[Headnote 24]
For a minor to admit a delinquent act and accept the consequences of delinquency, namely
possible incarceration, due process requires that the admission be voluntarily and
understandingly given.
[Headnotes 25, 26]
The admission given by Ivan's counsel that Ivan missed some classes and has some
attitude and cooperation problems at school and the admission given by Sandee's counsel
that she was back here pursuant to her inability to function in that program hardly form the
basis for a delinquency adjudication.
[Headnote 27]
Such admissions do not constitute the type of delinquent behavior contemplated by NRS
62.040(1)(c)(2) nor do they appear to have been voluntarily and understandingly given.
12

(e) Delinquency Adjudication. As stated above, Sandee's attorney pointed out to the court
that there had been no determination in this case that Sandee is a delinquent child. The
attorney was correct; Sandee was never adjudicated to be a delinquent.
[Headnote 28]
The same is true in Ivan's case; however, some three months after the filing of Ivan's
appeal Ivan's counsel filed in the Supreme Court a stipulation that the juvenile court had
found the Minor to have been deliquent [sic] although the Order of the Court pertaining to
the hearing is devoid of mention of such finding. Such a stipulation cannot alone be relied
on to support a delinquency adjudication.
____________________

12
See Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981), for general guidelines concerning voluntary
admissions. We do not here hold these standards expressly applicable to juvenile court proceedings, but due
process certainly requires that admissions of delinquent conduct must be given in a voluntary and understanding
manner.
on to support a delinquency adjudication. (See State v. Doe, 619 P.2d 194 (N.M.App. 1980)
note 3, in which a like stipulation was held not to authorize delinquency adjudication in the
absence of inquiry that there was a factual basis for an admission of delinquency.) Ivan was
never adjudicated to be a delinquent.
In this opinion we have gone into a more detailed factual and legal discussion than we
would ordinarily have done had we not felt the need for a unifying exposition of juvenile
court principles and procedures in matters presented here.
The key point here is the recognition of the special nature of delinquency jurisdiction. This
jurisdiction is now set forth in a separate section in the Nevada Juvenile Court Act, apart
from other nondelinquent jurisdictional divisions of neglect, dependency and status offenses,
which are of noncriminal, parens patriae cognizance. Gault, above, tells us in unmistakable
terms that if a proceeding may result in incarceration in an institution of confinement, our
federal constitution requires the procedural regularity and exercise of care implied in the
phrase due process.
The constitutional considerations and statutory application discussed in this opinion
clearly mandate the reversal of the orders of commitment entered by the two trial courts.
The commitment order of Ivan is reversed and remanded with instructions that lower court
proceedings relating to Ivan's case, case number 12482, be dismissed.
The commitment order in Sandee's case, case number 12645, is vacated; the matter is
remanded to the juvenile department of the Third Judicial District Court, Churchill County,
for proceedings consistent with this opinion.
Gunderson, C J., and Manoukian, Batjer, and Mowbray, JJ., concur.
____________
97 Nev. 294, 294 (1981) Cooke v. American Sav. & Loan Ass'n
WILLIAM COOKE, DANIEL JORDY, EARL JORDY, and GEORGE JORDY, Appellants,
v. AMERICAN SAVINGS AND LOAN ASSOCIATION, a Nevada Corporation; MARY
ANN LEWIS, Respondents.
No. 11921
June 19, 1981 630 P.2d 253
Appeal from summary judgment, Second Judicial District Court, Washoe County; Grant J.
Bowen, Judge.
Action was brought to recover against savings and loan association and its president's wife
who was driving automobile when it was involved in collision. The district court granted
association summary judgment, and appeal was taken.
association summary judgment, and appeal was taken. The Supreme Court held that: (1)
recovery could not be had against association, which had leased and maintained the
automobile for president's use, on theory that wife was association's agent or employee, and
(2) even if association had actual knowledge of wife's alleged driving infractions, such would
not have been sufficient to permit recovery association on theory of negligent entrustment of
automobile to wife.
Affirmed.
Peter Chase Neumann, Reno, for Appellants.
Wait, Shamberger, Georgeson, McQuaid & Thompson, for Respondents.
1. Automobiles.
In regard to vehicular collision involving automobile which was driven by savings and loan association's
president's wife and which association had leased and maintained for president's use, recovery could not be
had against association on theory that wife was association's agent or employee where, though association
had power to revoke wife's privilege to drive automobile, there was no evidence of employment of her by
association of its control over her.
2. Automobiles.
Even if savings and loan association, which had leased and maintained automobile for association's
president's use, had actual knowledge of the alleged driving infractions of president's wife, who was driving
the automobile when it was involved in collision, such would not have been sufficient to permit recovery
against association on theory of negligent entrustment of the automobile to wife.
Contention raised for first time on appeal need not be considered.
OPINION
Per Curiam:
This appeal is from entry of a summary judgment in favor of respondent American
Savings and Loan Association (American).
Virginia Cooke, who died on April 17, 1977, was injured when the automobile she was
operating collided with one operated by Mary Ann Lewis, the wife of James Lewis, president
of American. The vehicle driven by Mary Ann had been leased and maintained by American
for use by James Lewis.
Appellants' causes of action against American were based on a claimed agency
relationship between Mary Ann and American and upon an allegation of negligent
entrustment of the vehicle to Mary Ann.
The issues raised by appellants lack merit.
[Headnote 1]
1. American had the power to revoke Mary Ann's privilege to drive the vehicle, but there
is no evidence of employment of her by American or of its control over her. Appellants'
reliance on National Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689
(1978), is misplaced. There this court stated that . . . [T]he employer can be vicariously
responsible only for the acts of his employees, not someone else. . .
Accepting as true all the evidence and inferences that reasonably could be drawn therefrom
and considering it in a light most favorable to appellants, it would be impossible to cast May
Ann into the role of agent or employee of American. Summary judgment was properly
entered. Short v. Riviera Hotel, Inc., 79 Nev. 94, 378 P.2d 979 (1963); Bader Enterprises, Inc.
v. Becker, 95 Nev. 807, 809, 603 P.2d 268 (1979).
[Headnote 2]
2. Even if American had actual knowledge of Mary Ann's alleged driving infractions, and
if all the allegations were accurate, they would, as a matter of law, be insufficient to envoke
against American the theory of negligent entrustment of the vehicle to Mary Ann. Curley v.
General Valet Service, Inc., 311 A.2d 231 (Md.App. 1973). See Fambro v. Sparks, 72 S.E.2d
473, 480 (Ga.App. 1954) (evidence that driver had had two accidents prior to being entrusted
with the automobile could not authorize a conclusion that the driver was incompetent);
Parrish v. Yeiser, 298 S.W.2d 556, 560 (Tenn.App. 1955) (The mere statement that a person
has been involved in an automobile wreck is proof of neither negligence nor incompetence as
a driver.); c.f. Mayer v. Johnson, 148 S.W.2d 454, 457 (Tex.Civ.App. 1941) (one incident of
violating traffic regulation insufficient to raise issue for jury).
[Headnote 3]
3. Appellants' contention that the affidavits in support of American's motion for summary
judgment stated mere conclusions of law and were insufficient to support the motion is raised
for the first time on appeal and need not be considered. International Indus. v. United Mtg.
Co., 96 Nev. 150, 606 P.2d 163 (1980).
Affirmed.
Gunderson, C.J., and Manoukian, Batjer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
Honorable Charles E. Springer, who voluntarily disqualified himself in this case. Nev.Const.Art. 6, 19; SCR
10.
____________
97 Nev. 297, 297 (1981) Gagliano v. State
RONALD V. GAGLIANO, Appellant, v. THE STATE
No. 11898
June 23, 1981 629 P.2d 781
Appeal from a judgment of conviction for burglary, Eighth Judicial District Court, Clark
The Supreme Court held that police officers were not justified in warrantless intrusion into
another room of apartment where defendant was arrested in order to seize television where
officers had no reason to think anyone other than defendant and his teenage daughter might
be present in the apartment.
[Rehearing denied August 24, 1981]
Colucci and Minagil, Las Vegas, for Appellant.
H. Douglas Clark and James N. Tufteland, Deputy District Attorneys, Clark County, for
Respondent.
Arrest.
Police officers were not justified in warrantless intrusion into another room of apartment where defendant
was arrested in order to check for possible wrongdoers and which resulted in seizure of television where
officers had no reason to think anyone other than defendant and his teenage daughter might be present in
the apartment, defendant, clad only in underpants, was in full view when police entered and daughter was
also in sight. U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
A jury found appellant guilty of a burglary, in which a television had been stolen from a
model home. On appeal, appellant contends the district court erred in denying his motion to
suppress use of the television set as evidence. It appearing that this assignment of error has
merit, and compels a new trial, we need not decide other issues.
In Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court declared: .
. . . When an arrest is made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter might seek to use in order to
resist arrest or effect his escape. Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee's person in order to
prevent its concealment or destruction. And the area into which an arrestee might reach
in order to grab a weapon or evidentiary items must, of course, be governed by a like
rule. . . .
There is no comparable justification, however, for routinely searching any room
other than that in which an arrest occursor, for that matter, for searching through all
the desk drawers or other closed or concealed areas in that room itself. Such searches,
in the absence of well-recognized exceptions, may be made only under the authority of
a search warrant. The adherence to judicial processes mandated by the Fourth
Amendment requires no less.
Id. at 762-63 (1969).
In the instant case, the television set was in another room, far outside appellant's reach. It
seems, however, that the district court denied appellant's motion to suppress on the theory
that the police officers could properly search areas outside appellant's immediate control, to
protect themselves against other possible wrongdoers. In Banks v. State, 94 Nev. 90, 575 P.2d
592 (1978), this court said:
Police had ample grounds in this case for the belief that urgent action was necessary
to investigate and possibly prevent a substantial threat to their own safety as well as that
of others in the vicinity. They were in pursuit of suspects involved in an armed robbery,
who they had reason to believe had entered the apartment in question. After seven
persons had emerged from the apartment, they had no way of knowing, without
entering the apartment, whether others remained inside. Furthermore, they had ample
reason to believe that anyone remaining inside would have access to a gun, because a
woman had been seen with a gun at the rear window, and an initial search had revealed
that none of the seven outside was carrying such a weapon. . . .
94 Nev. at 97, 575 P.2d at 596-97.
In our view, however, the facts of the instant case are easily distinguishable from those in
Banks, and do not support the contention that the police were conducting a proper
"protective sweep."
contention that the police were conducting a proper protective sweep. Here, the officers had
no reason to think anyone other than appellant and his teenage daughter might be present in
the apartment. The appellant, clad only in his underpants, was in full view when the police
entered. Appellant's step-daughter also was in sight. The prosecution has been unable to refer
us to any special circumstances which would justify a belief by the officers that a threat to
their security required warrantless intrusion into other rooms of the apartment.
Accordingly, we reverse and remand this case to the district court.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and McDaniel D.J.,
1
concur.
____________________

1
The Governor designated the Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.
____________
97 Nev. 299, 299 (1981) Gibbons v. State
LELAND WADE GIBBONS, Appellant, v. THE
No. 11355
June 24, 1981 629 P.2d 1196
Appeal from judgment of conviction. Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Defendant was convicted before the district court of kidnapping and sexual assault, and he
appealed. The Supreme Court held that: (1) police matrons' testimony concerning that which
victim had told them about the incident was not admissible under res gestae exception to
hearsay rule; (2) such testimony was not admissible for purpose of rebutting the defense's
suggestion that victim consented to the relationship with defendant, was later abandoned and
was motivated by embarrassment or revenge to make the charges against defendant; and (3)
error in admitting such inadmissible evidence, which was highlighted by prosecutor in
closing argument, was prejudicial.
Reversed.
William N. Dunseath, Public Defender, Michael B. McDonald, and N. Patrick Flanagan,
Deputy Public Defenders, Washoe County, for Appellant.
and Edwin T. Basl, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
In proceeding in which defendant was convicted of kidnapping and sexual assault, police matrons'
testimony concerning that which victim had told them about the incident was not admissible under res
gestae exception to hearsay rule, in light of fact that victim's statement to matrons was not made until at
least two hours after conclusion of the incident and that she had talked to several people during the interim.
2. Witnesses.
In proceeding in which defendant was convicted of kidnapping and sexual assault, police matrons'
testimony concerning that which victim had told them about the incident was not admissible to rebut the
defenses's suggestion that victim consented to the relationship with defendant, was later abandoned in the
desert and was motivated by embarrassment or revenge to make the charges against defendant, in light of
fact that it did not affirmatively appear that victim's statements to matrons were made at a time when she
did not have the suggested motive to fabricate. NRS 51.035, 51.035, subd. 2(b).
3. Criminal Law.
In proceeding in which defendant was convicted of kidnapping and sexual assault, error in admitting
inadmissible testimony, in which two police matrons testified in great detail concerning what victim had
told them about the incident and which was highlighted by prosecutor in closing argument, was prejudicial,
in light of fact that prosecution's case rested entirely on credibility of victim.
OPINION
Per Curiam:
Appellant was convicted of kidnapping and sexual assault. During the trial two police
matrons were allowed to testify in great detail concerning what the victim told them about the
incident after its occurrence.
Such testimony is hearsay, and was inadmissible in evidence except in her [the victim's]
cross-examination, or as confirmatory of her story if attacked. State v. Campbell, 20 Nev.
122, 126, 17 P. 620, 623 (1888).
[Headnote 1]
The testimony was admitted by the trial court under the res gestae exception to the
hearsay rule; however the testimony clearly was not admissible under any exception
commonly characterized by this label.
The prosecutrix made the statement to the matrons at least two hours after the conclusion
of the incident. In the interim she had talked to several people from whom she had sought
help, as well as detectives at the Sparks Police Department.
help, as well as detectives at the Sparks Police Department. The declarations pertained to a
past and completed occurrence and could in no way be considered contemporaneous with
the attack. See State v. Urbauer, 514 P.2d 717, 719 (Ariz. 1973), cert. denied, 415 U.S. 950
(1974); State v. Schimmelpfennig, 594 P.2d 442 (Wash. 1979).
[Headnote 2]
The state now argues, however, that the testimony was admissible as non-hearsay under
Campbell, supra, and NRS 51.035,
1
because its function was confirmatory and it was
offered to rebut charges of recent fabrication or improper motive implied in defense
cross-examination.
The principal attack or charge against the victim which might call for the type of
claimed rebuttal offered by the police matrons is stated in the state's brief as being [d]efense
counsel's inferences that [the victim] concocted the sordid kidnapping and sexual assault
story . . . and that the only reason she was following through with her complaint was to
avoid possible humiliation to her reputation for losing her car to a drunken Indian.
In a case interpreting statutory language identical to NRS 51.035, the Ninth Circuit
approved the admission of corroborative testimony introduced for the purpose of
rehabilitation but noted that prior consistent statements are admissible where it affirmatively
appears that the prior consistent statement was made at a time when the declarant had no
motive to fabricate. U.S. v. Rodriguez, 452 F.2d 1146 (9th Cir. 1972). (Emphasis added.)
There can be no doubt that defense counsel was attacking the motives of the victim,
implying that she consented to the relationship and was later abandoned in the desert when
the appellant took her car. Afterwards, motivated by embarrassment or revenge or both, she
decided, the defense suggests, to make charges of kidnapping and sexual assault.
If such were the victim's motive, it is very likely that it was formed at the scene and
before her interview with the police matrons; thus it is difficult to say that the consistent
and corroboratory statements to the police were made at a time when the victim had no
motive to fabricate.
____________________

1
NRS 51.035(2)(b) provides in pertinent part:
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
. . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
. . .
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of
recent fabrication or improper influence or motive;
. . .
formed at the scene and before her interview with the police matrons; thus it is difficult to say
that the consistent and corroboratory statements to the police were made at a time when the
victim had no motive to fabricate.
Moreover, it certainly cannot be said per Rodriguez, above, that it affirmatively appears
from this record that statements to the police were made at a time when the victim did not
have the suggested motive to fabricate. It would appear to the contrary.
Absent an affirmative showing that the charged improper motive did not exist at the time
the statements were made to the matrons, their detailed testimony should have been excluded.
George v. State, 604 S.W.2d 940 (Ark. 1980). The trial court erred in admitting the
statements.
[Headnote 3]
We find it difficult to view this inadmissible testimony as other than prejudicial in this
case. Appellant was grossly intoxicated. He neither admitted nor denied the criminal charges
made against him. The prosecution's case rested entirely on the credibility of the
victim-prosecutrix.
The inadmissible testimony of the police matrons, highlighted by the prosecutor in closing
argument, resulted in an improper and prejudicial advantage to the state in this case. We
therefore reverse the judgment of conviction.
____________
97 Nev. 302, 302 (1981) Crow-Spieker #23 v. Robinson
CROW-SPIEKER #23, a Co-Partnership, Appellant, v. JOHN E. ROBINSON and ROBERT
L. HELMS CONSTRUCTION AND DEVELOPMENT CO., a Nevada Corporation, and
ROBERT L. and PAULINE HELMS, Respondents.
No. 12364
June 24, 1981 629 P.2d 1198
Appeal from order granting motion for summary judgment, Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Action was brought seeking specific performance of an alleged right of first refusal to
purchase real property. The district court granted defendants' motion for summary judgment,
and plaintiff appealed. The Supreme Court held that where a prior contract between the
parties providing for the conveyance of real property made no mention of the parcel of land to
which the plaintiff allegedly held a right of first refusal and any prior oral agreement
providing for a right of first refusal did not contradict the terms of that written contract,
the parol evidence rule was not applicable to bar evidence of that oral agreement.
which the plaintiff allegedly held a right of first refusal and any prior oral agreement
providing for a right of first refusal did not contradict the terms of that written contract, the
parol evidence rule was not applicable to bar evidence of that oral agreement.
Stewart & Stewart, Ltd., Reno, for Appellant.
Leslie B. Gray, Reno, for Respondent John E. Robinson.
Peterson & Peterson, Reno, for Respondent Helms.
1. Evidence.
If terms of agreement are clear, definite and unambiguous, parol evidence may not be introduced to vary
those terms; however, existence of separate oral agreement as to any matter on which written contract is
silent, and which is not inconsistent with its terms, may be proven by parol.
2. Evidence.
In action for specific performance of alleged right of first refusal to purchase real property, parol
evidence was not applicable to bar receipt of evidence regarding alleged oral agreement conveying right of
first refusal to plaintiff where prior written contract between parties conveying another parcel of real estate
made no mention of future sale of parcel to which right of first refusal allegedly attached and oral extension
of right of first refusal did not contradict any terms of written agreement.
OPINION
Per Curiam:
Appellant, Crow-Spieker #23 (hereinafter #23), filed suit against respondent seeking
specific performance of an alleged right of first refusal extended to #23 by respondent
Robinson. The lower court granted respondents' motion for summary judgment concluding
that the parol evidence rule excluded the introduction of any evidence of consideration for the
first right of refusal. Because we find that the parol evidence rule was improperly applied, we
reverse.
THE FACTS
In the early part of 1973, #23 and respondent Robinson entered into negotiations for the
sale of a 24 acre parcel of land, Parcel A, which Robinson owned. During the negotiations,
#23 repeatedly requested an option to purchase an adjacent parcel of land, Parcel B, which is
the subject of this lawsuit. Robinson refused to grant #23 the option. The parties eventually
reached an accord on the sale of Parcel A. On May 11, 1973, Robinson sent #23 a copy of
the proposed agreement, dated May 15, 1973, and which was signed by the two parties;
nowhere in the agreement is there any mention of Parcel B.
11, 1973, Robinson sent #23 a copy of the proposed agreement, dated May 15, 1973, and
which was signed by the two parties; nowhere in the agreement is there any mention of Parcel
B. The contested right of first refusal regarding Parcel B was contained in the cover letter
dated May 11, 1973 accompanying the agreement on Parcel A.
1

From 1973 to 1978, Robinson and #23 corresponded in a series of letters which
recognized the existence of the right of first refusal in Parcel B. However, Robinson did not
wish to sell the parcel until 1978. At that time, #23 and Robinson entered into negotiations
for the purchase by #23 of a larger parcel of property which included Parcel B. However, the
agreement to purchase was never finalized. In August, 1978, Robinson contracted with
respondent Helms for the purchase of the larger parcel, including Parcel B. Robinson
informed #23 that if #23 wished to purchase the larger acreage for the price Helms was
willing to pay, #23 could do so. #23 purportedly attempted to exercise the right of first refusal
on Parcel B. Robinson, however, conveyed the acreage to Helms.
#23 filed suit for specific performance of the right of first refusal. Respondents' motions
for summary judgment were based principally on an alleged lack of consideration to support
the right of first refusal. The lower court determined that while evidence of consideration
existed,
2
it could not be considered because of the parol evidence rule.
3
PAROL EVIDENCE
RULE
PAROL EVIDENCE RULE
____________________

1
The letter states:
As I stated in our telephone conversation on May 3, if and when we decide to sell the parcel of land
south of Parcel A, between Kleppe Lane and Greg Street, you shall have the first opportunity to purchase
the same for the price for, and subject to the terms under, which we are willing to sell the same; or if we
receive a bona fide offer for said parcel which is acceptable to us, from another party, you shall have the
first opportunity to purchase the same for the price offered by the other party and subject to the same
terms as contained in such offer. This is of course conditioned on there being no defaults on your part
under the terms of the enclosed agreement for the purchase of Parcel A.

2
The trial judge in his written decision ruled in part:
Clearly no consideration is mentioned in this letter. Whether the parties orally agreed it was all to be
part of the same contract is a question of fact. Viewing this issue in the light most favorable to the
plaintiff in this case shows by his affidavit that they intended the consideration for Parcel A also covered
the right of first refusal. In the affidavit of Warren E. Spieker, Jr. dated September 19, 1979, Spieker
stated that in the May 3, 1973, telephone conversation Spieker agreed to a right of first refusal on Parcel
B and Robinson insisted it be conditioned on there being no defaults in the purchase of Parcel A. This
appears to be sufficient evidence to show an oral agreement as to Parcel B being part of the consideration
for Parcel A.

3
The trial judge in his written decision ruled in part:
The plaintiff is precluded by law from presenting any evidence of the
PAROL EVIDENCE RULE
[Headnote 1]
Recently, in Daly v. Del E. Webb Corp., 96 Nev. 359, 361, 609 P.2d 319, 320 (1980), we
restated the reason for the parol evidence rule: The parol evidence rule forbids the reception
of evidence which would vary or contradict the contract, since all prior negotiations and
agreements are deemed to have been merged therein. If the terms of an agreement are clear,
definite and unambiguous, parol evidence may not be introduced to vary those terms. E. A.
Strout Western Realty Agency, Inc. v. Broderick, 522 P.2d 144 (Utah 1974). However, the
existence of a separate oral agreement as to any matter on which a written contract is silent,
and which is not inconsistent with its terms, may be proven by parol. Alexander v.
Simmons, 90 Nev. 23, 24, 518 P.2d 160, 161 (1974).
[Headnote 2]
The trial court erred in applying the parol evidence rule. The alleged right of first refusal,
evidenced by the cover letter of May 11, 1973, did not affect the sale of Parcel A: it did not
contradict any terms in that contract, and the Parcel A contract was silent as to any agreement
for a future sale of Parcel B.
The decision below was predicated on a misapplication of the parol evidence rule. The
order granting summary judgment is therefore reversed, and the cause is remanded for further
proceedings.
____________________
prior agreement (right of first refusal on Parcel B) because it would materially alter the terms of the written
contract (for the purchase of Parcel A). Without such proof there is no consideration for the right of first refusal
and it is, therefore, unenforceable.
____________
97 Nev. 305, 305 (1981) MacDonald v. Kassel
JEAN MACDONALD, Appellant, v. WILLIAM KASSEL
and CAROL KASSEL, Respondents.
No. 12274
June 24, 1981 629 P.2d 1200
Appeal from order dismissing complaint, Eighth Judicial District Court, Clark County; J.
A civil complaint alleged, inter alia, that respondents held title to property as constructive
trustees. Complaint was dismissed by the district court and plaintiff appealed. The Supreme
Court held that: (1) whether demand for performance of contract was made within reasonable
time was question which was to be resolved before statute of limitations issue could be
determined, and {2) where even under respondents' own theory of case there were
material issues of fact to be resolved prior to finding that statute of limitations barred
complaint, district court erred in granting respondents' motion to dismiss
could be determined, and (2) where even under respondents' own theory of case there were
material issues of fact to be resolved prior to finding that statute of limitations barred
complaint, district court erred in granting respondents' motion to dismiss
Rogers, Monsey, Woodbury & Berggreen, and John M. Sacco, Las Vegas, for Appellant.
Fitzgibbons, Beatty & Phillips, Las Vegas, for Respondent.
Where, in conjunction with parties' pleadings, district court received and considered affidavits of the
parties, and thus in effect treated and disposed of motion to dismiss as motion for summary judgment, court
on appeal would so view the matter. NRCP 12(b), 56.
Whether demand for performance of contract was made within reasonable time was question which
which was to be resolved before statute of limitations issue could be determined. NRS 11.190, subd.
2(c).
Where even under respondents' own theory of case there were material issues of fact to be resolved prior
to finding that statute of limitations barred complaint, district court erred in granting respondents' motion to
dismiss. NRCP 12(b)(5), 56(c); NRS 11.190, subd. 2(c).
Respondents' answering brief was deficient in lacking any discussion as to dismissal of appellant's
remaining claims for relief.
OPINION
Per Curiam:
Appellant filed a civil complaint against respondents alleging: (1) that respondents
violated an oral agreement between the parties by failing to convey a certain piece of real
property; (2) that respondents fraudulently hold title to a parcel of real property of which
appellant is the rightful owner by virtue of having paid the entire purchase price therefor as
well as all taxes and assessments attributable thereto, and (3) that respondents hold title to the
subject property as constructive trustees for appellant. Respondents did not answer the
complaint but instead moved to dismiss the complaint for failure to state a claim upon which
relief could be granted, contending that appellant's claims for relief were barred by the statute
of limitations. See NRCP 12(b)(5). The district court granted the respondents' motion and
dismissed appellant's complaint. This appeal followed.
[Headnote 1]
Initially, we note that, in conjunction with the parties' pleadings, the district court received
and considered the affidavits of respondents and appellant. In effect then, the lower court
treated and disposed of the respondents' motion to dismiss as a Rule 56 motion for summary
judgment. See NRCP 12(b); Cummings v. City of Las Vegas Mun. Corp., 88 Nev. 479, 499
P.2d 650 (1972); Kellar v. Snowden, 87 Nev. 488, 489 P.2d 90 (1971); Paso Builders, Inc. v.
Hebard, 83 Nev. 165, 426 P.2d 731 (1967). On appeal, therefore, we will so view the matter.
The parties conceded, for purposes of the motion, that in March 1961, prior to the
purchase of a parcel of undeveloped real estate, there was an oral agreement between
appellant and respondents. Accordingly to that agreement appellant would purchase the land
and respondents would take and hold title to the property in their own names until appellant
asked respondents to reconvey it to appellant. Thus, the parties entered into an oral agreement
which contemplated performance upon request.
The record indicates that appellant did, in fact, pay the entire purchase price for the
property and continued to pay all taxes and other expenses incidental to the ownership
thereof. Nothing further was ever discussed between appellant and respondents concerning
the property, and it remained undeveloped. In June 1977, after a period of sixteen years,
appellant made demand upon respondents to convey the property to her. Respondents refused
and appellant initiated this lawsuit on May 31, 1979.
With regard to the cause of action based on contract, respondents argue that when an
agreement does not specify a time within which performance is to be rendered, a reasonable
time must be implied by the reviewing court. Respondents further argue, without citing any
authority, that it is unreasonable as a matter of law to call for the performance of this
agreement beyond a period of fourteen years. Since the agreement dates back to March 1961,
respondents conclude that the appellant's cause of action could accrue no later than March
1975. Thus, respondents would have us hold that appellant's lawsuit filed in May 1979 was
barred by the four year statute of limitation set forth in NRS 11.190(2)(c).
[Headnote 2]
This court has consistently held that what constitutes a reasonable period of time for
performance must be determined from the nature of the agreement and the particular
circumstances involved. Tavel v. Olsson, 91 Nev. 359, 535 P.2d 1287 (1975); Mohr Park
Manor, Inc. v. Bank of Nevada, 87 Nev.
520, 490 P.2d 217 (1971); Southward v. Foy, 65 Nev. 694, 201 P.2d 302 (1948); Denison v.
Ladd Et Al., 54 Nev. 186, 10 P.2d 637 (1932). Thus, whether appellant's demand for
performance was made within a reasonable time is a question which must be resolved before
the statute of limitations issue can be determined. We have suggested that under certain
circumstances a period of time may be deemed as a matter of law an unreasonable amount of
time within which to delay making a demand for performance, see Southward v. Foy, supra.
Upon the record before this court at this time, however, we cannot agree with respondents'
contention that, as a matter of law, the appellant could not call for performance beyond 1975.
[Headnote 3]
Since even under respondents' own theory of the case, there were material issues of fact to
be resolved prior to finding that the statute of limitations barred appellant's complaint, the
district court erred when it granted respondents' motion to dismiss. See NRCP 56(c); Bader
Enterprises, Inc. v. Becker, 95 Nev. 807, 603 P.2d 268 (1979); Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963).
[Headnote 4]
In addition, we note that respondents' answering brief is deficient in that it lacks any
discussion as to the dismissal of appellant's remaining claims for relief. Cf. Fitzpatrick v.
Floriano, 92 Nev. 18, 544 P.2d 895 (1976); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535
P.2d 677 (1975).
Accordingly, the judgment of the district court is reversed and this case is remanded for
further proceedings consistent with this opinion.
____________
97 Nev. 308, 308 (1981) St. Paul Fire & Marine v. Wright
ST. PAUL FIRE & MARINE INSURANCE COMPANY,
Appellant, v. GEORGE WRIGHT, Respondent.
No. 12220
June 24, 1981 629 P.2d 1202
Appeal from order granting petition to vacate and set aside appraisal award, Eighth
Judicial District Court, Clark County; James A. Brennan, Judge.
Insurer appealed from order of the district court which granted insured's petition to vacate
appraisal award. The Supreme Court held that appraiser exceeded his power in determining
amount of insured's loss caused by fire and also concluding that coverage consisted only of
reconstruction cost of the motel where the umpire and appraisers interpreted coverage
provisions to arrive at the award figure.
the motel where the umpire and appraisers interpreted coverage provisions to arrive at the
award figure.
Affirmed.
Earl & Earl, Las Vegas, for Respondent.
1. Insurance.
Order granting insured's petition to vacate appraisal award was directly and immediately appealable by
virtue of statute which provided that appeal may be taken from an order confirming or denying
confirmation of an award. NRS 38.015 et seq., 38.205, subd. 1(c); NRCP 54(b).
2. Insurance.
An appraiser's power generally does not encompass disposition of entire controversy between insurer and
insured but extends merely to resolution of specific issues of actual cash value and amount of loss.
3. Insurance.
Appraiser exceeded his power in determining amount of insured's loss caused by fire and also concluding
that coverage consisted only of reconstruction cost of the motel where the umpire and appraisers
interpreted coverage provisions to arrive at the award figure.
OPINION
Per Curiam:
In this appeal, we are required to determine whether the trial court erred in issuing an order
setting aside an appraisal award. We determine that it did not and affirm.
In 1977, a fire destroyed substantial portions of the Nevada Motel. The owner, respondent
herein, had insured the premises against fire with appellant St. Paul.
A dispute then arose between St. Paul and Wright as to whether the policy provided
coverage for the total value of the motel, as measured by the cost of bringing the building up
to code (as required by the city in instances where damage by fire exceeded 50 percent of the
building value) or whether coverage was limited to reconstruction costs. St. Paul maintained
that the former measure of coverage was prohibitively high. Pursuant to the policy's
arbitration clause, the matter was submitted for appraisal. The appraisers not only determined
the amount of loss caused by the fire but also concluded that coverage consisted only of the
reconstruction cost of the motel. A letter which accompanied the appraisal set forth the
rationale upon which the award was based, including a specific notation that in determining
the proper award amount under the policy coverage provisions, constructive total loss
was considered inapplicable.
that in determining the proper award amount under the policy coverage provisions,
constructive total loss was considered inapplicable. Respondent's appraiser objected to the
award in writing contending that the umpire had violated appraisal procedure by making
legal determinations.
Respondent filed a petition to vacate the appraisal award, challenging the propriety of the
action of the appraisers in interpreting the policy coverage provisions that relate to a
constructive total loss.
Upon motion for summary judgment, the court granted Wright's petition to vacate the
appraisal award, determining that the appraisers had exceeded the scope of their authority.
From the court's order, St. Paul appeals.
[Headnote 1]
Preliminarily, we determine that the order is directly and immediately appealable even
absent NRCP 54(b) certification by virtue of NRS 38.205(1)(c), which provides that an
appeal may be taken from an order confirming or denying confirmation of an award. See
Lane-Tahoe, Inc. v. Kindred Constr. Co., 91 Nev. 385, 536 P.2d 491 (1975). The application
of this provision in Chapter 38 of the Nevada Revised Statutes (Uniform Arbitration Act) in
this, an appraisal proceeding, is consistent with our recent opinion in Silverman v. Fireman's
Fund Amer. Ins., 96 Nev. 30, 604 P.2d 805 (1980).
NRS 38.145 specifically provides that upon the application of a party, the court shall
vacate an award where the arbitrators [appraisers] exceeded their powers. St. Paul asserts
that by virtue of a clear reading of the terms of the policy the appraisers were limited in
authority to strictly determine the actual cash value of the insured premises under that
portion of the policy which provides that: The appraisers shall then appraise the loss, stating
separately the actual cash value at the time of loss, and failing to agree shall submit their
differences to the umpire.
[Headnote 2]
Contrary to arbitration, where the arbitrator is frequently given broad powers, appraisers
generally have more limited powers. (Emphasis in original.) Jefferson Ins. Co. of N.Y. v.
Superior Court, 475 P.2d 880, 883 (Cal. 1970). An appraiser's power generally does not
encompass the disposition of the entire controversy between the parties. . . [but] extends
merely to the resolution of the specific issues of actual cash value and the amount of loss. In
re Delmar Box Co., 127 N.E.2d 808, 811 (N.Y.App. 1955).
In Jefferson Ins. Co., supra, the court was faced with virtually an identical case to the one
at bar: The owner of a hotel which had been damaged by fire and which was insured to 70
percent of its "actual cash value" had sought to vacate the appraisal award achieved
under an appraisal clause similar to the one in St.
which had been damaged by fire and which was insured to 70 percent of its actual cash
value had sought to vacate the appraisal award achieved under an appraisal clause similar to
the one in St. Paul's policy. Additionally, California's arbitration law was applicable to
appraisals which could be set aside if the appraisers exceeded their powers. In determining
that the appraisers had indeed exceeded the scope of submission, the court stated that:
The function of the appraisers is to determine the amount of damage resulting to
various items submitted for their consideration. It is certainly not their function to
resolve questions of coverage and interpret provisions of the policy.
475 P.2d at 883.
[Headnote 3]
In this case, the umpire and appraisers clearly interpreted coverage provisions to arrive at
the award figure. This is manifested by the umpire's memorandum summarizing his findings
wherein he wrote:
At this point it is necessary to identify the limits of the coverage for which the
insurance company is liable. The specific question to be addressed is whether or not the
insuring party is liable for additional damages occasioned by the operation of an
ordinance of the type affecting the subject.
Such an admission by the umpire impels our conclusion that the trial court correctly
determined that the umpire and appraisers exceeded the scope of their powers. We therefore
affirm the trial court's order vacating the award.
____________
97 Nev. 311, 311 (1981) Las Vegas Oriental v. Sabella's of Nev.
LAS VEGAS ORIENTAL, INC., Appellant, v. SABELLA'S OF
NEVADA, INC., SALVERIO T. SABELLA, Respondents.
No. 11960
June 24, 1981 630 P.2d 255
Appeal from final judgment, Eighth Judicial District Court, Clark County; George E.
Marshall, Senior Judge.
Landlord sued tenants for breach of lease by abandoning premises and the tenants filed a
counterclaim. The district court entered judgment for the tenants, and the landlord appealed.
The Supreme Court held that: (1) evidence supported finding that failure of landlord to
provide heating and cooling to demised lounge and bar area constituted a constructive
eviction, and (2) fortuitous status of tenants' accounts at time of constructive eviction were
not in contemplation of parties at time they entered into lease and amount of debts should not
have been included in damages award to tenants.
Affirmed as modified.
Franklin, Bixler & Damus, Las Vegas, for Appellant.
William F. Hess, Las Vegas, for Respondents.
1. Landlord and Tenant.
Constructive eviction occurs when, through landlord's action or inaction, the whole, or a substantial part,
of premises is rendered unfit for occupancy for purpose for which it was demised.
Evidence supported finding that landlord's failure to provide heating and cooling to demised lounge and
bar area constituted a constructive eviction.
Fortuitous status of tenants' accounts at time of unlawful constructive eviction were not in contemplation
of parties at time they entered into lease and amount of debts should not have been included in damages
award to tenants.
OPINION
Per Curiam:
In this appeal we are required to determine if there is sufficient evidence to support the
trial court's determination that Las Vegas Oriental, Inc., a landlord, breached the lease
between it and Sabella's by virtue of its failure to provide adequate heating and air
conditioning to a portion of the leased premises. Additionally, we must decide whether the
damage award improperly included future profits. We affirm as to the breach. However,
finding that the trial court erred in the award of damages, we modify the monetary award.
Appellant, plaintiff below, leased a supper club known as Mr. Porterhouse to
defendant-counterclaimant-respondent Sabella's of Nevada, Inc. Appellant filed the present
action for a breach of the lease alleging inter alia that Sabella had breached the lease by
abandoning the premises nine months into a thirty-six month lease. Sabella maintained that
the abandonment was justified because of Las Vegas Oriental's failure to provide adequate
heating and air conditioning to the bar and lounge area of the supper club.
lounge area of the supper club. From a judgment in favor of Sabella's, including a damage
award of $60,000.00, Las Vegas Oriental appeals.
[Headnotes 1, 2]
As we held in Baker v. Simonds, 79 Nev. 434, 437, 386 P.2d 86, 88 (1963), a constructive
eviction occurs when through the landlord's actions or inaction the whole, or a substantial
part, of the premises is rendered unfit for occupancy for the purpose for which it was
demised. Accord, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). In
the instant case, evidence was adduced that the lounge and bar area were integral portions of
the business of the supper club and that loss of the use of this portion of the premises was a
significant detriment to respondent. The record reveals substantial evidence from which the
trial court could properly determine that the failure to provide heating and cooling to the
lounge and bar area constituted a constructive eviction.
[Headnote 3]
Determining that appellant had breached the lease, the trial court set damages at
$60,000.00. This award consisted of $38,000.00 for respondents' original investment, and the
sum of $22,000.00 for debts incurred. However, the fortuitous status of respondents'
accounts at the time the constructive eviction is alleged to have occurred cannot be said to
have been in the contemplation of the parties at the time they entered the contract. Therefore,
under the well established rule set forth in Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep.
145 (1854), such debts should not have been included in the damage award. See also Arctic
Contractors Inc. v. State, 564 P.2d 30, 44, appeal after remand, 573 P.2d 1385 (Alaska 1977).
As that part of the judgment concerning the constructive eviction is supported by
substantial evidence, it is affirmed. The award being improper, we modify with directions to
the trial court to enter judgment for respondent on its counterclaim in the amount of $38,000.
____________
97 Nev. 314, 314 (1981) Ottenheimer v. Real Estate Division
CHARLES J. OTTENHEIMER, Appellant, v. REAL ESTATE DIVISION OF
THE NEVADA DEPARTMENT OF COMMERCE and THE STATE OF
NEVADA, Respondents
No. 11377
June 24, 1981 629 P.2d 1203
Appeal from judgment denying declaratory and injunctive relief, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
Suits were brought by persons qualified as registered representatives challenging
amendment to statute requiring that to sell land registered representative must be licensed
as salesman or broker. Orders were entered in the Eighth and Second Judicial District Courts
of Clark and Washoe counties, Paul S. Goldman, Howard W. Babcock and Grant L. Bowen,
JJ., and appeals were taken. Following reversal of two of the suits, 91 Nev. 338, 535 P.2d
1284 (1975), the trial court determined that plaintiffs failed to meet burden of proving that
amendment was unconstitutional, and plaintiffs appealed. The Supreme Court held that the
amendment was calculated to promote general welfare and was reasonably related to
remedying claimed inaction on part of Real Estate Division of Department of Commerce,
establishing competence in representatives and providing additional controls over land
sales operations on part of state to protect purchasers.
Affirmed.
Vargas, Bartlett & Dixon, and Chris A. Beecroft, Jr., Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Robert C. Herman and Franklin C. Hoover, Deputy
Attorneys General, Carson City, for Respondents.
Legislative enactments, if an exercise of legislature's police powers, come to court clothed with
presumption of validity.
Where constitutional challenge to statute is made, burden of proof rests on challenger to make clear
showing of statute's invalidity.
3. Brokers; Constitutional Law.
Fact that problems existed with misrepresentations and unethical conduct on part of some registered
representatives having power to offer or sell subdivision property indicated that legislature
was justified in adopting amendment requiring that "registered representatives" be
licensed as salesmen or brokers to protect land buying public and that its exercise of
the police power was valid.
offer or sell subdivision property indicated that legislature was justified in adopting amendment requiring
that registered representatives be licensed as salesmen or brokers to protect land buying public and that
its exercise of the police power was valid. NRS 119.180.
4. Brokers.
Statutory amendment requiring that registered representative empowered to offer or sell subdivision
property be licensed as salesman or broker was calculated to promote general welfare, and was reasonably
related to remedying claimed inaction on the part of the Real Estate Division of the Department of
Commerce in establishing competence in such representatives and in providing additional controls over
land sales operations on part of state to protect purchasers and, hence, was valid.
OPINION
Per Curiam:
This action was commenced by Charles J. Ottenheimer, a registered representative under
NRS 119.090, asking that the 1973 amendment to NRS 119.180 be determined
unconstitutional as an invalid exercise of the state's police powers. Before the amendment
(SB 259, Stat. Nev. 1973, Ch. 792), a registered representative could offer or sell
subdivision property, without being licensed under NRS Chapter 645 as a real estate salesman
or broker. As of January 1, 1975, such amendment required that to sell land under NRS
Chapter 119, a registered representative must be licensed as a salesman or broker.
The trial court granted summary judgment to respondents, determining that no genuine
issue of fact remained for trial. On appeal, we reversed that determination and remanded the
case to the trial court so that Ottenheimer and others similarly situated could be afforded the
opportunity to proceed with discovery and attempt to present proof that the legislation offends
constitutional standards. Ottenheimer v. Real Estate Division, 91 Nev. 338, 342, 535 P.2d
1284, 1285 (1975). From the subsequent trial wherein the trial court determined that
Ottenheimer failed to meet the burden of proving that the amendment was unconstitutional,
Ottenheimer appeals.
[Headnotes 1, 2]
Legislative enactments, if an exercise of the legislature's police powers, come to a court
clothed with the presumption of validity. Viale v. Foley, 76 Nev. 149, 152, 350 P.2d 721,
724 (1960). Accordingly, where, as here, a constitutional challenge to a statute is made, the
burden of proof rests on the challenger to make a clear showing of the statute's invalidity.
Damus v. County of Clark, 93 Nev. 512, 516, 569 P.2d 933, 935 {1977).
933, 935 (1977). See also, Ottenheimer v. Real Estate Division, 91 Nev. at 342, 535 P.2d at
1285 (1975), and Koscot Interplanetary Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974).
[Headnote 3]
In the instant case, Ottenheimer attempted to show that the legislation was unreasonable,
arbitrary, or insufficiently related to the ends sought to be achieved. He argued that the
legislation was unnecessary because the Real Estate Division could have controlled any
problems which arose by virtue of land sales by registered representatives by other means.
However, contrary to Ottenheimer's assertion, the fact that there were problems with
misrepresentations and unethical conduct on the part of some registered representatives
indicates that the legislature was justified in adopting the amendment to protect the land
buying public.
[Headnote 4]
In addition to refuting Ottenheimer's contentions, at trial the Division did establish that the
legislation was calculated to promote the general welfare. The requirement that
representatives be licensed salesmen is reasonably related to remedying the claimed
inaction on the part of the Division, establishing competence in the representatives, and
providing additional controls over land sales operations on the part of the state to protect
buyers.
Appellant's remaining contentions being without merit, we affirm the judgment of the
lower court.
____________
97 Nev. 316, 316 (1981) Sheriff v. Stevens
EDNA MARIE STEVENS, Respondent.
No. 13364
June 25, 1981 630 P.2d 256
District Court, Clark County; Stephen L. Huffaker, Judge.
Petitioner sought writ of habeas corpus, challenging the charge of grant larceny against
her. The district court granted the petition, and the state appealed. The Supreme Court held
that district court's ruling that state could only charge burglary when person enters house and
steals property once inside was clearly erroneous.
Reversed.
Morgan D. Harris, Public Defender, Clark County, for Respondent.
1. Habeas Corpus.
In habeas corpus proceeding brought by petitioner, charged with burglary and grand larceny arising out
of same incident in which grand larceny charge was challenged, district court's ruling that state may only
charge burglary was clearly erroneous. NRS 205.060, 205.220.
2. Burglary.
Offense of burglary is complete when house or other building is entered with specific intent to commit
larceny or any felony therein. NRS 205.060, subd. 1.
3. Criminal Law.
If larceny or any felony is committed after person has entered house or other building with specific intent
to commit such crime therein, perpetrator has committed two crimes and may be charged with burglary as
well as larceny or such felony. NRS 205.060, subd. 1.
OPINION
Per Curiam:
Stevens was charged with burglary, NRS 205.060, and grand larceny, NRS 205.220. These
charges arose out of an incident on the 9th of October, 1980, in which two victims awoke to
find Stevens in their motel room carrying away a purse belonging to one of the victims. The
purse was subsequently recovered, but several items in the purse were missing, including a
wallet containing approximately $150.
In a pretrial petition for a writ of habeas corpus, Stevens challenged the sufficiency of
evidence presented at the preliminary examination in support of the charge of grand larceny.
The district court granted the petition and the state has appealed.
[Headnote 1]
The transcript of the hearing on the habeas petition reveals that the district court never
reached the issue of sufficiency of the evidence. Rather, the district court ruled that if a
person enters a house and steals property once inside, the state may only charge burglary.
This ruling was clearly erroneous.
[Headnotes 2, 3]
The offense of burglary is complete when the house or other building is entered with the
specific intent to commit larceny or any felony therein.
any felony therein. Carr v. Sheriff, 95 Nev. 688, 601 P.2d 422 (1979); see NRS 205.060(1). If
larceny or any felony is thereafter committed, the perpetrator has committed two crimes, and
may be charged with burglary as well as larceny or the felony. See People v. Morales, 69
Cal.Rptr. 553 (Ct.App. 1968).
Accordingly, the order of the district court granting respondent's pretrial petition for a writ
of habeas corpus is reversed.
____________
97 Nev. 318, 318 (1981) Scott v. State
WILLIE LEE SCOTT, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 12393
June 25, 1981 630 P.2d 257
Appeal from a judgment of conviction of murder in the first degree, Eighth Judicial
The Supreme Court held that trial court committed prejudicial error by denying defendant's
motion to preclude impeachment through use of prior convictions where exemplified records
on prior convictions failed to show that defendant properly waived constitutional rights
before entering guilty plea to burglary charge and failed to show he had been represented by
counsel on theft charge.
Bilbray, Carelli & Miller, Las Vegas, for Appellant.
James Tufteland and Mel Bowers, Deputy District Attorneys, Clark County, for Respondent.
Criminal Law; Witnesses.
Trial court committed prejudicial error by denying defendant's motion to preclude impeachment through
use of prior convictions where exemplified records on prior convictions failed to show that defendant
properly waived constitutional rights before entering guilty plea to burglary charge and failed to show he had
been represented by counsel on theft charge.
OPINION
Per Curiam:
A jury convicted appellant Scott of first degree murder. On appeal, appellant contends the
district court erred (1) by denying his motion to preclude proof of prior felony convictions
through assertedly inadequate records, {2) by denying his challenges for cause
concerning two members of the jury panel, and {3) by restricting his cross-examination of
a key prosecution witness.
97 Nev. 318, 319 (1981) Scott v. State
denying his motion to preclude proof of prior felony convictions through assertedly
inadequate records, (2) by denying his challenges for cause concerning two members of the
jury panel, and (3) by restricting his cross-examination of a key prosecution witness.
Appellant also asserts that the prosecution adduced insufficient evidence of premeditation to
support his conviction for first degree murder. We reverse appellant's conviction, because the
district court erred in denying his motion to preclude evidence of two prior felony
convictions. Other issues need not be decided.
Appellant was convicted of burglary in February, 1970, and of theft in November, 1974.
He moved to exclude evidence of these convictions for impeachment purposes, on the ground
that their validity was not sufficiently established in records submitted by the State. As to the
burglary charge, the exemplified record failed to show that appellant properly waived his
constitutional rights before entering his guilty plea. As to the theft charge, he contended the
exemplified record failed to show he had been represented by counsel. The district court
denied appellant's motion to preclude this evidence. Accordingly, expressly to prevent the use
of these convictions for impeachment purposes, appellant chose not to testify in his own
behalf.
We have heretofore said that a court may not rely upon the exemplified record, either to
impeach or enhance punishment, when a constitutional infirmity appears from the face of the
record. Anglin v. State, 86 Nev. 70, 73, 464 P.2d 504 (1970); see Halbower v. State, 96 Nev.
210, 606 P.2d 536 (1980). Here, the exemplified record for the burglary charge merely recites
that, the defendant in open Court, in person, pleaded guilty to the charge of Burglary. It
does not disclose that defendant's plea of guilty was entered voluntarily and
understandingly. See Boykin v. Alabama, 395 U.S. 238, 244 (1969). As to the theft charge,
the record presented by the State reflects only the presence of appellant, and not of any
counsel, at the time appellant entered his guilty plea.
The district court therefore erred when it denied appellant's motion to preclude
impeachment through use of the records in question. Since the ruling probably prevented
appellant from testifying, the degree of prejudice arising from the error is not ascertainable.
Mann v. State, 96 Nev. 62, 605 P.2d 209 (1980). Accordingly, we reverse and remand this
matter for a new trial, because the jury might have reached a different verdict if it had heard
appellant's version of the homicide.
1

____________________

1
Appellant has had two trials of this matter. The first trial, in which the appellant testified in his own behalf
ended in a declaration of a mistrial. The jury deadlocked, ten or two for acquittal.
____________
97 Nev. 320, 320 (1981) Thomas v. Valley Bank of Nevada
CHARLES H. THOMAS, Appellant, v. VALLEY BANK
No. 11720
June 25, 1981 629 P.2d 1205
Appeal from a judgment by the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Guarantor appealed from judgment of the district court entered against guarantor for
difference between price paid for security at foreclosure sale and total amount of principal
debt. The Supreme Court, Mowbray, J., held that anti-deficiency statutes do not apply to
obligations of guarantors.
Affirmed.
Gunderson, C. J., and Batjer, J., dissented.
Goodman, Oshins, Brown & Singer, and Kirby R. Wells, Las Vegas, for Appellant.
John Peter Lee, Ltd., and Richard McKnight, Las Vegas, for Respondent.
1. Mortgages.
Anti-deficiency statutes do not apply to obligations of guarantors. NRS 40.451 et seq.
2. Mortgages.
Guarantor's contract is not secured obligation; thus, protection of statute governing limitation of amount
of money judgment which limits amount of deficiency judgment to difference between fair market value of
security at time of sale and total amount of debt, does not apply to contract of guaranty. NRS 40.459.
3. Mortgages.
Anti-deficiency statute is designed to protect obligors who give security as collateral. NRS 40.451 et
seq.
4. Guaranty.
Guarantor's liability is defined by his independent contract with creditor and not by security agreement
given by primary obligor to creditor.
5. Guaranty.
Although surety's liability is measured by that of principal, guarantor's liability need not be thus limited.
OPINION
The issue presented on this appeal is whether the protections of the anti-deficiency
legislation, NRS 40.451 et seq., apply to guarantors.
guarantors. Appellant asks us to reconsider our decision in Manufacturers & Traders Trust v.
Dist. Ct., 94 Nev. 551, 583 P.2d 444 (1978) in which we held that they do not.
THE FACTS
Respondent, Valley Bank of Nevada (Bank) loaned C. H. Thomas Investments Inc.
(Corporation) $165,000.00 for the purchase and development of certain real property.
Corporation gave Bank its note for the amount of the loan, secured by a trust deed covering
the property. Appellant, Charles H. Thomas, (Guarantor) signed a separate agreement with
Bank guaranteeing payment of the note.
1

Corporation defaulted and Bank foreclosed on the security, purchasing the property at the
foreclosure sale for $100,000.00.
Bank then sought a deficiency judgment against Corporation for approximately
$34,000.00, the difference between Bank's bid for the security and the amount of the principal
debt. In the same action Bank sued Thomas on his contract of guaranty for the same amount.
The district court, relying upon our decision in Manufacturers & Traders Trust v. Dist. Ct.,
supra, ruled that Thomas, as guarantor, was not entitled to the protection of the
anti-deficiency statutes. The district court entered judgment against Thomas for the difference
between the price paid for the security at the foreclosure sale and the total amount of the debt.
____________________

1
The terms of said guaranty provide in pertinent part:
For value received the undersigned, jointly and severally, guarantee and promise to pay the note on
the reverse hereof and all extensions and renewals thereof, which extensions and renewals may be made
without notice to or consent of the undersigned and all taxes and insurance premiums and other sums that
may become due and payable under and by virtue of the provisions of any Deed of Trust, Security
Agreement, or other instrument of security, securing the aforesaid note and hereby waive. . . (b) the right,
if any, to the benefit of, or to direct the application of any security hypothecated to the holder until all
indebtedness of the maker to the holder, howsoever arising, shall have been paid; (c) the right to require
the holder to proceed against any person, or to pursue any other remedy in the holder's power; and agree
that the holder may proceed against the undersigned directly and independently of any person, and that
the cessation of the liability of the maker for any reason other than full payment, or any extension,
renewal, forbearance, change of rate of interest, or acceptance, release or substitution of security, of any
impairment or suspension of the holder's remedies or rights against any person shall not in any way
affect the liability of the undersigned hereunder. (Emphasis added.)
The court refused to enter judgment against the principal obligor, the Corporation.
2
Thomas,
the guarantor, appeals.
THE ANTI-DEFICIENCY STATUTES
[Headnotes 1, 2]
We hold that the anti-deficiency statutes, NRS 40.451 et seq., do not apply to the
obligations of guarantors. The language of the statutes in question confines their applicability
to debts secured by a mortgage or deed of trust, NRS 40.451. The guarantor's contract is not
a secured obligation, and the protection of NRS 40.459, which limits the amount of a
deficiency judgment to the difference between the fair market value of the security at the time
of sale and the total amount of the debt, does not apply to the contract of guaranty. First
National Bank of Nevada v. Barengo, 91 Nev. 396, 536 P.2d 487 (1975); Randono v. Turk,
86 Nev. 123, 466 P.2d 218 (1970); Short v. Sinai, 50 Nev. 346, 259 P.417 (1927); see also
Coombs v. Heers, 366 F.Supp. 851 (D.Nev. 1973).
[Headnotes 3, 4]
The definition of a debt in NRS 40.451
3
declares that only the principal obligation, which
is secured by the property mortgaged or subject to a deed of trust, is covered by the
anti-deficiency statute. It has always been the law of this state that a contract of guaranty is
not a secured obligation, even if the primary obligation is secured. Randono v. Turk, supra.
The anti-deficiency statute is designed to protect obligors who give security as collateral.
Since the guarantor has no interest in the security, there is no need to seek a deficiency
judgment, under the statute, against him; his liability as guarantor is defined by his
independent contract with the creditor.
The consistent law of this state, that a contract of guaranty is an obligation quite separate
from the primary debt, does not leave the guarantor without protection in a case of this
sort.
____________________

2
Although the district court refused to enter a deficiency judgment against the primary obligor, the corporate
defendant below, its findings indicate that the property which secured the primary obligation, upon which the
respondent foreclosed, was sold at its fair market value.
The Court in its conclusions of law ruled:
4. That the sole bid made at the foreclosure sale was $100,000.00 by Valley Bank of Nevada. That
said bid encompassed all nine parcels of land. That the bid was fair and equitable as an estimation of the
fair market value as of April 22, 1976 [sic], of all nine properties.
5. That $100,000.00 is the proper amount to be deducted from the $132,809.64 due and owing on
the promissory note on the date of foreclosure.

3
NRS 40.451 provides, in pertinent part, that indebtedness' means the principal balance of the obligation
secured by a mortgage or deed of trust. (Emphasis added.)
leave the guarantor without protection in a case of this sort. The measure of the guarantor's
liability is determined by his own contract of guaranty. If the primary debt is secured, we
discern no impediment to a guaranty providing for liability only to the extent that a deficiency
judgment would be obtainable against the primary debtor. The most obvious protection for
the guarantor would be to attend the foreclosure sale of the security and bid up the price to its
fair market value: by that means he would ensure that his liability under the contract of
guaranty would be precisely coextensive with the potential liability of the primary debtor
under the anti-deficiency statute.
[Headnote 5]
Considerable confusion is apparent in the arguments of the parties which rely upon
California law. The fundamental principle of the guaranty law of Nevada is the distinction
between guarantors, whose obligations are wholly separate from the principal obligation
guaranteed, and sureties, who are co-obligors with the principal debtor. This distinction
between guarantors and sureties has been abolished by statute in California, Cal. Civ. Code
2787, but it remains in force in Nevada. Short v. Sinai, supra. Although a surety's liability is
measured by that of the principal, this Court has never held that a guarantor's liability must be
thus limited. See Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966) (guarantor
held liable even though statute of limitations had run against principal obligor).
Accordingly, we reaffirm our holding in Manufacturers & Traders Trust v. Dist. Ct.,
supra, and we therefore affirm.
Manoukian, J., and Griffin, D. J.,
4
concur.
Gunderson, C. J., with whom Batjer, J., concurs, dissenting:
The sole issue raised by appellant is whether the district court erred by concluding that
appellant, as an individual guarantor of the note sued upon, was not entitled to the protection
of NRS 40.451 to 40.459 inclusive.
1
In concluding that the appellant was not entitled to the
protection of these provisions, the district court relied on this court's opinion in
Manufacturers & Traders Trust v. Dist. Ct., 94 Nev. 551
____________________

4
in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.

1
The pertinent language in these provisions for purposes of this appeal is the following:
40.453 1. It is hereby declared by the legislature to be against public policy for any document
relating to the sale of real property to contain any provision whereby a mortgagor or trustor waives any
right secured to him by the laws of this state.
2. No court shall enforce any such provision.
district court relied on this court's opinion in Manufacturers & Traders Trust v. Dist. Ct., 94
Nev. 551, 583 P.2d 444 (1978). The appellant asks us to reconsider our decision in
Manufacturers and either to distinguish that case from the instant matter or to overrule that
decision.
Justice Batjer and I believe that, as a matter of law, the appellant, as an individual
guarantor of the note sued upon, is protected by NRS 40.451 to 40.459 inclusive.
Accordingly, we would overrule that portion of this court's decision in Manufacturers which
holds that the protections of NRS 40.451, et seq., are afforded only to principal obligors and
do not apply to guarantors.
Properly interpreted, we believe the language adopted by the Legislature to describe the
parties in NRS 40.451 et seq., should be read to protect all defendants who are potentially
liable (including guarantors), and not simply mortgagors and trustors. NRS 40.453 declares
that it is against public policy for a document to contain a waiver of a right secured to a
mortgagor or trustor. However, the statutory provisions dealing directly with deficiencies
refer to defendants personally liable for the debt. NRS 40.459. (Emphasis added.) See also
NRS 40.457(1). It therefore is inconsistent with that express language to protect only the
principal obligors.
In Manufacturers, this court relied in part on the fact that, California courts have
consistently refused to extend the deficiency judgment statutes to guarantors. See fn. 2 in
Manufacturers at 556. However, examination of the California statutes
____________________
40.455 Upon application of the judgment creditor or the beneficiary of the deed of trust within 3
months from the date of the foreclosure sale or the trustee's sale held pursuant to NRS 107.080,
respectively, and after the hearing conducted under NRS 40.457, the court may award a in question,
i.deficiency judgment to the judgment creditor or the beneficiary of the deed of trust if it appears from
the sheriff's return or the recital of consideration in the trustee's deed that there is a deficiency of sale
proceeds and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust,
respectively.
40.457 1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing
and shall take evidence presented by either party concerning the fair market value of the property sold as
of the date of foreclosure sale or trustee's sale. Notice of such hearing shall be served upon all defendants
who have appeared in the action and against whom a deficiency judgment is sought, or upon their
attorneys of record, at least 15 days before the date set for hearing.
2. Upon application of any party made at least 10 days before the date set for the hearing the court
shall, or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the
date of foreclosure sale or trustee's sale. . . . Any appraiser so appointed may be called and examined as a
witness by any party or by the court. . . .
40.459 After the hearing under NRS 40.457, the court may award a money judgment against the
defendant or defendants personally liable for the debt. . . .
in question, i.e., West's Ann. C.C.P. 580(a)-(d), discloses that they contain no language
comparable to that found in NRS 40.457(1) concerning the right of all defendants to
receive notice of the hearing which must be held prior to the award of a deficiency judgment.
Nor do the California statutes contain language like that found in NRS 40.459 concerning the
court's capacity to award a money judgment against the defendant or defendants personally
liable for the debt. (Emphasis added.) The comparable California statutory provisions speak
exclusively about mortgagees or trustees whenever they mention parties.
Moreover, it is an elementary tenet of law that once a guarantor pays the alleged deficiency
under the note, he is then subrogated to the rights of the creditor to pursue the maker of the
note (and the principal obligor) for any amounts paid on the maker's behalf. Cf. Union Bank
v. Gradsky, 71 Cal. Rptr. 64 (Cal.App. 1968). Under generally accepted principles, the
maker-obligor can therefore be subjected by indirection to a debt which could not be
recovered directly. Furthermore, if we attempt to avoid this result, by allowing the
maker-obligor to assert a defense against the guarantor under the deficiency statutea
defense created solely by the creditor's failure to actthen the result will be to subject the
guarantor to a defense which he never contemplated, and which results not from his own
actions, but from the creditor's neglect.
We therefore respectfully submit that the court's ruling in Manufacturers is untenable and
should be overruled.
____________
97 Nev. 325, 325 (1981) Nehls v. Leonard
SUSAN E. NEHLS, Appellant, v. CLAIRE V.
LEONARD, Respondent.
No. 11593
June 25, 1981 630 P.2d 258
Appeal from summary judgment entered by the Eighth Judicial District Court, Clark
Action was instituted for injuries sustained in a rear-end collision. The district court
granted summary judgment to one defendant, and plaintiff appealed. The Supreme Court,
Gunderson, C. J., held that questions of fact existed so as to preclude summary judgment on
issues as to whether defendant driver of preceding vehicle was negligent in stopping suddenly
and without adequate warning and as to whether such action unnecessarily exposed plaintiff
passenger in following vehicle to unreasonable risk and constituted a substantial factor
causing collision in which plaintiff sustained injuries.
unnecessarily exposed plaintiff passenger in following vehicle to unreasonable risk and
constituted a substantial factor causing collision in which plaintiff sustained injuries.
Manoukian, J., dissented.
Edwin S. Pomeranz, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, and J. Mitchell Cobeaga, Las Vegas, for
Respondent.
1. Judgment.
A litigant has a right to trial where there is the slightest doubt as to the facts. NRCP 56.
2. Judgment.
In evaluating the propriety of a summary judgment, all evidence favorable to the party against whom
summary judgment was rendered will be accepted as true. NRCP 56.
3. Negligence.
Issues of negligence and proximate cause are considered issues of fact and not of law and, thus, are for
jury to resolve.
4. Judgment.
Questions of fact existed so as to preclude summary judgment on issues as to whether defendant driver of
preceding vehicle was negligent in stopping suddenly and without adequate warning and as to whether such
action unnecessarily exposed plaintiff passenger in following vehicle to unreasonable risk and constituted a
substantial factor causing collision in which plaintiff sustained injuries.
5. Negligence.
As a passenger in following automobile, plaintiff was not as a matter of law responsible for negligence on
part of host driver, even if such negligence contributed to collision with preceding vehicle operated by
defendant.
OPINION
This appeal is in a negligence action arising out of a rear-end automobile collision.
Appellant, Susan E. Nehls, was the plaintiff below. Respondent, Claire V. Leonard, was one
of the defendants. On appeal, the issue is whether the district court erred in granting summary
judgment to respondent Leonard. In our view, it did.
The Record
The case involves a rear-end automobile collision near the intersection of Desert Inn and
Paradise Roads in Las Vegas.
Appellant Nehls was riding in an automobile driven by co-defendant Launius and owned by
co-defendant Duke.
1
In Duke's Volkswagen, Ms. Nehls and Ms. Launius were proceeding
west on Desert Inn Road behind a Cadillac owned and operated by respondent Leonard.
Paradise Road, which runs north-south, intersects Desert Inn Road, which runs east-west. At
the intersection, there is an electric traffic light and a right-turn lane for automobiles turning
north onto Paradise Road. The right-turn lane, which is separated from the intersection by a
triangular concrete island, is not controlled by the traffic light. The turn lane enters into a
separate new lane on Paradise Road, so that traffic using it need not yield to other northbound
traffic on Paradise Road.
As the two cars proceeded, respondent Leonard apparently stopped her car just after
entering the right-turn lane. Ms. Launius stopped the Volkswagen behind her. Then, Ms.
Leonard continued out into the separate northbound lane of Paradise Road, where she
suddenly stopped once again. The record indicates that Ms. Launius, having proceeded after
the first stop, failed to stop her vehicle before it collided with Ms. Leonard's Cadillac.
2
The
collision caused Nehls to suffer injuries when her head struck the windshield, and her knee
and arm smashed into the Volkswagen's dashboard.
Respondent Leonard's motion for summary judgment contended that no genuine issue
existed as to any material fact because: (1) respondent was not negligent in stopping the
second time, and (2) even if respondent was negligent, the accident's sole cause was the
negligence of Ms. Launius. In opposition, appellant Nehls contended that genuine factual
issues existed, both as to Leonard's negligence and as to whether such negligence constituted
a proximate cause of Nehls' injuries.
____________________

1
Launius and Duke were dismissed from the instant action by the district court and are not parties to this
appeal.

2
The following descriptions of the collision exist in the record:
(1) Ms. Launius stated in her deposition: I was proceeding to make a right-hand turn. I put my car
into first gear. Susie [plaintiff Nehls] yelled, Look out,' I went for my brake, and my foot slipped off my
clutch, and my car popped, and I hit the rear end of the Cadillac.
(2) Ms. Launius also said, in her response to respondent Leonard's Interrogatory No. 40: The driver
in front of me stopped suddenly and unexpectidely [sic] when she had a clear line of travel.
(3) In her deposition, appellant Nehls testified to the following: The car was right where you were
going out. There is a lane to continue going, and the car was in that lane, and we were making a turn, and
the car just stopped. Appellant Nehls went on to say: I said, Kathy, the car stopped.' She went to put
her brakes on, and the clutch popped or something like that. She couldn't do it fast enough, and that's
when we hit the car.
The Legal Issues
[Headnotes 1, 2]
A court should exercise great care in granting summary judgment. Short v. Hotel Riviera,
Inc., 79 Nev. 94, 103, 378 P.2d 979 (1963); McColl v. Scherer, 73 Nev. 226, 231-232, 315
P.2d 807 (1957). NRCP 56 authorizes summary judgment only where the moving party is
entitled to judgment as a matter of law, and no genuine issue remains for trial. See Short,
cited above; Bader Enterprises, Inc. v. Becker, 95 Nev. 807, 809, 603 P.2d 268 (1979);
Lipshie v. Tracy Investment Co., 93 Nev. 370, 375, 566 P.2d 819 (1977); Nevada Land &
Mtge. v. Hidden Wells, 83 Nev. 501, 506, 435 P.2d 198 (1967). A litigant has a right to trial
where there is the slightest doubt as to the facts. Short, cited above. In evaluating the
propriety of a summary judgment, all evidence favorable to the party against whom summary
judgment was rendered will be accepted as true. Short, cited above; Bowyer v. Davidson, 94
Nev. 718, 720, 584 P.2d 686 (1978); Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90, 92,
560 P.2d 914 (1977).
[Headnotes 3, 4]
In Nevada, issues of negligence and proximate cause are considered issues of fact and not
of law, and thus they are for the jury to resolve. Merluzzi v. Larson, 96 Nev. 409, 610 P.2d
739 (1980); Drummond v. Mid-West Growers, 91 Nev. 698, 704, 542 P.2d 198 (1975).
Accepting all evidence favorable to the appellant, it appears factual issues exist as to whether
respondent was negligent in stopping as she did, and as to whether such action proximately
caused appellant's injury. At a trial, the evidence may persuade the jury that respondent
Leonard stopped suddenly and without adequate warning, that the stop unnecessarily exposed
appellant to unreasonable risk, and that the stop constituted a substantial factor in causing the
collision in which appellant sustained injuries.
[Headnote 5]
We note that the instant case is readily distinguishable from Massingille v. Meridith, 408
S.W.2d 209 (Ky.App. 1966), upon which respondent heavily relies. There, no merger lane
existed, and, in such circumstances, it is arguable that repeated stops are always reasonable
and must be foreseen.
3
Here, however, as the court stated in Montgomery v. Morgenson, 515
P.2d 746, 748 (Kan. 1973): The fact there was a rear end collision does not make the
[driver of the second automobile] guilty of negligence as a matter of law.
____________________

3
Respondent has also cited Rhoades v. DeRosier, 546 P.2d 930 (Wash.App.); however, in such case, the
Washington court explicitly noted that whether the preceding car acted in an unusual or unexpected way is a
question of fact for the jury.
The fact there was a rear end collision does not make the [driver of the second
automobile] guilty of negligence as a matter of law. Whether the [second driver] was
negligent is a question to be determined by the jury from all the evidence. It is only
when different minds can reasonably arrive at but one result that a fact issue becomes a
question of law, justifying a district court in taking the issue from the jury.
In any case, it should be remembered that, as a passenger, Ms. Nehls is not as a matter of law
responsible for negligence on the part of Ms. Launius, even if such negligence contributed to
the accident. See Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969).
The trial court erred in granting summary judgment in this matter.
Batjer, Springer, and Mowbray, JJ., concur.
Manoukian, J., dissenting:
This is an appeal involving a claim for personal injuries by plaintiff-appellant, Susan E.
Nehls, which arises out of an accident which occurred at the intersection of Desert Inn Road
and Paradise Road in Las Vegas. The impact occurred when the automobile driven by
defendant-respondent, Claire V. Leonard, followed by a vehicle driven by one Launius, in
which appellant was a passenger, attempted to negotiate right hand turns from the west bound
lanes of Desert Inn Road, northbound on to Paradise Road. Both vehicles were in a right-turn
traffic lane which was defined by a triangular concrete island. Respondent's vehicle stopped
initially and then progressed forward, with the Launius vehicle doing likewise. The accident
occurred when the preceding vehicle stopped for a second time and the Launius vehicle failed
to similarly stop.
The majority opinion states, inter alia that it appears factual issues exist as to whether
respondent was negligent in stopping as she did, and as to whether such action proximately
caused appellant's injury. At a trial, the evidence may persuade the jury that respondent
Leonard stopped suddenly and without adequate warning, that the stop unnecessarily exposed
appellant to unreasonable risk, and that the stop constituted a substantial factor in causing the
collision in which appellant sustained injuries. I cannot agree, and for the following reasons,
dissent.
The salient facts are uncontroverted and the issue that I perceive to be before us is the
interpretation given to these facts. It is clear to me that respondent was driving carefully,
making the turns in the turn-off of the right hand traffic lane and was observing
approaching traffic on Paradise Road, which is a heavily traveled thoroughfare in Las
Vegas.
is clear to me that respondent was driving carefully, making the turns in the turn-off of the
right hand traffic lane and was observing approaching traffic on Paradise Road, which is a
heavily traveled thoroughfare in Las Vegas.
Appellant's assertion that respondent's negligence in coming to a second stop is the sole
cause of the collision, is simply without factual or legal support. Both appellant and
respondent have characterized the respondent's vehicle's second stop as sudden. Even so, both
vehicles were moving quite slowly, appellant herself discerned the potential for the rear-end
collision and timely brought her concern to the attention of Ms. Launius. It is undisputed that
Launius was not attentive to respondent's vehicle. Moreover, it is apparent from appellant's
own testimony given during the taking of her deposition, that Ms. Launius turned her head to
look to the left and simply was not able to react quickly enough to the second stop of
respondent's vehicle. Launius' own deposition testimony is consistent with that of appellant.
Finally, the evidence shows that respondent's rear brake lights were on, signalling the second
stop. This satisfies the requirement of NRS 484.345. Appellant cannot successfully contend
that the second stop was unanticipated. Rhoades v. DeRosier, 546 P.2d 930, 933 (Wash.App.
1976); Miller v. Cody, 252 P.2d 303, 305 (Wash. 1953).
There are circumstances in which the physical setting itself provides sufficient notice to
obviate the need for a signal. I believe that the instant case presents such an obvious instance.
Even had there been no oncoming traffic, in view of the heavily travelled thoroughfare in
question, I do not believe that respondent's second stop to double check violated any duty
owed to appellant. Indeed, it was a reasonable act. See Massingille v. Meridith, 408 S.W.2d
209, 211 (Ky.App. 1966) (directed verdict for defendant).
On this record, I, as was the case with the trial court, am unable to find any evidence of
negligence on the part of respondent in making the second stop. It is also determinable from
the undisputed facts that the vehicle in which appellant was riding was negligent in following
too close to respondent's vehicle and not being attentive to respondent's vehicle, rather than
looking to the left until she was certain that respondent had entered the thoroughfare and was
proceeding therefrom. Folse v. Spruell, 203 S.2d 908, 911 (La.App. 1967). Moreover, it is the
second, not the lead driver, that has the primary duty of avoiding a collision. See Jarboe v.
Pine, 366 P.2d 783 (Kan. 1961); Miller v. Cody, 252 P.2d 303, 305.
In my view, the driver of the second vehicle had the obligation to maintain a very close
look-out for a sudden stop by the preceding driver, or, borrowing the language of NRS
4S4.319, which governs vehicles entering intersections not controlled by police officers or
traffic lights, to "proceed cautiously."
preceding driver, or, borrowing the language of NRS 484.319, which governs vehicles
entering intersections not controlled by police officers or traffic lights, to proceed
cautiously. Again, the second stop cannot be said to be unanticipated. Rhoades v. DeRosier,
546 P.2d at 933. I believe that respondent met, but Launius failed to meet, the reasonable
motorist test. See Ewing v. Izer, 412 P.2d 795, 797 (Ore. 1966). The trial court properly
concluded that the driver of the vehicle in which appellant was a passenger was guilty of
negligence which was the proximate cause of the accident.
No genuine issue of material fact exists to warrant a trial on the merits. NRCP 56(c).
Compare Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962) (evidence was,
as a matter of law, insufficient to establish negligence and proximate cause). Accordingly, I
would affirm the lower court's order granting summary judgment to respondent.
____________
97 Nev. 332, 332 (1981) Davis v. District Court
CHESTER C. DAVIS, DAVIS & COX, a Partnership, MAXWELL E. COX, HOWARD M.
JAFFE and D. MARTIN COOK, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and
THE HONORABLE J. CHARLES THOMPSON, Respondents.
No. 12808
FRANK WILLIAM GAY, LEVAR BEEBE MYLER and JOHN M. HOLMES, Jr.,
Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and THE HONORABLE
J. CHARLES THOMPSON, Respondents.
No. 13012
FIRST NATIONAL BANK OF NEVADA, Nevada Co-Special Administrator of the
Estate of Howard Robard Hughes, Jr. (Deceased); WILLIAM R. LUMMIS, Nevada
Co-Special Administrator of the Estate of Howard Robard Hughes, Jr. (Deceased) and
Texas Temporary Co-Administrator of the Estate of Howard Robard Hughes, Jr.
(Deceased); SUMMA CORPORATION: HUGHES AIR CORP., d/b/a Hughes
Airwest, and HUGHES PROPERTIES, INC., Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE
COUNTY OF CLARK; THE HONORABLE J. CHARLES THOMPSON, District
Judge, Eighth Judicial District Court; HOWARD LORENZO ECKERSLEY; JAMES
H. RICKARD; and WILBUR SUTTON THAIN, M.D., Respondents.
No. 13048
June 26, 1981 629 P.2d 1209
In three consolidated cases brought by the cospecial administrators of the estate of Howard
R. Hughes, Jr., against the group of aides, physicians, attorneys, and business executives who
had attended Hughes during the last years of his life, the lower court refused to quash service
of process upon defendants in two of the cases and, in the third case, granted defendants'
similar motion to quash. On original proceedings in prohibition and mandamus, the Supreme
Court, Mowbray, J., held that: (1) defendants in first case made a general appearance and
submitted themselves to jurisdiction of district court; {2) in first two cases, initial order
quashing service of summons on the original complaint was not res judicata on issue of
the in personam jurisdiction; {3) in the second case, plaintiffs produced sufficient
evidentiary material to satisfy prima facie standard of proof of sufficient contacts to
establish existence of district court's jurisdiction; and {4) in third case, it was reasonable
and constitutionally permissible under Nevada long-arm statute to require defendants to
appear and defend their activities in Nevada where the alleged injuries occurred.
(2) in first two cases, initial order quashing service of summons on the original complaint was
not res judicata on issue of the in personam jurisdiction; (3) in the second case, plaintiffs
produced sufficient evidentiary material to satisfy prima facie standard of proof of sufficient
contacts to establish existence of district court's jurisdiction; and (4) in third case, it was
reasonable and constitutionally permissible under Nevada long-arm statute to require
defendants to appear and defend their activities in Nevada where the alleged injuries
occurred.
Denied in cases 12808, 13012. Granted in 13048.
Lewis, D'Amato, Brisbois & Bisgaard, R. Gaylord Smith, Los Angeles; Houston, Moran &
Kennedy, Las Vegas, for Petitioners in 12808.
Jolley, Urga & Wirth, Las Vegas; Sheppard, Mullin, Richter & Hampton, Terence M.
Murphy, Los Angeles, for Petitioners in 13012, for Respondents in 13048.
Echeverria & Osborne, Reno; Kindel & Anderson, Malcolm George Smith, Los Angeles;
Parson, Behle & Latimer, Gordon L. Roberts, Salt Lake City; Fitzgibbons & Beatty, Las
Vegas, for Petitioners in 13048, for Respondents in 12808, 13012.
1. Appearance; Courts.
Where, in resisting respondents' motion to file an amended complaint, petitioners argued that leave to
amend should not have been granted because of prejudicial effect it would have had on related action that
petitioners had filed in New York, contended that allegations in the proposed second amended complaints
were identical to those filed in first amended complaints, and, during argument before district court, sought
attorney fees from respondents as a condition for leave to amend the complaint, petitioners made a general
appearance and submitted themselves to jurisdiction of district court.
2. Appeal and Error; Mandamus.
An order quashing service of summons is not treated as appealable final judgment and may be attacked
only through writ of mandamus. NRCP 54(a).
3. Mandamus.
Time limit for filing an appeal does not pertain to writ of mandamus; this extraordinary remedy is subject
to doctrine of laches. NRAP 4(a).
4. Judgment.
Order quashing service of process was not appealable and did not obtain status of a final judgment, and
thus district court did not err in refusing to apply res judicata doctrine on issue of in personam jurisdiction.
5. Courts.
When a challenge to personal jurisdiction is made, plaintiff in the action has burden of establishing
existence of jurisdiction, and the burden is met by introducing competent evidence of
essential facts which establishes a prima facie showing of in personam jurisdiction.
burden is met by introducing competent evidence of essential facts which establishes a prima facie showing
of in personam jurisdiction.
6. Courts.
Plaintiffs introduced sufficient evidentiary material to satisfy their prima facie standard of proof of
showing that out-of-state defendants had sufficient contacts with Nevada to establish jurisdiction.
7. Courts.
Under Nevada long-arm statute, it was reasonable and constitutionally permissible to require
defendants, who allegedly had conspired out of Nevada to cause injury to plaintiffs' property located in
Nevada, to appear and defend their activities in Nevada. NRS 14.065.
OPINION
These original proceedings are a consolidation of three cases: in 12808 and 13012, the
lower court refused to quash service of process upon petitioners; in 13048, the lower court
granted defendant-respondents' motion to quash service of process.
THE FACTS
On January 24, 1979, a complaint was filed by the Nevada Co-Administrators for the
Estate of Howard R. Hughes, Summa Corporation, Hughes Air Corporation, and Hughes
Properties (hereinafter collectively referred to as Summa) against the group of aides,
physicians, attorneys, and business executives who had attended the late Hughes during the
last years of his life. The complaint alleged essentially that the group conspired to seize
control of the Hughes' empire for their own financial gain by taking advantage of the trust and
confidence Hughes had placed in them.
All petitioners in 12808 and 13012, except Maxwell Cox, Howard Jaffe, and Martin Cook,
and the respondents in 13048 were named as defendants in the original complaint. These
out-of-state defendants filed motions to quash service of summons contending that Nevada
lacked jurisdiction; the Honorable Paul S. Goldman, District Judge, granted the motions as to
petitioners Gay, Myler, Holmes, Davis, Davis and Cox, a partnership, and respondents
Eckersley, Rickard, and Thain.
Thereafter, Summa filed a first amended complaint. The defendants again filed motions to
quash service of summons, but before the lower court considered these motions, Summa
sought leave to file a second amended complaint naming, as additional defendants, petitioners
Cox, Jaffe, and Cook. Leave was granted; the second amended complaint was filed on
November 28, 1979.
The out-of-state defendants again filed motions to quash service of process. The
Honorable J. Charles Thompson, District Judge, to whom the case was then assigned, denied
the motions on June 20, 1980, as to petitioners Cox, Davis, Cook, Jaffe, and Davis and Cox, a
partnership, number 12808; he also denied the motions as to Gay, Myler and Holmes on
November 13, 1980, number 13012; however, on November 14, 1980, the judge granted the
motions and quashed service as to respondents Eckersley, Rickard, and Thain, number 13048.
From these orders the parties petition this court.
NUMBER 12808
General Appearance
In response to Summa's motion for leave to file a second amended complaint, petitioners
filed points and authorities in opposition. They appeared and argued before the court. The
lower court ruled that petitioners had waived their special appearance, and had submitted
themselves to the jurisdiction of the Nevada court.
This court has considered the issue of general and special appearances a number of times,
but never in the context of opposing a motion for leave to file an amended complaint. We
have held that when a defendant seeks relief additional to that necessary to protect him from
service of process, he enters a general appearance. Alitalia-Linee Aeree v. District Court, 92
Nev. 638, 556 P.2d 544 (1976); Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971); Havas v.
Long, 85 Nev. 260, 454 P.2d 30 (1969); Selznick v. Eighth Judicial District Court, Etc., 76
Nev. 386, 355 P.2d 854 (1960). Petitioners argue that their opposition for leave to amend the
complaint was predicated solely upon their assertion that the Nevada court lacked jurisdiction
over the defendants; they cite Chitwood v. County of Los Angeles, 92 Cal.Rptr. 441
(Cal.App. 1971). See also, Housley v. Anaconda Company, 427 P.2d 390 (Utah 1967).
[Headnote 1]
Our review of the record leads us to conclude otherwise. In resisting the motion petitioners
argued that leave to amend should not have been granted because of the prejudicial effect it
would have on a related action petitioners had filed in New York against Summa. They also
contended that the allegations in the proposed second amended complaint were identical to
those in the then filed first amended complaint.
1
During argument before the district court,
petitioners' counsel sought attorneys' fees from Summa as a condition for leave to amend
the complaint.2
____________________

1
Petitioners argued below: The proposed second amended complaint presents identical causes of action to
those presented in the first amended
attorneys' fees from Summa as a condition for leave to amend the complaint.
2

We conclude that petitioners did make a general appearance and submitted themselves to
the jurisdiction of the district court. Where the defendant appears, and asks some relief
which can only be granted on the hypotheses that the court has jurisdiction of the cause and
person, it is a submission to the jurisdiction of the court. Goodwine v. Superior Court of Los
Angeles, 407 P.2d 1, 3 (Cal. 1965).
Res Judicata
Petitioners here, and in case number 13012, suggest that the order of Judge Goldman
quashing service of summons on the original complaint is res judicata on the issue of in
personam jurisdiction. The second amended complaint basically contains the same causes of
action as the original complaint. However, the second complaint alleges, with more
specificity, the tortious acts which Summa contends occurred in this state. The question
presented is whether the previous order quashing service of process is entitled to the finality
which evokes the doctrine of res judicata.
[Headnotes 2, 3]
An order quashing service of summons may be attacked only through a writ of mandamus.
Jarstad v. National Farm Union, 92 Nev. 380, 552 P.2d 49 (1976). It is not a judgment as
defined in our rules of civil procedure: Judgment' as used in these rules includes a decree
and any order from which an appeal lies. NRCP 54(a). The time limit for filing an appeal,
NRAP 4(a), does not pertain to a writ of mandamus; this extraordinary remedy is subject to
the doctrine of laches. Buckholt v. District Court, 94 Nev. 631, 584 P.2d 672 (1978). An
order quashing service of summons is not treated as an appealable final judgment under our
rules of civil procedure.
Petitioners rely on a number of cases which find a direct estoppel to exist on a
jurisdictional issue once decided: MIB, Inc. v. Super. Ct. of Los Angeles Cty., 164 Cal.Rptr.
828 {Cal.App.
____________________
complaint now before the court. The changes effected by the proposed second amended complaint are merely
evidentiary--plaintiffs plead numerous disparate evidentiary facts for cosmetic purposes while still failing to
allege what defendants told Howard Hughes that was incorrect or what defendants did which was beyond their
authority. (Emphasis in original.)

2
Petitioners' counsel stated: Rule 15A or B expressly confers upon this court the power to impose conditions
and I think the literal terms of that will duly invest you with sufficient power to require plaintiffs to pay me as a
condition for permitting them to file something with your Clerk.
(Cal.App. 1980); Radakovich v. Weismann, 359 A.2d 426 (Pa.Super. 1976); Archie v.
Piaggio, 245 A.2d 76 (N.H. 1968). However, in each of these cases the order quashing service
was directly appealable and it became a final judgment.
[Headnote 4]
Here the order quashing service of process was not appealable and did not obtain the status
of a final judgment. The district court did not err in refusing to apply the res judicata doctrine.
NUMBER 13012
Burden of Proof
In addition to the issue of res judicata, the inapplicability of which we discussed in number
12808 and incorporate herein, petitioners argue that the lower court failed to apply the correct
burden of proof in determining whether sufficient contacts existed to justify the exercise of
jurisdiction: they contend that respondents need to have proved the existence of sufficient
contacts by a preponderance of the evidence. The lower court ruled that a prima facie
showing of sufficient contacts was sufficient. We agree.
[Headnotes 5, 6]
When a challenge to personal jurisdiction is made, the plaintiff in the action has the burden
of establishing the existence of jurisdiction. Basic Food Indus., Inc. v. District Court, 94 Nev.
111, 575 P.2d 934 (1978). This burden is met by introducing competent evidence of essential
facts which establishes a prima facie showing of the existence of in personam jurisdiction.
Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976); Harvel v. District Court in
& for County of Jefferson, 444 P.2d 629 (Colo. 1968). Unlike the situation in Basic Food
Indus., Inc., supra, where the plaintiff rested solely upon the allegations of the complaint to
establish such jurisdiction, our review of the record in the instant case reveals sufficient
evidentiary material set forth in numerous affidavits to satisfy the prima facie standard of
proof. The trial judge's ruling was correct.
NUMBER 13048
The respondents in the two previous cases are the petitioners here seeking a writ of
mandamus directing the lower court to exercise its jurisdiction over Eckersley, Rickard, and
Thain. We again incorporate our discussion and rulings on the issues of res judicata and the
proper burden of proof as set forth in case numbers 12808 and 13012.
The Nevada Long-Arm Statute
The lower court quashed service of process on respondents Eckersley, Rickard, and Thain
in case number 13048.
Summa, in its complaint, had alleged that the said respondent-defendants had conspired
out of the state of Nevada to cause injury to Summa's property located in Nevada. The court
based its ruling on its conclusion that Nevada's long-arm statute, NRS 14.065, did not apply
under the alleged facts.
3
We do not agree.
In Certain-Teed Prods. v. District Court, 87 Nev. 18, 23, 479 P.2d 781. 784 (1971), we
held:
The broad language used in the statute discloses a legislative intention to reach the
outer limits of federal constitutional due process. Such phrases as transacting any
business within this state,' negotiating any commercial paper within the state,'
committing a tortious act within this state,' are almost without restriction or
limitation.
The California long-arm statute shows a similar broad intent by permitting jurisdiction to
attach when predicated on any ground not inconsistent with federal due process. C.C.P.
410.10. The California Judicial Council's annual report construing this section concludes that
A state has power to exercise judicial jurisdiction over an individual who causes effects in
the state by an omission or act done elsewhere with respect to causes of action arising from
these effects. Quattrone v. Superior Court for County of Los Angeles, 118 Cal.Rptr. 548,
552 (Cal.App. 1975).
[Headnote 7]
We conclude that it is reasonable and constitutionally permissible to require the
respondent-defendants to appear and defend their activities in Nevada where the alleged
injuries occurred.
____________________

3
NRS 14.065 provides in pertinent part:
Personal service of process on party outside state.
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated
in this subsection thereby submits himself and, if an individual, his personal representative to the
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business or negotiating any commercial paper within this state;
(b) Committing a tortious act within this state;
(c) Owning, using or possessing any real property situated in this state;
(d) Contracting to insure any person, property or risk located within this state at the time of
contracting; or
(e) Living in the marital relationship within this state notwithstanding subsequent departure from this
state, as to all obligations arising for alimony, child support or property settlement, if the other party to
the marital relationship continues to reside in this state.
defend their activities in Nevada where the alleged injuries occurred. As the High Court
recently reiterated in World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980):
The protection against inconvenient litigation is typically described in terms of
reasonableness' or fairness.' We have said that the defendant's contacts with the forum
State must be such that maintenance of the suit does not offend traditional notions of
fair play and substantial justice.' International Shoe Co. v. Washington, supra, at 316,
quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). The relationship between the
defendant and the forum must be such that it is reasonable . . . to require the
corporation to defend the particular suit which is brought there.' 326 U.S., at 317.
Implicit in this emphasis on reasonableness is the understanding that the burden on the
defendant, while always a primary concern, will in an appropriate case be considered in
light of other relevant factors, including the forum State's interest in adjudicating the
dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957); the
plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California
Superior Court, supra, at 92, [436 U.S. 84 (1978)] at least when that interest is not
adequately protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner,
433 U.S. 186, 211, n. 37 (1977); the interstate judicial system's interest in obtaining the
most efficient resolution of controversies; and the shared interest of the several States
in furthering fundamental substantive social policies, see Kulko v. California Superior
Court, supra, at 93, 98. (Citation added.)
The court below erred in granting the motion to quash the service of process.
For these reasons we deny the petitions in numbers 12808 and 13012, and we grant the
petition in 13048.
____________
97 Nev. 340, 340 (1981) Neumann v. McMillan
DONALD NEUMANN and GLENDA NEUMANN, Appellants, v. FLORENCE
McMILLAN a/k/a FLORENCE KING AND ALICE CARROLL, Respondents.
No. 12090
June 26, 1981 629 P.2d 1214
Appeal from judgment by the court, sitting without a jury, Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Former wife brought action to quiet title to family residence to void deed of trust given by
husband without her consent. The district court rendered judgment for wife, and holders of
deed of trust appealed. The Supreme Court held that evidence that family residence was
purchased with community funds and that both husband and wife alleged in their divorce
pleadings that property was community property supported trial court's determination that
family residence was community property which could not be encumbered without wife's
consent.
Affirmed.
Rogers, Monsey, Woodbury & Berggreen, Las Vegas, for Appellants.
Monte J. Morris, Las Vegas, for Respondents.
Fact that deed to property owned by husband and wife is taken in joint tenancy raises rebuttable
presumption that property was in fact held in joint tenancy. NRS 123.230, subd. 3.
In former wife's action to quiet title to family residence to void deed of trust given by former husband
without her consent, evidence that family residence was purchased with community funds and that husband
and wife had both alleged in divorce pleadings that property was community property supported trial
court's determination that family residence was community property which could not be encumbered by
deed of trust by husband without wife's consent. NRS 123.230, subd. 3.
OPINION
Per Curiam:
In this appeal we must determine whether there is substantial evidence to support the trial
court's finding that the family residence was community property. We determine that the trial
court's finding is so supported by the evidence, and affirm.
In 1967, Barton and Florence King, while married and with community funds, acquired
title to a family residence as husband and wife, as joint tenants. In June of 1973, Mr. King
filed for divorce alleging that the residence was community property. In August of 1973, Mrs.
King, (now respondent McMillan) filed her answer similarly alleging that the property was
community in nature.
In September of 1973, Mr. King executed to his sister and brother-in-law (appellants
Neumann) a promissory note for $4,500. The promissory note was secured by a recorded
deed of trust using the residence as collateral. It is undisputed that both the promissory note
and deed of trust were executed without Mrs. King's knowledge. In December of 1973, the
district court, in granting the divorce, approved the Kings' property settlement agreement
whereby Mrs. King received the above residence subject to encumbrances of record.
Thereafter, in attempting to sell the residence, Mrs. King became aware of the
encumbrance on the property. She seasonably filed an action to quiet title (void the deed of
trust) on the basis that the encumbrance upon the community property without her consent
violated NRS 123.230.
1
Based upon the following findings of fact, the district court rendered
judgment for Mrs. King: (1) there was substantial evidence to show that notwithstanding the
form of the deed, the parties intended the residence to be community property; and (2)
because Mrs. King had no knowledge of the encumbrance placed upon the community
property by Mr. King during the pendency of the divorce, she did not ratify said encumbrance
by signing the property settlement agreement. From the judgment, the Neumanns appeal.
NRS 123.230(3) provides that neither spouse may sell, convey, or encumber the
community real property without the other spouse joining in the execution. However, the
statute does not apply when spouses hold the property not as community property but rather
as joint tenants. Allen v. Hernon, 74 Nev. 238, 242, 328 P.2d 301, 304 (1958).
[Headnote 1]
The fact that a deed to property owned by a husband and wife is taken in joint tenancy
raises a rebuttable presumption that the property was, in fact, held in joint tenancy. Peters v.
Peters, 92 Nev. 687, 691, 557 P.2d 713, 715 (1976). The trial court held that Florence
McMillan had shown that "notwithstanding the form of the Deed, the parties intended the
property to be community property."
____________________

1
NRS 123.230 provides in part: Neither spouse may sell, convey or encumber the community real property
unless both join in the execution of the deed or other instrument . . . .
court held that Florence McMillan had shown that notwithstanding the form of the Deed, the
parties intended the property to be community property.
[Headnote 2]
There is ample evidence supportive of the court's determination of the community nature
of the property. The property was purchased with community funds. Florence McMillan
stated in her affidavit that Barton King had indicated to her that any interest that they had in
the property was community property. Two months prior to obtaining the loan and executing
the deed of trust, both Mr. King and Florence King alleged in their divorce pleadings that the
property was community property. We conclude that there is substantial evidence to support
the trial court's determination.
The remaining issues being without merit, we affirm.
____________
97 Nev. 342, 342 (1981) Alrich v. Bailey
HELEN ALRICH, Appellant, v. STANLEY BAILEY, and
SHERYL BAILEY, Husband and Wife, Respondents.
No. 11153
July 2, 1981 630 P.2d 262
Appeal from judgment denying easement by implication, Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Property owner brought an action seeking an implied easement for three roads across her
neighbors' property. The district court held that the owner was entitled to reasonable means of
access to her property and awarded the owner an easement on one road as her means of
access. Owner appealed. The Supreme Court, Guy, D. J., held that the evidence was
insufficient to establish that the property owner was entitled to an easement for all three roads
where it was established that the one road was sufficient for all the needs of the owner's
property and could more safely be used and other expert testimony was introduced to
establish that three implied easements would benefit the owner's parcel slightly but would be
a substantial detriment to the neighbors' property.
Affirmed.
Manoukian, Scarpello & Alling, Ltd., Carson City, for Appellant.
Breen, Young, Whitehead, Terzich & Belding, Chtd., Reno, for Respondents.
1. Easements.
Easements may be created by express agreement, by prescription or by implication.
Where there is substantial evidence for trial court's rulings, even if there is conflict in evidence, trial
court's conclusions will not be disturbed on appeal.
3. Easements.
For easement by implication to exist, in addition to unity of title, and apparent and continuous use,
easement must be necessary to proper or reasonable enjoyment of dominant tenement.
4. Easements.
Evidence was insufficient to establish easement by implication for three roads across neighbors' property
where testimony indicated that one road would be sufficient for all needs of owner's property and could be
more safely used, and other expert testimony indicated that three implied easements would benefit
owner's parcel slightly but would be substantial detriment to neighbors' parcel, and, therefore, evidence
supported conclusion that owner had easement on one road as her means of access.
OPINION
By the Court, Guy, D. J.
1
:
In 1961, Charles Steen purchased a parcel of land on the west side of old U.S. Highway
395 in Washoe Valley. The east section, contiguous to Highway 395, is now owned by the
respondents, the Baileys, and the western section is now owned by the appellant, Alrich. In
1961, roads A and B then in existence were the means of access and egress from
Highway 395 to Steen's property. In 1962, Steen constructed road C from the highway to
his new residence.
In 1963, Steen executed a deed of trust encumbering the eastern parcel which included the
section now owned by the Baileys. In 1966, the western parcel now owned by Alrich was
likewise encumbered. In 1968, a foreclosure of the eastern section by the American Industrial
Insurance Company severed the eastern and western parcels with Steen maintaining
ownership of the western parcel. With the loss of the eastern parcel use of roads A and B
was greatly curtailed. In 1973, the Baileys purchased the eastern parcel from a Mr. Noble,
who
____________________

1
The Governor designated the Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court, to sit
in the place of The Honorable Noel Manoukian, Justice, who was disqualified. Nev. Const., art. 6, 4.
had acquired the property from the American Industrial Insurance Company around 1970.
In 1977, the western parcel of Steen's land was purchased by Alrich. While roads A and
B could be seen from this parcel, they were not in continuous use as they had been before
the first foreclosure. The Baileys had blocked roads A and B several times even though
the barriers had to be replaced. The Baileys did permit the use of road C by Steen for
ingress to and egress from their property.
Alrich brought suit in April of 1977 seeking an implied easement for all three roads, i.e.,
roads A, B and C across the Baileys' property. The district court found that there was
not an automatic implied easement of roads A, B and C created by the severance of the
Steen property. The district court held that Alrich was entitled to a reasonable means of
access to her property and awarded Alrich an easement on road C as her means of access.
This appeal followed.
[Headnote 1]
Easements may be created by express agreement, by prescription or by implication. An
easement by implication is claimed in this matter. In Boyd v. McDonald, 81 Nev. 642, 647,
408 P.2d 717 (1965) we stated that:
. . . the three essential characteristics of an easement by implication are (1) unity of title
and subsequent separation by a grant of the dominent [sic] tenement; (2) apparent and
continuous user; and (3) the easement must be necessary to the proper or reasonable
enjoyment of the dominent [sic] tenement.
There is unity of title and subsequent separation of the dominant tenement.
There was conflicting testimony as to the apparent and continuous use of the roadways.
The entire parcel of land became separated because of a foreclosure of a trust deed by the
American National Insurance Company. Steen retained the larger parcel. The need and use of
the three roadways had been greatly diminished. Occasional use was permitted by the
American National Insurance Company. The successor of American National Insurance
Company, a Mr. Noble, likewise initially gave permission for use of the roads to Steen, but
this permission was later revoked because of a lack of reciprocal permission on a landlocked
area owned by Mr. Noble.
Extreme hostilities existed between Steen and the Baileys. The Baileys would place
obstacles in the roadways to prevent their use. Steen would cut the chain barricades and
remove other obstacles.
other obstacles. The Baileys would erect other obstacles. One of the roadways had a pond
constructed in the center of it to prevent the road from being used. The construction of a fence
or otherwise blocking the roads may be considered as evidence of the interruption of apparent
and continuous use. Talbot's, Inc. v. Cessnun Enterprises, Inc., 566 P.2d 1320 (Alaska 1977);
Lang v. Jones, 535 P.2d 242 (Colo.App. 1975).
Boyd v. McDonald, supra at 649, n. 6, indicates that if an easement by implication is
created it would be at the time of the original severance. The footnote also states, . . . At
most, a later sale by the original owner of both parcels might offer some indication of that
owner's intent at the time he sold the first parcel.
The original severance application must not be construed in a vacuum. Other factors
may be considered in determining whether the property was in apparent and continuous use.
This is particularly so when the severance is accomplished by a forced sale or foreclosure.
Not to consider other factors, when this occurs, could result in a harsh and unfair utilization
of land.
[Headnote 2]
The trial court heard the conflicting evidence and made its finding and determination that
there was not apparent and continuous usage. Where there is substantial evidence to support
the trial court's rulings, even if there is a conflict in the evidence, the trial court's conclusions
will not be disturbed on appeal. Blanchard v. Nevada State Welfare Dep't, 91 Nev. 749, 542
P.2d 737 (1975); Sala & Ruthe Realty, Inc. v. Deneen, 89 Nev. 98, 507 P.2d 140 (1973).
[Headnote 3]
For an easement to exist in addition to the unity of title, and the apparent and continuous
use, the easement must be necessary to the proper or reasonable enjoyment of the dominant
tenement. Again there was conflicting testimony before the trial court, as to the reasonable
enjoyment of the Alrich property. The trial court found that roads A and B were neither
reasonable nor necessary for enjoyment by Alrich of her property.
[Headnote 4]
Expert testimony was presented to the effect that road C was sufficient for all the needs
of the Alrich property and could be more safely used. Other expert testimony was introduced
for the proposition that the three "implied easements" would benefit the Alrich parcel
slightly but would be a substantial detriment to the Baileys' parcel.
the proposition that the three implied easements would benefit the Alrich parcel slightly but
would be a substantial detriment to the Baileys' parcel. Under these circumstances, we cannot
find error with the district court's ruling.
Affirmed.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
Honorable Cameron Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.
____________
97 Nev. 346, 346 (1981) Sheriff v. Provenza
MICHAEL J. PROVENZA, Respondent.
No. 12572
July 2, 1981 630 P.2d 265
Appeal from order granting Petition for Writ of Habeas Corpus, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Sheriff appealed from order of the district court granting defendant's pretrial motion for
writ of habeas corpus. The Supreme Court held that absent a showing of substantial error on
the part of the lower court in reaching factual determination of whether or not probable cause
exists against criminal defendant at pretrial, it will not overturn granting of pretrial habeas
corpus for lack of probable cause.
Affirmed.
David P. Schwartz, Deputy District Attorney, Clark County, for Appellant.
Goodman, Oshins, Brown & Singer, and William B. Terry, Las Vegas, for Respondent.
Habeas Corpus.
Absent a showing of substantial error on the part of the lower court in reaching factual determination of
whether or not probable cause exists against criminal defendant at pretrial, Supreme Court will not
overturn granting of pretrial habeas corpus petitions for lack of probable cause. NRS 34.380, 34.380,
subd. 6.
97 Nev. 346, 347 (1981) Sheriff v. Provenza
OPINION
Per Curiam:
Appellant Sheriff of Clark County has appealed from a district court order granting
respondent Provenza's petition for a writ of habeas corpus.
In granting the writ, the district judge found that there was insufficient evidence to
establish probable cause to hold Provenza for trial. On this appeal, which was scheduled for
oral argument at the request of the Clark County District Attorney pursuant to NRAP
34(f)(3), we are asked by the state to review the record and make an independent
determination as to the sufficiency of the evidence.
NRS 34.380 permits the state to appeal from a district court order granting a writ of habeas
corpus. NRS 34.380(6). There is no corresponding appellate review from orders denying
pretrial petitions. Gary v. Sheriff, 96 Nev. 78, 608 P.2d 1106 (1980); Konstantinidis v.
Sheriff, 96 Nev. 285, 607 P.2d 584 (1980).
Considerations of judicial efficiency provide an independent basis in support of our
reluctance to review probable cause factual determinations in pretrial matters. Kussman v.
District Court, 96 Nev. 54, 612 P.2d 679 (1980). Although we have recognized that there is a
different degree of finality between the denial and granting of habeas relief, Gary, supra,
broad review by this Court of factual issues related to probable cause would in many
instances be inconsistent with sound judicial administration.
The trial court is the most appropriate forum in which to determine factually whether or
not probable cause exists. In re Eastham, 96 Nev. 785, 617 P.2d 1304 (1980). Absent a
showing of substantial error on the part of the district court in reaching such determinations,
this court will not overturn the granting of pretrial habeas petitions for lack of probable cause.
Accordingly, the order of the district court granting respondent's pretrial petition for a writ
of habeas corpus is affirmed.
____________
97 Nev. 348, 348 (1981) Dromiack v. Warden
MICHAEL ALECK DROMIACK, Appellant, v. WARDEN,
No. 13023
July 8, 1981 630 P.2d 751
Appeal from order denying petition for writ of habeas corpus, First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
The Supreme Court held that: (1) rule that court need not consider successive petitions
which contain grounds for relief which could have been raised in a prior petition applies to
post-conviction petitions for habeas corpus, and (2) prohibition against filing of successive
petitions does not violate clause of the State Constitution providing that privilege of writ of
habeas corpus shall not be suspended.
Affirmed.
Michael L. Powell, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Thomas P. Wright, Deputy Attorney General,
1. Habeas Corpus.
Rule that court need not consider successive petitions which contain grounds for relief which could
have been raised in a prior petition applies to post-conviction petitions for habeas corpus.
2. Habeas Corpus.
Prohibition against filing of successive petitions does not violate clause of the State Constitution
providing that privilege of writ of habeas corpus shall not be suspended. Const. Art. 1, 5.
OPINION
Per Curiam:
Once again this court is faced with an appeal from an order denying a petition for a writ of
habeas corpus filed by Michael Dromiack. At least seven other such appeals have preceded
this one.
In this particular proceeding, Dromiack, an inmate in the state prison, petitioned the
district court for a writ of habeas corpus contending he was being denied statutory good time
credits. The district judge ruled that Dromiack was barred from asserting such grounds for
relief because he offered no reasonable explanation for his failure to include the grounds for
relief in one of his numerous prior habeas petitions.
97 Nev. 348, 349 (1981) Dromiack v. Warden
for relief in one of his numerous prior habeas petitions. This appeal followed.
We have held that a court need not consider successive petitions for statutory
post-conviction relief under NRS 177.315 et seq., Rogers v. Warden, 86 Nev. 359, 468 P.2d
993 (1970), or pretrial habeas corpus, Craig v. Sheriff, 92 Nev. 741, 557 P.2d 710 (1976),
which contain grounds for relief which could have been raised in a prior petition. Here,
Dromiack argues that this rule does not apply to post-conviction petitions for habeas corpus
and that to apply such a rule would violate the anti-suspension clause of the Nevada
Constitution. Art. 1, 5.
1
We disagree.
[Headnote 1]
The rule announced in Rogers and Craig also applies to post-conviction petitions for
habeas corpus. Cf. Junior v. Warden, 91 Nev. 111, 532 P.2d 1037 (1975) (statutory waiver
provisions of post-conviction relief applied to post-conviction habeas petition). As we stated
in Roger, supra at 362, 468 P.2d at 994:
Many petitions for habeas corpus or other post-conviction relief are repetitious; others
often are specious. This places an unnecessary burden upon the courts. It is highly
desirable that a petitioner be required to assert all of his claims in one petition. His
failure to assert them constitutes a waiver. The way is left open, however, for a
subsequent petition if the court finds grounds for relief that could not reasonably have
been raised in the original petition.
[Headnote 2]
The prohibition against the filing of successive petitions does not violate the
anti-suspension clause of the Nevada Constitution. The rule is a reasonable regulation of the
writ, designed to deal with practical administrative problems faced by the courts, and thus is
not unconstitutional. Grego v. Sheriff, 94 Nev. 48, 574 P.2d 275 (1978).
Affirmed.
____________________

1
Nev. Const. Art. 1, 5 provides: The privilege of the Writ of Habeas Corpus, shall not be suspended
unless when in cases of rebellion or invasion the public safety may require its suspension.
____________
97 Nev. 350, 350 (1981) Stapley v. State
GEORGE IRVING STAPLEY, aka Robert D. Street, Appellant,
No. 11371
July 8, 1981 630 P.2d 266
Appeal from burglary conviction, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
OPINION
Per Curiam:
On June 2, 1981, this court ordered the parties to file authorities directed to the
applicability of Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980), in this appeal from a
burglary conviction. In response to our order, the state has conceded that Hollis is dispositive
of the issue relating to jury instructions. Accordingly, on the authority of Hollis, we reverse
the conviction and remand for a new trial.
____________
97 Nev. 350, 350 (1981) Wade v. State
RUSSELL WINFIELD WADE, Appellant, v. THE
No. 12109
July 15, 1981 630 P.2d 1219
Appeal from judgment upon jury verdict, First Judicial District Court, Carson City;
Michael R. Griffin, Judge.
Defendant was convicted before the district court of lewdness with a child under the age of
14, and he appealed. The Supreme Court held that giving of instruction that legal
presumption that a person intends reasonable and natural consequences of any act
intentionally done will always prevail unless jury entertains reasonable doubt whether such
intention did exist was reversible error.
97 Nev. 350, 351 (1981) Wade v. State
David B. Small, District Attorney, and William A. Maddox, Deputy District Attorney,
Criminal Law.
Giving of instruction that legal presumption that person intends reasonable and natural consequences of
any act intentionally done will always prevail unless, from consideration of all evidence bearing upon the
point, jury entertains reasonable doubt whether such intention did exist was reversible error since
instruction did not merely instruct that defendant's acts are circumstances tending to justify finding of
intent, nor did it direct jury to weigh circumstances of his acts with other evidence. NRS 47.230.
OPINION
Per Curiam:
Appellant was convicted of lewdness with a child under the age of fourteen. NRS 201.230.
During the trial the court gave the following instruction:
Upon the question of intent, the law presumes a person to intend the reasonable and
natural consequences of any act intentionally done; and this presumption of law will
always prevail, unless, from a consideration of all the evidence bearing upon the point,
the jury entertain a reasonable doubt whether such intention did exist.
Appellant contends that giving the instruction was reversible error. We agree.
In our view, the challenged instruction does not merely instruct the jury that the
defendant's acts are circumstances tending to justify a finding of intent, nor does it direct the
jury to weigh the circumstances of his acts with other evidence. See NRS 47.230. The
instruction is phrased in mandatory language similar to the instructions this court deemed as
error in Barnett v. State, 96 Nev. 753, 616 P.2d 1107 (1980) and Hollis v. State, 96 Nev. 207,
606 P.2d 534 (1980). Accordingly, for the reasons stated in and on the authority of Barnett
and Hollis, reversal is required.
Inasmuch as the case is remanded for a new trial, other claimed errors need not necessarily
recur and we do not choose to discuss them, except to note that appellant was not denied right
to counsel at his preliminary examination. See State v. MacKinnon, 41 Nev. 182, 168 P. 330
(1917). See also Johnson v. State, 90 Nev. 352
97 Nev. 350, 352 (1981) Wade v. State
v. State, 90 Nev. 352, 526 P.2d 696 (1974) (decision to grant a continuance is within the
sound discretion of the court.)
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Christensen,
D. J.
1
, concur.
____________________

1
sit in the place of The Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const., art. 6, 4.
____________
97 Nev. 352, 352 (1981) Schick v. Schick
RAYMOND G. SCHICK, Appellant, v. CARMELA
M. SCHICK, Respondent.
No. 11435
July 20, 1981 630 P.2d 1220
Appeal from final judgment of divorce; Eighth Judicial District Court, Clark County; J.
The Supreme Court held that the district court abused its discretion in awarding sole
ownership of the duplex owned by the parties to wife as her sole and separate property where
the duplex was the only significant property owned by the parties, wife's financial condition
was at least equal to or better than that of her disabled husband, and where district court could
have imposed a burden on the property to prevent wife and the child from being turned out of
the family home.
Perry & Clary, Las Vegas, for Appellant.
Earle W. White, Jr., Las Vegas, for Respondent.
Divorce.
In divorce proceeding, district court abused its discretion in awarding sole ownership of duplex owned
by the parties to wife as her sole and separate property where duplex was the only significant property
owned by the parties, wife's financial condition was at least equal to or better than that of her disabled
husband and district court could have imposed a burden on the property to prevent wife and child from
being turned out of the family home. NRS 125.150, subds. 1, 4.
OPINION
Per Curiam:
In this appeal from a final divorce decree, the only issue is whether the district court
abused its discretion in the property distribution. We reverse.
In 1965 Raymond and Carmela Schick were married in New York. The parties purchased a
duplex in 1970.
1
They separated in 1975, and Raymond subsequently moved to Nevada.
Raymond filed a divorce complaint which requested the district court to order the duplex sold
and the proceeds divided equally between Raymond and Carmela. Carmela's answer and
counterclaim requested the district court to award the duplex as Carmela's separate property.
Raymond was the only witness at trial who testified as to property or financial matters.
Carmela, who was present at trial, did not testify. Raymond testified that he is disabled,
cannot work, and will be receiving Social Security and Veteran Administration benefits
totaling $426 per month. The parties have one child, a teen-age daughter who has been treated
for cancer. The disease is in a state of remission, and cancer treatments are provided to the
child at no expense to either of the parties.
The duplex is the only significant property owned by the parties. At the time of trial in
1978, the parties had equity of approximately $31,000 in the duplex. Carmela, who works
part-time as a manicurist, resides in the duplex and makes the monthly mortgage payments of
$130. Carmela receives rent on the upstairs unit, which is enough to pay the entire mortgage.
2
She also receives $80 per month from a separate property mortgage which she holds on other
property. At the time of trial, Carmela and the child each received Social Security benefits of
approximately $166 per month.
At the conclusion of the trial, the district court awarded the entire duplex to Carmela as her
sole and separate property. Appellant Raymond contends the district court abused its
discretion. We agree.
The district court is vested with broad discretion in dividing property. Stojanovich v.
Stojanovich, 86 Nev. 789, 476 P.2d 950 (1970); Herzog v. Herzog, 69 Nev. 286, 249 P.2d
533 (1952); see NRS 125.150(1) and (4). However, equal distribution appears to be the rule
in most cases. Stojanovich v. Stojanovich, supra; Weeks v. Weeks, 75 Nev. 411, 345 P.2d
228 (1959).
In Stojanovich v. Stojanovich, supra, the district court awarded the family home to
respondent wife.
____________________

1
Although the duplex is located in New York, the parties have proceeded under Nevada law. Neither party
has taken the position, either in the district court or on appeal, that the district court was without jurisdiction to
make an award of the New York property.

2
Raymond testified that the upstairs unit could be rented for at least $225 per month.
awarded the family home to respondent wife. In reversing the award, this court stated:
The lower court was concerned principally with support and proper maintenance of the
children, not the wife. So far as the home was concerned and the continuing opportunity
of the children to reside in the neighborhood of their birth, among their friends and in
familiar surroundings during their minority, that could just as well have been
accomplished by imposing a burden upon it for the benefit of the children as
permitted in NRS 125.150(1), allowing them and the mother to continue to live there
during their minority, which does not require vesting sole ownership of the home in the
wife.
86 Nev. at 793, 476 P.2d at 952-53.
Stojanovich is applicable in the present case, where the district court could have imposed a
burden on the property to prevent Carmela and the child from being turned out of the family
home. Testimony at trial establishes that Carmela's financial condition is at least equal to or
better than that of her disabled husband. Furthermore, there is no evidence in the record that
the child's medical condition imposes a financial burden for Carmela. Therefore, we find no
basis for the district court's grossly unequal award of the entire duplex, the only significant
asset of the marriage, to Carmela.
We reserve the judgment of the district court insofar as it awarded sole ownership of the
duplex to the wife. The case is remanded to the district court for reconsideration in light of
the views expressed herein.
____________
97 Nev. 354, 354 (1981) Barnes v. State
DAVID CHARLES BARNES and JOANNE AUNE, Appellants,
No. 12200
July 20, 1981 630 P.2d 1221
Appeal from judgments of conviction finding appellants guilty of the crime of murder in
the first degree. Second Judicial District Court, Washoe County; William N. Forman, Judge.
The Supreme Court held that: (1) where two police officers with warrants to arrest
defendants accompanied defendants' host to the dwelling in which defendants were
staying, and where the owner of the house consented to the officers' request to enter the
house, arrest of defendants and search of the residence was lawful, and therefore trial
court did not err in admitting gun subsequently determined to be murder weapon into
evidence; {2) test of whether there has been a prejudicial comment on a defendant's right
to remain silent at trial is whether the language was manifestly intended or was of such
character that the jury would naturally and necessarily take it to be a comment on the
failure of the accused to respond; and {3) since defendants were convicted of first degree
murder on the basis of both a willful, deliberate and premeditated murder, as well as a
murder committed during the perpetration of a felony, and since the record supported the
jury's verdict on the former, fact that trial judge failed to instruct the jury, with respect to
felony-murder charge, that the taking of property in course of robbery must be with
specific intent to deprive the owner permanently of his property did not entitle
defendants to reversal of their convictions.
host to the dwelling in which defendants were staying, and where the owner of the house
consented to the officers' request to enter the house, arrest of defendants and search of the
residence was lawful, and therefore trial court did not err in admitting gun subsequently
determined to be murder weapon into evidence; (2) test of whether there has been a
prejudicial comment on a defendant's right to remain silent at trial is whether the language
was manifestly intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to respond; and (3) since defendants
were convicted of first degree murder on the basis of both a willful, deliberate and
premeditated murder, as well as a murder committed during the perpetration of a felony, and
since the record supported the jury's verdict on the former, fact that trial judge failed to
instruct the jury, with respect to felony-murder charge, that the taking of property in course of
robbery must be with specific intent to deprive the owner permanently of his property did not
entitle defendants to reversal of their convictions.
Affirmed.
Washoe County, for Appellants.
Calvin R. X. Dunlap, District Attorney, and Mary E. Boetsch, Deputy District Attorney,
1. Criminal Law.
Where two police officers with warrants to arrest defendants accompanied defendants' host to the
dwelling in which defendants were staying, and where the owner of the house consented to the officers'
request to enter the house, arrest of defendants and search of the residence was lawful, and therefore trial
court did not err in admitting gun subsequently determined to be murder weapon into evidence.
2. Criminal Law.
Test of whether there has been a prejudicial comment on a defendant's right to remain silent at trial is
whether the language was manifestly intended or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused to respond. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Comment by the State in prosecution of defendants for murder in the first degree, following objection by
State to defense counsel's repeated questions of codefendant on direct examination as to what defendant
had said on the morning of the killing, that if defendant "wants to talk, he can get up on the
stand and do it" did not constitute language which would "naturally and necessarily"
be taken by the jury as a comment on the failure of the accused to testify.
wants to talk, he can get up on the stand and do it did not constitute language which would naturally and
necessarily be taken by the jury as a comment on the failure of the accused to testify. U.S.C.A.Const.
Amend. 5.
4. Homicide.
Record in prosecution of defendants for murder in the first degree demonstrated that there was no
evidence which would have justified giving voluntary manslaughter instructions requested by defendants.
NRS 200.050.
5. Homicide.
Since defendants were convicted of first degree murder on the basis of both a theory of a willful,
deliberate and premeditated murder, as well as a murder committed during the perpetration of a felony, and
since the record supported the jury's verdict on the former, fact that trial judge failed to instruct the jury,
with respect to the felony-murder charge, that taking property in course of robbery must be with specific
intent to deprive the owner permanently of his property did not entitle defendants to reversal of their
convictions.
OPINION
Per Curiam:
Appellants David Charles Barnes and Joanne Aune appeal from their judgments of
conviction of murder in the first degree. The appellants seek reversal predicated upon three
grounds: (1) the trial court erred in admitting into evidence the murder weapon; (2) the
prosecutor's remarks prejudiced the jury; and (3) the court improperly instructed the jury.
THE FACTS
In the early hours of October 13, 1977, the appellants engaged a cab to take them to their
home in Reno. Later in the morning, the driver was found in the ransacked cab with seven
bullet holes in his back.
Appellants were soon apprehended; they had in their possession a pistol which proved to
be the murder weapon. The appellants were charged with (1) willful, deliberate and
premeditated murder, and (2) with murder committed during the perpetration of a felony.
They were tried to a jury and found guilty of first degree murder, predicated on both counts.
The appellants admitted the homicide. Aune testified, however, that the cab driver had tried
to attack Barnes with a pen, and that she came to Barnes' rescue by shooting the driver seven
times in the back.
THE EVIDENCE
[Headnote 1]
The appellants claim the court erred in admitting the murder weapon into evidence. They
argue that they were illegally arrested at the time the pistol was found in their possession.
arrested at the time the pistol was found in their possession. We do not agree. Two police
officers, with warrants for appellants' arrest, accompanied appellants' host to the dwelling in
which appellants were staying. The owner of the house consented to the officers' request to
enter the house. The arrest and search of the appellants was lawful. Cf. Payton v. New York,
445 U.S. 573 (1980); Chimel v. California, 395 U.S. 752 (1969).
THE PROSECUTORIAL STATEMENT
[Headnotes 2, 3]
Defense counsel repeatedly asked Aune on direct examination what Barnes had said on the
morning of the killing. The prosecution offered a hearsay objection and after one such
objection volunteered the suggestion: If David Barnes wants to talk, he can get up on the
stand and do it. Appellants contend that this was a prejudicial comment on Barnes' right to
remain silent at trial in contravention of the fifth amendment and Griffin v. California, 380
U.S. 609 (1965). This court has held that the test in such instances is whether the language
was manifestly intended or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused to [respond]. Deutscher v.
State, 95 Nev. 669, 682, 601 P.2d 407, 416 (1979), citing Knowles v. United States, 224 F.2d
168, 170 (10th Cir. 1955). Applying this test to the facts at hand, we fail to see how the above
quoted language naturally and necessarily would be taken as a comment on the failure of
the accused to testify.
THE INSTRUCTIONS
[Headnote 4]
1. Appellants suggest that the trial judge erred in failing to give the jury their requested
instructions defining voluntary manslaughter. We do not agree. Our review of the record
leads us to agree with the lower court that there is no evidence which would justify giving the
requested voluntary manslaughter instructions.
1
See Jackson v. State, 84 Nev. 203, 438 P.2d
795 (1968); Graves v. State, 84 Nev. 262, 439 P.2d 476 (1968), cert. denied, 393 U.S. 919.
____________________

1
NRS 200.050 defines voluntary manslaughter:
In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted
upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by
the person killed to commit a serious personal injury on the person killing.
[Headnote 5]
2. Appellants also seek reversal on the ground that the trial judge erred when he failed to
instruct the jury that the taking of property in the course of a robbery must be with the
specific intent to deprive the owner permanently of his property. Turner v. State, 96 Nev. 164,
605 P.2d 1140 (1980). Since appellants were found guilty of the felony murder count, they
now argue that their judgment of conviction must be reversed. We do not agree. Appellants
were also found guilty of a willful, deliberate and premeditated murder. The record fully
supports the jury's verdict on this count and it shall not be disturbed on appeal. The judgments
of conviction are affirmed.
____________
97 Nev. 358, 358 (1981) Heimrich v. State
FREDERICK HALLEY HEIMRICH, Appellant, v.
No. 12310
July 20, 1981 630 P.2d 1224
Appeal from conviction for murder in the first degree, Fifth Judicial District Court, Nye
County; William P. Beko, Judge.
Defendant entered a guilty plea in the district court to murder in the first degree to avoid
possible imposition of the death penalty. Defendant appealed the sentence to life
imprisonment without the possibility of parole, contending that his plea was not voluntarily
and intelligently entered. The Supreme Court held that even though the Supreme Court
subsequently held that the district court had a duty to insure that record discloses that the
defendant is aware of the nonprobational status of a crime as a consequence of his plea, that
decision would not be applied retroactively to a guilty plea entered to avoid the possible
imposition of the death penalty, even though the defendant was not advised on record that
murder is a nonprobationary crime.
Affirmed.
Norman Y. Herring, State Public Defender, and Gary L. Marr, Deputy Public Defender,
Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Peter L. Knight, District Attorney, Nye
Courts.
Where Supreme Court had not previously announced that district court has duty to insure that record
discloses that defendant is aware of nonprobational status of crime as consequence of his plea, that decision
would not be applied retroactively to invalidate guilty plea entered by defendant in homicide prosecution to
avoid possible imposition of death penalty, even though defendant was not advised on record that murder is
nonprobationary crime. NRS 174.035, subd. 1, 176.185, subd. 1.
OPINION
Per Curiam:
On October 24, 1979, appellant pled guilty to murder in the first degree in order to avoid
the possible imposition of the death penalty. When appellant entered his plea he was not
advised on the record that murder is a non-probationary crime. See NRS 176.185(1).
Appellant was sentenced to life in prison without possibility of parole. This appeal followed.
Appellant contends that his plea was not entered voluntarily and intelligently because he
was not informed on the record that probation is not available to one found guilty of murder.
Appellant relies upon Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979).
In Meyer we stated that when an offense is not probational, the district judge has a duty to
insure that the record discloses that the defendant is aware of that fact. Id. at 887, 603 P.2d
at 1067 (citations omitted). The record in the case at bar does not indicate that the district
judge made any inquiry into appellant's awareness of the non-probationary status of murder.
If Meyer were applied to this case, it appears that appellant should be allowed to return to
district court to enter a new plea. There are countervailing reasons, however, not to apply
Meyer in this case.
Appellant entered his plea on October 24, 1979. Our decision in Meyer was announced on
December 13, 1979. A reading of Meyer and our earlier cases indicates that the holding in
Meyer was a new interpretation of NRS 174.035(1)
1
. See Stocks v. Warden, 86 Nev. 758,
476 P.2d 469 (1970). Since this court had not previously announced that the district court
has a "duty to insure that the record discloses that the [appellant] is aware of [the
non-probational status of a crime]" as a consequence of his plea, the decision in Meyer is
not to be applied retroactively.
____________________

1
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court
may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without
first addressing the defendant personally and determining that the plea is made voluntarily with
understanding of the nature of the charge and consequences of the plea.
not previously announced that the district court has a duty to insure that the record discloses
that the [appellant] is aware of [the non-probational status of a crime] as a consequence of
his plea, the decision in Meyer is not to be applied retroactively. Since appellant's plea was
entered prior to our decision in Meyer, that case does not apply to the case at bar. Therefore,
the judgment of conviction is affirmed.
____________
97 Nev. 360, 360 (1981) Hatley v. State
DAVID WAYNE HATLEY, Appellant, v. THE
No. 12427
July 20, 1981 630 P.2d 1225
Appeal from a judgment of conviction for burglary, Eighth Judicial District Court, Clark
The Supreme Court held that: (1) case holding that, absent exigent circumstances, Fourth
Amendment prohibits police from making a warrantless and nonconsensual entry into a
suspect's home in order to make a routine felony arrest, was not retroactively applicable, and
(2) defendant was not entitled to suppression of statement made at time of warrantless arrest,
where police properly relied upon statutes governing warrantless arrest and arrest by private
person in effect at time of arrest.
Affirmed.
1. Courts.
Case holding that, absent exigent circumstances, the Fourth Amendment prohibits the police from making
a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest, is not
retroactively applicable. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Defendant was not entitled to suppression of statement made at time of warrantless arrest where arresting
officers properly relied upon statutes governing warrantless arrest and arrest by private person in effect at
time of arrest. NRS 171.124, 171.138.
OPINION
Per Curiam:
On December 31, 1978, at about 10:00 p.m., an off-duty police officer noticed two men
jumping a fence with a pillowcase and a heavy object in their hands. The officer went to
investigate but the two men drove off. The officer followed the car in which the men were
riding and signalled the driver to stop. The driver, however, accelerated and a high-speed
chase ensued through the streets of Las Vegas. The officer eventually lost sight of the vehicle.
The officer, however, did record the license plate number and description of the vehicle.
After returning to the scene where he first observed the fleeing men, the officer discovered
that a burglary had occurred in the neighborhood where the men were observed.
During the early hours of January 4, 1979, an officer noticed that a car which matched the
description of the fleeing vehicle was in the parking lot of a local bar. After observing the
vehicle for several hours and determining that the vehicle had been abandoned, the officer
impounded the vehicle. At approximately 5:00 a.m. after determining the address of the
owner of the vehicle, and without a warrant, five armed officers approached appellant's
apartment, identified themselves and demanded entrance. Appellant, having been awakened,
opened the door in the nude. After the officers allowed appellant to dress, the officers arrested
appellant and advised him of his Miranda rights. The officers then proceeded to ask appellant
his whereabouts on New Year's Eve and whether he owned the impounded car. Appellant
responded that the impounded car belonged to him. Appellant also stated that he had picked
up two hitchhikers on New Years's Eve and that they were pursued at high speed by another
vehicle through the streets of Las Vegas. Appellant stated that he returned home after the
chase.
At trial, the state offered appellant's statement at the time of the warrantless arrest.
Appellant objected to the admission of the statement. The trial court overruled the objection
and allowed the admission of the statement. Appellant was convicted of burglary and this
appeal followed. Appellant contends that his statements were the product of an unlawful
arrest, and were wrongfully admitted into evidence in violation of his federal constitutional
rights.
Appellant argues that his warrantless arrest was in violation of the constitutional rule
pronounced in Payton v. New York, 445 U.S. 573 (1980), and thus his statement was the fruit
of an unlawful arrest and should have been excluded by the district court. See Wong Sun v.
United States, 371 U.S. 471 (1963).
Respondent argues that at the time of appellant's arrest Payton was not the law in Nevada
and that the arresting officers were relying upon NRS 171.124
1
and NRS 171.138
2
.
Respondent further argues that Payton should not be applied retroactively since the purpose
of the rule is to deter illegal police activity. See Derouen v. Sheriff, 85 Nev. 637, 461 P.2d
865 (1969).
[Headnotes 1, 2]
Payton v. New York, supra, held that, absent exigent circumstances, the Fourth
Amendment prohibits the police from making a warrantless and nonconsensual entry into a
suspect's home in order to make a routine felony arrest. However, there are sound reasons
why the rule should not be applied in this case. Appellant was convicted in November, 1979.
The Payton decision was announced on April 15, 1980. Prior to the Payton decision the
Nevada Statutes had not been constitutionally challenged. The purpose of the new rule is to
deter illegal police activity; the rule does not vindicate a right which is essential to the
integrity of the factfinding process.
____________________

1
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a
warrant, arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony or gross misdemeanor, although not in his
presence.
(c) When a felony or gross misdemeanor has in fact been committed, and he has reasonable cause for
believing the person arrested to have committed it.
(d) On a charge made, upon a reasonable cause, of the commission of a felony or gross misdemeanor
by the party arrested.
(e) When a warrant has in fact been issued in this state for the arrest of a named or described person
for a public offense, and he has reasonable cause to believe that the person arrested is the person so
named or described.
(f) When the peace officer has probable cause to believe that the person to be arrested has committed
a battery upon that person's spouse and the peace officer finds evidence of bodily harm to the spouse.
2. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for
believing to have committed a felony or gross misdemeanor, and is justified in making the arrest, though
it afterward appear that a felony or gross misdemeanor has not been committed.

2
To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may
break open a door or window of the house in which the person to be arrested is, or in which there is
reasonable grounds for believing him to be, after having demanded admittance and explained the purpose
for which admittance is desired.
the integrity of the factfinding process. Law enforcement authorities justifiably relied on the
statutes. The effect on the administration of justice would be substantial if Payton were
applied retroactively. Thus, the retroactive application of Payton does not appear to be
warranted. See Stovall v. Denno, 388 U.S. 293 (1967); Derouen v. Sheriff, supra; In re
Johnson, 475 P.2d 841 (Cal. 1970).
Appellant's other appellate contention has been considered, and is without merit.
Accordingly, appellant's conviction is affirmed.
____________
97 Nev. 363, 363 (1981) Wood v. State
ANTONIO WAYNE WOOD, Appellant, v. THE
No. 11531
August 10, 1981 632 P.2d 339
Appeal from judgment of conviction for first degree murder, Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted in the district court for the suffocation death of his four and
one-half month old son, and he appealed. The Supreme Court, Manoukian, J., held that where
record was silent as to any connivance or bad faith on part of state to preserve victim's brain
tissue specimens, evidence relevant to cause of death, and where evidence was not direct
exculpatory evidence, but merely evidence which defendant's expert opined would have
helped confirm one of the alternate theories of death, defendant was not entitled to reversal of
conviction on ground that failure to preserve specimens denied him due process.
Affirmed.
1. Criminal Law.
Test for reversal on basis of lost or destroyed evidence requires that defendant show either bad faith or
connivance on part of the government or prejudice from its loss.
97 Nev. 363, 364 (1981) Wood v. State
Where record was silent as to any connivance or bad faith on part of state to preserve victim's brain
tissue specimens, evidence relevant to cause of death, and evidence was not direct exculpatory evidence,
but merely evidence which defendant's expert opined would have helped confirm one of the alternate
theories of death, defendant was not entitled to reversal of conviction for suffocation death of his four and
one-half month old son on ground that state violated standards of due process by failing to preserve
specimens, even though negligence did occur resulting in loss of some evidence. NRS 200.030;
OPINION
A jury convicted Antonio Wayne Wood for the suffocation death of his four and one-half
month old son, a felony. NRS 200.030. On appeal, appellant's sole contention is that the state
violated standards of due process by failing to preserve sufficient of the victim's brain tissue
specimens, evidence relevant to the cause of death. Although we agree that negligence
occurred resulting in the loss of some evidence, such does not require reversal.
On March 19, 1978, Antonio Wood was left in charge of his son, Joseph, and his daughter,
Christina (age nineteen months), while his wife went to a nearby laundromat. At 4:24 p.m., a
person who identified himself as Tony Wood, called Sparks Police Department requesting
assistance in contacting his wife at the laundromat because his son was having difficulty
breathing.
When Linda Wood returned to the apartment she found Joseph unconscious in his crib.
The child was rushed to Washoe Medical Center, where Joseph was found to have no pulse
and no spontaneous respiration. Through emergency procedures, a pulse was restored,
although respiration depended upon life support systems. Joseph's condition was
characterized as a brain damage coma, and after 48 hours in intensive care, having never
regained consciousness, he died.
Wood initially maintained to police that Christina had crawled into the crib with Joseph
and crawled on top of the baby apparently pushing his face into a diaper preventing his
breathing. The medical symptoms were consistent with some type of suffocation. Wood,
during police interviews, subsequently recanted his story and admitted that he had placed a
diaper over Joseph's mouth for a prolonged period of time to quiet his crying. This
prosecution ensued.
97 Nev. 363, 365 (1981) Wood v. State
To prove motive and intent, the state introduced evidence of Wood's conversations with a
co-employee about methods of killing a person in order to collect life insurance proceeds, and
that Wood had purchased life insurance on Joseph's life. Wood had told the co-employee that
he had previously attempted to kill his wife, and continued to discuss different ways that he
might kill either his wife or one of his children or all of them. During the week preceding
March 19, 1978, Wood told this co-employee that he had to do something soon, and that he
shouldn't be surprised if I [Wood] don't show up for work on Monday.
The defense maintained that the resultant death of Joseph was unintentional and that the
death was not caused by strangulation but rather by some other medical phenomenon. Dr.
Ellis, a board-certified neurologist had neuropathologist, specializing in the pathology of
brain diseases in children, was called as an expert witness on behalf of Wood. Dr. Ellis
testified that the brain of the deceased child did exhibit oxygen deficiency (anoxia), but that
several processes producing such anoxia could have been initiated by the placing of the
diaper over the mouth of the child for a brief period of time. Dr. Ellis disagreed with Dr.
Campbell, who performed the autopsy, that the immediate cause of death was due to the
suffocation, and described four mechanisms which would retard the spontaneous respiration
reflex,
1
thus rendering the resultant death unintentional. The four mechanisms described by
Dr. Ellis were: (1) continued obstruction of the airway; (2) laryngospasm; (3) vasobagal
reflex, and (4) seizure.
Based upon examination of the tissue samples preserved by the state,
2
Dr. Ellis
discounted the continued obstruction theory (suffocation) due to lack of bruises, coupled with
his determination that the amount of brain damage was less than expected from his
assessment of the history of the case. Dr. Ellis admitted that because he did not have
specimens from the correct areas of the brain, his alternate explanations were merely theories.
Nevertheless, he remained adamant that there was too much evidence to summarily dismiss
the seizure theory. Claiming that the failure to preserve sufficient tissue samples to prove
this alternate theory was a violation of his due process rights, Wood appeals.
____________________

1
This is the reflex action which causes the resumption of breathing in an unconscious person if nothing else is
present to interfere with the breathing mechanism.

2
Dr. Campbell testified that he removed approximately four tissue samples from the brain. Dr. Ellis indicated
that he found cells from five or six different areas of the brain. The United States Armed Forces Institute of
Pathology lists as essential seven specific brain areas for the examination.
97 Nev. 363, 366 (1981) Wood v. State
samples to prove this alternate theory was a violation of his due process rights, Wood
appeals.
[Headnote 1]
We have often held that where evidence is lost as a result of inadequate governmental
handling, a conviction may be reversed. Crockett v. State, 95 Nev. 859, 603 P.2d 1078
(1979); Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979); Williams v. State, 95 Nev. 527,
598 P.2d 1144 (1979). See also United States v. Heiden, 508 F.2d 898 (9th Cir. 1974). The
test for reversal on the basis of lost or destroyed evidence we have heretofore relied upon was
enunciated in Crockett v. State, supra, and requires that the appellant show either (1) bad
faith or connivance on the part of the government, or (2) prejudice from its loss. This
standard was derived from the case of United States v. Heiden, supra, which was recently
broadened in the case of United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979).
The state urges us to reexamine our established standard and to adopt the Loud Hawk
approach. However, in the context of this case, we find it unnecessary to adopt the balancing
approach announced in Loud Hawk.
[Headnote 2]
In the instant case, the record is silent as to any connivance or bad faith on the part of the
state to preserve evidence. Indeed, appellant has stipulated to the absence thereof. Dr.
Campbell, the State's pathologist, testified that storage problems prevented preservation of
whole organs, so that representative samples from each organ are usually taken and
preserved. Although he admitted that a neuropathologist would be most qualified to examine
brain tissues for changes, and that he knew the case would be one for investigation since
the autopsy findings were likely to be non-specific, he nevertheless stated that he saved only
four tissue samples of the brain. Any culpability on the part of the state consists only of the
state's negligence in failing to adhere to established pathological standards. See footnote 2,
supra.
Appellant asserts that the failure to preserve tissue of certain areas of the brain is critical
evidence concerning the cause of death to the deceased, and that as in Crockett v. State, 95
Nev. at 865, 603 P.2d at 1082, scientific verification is forever foreclosed because the
government did not properly preserve the [evidence]. This, appellant maintains, meets the
burden enunciated in Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979), that it is
reasonably anticipated that the evidence sought would be exculpatory and material to
appellant's defense."
97 Nev. 363, 367 (1981) Wood v. State
defense. However, contrary to Crockett and Boggs, the evidence here was not direct
exculpatory evidence, but merely evidence which Wood's expert opined would have helped
confirm one of the alternate theories of death. During cross-examination, relative to the
defense's alternate theory of death, Dr. Ellis conceded that the only evidence of seizure
activity was the changes in Joseph's brain, and that before the March 19 incident there was no
history of any seizures and that under any theory that the initiating cause of death was the
placing of the diaper over the child's mouth.
Although the prosecution's case was largely circumstantial, in weighing the totality of the
circumstances, including appellant's incriminating statements, his remarks to the
co-employee, the fact that both the state and the accused presented extensive medical
testimony and the extensive cross-examination by defense counsel, Wood's due process rights
were not violated. The factual inferences that the additional tissue samples might have raised,
were treated by the appellant's expert witness as alternate theories and although analysis of
the unavailable tissue samples may have given more credibility to one of the alternative
theories, their absence did not work to deprive appellant of his due process rights.
The judgment of conviction is affirmed.
Gunderson, C. J., and Batjer, Springer, and Mowbray, JJ., concur.
____________
97 Nev. 367, 367 (1981) State Bar of Nevada v. List
STATE BAR OF NEVADA, WASHOE COUNTY BAR ASSOCIATION, KENT R.
ROBISON, and OAK GROVE INVESTORS, Petitioners, v. ROBERT LIST,
Governor of the State of Nevada, Respondent.
No. 13359
August 13, 1981 632 P.2d 341
Original proceeding in mandamus was brought seeking to compel governor to declare
vacant two judgeships in the Second Judicial District Court created by statute. The Supreme
Court held that statute creating two judgeships in the Second Judicial District Court, which
was effective immediately, as amended, was constitutional; thus, mandamus lay to compel
governor to perform statutory duty of declaring vacant office of district judge.
Writ issued.
Guild, Hagen & Clark, Reno, for Petitioners.
Allison, Brunetti, MacKenzie, Hartman, Saumbeniotis & Russell, Carson City, for
Respondent.
Richard H. Bryan, Attorney General, and Donald Klasic, Deputy Attorney General,
Carson City, as Amicus Curiae.
1. Mandamus.
Mandamus will lie to compel a public officer to perform an act which the law especially enjoins as a duty
resulting from an office. NRS 34.160.
2. Mandamus.
Mandamus will lie to compel governor to perform duty of declaring vacant the office of district judge at
the suit of any citizen instituted to enforce compliance with the law, if the act creating the judicial
vacancies is constitutional. NRS 3.080, subd. 1.
3. Mandamus.
Where statute creating two judgeships in the second judicial district court, which was effective
immediately, as amended, did not violate constitutional provision ensuring security of district judges during
their terms of office, mandamus lay to compel governor to perform statutory duty of declaring vacant the
offices of district judge. Const. Art. 6, 5; NRS 3.080, subd. 1, 3.012.
OPINION
Per Curiam:
Petitioners request this court to issue a writ of mandamus commanding the governor to
declare vacant, NRS 3.080(1), two judgeships in the Second Judicial District Court created by
NRS 3.012, as amended by 1981 Nev. Stats. ch. 286. The governor asserts that there are no
vacancies to declare, on the ground that the increase in the number of judges in the Second
Judicial District Court cannot take effect at this time under Nev. Const. art. 6, 5.
[Headnotes 1, 2]
Mandamus will lie to compel a public officer to perform an act which the law especially
enjoins as a duty resulting from an office, NRS 34.160. NRS 3.080(1) provides that [t]he
governor shall declare vacant the office of district judge. The terms of the statute are
amendatory and admit of no discretion. The answer submitted by the governor concedes that
the declaration required by NRS 3.080(1) is purely ministerial. Mandamus will therefore lie
to compel the governor to perform this duty at the suit of any citizen instituted to enforce
compliance with the law, State of Nevada v. Gracey, 11 Nev. 223 (1876), if the act creating
the vacancies is constitutional. State v. Dickerson, 33 Nev. 540, 113 P.105 (1910); see also
Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967).
[Headnote 3]
We hold that 1981 Nev. Stats. ch. 286, which makes NRS 3.012 effective immediately, is
constitutional. Nev. Const. art. 6, 5 provides in part:
The Legislature may . . . provide by law for an alteration in the boundaries or divisions
of the Districts herein prescribed, and also for increasing or diminishing the number of
the Judicial Districts and Judges therein. But no such change shall take effect, except in
case of a vacancy, or the expiration of the term of an incumbent of the Office.
We must construe this provision in light of its purpose, Lynip v. Buckner, 22 Nev. 426, 41 P.
762 (1895), which is to ensure the security of the district judges during their terms of office,
see State ex rel. Wichman v. Gerbig, 55 Nev. 46, 24 P.2d 313 (1933); see also Brown v.
Clark, 34 P.2d 17 (Wyo. 1934). The legislation before us clearly does not contravene this
purpose. Rather, its effect will be to relieve the congested state of the Second Judicial District
Court. Cf. State of Nevada v. Blasdel, 6 Nev. 40 (1870). Accordingly we decline to declare
NRS 3.012, as amended by 1981 Nev. Stats. ch. 286, unconstitutional.
We therefore direct the clerk of this court to issue a writ of mandamus, forthwith,
commanding the respondent governor of Nevada to declare vacant two district court
judgeships in the Second Judicial District Court. NRS 3.080(1).
It is so ORDERED.
____________
97 Nev. 369, 369 (1981) Tener v. Babcock
JAMES MICHAEL TENER, Petitioner, v. THE HONORABLE JUDGE HOWARD W.
BABCOCK, Judge of the Eighth Judicial District Court, Respondent.
No. 13317
August 25, 1981 632 P.2d 1140
In an original proceeding in mandamus and prohibition, the Supreme Court held that until
written order discharging habeas corpus petitioner is signed by judge and filed by court, judge
retains power to reconsider his decision and can grant rehearing to the state.
Writs denied.
Houston, Moran & Kennedy, Las Vegas, for Petitioner.
Robert J. Miller, District Attorney, Clark County, for Respondent.
97 Nev. 369, 370 (1981) Tener v. Babcock
Habeas Corpus.
Until written order discharging habeas corpus petitioner is signed by judge and filed by court, judge
retains power to reconsider his decision and can grant rehearing to the state.
OPINION
Per Curiam:
Tener seeks a writ of prohibition forbidding the respondent district judge from conducting
a rehearing on his petition for a writ of habeas corpus, and a writ of mandamus commanding
the district judge to sign an order discharging him from custody.
After holding a hearing on Tener's petition for a pretrial writ of habeas corpus, the
respondent district judge ruled from the bench that the writ was granted and made permanent.
It is undisputed that no written order discharging Tener from custody was signed by the judge
or filed by the clerk. The state then moved for a rehearing on the petition, which the district
judge granted. Tener contends that a rehearing cannot be granted in a habeas corpus
proceeding. Eureka Bank Cases, 35 Nev. 151, 129 P. 308 (1912).
Under the statutory provisions for writs of habeas corpus, the discharge of the petitioner is
a judgment, NRS 34.570, which must be memorialized in an order, NRS 34.590.
Accordingly, we hold that until a written order discharging the habeas corpus petitioner is
signed by the judge and filed by the clerk, see NRCP 58(c), the Eureka Bank rule does not
apply, and the judge retains the power to reconsider his decision. See Miller v. Hayes, 95
Nev. 927, 604 P.2d 117 (1979). We therefore deny the petition for writs of prohibition and
mandamus.
____________
97 Nev. 370, 370 (1981) Baley & Selover v. All Amer. Van
BALEY & SELOVER, INC., a Nevada Corporation, Appellant, v. ALL AMERICAN VAN &
STORAGE, INC., a Nevada Corporation, Respondent.
No. 12076
August 25, 1981 632 P.2d 723
Appeal from order granting motion to dismiss. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Tenant appealed from decision of the district court which granted landlord's motion to
dismiss tenant's constructive eviction action. The Supreme Court held that use of leased
parking lot by occupants of abutting warehouse did not constitute constructive eviction of
tenant where tenant did not establish that it was absolutely critical that parking area be
free and clear of any easements and rights-of-way, tenant operated at location since
1971 with knowledge of use of parking area by warehouse occupants and tenant
operated under the conditions they complained of until they vacated premises in 1976.
lot by occupants of abutting warehouse did not constitute constructive eviction of tenant
where tenant did not establish that it was absolutely critical that parking area be free and clear
of any easements and rights-of-way, tenant operated at location since 1971 with knowledge of
use of parking area by warehouse occupants and tenant operated under the conditions they
complained of until they vacated premises in 1976.
Affirmed.
Jolley, Urga & Wirth, Las Vegas, for Appellant.
John Peter Lee and Richard McKnight, Las Vegas, for Respondent.
1. Trial.
Motion for involuntary dismissal admits the truth of plaintiff's evidence and all inferences that reasonably
can be drawn therefrom and evidence must be interpreted in light most favorable to plaintiffs. NRCP
41(b).
Constructive eviction results from an active interference with, or disturbance of, a tenant's possession
by the act of the landlord when all or substantial part of premises is rendered unfit for occupancy for the
purpose for which it was demised.
Use of leased parking lot by occupants of abutting warehouse did not constitute constructive eviction of
tenant where tenant did not establish that it was absolutely critical that parking area be free and clear of any
easements and rights-of-way, tenant operated at the location since 1971 with knowledge of warehouse
occupant's use of parking area and tenant operated under the conditions it complained of until it vacated
premises in 1976.
No constructive eviction results if defendant continues in possession even though disturbed in the
beneficial enjoyment of the premises.
OPINION
Per Curiam:
Baley & Selover, Inc., the appellant here, brought this action against respondent All
American Van & Storage, Inc., alleging constructive eviction.
Appellant leased a warehouse on North Main Street in Las Vegas, Nevada, from the
respondent and took possession in 1971. The leased premises consisted of a warehouse and
60 x 125 foot asphalt parking lot. Appellant operated a moving and storage business on the
premises. The parking area was used by appellant to park trucks, trailers and for some
storage.
appellant to park trucks, trailers and for some storage. Abutting this parking area is another
warehouse, referred to as the DeLuca building, with doors opening onto the parking area.
The use of the parking area by tenants and occupants of the DeLuca building is the
conduct alleged to constitute the constructive eviction of appellant.
Respondent bought the property in 1967 and operated a moving and storage business in
the warehouse until they sold the business to appellant in 1971. At the time of the sale,
appellant entered into a 10-year lease agreement with respondent for the warehouse and
parking area.
Margaret Selover, the president of Baley & Selover, Inc. was employed as the manager of
All American from 1967 to April, 1971. During her tenure as manager, Selover was aware
that the tenants in the DeLuca building occasionally used the parking lot for ingress and
egress.
At trial, Ms. Selover testified that the use of the area by the DeLuca tenants increased in
1972 when a casino used the building to store slot machines and that such increased usage of
the area until sometime in 1974 created an inconvenient situation for appellant. Ms. Selover
further testified that often there were more trailers parked in the area than power units to
move them and because of this increased use, appellant had limited parking space and a
hostile situation was created.
Ms. Selover acknowledged service of process in 1973 when the owners of the DeLuca
property served both appellant and respondent seeking a declaration of an easement over the
parking lot.
1

At the conclusion of the appellant's case, respondent moved the court to dismiss the
complaint under the authority of NRCP 41(b).
2
The motion was granted and appellant
contends that the district court thereby erred. We disagree.
____________________

1
See All American Van & Storage, Inc. v. DeLuca Realty, Inc., 95 Nev. 253, 592 P.2d 951 (1979), where
this court affirmed the district court's decision finding a recorded easement for ingress and egress across the
parking area in favor of the DeLuca property.

2
NRCP 41(b) provides, in pertinent part:
After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury. Unless
the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join
a party under Rule 19, operates as an adjudication upon its merits.
[Headnote 1]
A motion for involuntary dismissal admits the truth of plaintiff's evidence and all
inferences that reasonably can be drawn therefrom, and the evidence must be interpreted in
the light most favorable to plaintiff. NRCP 41(b); Humboldt Basin Newspapers v.
Sunderland, 95 Nev. 794, 699, 603 P.2d 278, 280 (1979); Gunlock v. New Frontier Hotel, 78
Nev. 182, 183-84, 370 P.2d 682, 683 (1962).
[Headnote 2]
A constructive eviction results from an active interference with, or disturbance of, a
tenant's possession by the act of the landlord when all or a substantial part of the premises is
rendered unfit for occupancy for the purpose for which it was demised. Medical Multiphasic
v. Linnecke, 95 Nev. 752, 755, 602 P.2d 182, 184 (1979).
[Headnote 3]
The record in this case does not establish appellant's claim that it was absolutely critical
that the parking area be free and clear of any easements and rights-of-way. Appellant had
operated at the location from 1971 with knowledge of the use of the parking area by the
occupants of the DeLuca building.
The evidence viewed most favorably to appellant shows only an inconvenience to
appellant from the increased usage of the easement.
[Headnote 4]
Furthermore, appellant operated under the conditions it complains of until vacating the
premises in July, 1976. As an additional requirement for constructive eviction the tenant must
treat the interference as an eviction and surrender the premises within a reasonable time. No
constructive eviction results if the tenant continues in possession even though disturbed in the
beneficial enjoyment of the premises. Medical Multiphasic v. Linnecke, supra; Baker v.
Siminds, 79 Nev. 434, 386 P.2d 86 (1963).
We affirm the involuntary dismissal entered by the district court.
____________
97 Nev. 374, 374 (1981) Martin v. State
RICHARD WOODROW MARTIN, Appellant, v. THE
No. 12230
August 25, 1981 632 P.2d 725
Appeal from judgments of conviction, entered on jury verdicts, of three counts of sexual
assault, and from adjudication as an habitual criminal, Second Judicial District Court,
The Supreme Court held that it was error to impose separate sentence for being an habitual
criminal.
Richard F. Cornell, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Where defendant was convicted of three counts of sexual assault and adjudged an habitual criminal, it
was error to impose a separate sentence for the latter, although consecutive sentences of life imprisonment
with possibility of parole on two of the assault counts and life imprisonment with possibility of parole on
the third count to run concurrently with the first counts, was proper; sentence of life imprisonment with
possibility of parole on habitual criminal charge was improper.
OPINION
Per Curiam:
Richard Martin was convicted of three counts of sexual assault and also adjudicated an
habitual criminal. He was sentenced to life imprisonment with the possibility of parole on
Counts I and II, the terms to run consecutively; life imprisonment with possibility of parole
for Count III, the sentence to run concurrently with Count I; and life imprisonment with the
possibility of parole on the habitual criminal charge, to run concurrently with the first three
counts.
Appellant contends that the separate sentence imposed for being an habitual criminal was
erroneous. The state concedes that the habitual criminal sentence was erroneously imposed.
However, the state argues that we need not disturb the sentences imposed on Counts I, II, and
III. We agree. Accordingly, on the authority of, and for the reasons stated in, Lisby v. State,
S2 Nev. 1S3
97 Nev. 374, 375 (1981) Martin v. State
v. State, 82 Nev. 183, 414 P.2d 592 (1966), we vacate the sentence imposed for the habitual
criminal adjudication, and affirm the sentences on Counts I, II, and III.
Additional issues raised by appellant are without merit and need not be addressed.
____________
97 Nev. 375, 375 (1981) Southwest Gas v. Public Serv. Comm'n
SOUTHWEST GAS CORPORATION, a California Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of
Nevada, and NOEL A. CLARK, EVO A. GRANATA and HEBER P. HARDY,
COMMISSIONERS, Respondents.
No. 11178
August 26, 1981 632 P.2d 1144
Appeal from judgment. First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Gas company filed complaint alleging that the Public Service Commission had acted
unlawfully and in an arbitrary, capricious, unjustified and unreasonable fashion with regard to
its opinion and order issued in company's rate application, and in petition for order in erratum
subsequently filed by the company. The district court rendered judgment for the PSC, and
company appealed. The Supreme Court held that while the PSC may have caused some
confusion when it docketed company's petition for order in erratum as a new rate application,
the error, if any, was invited by company when it attached alternate rate schedules, and in any
event, such disadvantage which company may have suffered was cured when the PSC filed its
modified order which, with one exception, granted company all the relief it requested in its
petition for order in erratum.
Affirmed.
Guild, Hagen & Clark, and Thomas J. Hall, Reno, for Appellant.
Richard H. Bryan, Attorney General, George M. Keele and Zev Kaplan, Deputy Attorneys
General, Carson City, for Respondents.
1. Gas.
While the Public Service Commission may have caused some confusion when it docketed gas company's
petition for order in erratum as a new rate application, the error, if any, was invited by company when it
attached alternate rate schedules, and in any event, such disadvantage which company may have suffered
was cured when the PSC filed its modified order which, with one exception, granted company all the relief
it requested in its petition for order in erratum. NRS 704.110, subd. 3, 704.540, 704.550.
2. Public Service Commissions.
Object of regulation of public utilities is to provide both a fair rate of return for the utility and an
adequate supply of energy at a fair price to the ratepayer.
OPINION
Per Curiam:
Southwest Gas Corporation (Southwest) filed an application for a $5,865,345 rate
increase. The application was docketed by the Public Service Commission (PSC) as #776.
The PSC then held hearings on the application and on November 9, 1976, issued its Opinion
and Order authorizing Southwest to raise its rates by $1,172,330.
On November 19, 1976, Southwest filed a Petition for Order in Erratum
1
which pointed
out errors Southwest believed the PSC had made in drafting order #776. Attached to the
petition was alternative rate schedules which would produce the additional revenues
Southwest believed it was entitled to.
The PSC, apparently viewing the petition as a new rate application, assigned it docket
#985, and set the application for hearing on December 21, 1976. Additionally, the PSC filed a
suspension order on November 30, 1976, deferring Southwest's use of the rates attached to
the petition for 150 days beyond December 22, 1976.
On December 30, 1976, Southwest filed a complaint in the district court pursuant to NRS
704.540
2
and 704.550, alleging that the PSC acted unlawfully and in an arbitrary,
capricious, unjustified and unreasonable fashion with regard to the opinion and order
issued in application #776, and the petition for order in erratum filed on November 22,
1976.
____________________

1
The petition alleged that the PSC erred in the following instances:
1. The PSC misconstrued NRS 704.110(3) regarding the capital structure and the cost of new
securities.
2. The PSC allocated an excessive interest expense causing a material under estimate of federal
income tax expense and a corresponding deficiency in the revenues produced by the rates authorized in
Order #776.

2
1. Any party in interest being dissatisfied with an order of the commission fixing any rate or rates,
fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services,
may within 90 days commence an action in the district court of the proper county against the commission
and other interested parties as defendants to vacate and set aside any such order on the
that the PSC acted unlawfully and in an arbitrary, capricious, unjustified and unreasonable
fashion with regard to the opinion and order issued in application #776, and the petition for
order in erratum filed on November 22, 1976.
On January 5, 1977, Southwest filed a motion for a temporary restraining order, which the
district court granted. On March 10, 1977, the district court suspended the operation of the
PSC suspension order.
On March 22, 1977, the PSC issued its Order Modifying Opinion and Order in docket
#776. This order authorized Southwest to increase its rates by an additional $479,506
annually.
After a trial upon Southwest's complaint before the district court, sitting without a jury,
judgment favorable to the PSC was entered from which this appeal is taken.
Southwest takes the position that the PSC erred by giving its petition a new docket number
and suspending the rates attached thereto. They contend that the original rate relief request in
the petition should have been allowed by the district court because the PSC erred when
entering its suspension order.
[Headnote 1]
Southwest is asking this court to reverse the district court and vacate the suspension order
#985, with the effect of granting Southwest the complete relief they requested in their
petition. This is untenable. While the PSC may have caused some confusion when it docketed
the petition for order in erratum as a new application, the error if any was invited by
Southwest when they attached alternate rate schedules. In any event such disadvantage which
Southwest might have suffered as a result of the confusion was cured when the PSC filed its
modified order on March 22, 1977.
Southwest received all the relief it requested in its petition for order in erratum except for
$140,077. In regards to the $140,077, Southwest failed to show that PSC had misconstrued
NRS 704.110{3) regarding its capital structure and cost of new securities or that PSC had
allocated an excessive interest expense.
____________________
ground that the rate fixed in such order is unlawful or unreasonable, or that any such regulation, practice
or service fixed in such order is unreasonable.
2. The commission and other parties defendant shall file their answers to the complaint within 30
days after the service thereof, whereupon such action shall be at issue and stand ready for trial upon 20
days' notice to either party.
3. All actions brought under this section shall have precedence over any civil cause of a different
nature pending in such court, and the court shall always be deemed open for the trial thereof, and the
same shall be tried and determined as other civil actions.
4. Any party to such action may introduce evidence in addition to the transcript of the evidence
offered to the commission.
$140,077, Southwest failed to show that PSC had misconstrued NRS 704.110(3) regarding its
capital structure and cost of new securities or that PSC had allocated an excessive interest
expense.
[Headnote 2]
The district court did not commit error in holding that the PSC's opinion and order in
docket #776 as modified by its order of March 22, 1976 is lawful, just and reasonable. The
object of regulation of public utilities is to provide both a fair rate of return for the utility and
an adequate supply of energy at a fair price to the ratepayer. Even if we were to conclude that
the PSC had made a procedural error without invitation, the ratepayer would not be required
to pay a higher rate because of such error. See generally, NRS 704.040.
We affirm the judgment of the district court.
____________________

1
The order of the district court denying summary judgment is not appealable. NRAP 3A(b)(5).
____________
97 Nev. 378, 378 (1981) Homewood Inv. Co. v. Wilt
HOMEWOOD INVESTMENT COMPANY, INC. and TOM GENTRY, Appellants, v.
WILLARD WILT, dba BILL WILT ELECTRICAL CONTRACTOR and TAHOE
PLUMBING COMPANY, INC., Respondents.
No. 11131
August 26, 1981 632 P.2d 1140
Appeal from order denying summary judgment,
1
judgment and order denying motion to
amend, alter or modify judgment. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Contractor and its indemnitor appealed from decision of the district court which entered
judgment in favor of contractor's suppliers for payment of materials and labor supplied and
for attorney fees. The Supreme Court, Batjer, J., held that: (1) indemnitor, who was sole
shareholder of contractor, was personally liable under indemnification agreement which State
Contractors' Board required him and contractor's president to sign before contractor was
granted unlimited license; (2) facts that suppliers failed to perfect their materialmen's lien
against condominium project and failed to make progressive billings did not excuse
indemnitor from liability; and (3) suppliers were not entitled to attorney fees as sanction
against indemnitor for denial of suppliers' request for admissions with no reasonable ground
to believe that it might prevail on matter nor any good reason for its failure to admit where
indemnitor neither signed response to request for admissions nor was directed by the
request to answer.
reason for its failure to admit where indemnitor neither signed response to request for
admissions nor was directed by the request to answer.
Breen, Young, Whitehead, Terzich & Belding, Reno, for Appellants.
Sinai, Ohlson, Schroeder & Specchio, Reno, for Respondents.
1. Licenses.
State Contractors' Board has power to require indemnification agreements as condition precedent to the
issuance of an unlimited contractor's license.
2. Corporations.
Suppliers of labor and materials to contractor were entitled to recover payment under indemnification
agreement which was required of sole shareholder of contractor before State Contractors' Board would
issue undercapitalized contractor an unlimited license, despite suppliers' lack of knowledge of agreement at
time they extended credit to contractor, where agreement was exacted from sole shareholder and
contractor's president by the Board to protect suppliers and the liability suppliers sought to impose upon
sole shareholder was clearly within express terms of indemnification agreement.
3. Corporations.
In suppliers' action to recover payment for labor and supplies extended on credit to contractor from sole
shareholder of contractor under indemnification agreement required of shareholder, by State Contractors'
Board before Board issued unlimited license to contractor, evidence including testimony of a handwriting
expert was sufficient to find that sole shareholder signed the agreement and knowingly and willfully
undertook obligation in the indemnification agreement.
4. Indemnity.
In action by suppliers for payment for labor and materials supplied to contractor against contractor's
indemnitor, evidence was sufficient to support damages award to suppliers.
5. Corporations.
Facts that contractor's suppliers did not perfect materialmen's lien against condominium project and failed
to make progressive billings did not excuse sole shareholder from liability under indemnification
agreement required of shareholder by State Contractors' Board before Board issued unlimited license to
contractor, where indemnification agreement did not require perfection of lien rights not particular billing
schedule.
Plaintiffs were not entitled to attorney fees as sanction against individual defendant for corporate
defendant's denial of plaintiffs' request for admissions with no reasonable ground to believe that it might
prevail on matter nor any good reason for its failure to admit where individual defendant, though sole
shareholder of corporate defendant, neither signed response to request for admissions nor was directed by
the request to answer. NRCP 36, 37(c).
OPINION
Homewood Investment Company (Homewood), and Tom Gentry appeal from the
judgment entered against them and in favor of Willard Wilt, dba Bill Wilt Electrical
Contractor (Wilt), and Tahoe Plumbing Company, Inc. (Tahoe Plumbing). Homewood and
Gentry, as Homewood's indemnitor, were ordered to pay Wilt $40,469.28 with interest from
the date of the filing of the complaint for materials delivered and labor furnished to
Homewood. Homewood and Gentry were also ordered to pay Tahoe Plumbing $65,163.86
with interest from the date of the filing of the complaint for materials delivered and labor
furnished. Gentry was ordered to pay $1,250 as an attorney's fee to each respondent as a
sanction for Homewood's failure to admit the validity of Gentry's signature on the agreement.
At one time, Homewood was a licensed Nevada contractor owned by Richard Osmundsen.
2
In 1972, Homewood was incorporated, and the stock was acquired by Kingswood Tahoe
Corporation. Gentry was the sole shareholder of Kingswood. Osmundsen was the president of
Homewood.
Homewood applied for an unlimited contractor's license because it intended to commence
a condominium project. The State Contractors' Board was unwilling to issue an unlimited
license unless Homewood could show substantial financial responsibility. See NRS
624.220(2). In order to accommodate Homewood, the Board offered to grant an unlimited
license if Osmundsen and Gentry would agree to personally indemnify the corporation's
obligations. After the indemnification agreement
3
was submitted and a $5,000 surety bond
was posted, the Board approved an unlimited license on August 29, 1972.
On appeal, Gentry argues that the trial court erred by enforcing the indemnification
agreement and imposing personal liability on him for Homewood's obligations; that it
awarded respondents damages in excess of the amount proved; that it erred in imposing
liability on him inasmuch as respondents failed to preserve and protect their lien rights
and failed to bill Homewood at progressive intervals.
____________________

2
Osmundsen went through a bankruptcy proceeding and respondents received a portion of the money owed
them from that proceeding. Osmundsen is not a party to this action.

3
The pertinent provision of the agreement states:
We, Richard Osmundsen, President, and Tom Gentry, Director, Officers and Stockholders of Homewood
Investment Co., do hereby personally indemnify the creditors of Homewood Investment Co. for any and
all liabilities of the said Homewood Investment Co., wherein such liabilities are incurred in the ordinary
course of the construction business within the State of Nevada.
respondents damages in excess of the amount proved; that it erred in imposing liability on
him inasmuch as respondents failed to preserve and protect their lien rights and failed to bill
Homewood at progressive intervals. Additionally, Gentry seeks reversal of attorney's fees
awarded against him pursuant to NRCP 36 and 37.
PERSONAL LIABILITY UNDER THE
INDEMNIFICATION AGREEMENT
Gentry contends that: (1) the Board acted in excess of its statutory power by requiring him
to execute the indemnification agreement; (2) the district court erred in allowing respondents
to recover under the indemnification agreement despite respondents' lack of knowledge of the
agreement at the time they extended credit to Homewood; and (3) that the record does not
contain sufficient evidence to find that he knowingly and willfully undertook the obligation in
the indemnity agreement.
We do not agree with Gentry's assertions.
[Headnote 1]
The Board has the power to require indemnification agreements as a condition precedent
to the issuance of an unlimited contractor's license. Homewood Investment Co. v. Moses, 96
Nev. 326, 608 P.2d 503 (1980). The same indemnification agreement considered in that case
is involved here and our holding there is dispositive.
[Headnote 2]
Gentry relies upon Calcot Assn. v. Coast Cotton Mills, 295 P.2d 1, (Cal.App. 1956) and
Bliss v. Brock, 234 N.W. 92 (Neb. 1931) to support his contention that a creditor's right to
enforce a contract for guaranty must be based upon the knowledge of the existence of the
guaranty and that the credit must be extended in reliance thereof. Such reliance is misplaced.
Here, the indemnification agreement was exacted from Gentry and Osmundsen by the Board
to protect those entities unfortunate enough to be found in respondents situation. The contract
was between the Board and Gentry for the benefit of any entity extending credit to
Homewood in the ordinary course of the construction business within the State of Nevada.
A guarantor cannot be held beyond the express terms of the guaranty he executed.
Securities Investment Co. v. Donnelley, 89 Nev. 341, 513 P.2d 1238 (1973). The liability
respondents sought to impose upon Gentry was clearly within the express terms of the
indemnification agreement. The Board's purpose in requiring the indemnification
agreement was to protect persons dealing with Homewood, an undercapitalized
corporation.
in requiring the indemnification agreement was to protect persons dealing with Homewood,
an undercapitalized corporation. To require creditors to have knowledge of the agreement
when extending credit to appellant would not further the Board's legitimate purpose in
requiring it. See generally, Ross v. Imperial Construction Co., Inc. 572 F.2d 518 (5th Cir.
1978); Bill White Roofing v. Cedrics, Inc. 387 So.2d 189, 191 (Ala. 1980).
[Headnote 3]
The evidence adduced at the trial regarding Gentry's execution of the agreement was
conflicting. Gentry testified that he would not have knowingly and intentionally executed the
indemnification agreement and that he did not believe the signature on the agreement was his.
A handwriting expert testified that he believed Gentry wrote the signature on the agreement.
This expert's testimony was extensive, and included his belief that Gentry had tried to alter
his signature on the exemplars provided for the trial.
Appellant's claim that the record before this court does not contain sufficient evidence to
support a finding that he knowingly and willfully undertook the obligation is also without
merit. Homewood Investment Co. v. Moses, supra, at 329, 608 P.2d at 505.
DAMAGES
[Headnote 4]
Gentry contends that the damages awarded against him were in excess of those proved. He
argues that respondent Wilt received an award of $15,835.56 that had been previously paid by
the Kingswood project in California.
The $40,469.28 Wilt received in the judgment represents the difference between the
contract price of the work performed, $87,168, and the amount actually paid, $45,498.78,
minus the $1,200 received from the Osmundsen bankruptcy.
The district court did not err in awarding Wilt $40,469.28. The billing procedures used,
(e.g., billing the California project for work done on the Nevada project) encouraged by the
appellants in this action contributed to any confusion which may have existed. The record
contains substantial evidence to support the judgment of the district court. Clark Co. Sports v.
City of Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980).
LIEN RIGHTS AND BILLING PROCEDURE
[Headnote 5]
Gentry also contends that the respondents are estopped from asserting a claim based upon
the indemnification agreement because they failed to perfect their materialmen's lien
against the condominium project and failed to make progressive billings.
because they failed to perfect their materialmen's lien against the condominium project and
failed to make progressive billings.
In Homewood Investment Co. v. Moses, supra, at 330, 608 P.2d at 506, we rejected
Gentry's claim because the indemnification agreement did not require perfection of available
liens as a condition precedent to collection of the amounts due.
Further, Gentry argues that progressive billings were required under the contract with
Tahoe Plumbing Company, Inc., and alleges that none was made, thereby discharging Gentry
from liability under the indemnification agreement. We do not agree. The contract provided
that progressive payments were to be made, and the indemnification agreement did not
provide for progressive billings.
In light of the fact that the indemnification agreement did not require either perfection of
lien rights nor any particular billing schedule, the district court did not err in finding Gentry
liable under the indemnification agreement.
ATTORNEY'S FEES
[Headnote 6]
As a sanction pursuant to NRCP 36 and NRCP 37(c)
4
, the district court awarded Wilt and
Tahoe Plumbing Company, Inc., $1,250 as an attorney fee.
Wilt and Tahoe Plumbing Company, Inc., made a request for admissions on January 14,
1976, addressed to Homewood Investment Co., specifically requesting:
That the signature of TOM GENTRY on the original of the attached photocopy marked
Exhibit A hereto is the true and correct signature of the said TOM GENTRY.
The district court found that the defendant had entered its denial to the request for
admissions and had no reasonable ground to believe that it might prevail on this specific
matter nor any other good reason for its failure to admit the validity of Gentry's signature on
the indemnity agreement.
____________________

4
NRCP 37(c) provides:
If a party fails to admit the genuineness of any document or the truth of any matter as requested under
Rule 37, and if the party requesting the admissions thereafter proves the genuineness of the document or
the truth of the matter, he may apply to the court for an order requiring the other party to pay him the
reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall
make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2)
the admission sought was of no substantial importance, or (3) the party failing to admit had grounds to
believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
Gentry argues that since the request for admissions was not addressed to him personally,
the sanctions may not be imposed against him. He asserts that there is no authority for the
award of fees against one party by reason of the failure of a different party to admit the truth
of certain facts.
Respondents rely on the trial court's finding that all the issued and outstanding stock of
Homewood Investment Co. was held by Gentry. They assert that such finding justifies the
award of attorney's fees to them.
Homewood's response to the request for admissions was signed by Peter L. Klein as the
Secretary-Treasurer. Inasmuch as Gentry neither signed the response nor was directed by the
request to answer we reverse that portion of the judgment awarding attorney's fees pursuant to
NRCP 36 and NRCP 37(c) against him.
In all other respects the judgment of the district court is affirmed.
____________
97 Nev. 384, 384 (1981) Las Vegas Ranch Club v. Bank of Nev.
LAS VEGAS RANCH CLUB, a Limited Partnership, Appellant, v. BANK OF NEVADA, a
Nevada Banking Corporation, and DIANE COULTHARD, as CO-EXECUTORS OF THE
ESTATE OF G. WILLIAM COULTHARD, Deceased, DIANE COULTHARD, Individually,
MARK S. SULLIVAN, MARGARET S. MORSE, JOSEPH EMMETT SULLIVAN, MARY
EILEEN GENOCHIO, GEORGE F. SULLIVAN, B. MAHLON BROWN, WESTERN
TITLE COMPANY, a Nevada Corporation, and NEVADA SOUTHERN TITLE, INC., a
No. 11447
August 26, 1981 632 P.2d 1146
Trustor of a deed of trust on a piece of real property issued to secure a promissory note
brought action seeking a judgment that would order the release of six acres pursuant to the
partial reconveyance provision in the deed of trust. The district court entered summary
judgment for holders of promissory note, and appeal was taken.
and appeal was taken. The Supreme Court held that trustor who had not satisfied contractual
condition that trustor be not in default was not entitled to a partial reconveyance.
Affirmed.
Clary & Colvin, Las Vegas, for Appellant.
John Peter Lee, and Richard McKnight, George E. Graziadei, and Jerome F. Snyder, Las
Vegas, for Respondents.
Mortgages.
Where trustor of deed of trust on a piece of real property issued to secure a promissory note had not
satisfied the contractual condition for partial reconveyance that the trustor be not in default in that trustor
had not made timely payment of any of annual installments called for in note, trustor was not entitled to
partial reconveyance requested by trustor after making one of annual payments called for by terms of
promissory note, and holders of promissory note were not obligated to release any land.
OPINION
Per Curiam:
This case involves a promissory note secured by a deed of trust on a piece of real property.
The deed of trust contained a partial reconveyance provision which stated: So long as the
Trustor be not in default concerning any of the covenants contained herein or in the note
secured hereby a Partial Reconveyance may be had and will be given upon six acres upon
written request with each annual payment . . .
According to the note, appellant was to make annual payments beginning on May 2, 1973.
Appellant made the first payment on June 1, 1973, which respondents accepted even though it
was late. Appellant failed to make any subsequent payments.
Respondents instituted foreclosure proceedings on June 25, 1974. On October 18, 1974,
the day of the foreclosure sale, appellant tendered a written request for reconveyance of six
acres. This was the only written request appellant made, and it was refused by respondents.
Appellant filed a complaint in district court seeking a judgment that would order the release
of six acres pursuant to the partial reconveyance provision in the deed of trust. The district
court granted respondents' motion for summary judgment, and this appeal followed.
The deed of trust in question requires that three conditions be satisfied before any parcel
will be reconveyed to appellant. First, the trustor must provide a written request for each
reconveyance. Second, the annual payment must accompany that request.
request. And third, the trustor must not be in default on any covenant contained in either the
promissory note or in the deed of trust.
The promissory note obligated appellant to pay each annual installment on May 2nd. The
first and only payment was made on June 1, 1973. At that time appellant made no request for
reconveyance. Thus, the issue is whether the three contractual conditions were satisfied at the
time appellant finally requested reconveyance in October, 1974.
Bradbury v. Thomas, 27 P.2d 402 (Cal.App. 1933), provides a useful definition of the term
default. The court noted that [t]he ordinary meaning of the word default,' when used with
respect to an obligation created by contract, is failure of performance. When used with
reference to an indebtedness, it simply means non-payment. Id. at 405. Applying that
definition to the present case, it is clear that at the time of appellant's request for
reconveyance, appellant was in default on the payment due May 2, 1974. Thus, at the time
appellant made the request for reconveyance, appellant had not satisfied the contractual
condition that the Trustor be not in default. Appellant was not, therefore, entitled to a
partial reconveyance, and respondents were not obligated to release any land. See Assoc.
Mortgage Investors v. Sara-Green Development Corp., 373 N.Y.S.2d 694 (App.Div. 1975).
Other issues raised by the parties need not be discussed.
Affirmed.
____________
97 Nev. 386, 386 (1981) State ex rel. Welfare Div. v. Hudson
STATE OF NEVADA, by and Through THE WELFARE DIVISION OF THE
DEPARTMENT OF HUMAN RESOURCES, Appellant, v. MAURICE KEITH
HUDSON, Respondent.
No. 13249
August 28, 1981 632 P.2d 1148
Appeal from dismissal of complaint for reimbursement of child support; Eighth Judicial
The district court upheld special hearing master findings and dismissed complaint and
State appealed. The Supreme Court held that: (1) equities that favor treatment of respondent's
failure to file brief on appeal as confession of error did not exist where respondent parent was
not represented by counsel and did not file documents, motions, or briefs, and (2) where no
court order was attached to complaint establishing parent's legal obligation of support
and parent presented copy of divorce decree which allegedly made no mention of support,
district court was correct in dismissing complaint and holding, in effect, that respondent
parent as matter of law did not owe State child support.
court order was attached to complaint establishing parent's legal obligation of support and
parent presented copy of divorce decree which allegedly made no mention of support, district
court was correct in dismissing complaint and holding, in effect, that respondent parent as
matter of law did not owe State child support.
Affirmed.
[Rehearing denied November 3, 1981]
Richard H. Bryan. Attorney General, and Sharon L. McDonald, Deputy Attorney General,
Carson City; and Robert J. Miller, District Attorney, Clark County, for Appellant.
Maurice Keith Hudson, Santa Barbara, California, In Propria Persona.
1. Parent and Child.
On appeal from dismissal of complaint brought by State against parent for reimbursement of child
support, equities that favor treating a respondent's failure to file a brief as a confession of error did not exist
where respondent parent was not represented by counsel and did not file documents, motions or briefs.
NRAP 31(c).
2. Parent and Child; Social Security and Public Welfare.
Where no court order establishing parent's legal obligation of support was attached to complaint brought
by State against parent for reimbursement for child support and parent presented copy of his divorce decree
which was interpreted by both the special master and district court as providing that he owed no support,
the district court was correct in dismissing complaint and holding that parent as a matter of law did not owe
State reimbursement for child support. NRS 130.010 et seq., 425.360, subd. 1.
OPINION
Per Curiam:
The State of Nevada, by and through the Welfare Division of the Department of Human
Resources, filed a complaint in the district court against respondent Maurice Keith Hudson
for reimbursement pursuant to the Uniform Reciprocal Enforcement of Support Act. NRS
130.010 et seq. An order to show cause and an order appointing a special hearing master in
accordance with the Act were subsequently entered.
In his Findings of Fact, Conclusions of Law and Recommended Orders, the special
hearing master noted that Mr. Hudson was under no obligation according to the divorce
decree with regard to support. The district court upheld the findings of the master as well as
the recommendation that the complaint should be dismissed.
findings of the master as well as the recommendation that the complaint should be dismissed.
The State of Nevada filed a timely notice of appeal and submitted its opening brief.
Appellant subsequently filed a motion to reverse the decision of the district court. To date,
respondent Hudson has not filed an answering brief, a motion for an extension of time, or an
opposition to the motion to reverse.
[Headnote 1]
Appellant is requesting this court to exercise its discretion pursuant to NRAP 31(c) and
treat the respondent's failure to file an answering brief as a confession of error. The relevant
portion of NRAP 31(c) states: The failure of respondent to file a brief may be treated by the
court as a confession of error and appropriate disposition of the appeal thereafter made.
The recent case of State of Rhode Island v. Prins, 96 Nev. 565, 613 P.2d 408 (1980)
presented a situation which is procedurally similar to the case now before us. The State of
Rhode Island appealed from a judgment which held that respondent did not owe support to
his child. The respondent failed to file an answering brief. Appellant moved this court to
regard the failure as a confession of error, to reverse, and to remand the case to the district
court with instructions to determine a reasonable order for child support. We held:
This court may, in its discretion, treat the failure of a respondent to file his brief as a
confession of error, and reverse the judgment without consideration of the merits of the
appeal. NRAP 31(c); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677
(1975); Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958).
In our view, this is an appropriate case for such disposition. The judgment in
respondent's favor is reversed and remanded . . . .
Id. at 565.
The equities in Prins which favored the treatment of respondent's failure to file a brief as a
confession of error, however, do not exist in the case now before us. In Prins, the respondent
was represented by counsel; a request for an extension of time in which to prepare a brief was
made and granted. Here, respondent Hudson is not represented by counsel, and has filed no
documents, motions, or briefs.
[Headnote 2]
Moreover, an examination of the scanty record on appeal discloses no error in the order of
the district court dismissing the complaint. The complaint that was filed by the district
attorney's office sought reimbursement for the $1S15 which had been previously paid to
respondent's ex-wife by the Welfare Division of the Department of Human Resources,
State of Nevada, for the support of her minor child.
attorney's office sought reimbursement for the $1815 which had been previously paid to
respondent's ex-wife by the Welfare Division of the Department of Human Resources, State
of Nevada, for the support of her minor child. No court order was attached to the complaint
establishing respondent Hudson's legal obligation of support. Apparently, respondent
appeared at the hearing before the Special Master and presented a copy of his divorce decree
which made no mention of support. Thus, on the record before this court, Mr. Hudson had a
defense to the complaint: there was no existing legal duty as of that date requiring him to pay
child support.
Reference should be made to NRS 425.360(1), which states:
Any payment of public assistance creates a support debt to the division by the
responsible parent in an amount equal to the least of:
(a) The amount of assistance paid;
(b) the amount due under any court order; or
(c) if there is no court order, to the amount due under any written agreement between
the division and a responsible parent.
Both the special master and the district court interpreted the divorce decree dissolving the
marriage of respondent and his ex-wife to provide that respondent owed no support. That
being the least of the three alternatives set forth in NRS 425.360(1), the district court was
correct in dismissing the complaint, and holding, in effect, that respondent as a matter of law
did not owe the State of Nevada $1815 as appellant contends.
1

Affirmed.
____________________

1
NRS 425.360(2) allows the Welfare Division to attempt to establish prospectively the noncustodial parent's
duty of child support by petitioning the appropriate court for a modification of the order concerning the payment
of such support. Following this procedure, the state here could possibly secure reimbursement from respondent
Hudson for the future payments made to his ex-wife by the Welfare Division on behalf of their minor child. In
the present case, however, there was not such modification, and respondent was no obligated to pay child
support under the existing divorce decree. Therefore, there was nothing to enforce under the Uniform Act,
NRS ch. 130.
____________
97 Nev. 390, 390 (1981) Jacobson v. Best Brands, Inc.
NATHAN S. JACOBSON, Appellant and Cross-Respondent, v. BEST BRANDS, INC., a
Nevada Corporation, Respondent and Cross-Appellant.
No. 11028
August 31, 1981 632 P.2d 1150
Appeal from judgment. Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Suit was instituted on a written guaranty agreement. The district court entered judgment
from which parties appealed and cross-appealed. The Supreme Court, Batjer, J., held that: (1)
substantial evidence supported finding that plaintiff did not agree to discharge defendant from
written agreement guaranteeing debtor's account and did not, either orally or in writing, agree
to discharge defendant in exchange for receiving an account from still another debtor, and (2)
contractual provision which excised interest and expenses from written guaranty which was
subject of contract served as a waiver by parties of interest on sums covered by guaranty.
Affirmed.
Morse-Foley, Las Vegas, and Simon & Sheridan, Los Angeles, for Appellant and
Cross-Respondent.
Dickerson, Miles & Pico, Las Vegas, and Saphier, Rein & Burris, Los Angeles, for
Respondent and Cross-Appellant.
1. Evidence.
Parol evidence may be offered to defeat the object and effect of a written instrument, but that evidence
must be clear, strong, convincing and attended with no uncertainty.
2. Evidence.
It is the prerogative of the trier of facts to evaluate the credibility of witnesses and determine the weight
of their testimony.
Where there is substantial evidence to support the findings of the trial court, the Supreme Court will
affirm the judgment even though the evidence is conflicting.
4. Guaranty.
Substantial evidence supported finding that plaintiff did not agree to discharge defendant from written
agreement guaranteeing debtor's account and did not, either orally or in writing, agree to discharge
defendant in exchange for receiving an account from still another debtor.
5. Interest.
Contractual provision which excised interest and expenses from written guaranty which was subject of
contract served as a waiver by parties of interest on sums covered by guaranty.
OPINION
Appellant Nathan S. Jacobson appeals from a judgment entered against him in the amount
of $72,627.21, together with attorney's fees and costs. Respondent Best Brands, Inc.,
cross-appeals from the judgment, claiming interest on the principal sum of the judgment and
an attorney's fee in excess of the $1,000 awarded by the district court.
Best Brands brought this action against Jacobson to recover sums covered by a written
guaranty executed by Jacobson when he was the president of A.L.W., Inc., doing business as
Kings Castle Hotel & Casino at Incline Village, Nevada (Kings Castle).
Best Brands supplied liquor products to Kings Castle on credit. On August 13, 1971, at the
request of Best Brands' president, Steven Wynn, Jacobson executed a written guaranty
agreement. The guaranty provided that Jacobson would personally guarantee payment of any
amounts due and owing from Kings Castle in an amount not to exceed $100,000. At the time
the guaranty was executed, Kings Castle owed Best Brands about $65,000.
By early 1972, Kings Castle was experiencing financial difficulties and on January 31,
1972, filed a Chapter 11 bankruptcy proceeding. Best Brands filed a claim for $86,581.08 in
the bankruptcy proceeding and received $13,653.87 as their pro rata share of the Kings Castle
arrangement account.
In May, 1974, Kings Castle was sold to Jenny, Inc., with the approval of the bankruptcy
court. As part of the sale, Jenny, Inc., agreed to indemnify Jacobson against liability incurred
by virtue of the written guaranty given to Best Brands in the approximate amount of $86,000.
Jenny Inc., reopened Kings Castle and operated it for a short time before experiencing
financial difficulties. Best Brands was again the liquor purveyor to Kings Castle under Jenny,
Inc.'s, ownership. When Jenny, Inc. reopened the resort, there was a quantity of wine which
had spoiled during the closure and Best Brands gave Jenny, Inc., a credit for the amount of
the spoilage.
Jacobson contended at trial and on appeal that: (1) He signed the guaranty only as a
personal accommodation to Wynn and there was no meeting of the minds to constitute a
binding contract, and (2) The obligation to Best Brands was extinguished by Jenny, Inc.'s,
agreement to assume Jacobson's obligation to Best Brands.
The district court found that appellant had failed to make a sufficient showing to overcome
the legal effect to be given an instrument voluntarily executed. Further, that court found that
Jacobson had failed to present any evidence other than his own testimony to support his
personal accommodation contention.
[Headnote 1]
Parol evidence may be offered to defeat the object and effect of a written instrument, but
that evidence must be clear, strong, convincing and attended with no uncertainty. Davidson v.
Streeter, 68 Nev. 427, 439, 234 P.2d 793, 799 (1951).
Here, Wynn testified that he told Jacobson that he had three options: (1) pay a substantial
part of the $65,000 bill, (2) sign the guaranty, or (3) not receive any more shipments of liquor.
The thrust of Jacobson's testimony was recounting his close personal and social relationship
with Wynn, that he had signed the guaranty at Wynn's request as a personal accommodation,
and that there was no meeting of the minds with Wynn as to the document's enforceability
against him. He also testified that a meeting had taken place where a representative of Jenny,
Inc., the manager of Best Brands for the Reno, Nevada, area, and Jacobson himself orally
agree that Jenny, Inc., would assume the Kings Castle debt to Best Brands.
Best Brands' manager of the Reno, Nevada, area, C. O. Watson, testified that he never
attended such a meeting, nor did he discuss the assumption of the Kings Castle debt with
anyone from Jenny, Inc., and that Jenny, Inc.'s, account was kept separate from the old Kings
Castle account.
Jacobson also places great reliance on the fact that Best Brands credited Jenny, Inc.'s
account for the wine spoilage, even though the purchase of these wines was on the old Kings
Castle account.
The district court found that Best Brands did not agree to discharge Jacobson's debt, nor
did Best Brands agree, either orally or in writing, to discharge Jacobson in exchange for
receiving an account with Jenny, Inc.
[Headnote 2]
It is the prerogative of the trier of facts to evaluate the credibility of witnesses and
determine the weight of their testimony. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279,
439 P.2d 473 (1968).
[Headnotes 3, 4]
Where there is substantial evidence to support the findings of the trial court, this court
will affirm the judgment even though the evidence is conflicting.
the trial court, this court will affirm the judgment even though the evidence is conflicting.
Clark Co. Sports v. City of Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980). Blanchard v.
Nevada State Welfare Dep't, 91 Nev. 749, 542 P.2d 737 (1975); Lyon v. Walker Boudwin
Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972). Here, the finding of the district court is
supported by substantial evidence.
In light of the district court's finding that Best Brands did not agree, either orally or in
writing, to discharge appellant in exchange for receiving an account with Jenny, Inc.,
appellant's contention that his obligation to Best Brands was extinguished by Jenny, Inc.'s,
agreement to assume appellant's obligation to Best Brands becomes specious.
CROSS-APPEAL
As previously noted, respondent filed a cross-appeal from that portion of the judgment
which disallowed interest
1
on the principal sum of the judgment and for an attorney's fee in
excess of the $1,000 awarded by the district court.
2

[Headnote 5]
The district court properly found that the parties had waived interest on the sums covered
by the guaranty because of the express terms of the guaranty.
3

When the parties specifically deleted the reference to interest in the guaranty instrument it
became obvious that they intended no interest be charged on the amount owed.
____________________

1
Appellant did not respond to the respondent's answering brief raising the issue of interest on the judgment.
We could have considered this to be a confession of error. See NRAP 32(c); Summa Corp. v. Brooks
Rent-A-Car, 95 Nev. 779, 602 P.2d 192 (1979); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677
(1975). We prefer to decide the issue on the merits.

2
We will not entertain the question of the adequacy of the attorney's fee because respondent has not briefed
that issue on appeal. See Summa Corp. v. Brooks Rent-A-Car, supra.

3
The pertinent portion of the guaranty relating to interest provides:
The liabilities of the guarantors shall remain at all times undiminished, unreleased, and undischarged
to any extent whatever by any action done pursuant to, or under, this agreement, or left undone by the
supplier until the payment in full of all the indebtedness hereby guaranteed, including interest and
expenses in connection therewith, provided that the liability of the undersigned by reason of this guaranty
shall not exceed one hundred thousand and 00/xx dollars. (The lined-through portion was initialed by
both parties.)
intended no interest be charged on the amount owed. Accordingly, the provisions of NRS
17.130(2)
4
and NRS 99.040
5
do not apply. Since the parties agreed that no interest be
charged under the guaranty instrument, a judgment rendered on such contract must conform
thereto. Leprechaun Mining & Chemical, Inc. v. Grigor, 91 Nev. 148, 532 P.2d 602 (1975);
Jones v. Edwards, 49 Nev. 299, 245 P. 292 (1926).
For the reasons expressed above, the judgment of the district court is affirmed in its
entirety.
Gunderson, C. J., and Manoukian and Springer, JJ., and Zenoff, Sr. J.,
6
concur.
____________________

4
NRS 17.130(2) provides, in pertinent part:
When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the
judgment draws interest at the rate of seven percent per annum from the time of service of the summons
and complaint until satisfied, except for any amount representing future damages, which draws interest at
that rate only from the time of the entry of the judgment until satisfied.

5
When there is no express contract in writing fixing a different rate of interest, interest shall be allowed
at the rate of 8 percent per annum upon all money from the time it becomes due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
2. Upon the settlement of book or store accounts from the day on which the balance is ascertained.
3. Upon money received to the use and benefit of another and detained without his consent.
4. Upon wages or salary, if it is unpaid when due, after demand therefor has been made.

6
Honorable John Mowbray, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 394, 394 (1981) Allen v. State
RONALD DURANE ALLEN, Appellant, v. THE
No. 11961
August 31, 1981 632 P.2d 1153
Appeal from judgment of conviction entered upon a jury verdict, Eighth Judicial District
Defendant was convicted before the district court of second degree murder, and he
appealed. The Supreme Court, Young, D.J., held that evidence warranted instruction on
self-defense, and failure to so instruct, as requested by defendant, was reversible error.
97 Nev. 394, 395 (1981) Allen v. State
D.J., held that evidence warranted instruction on self-defense, and failure to so instruct, as
requested by defendant, was reversible error.
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
1. Criminal Law.
In every criminal case, a defendant is entitled to have the jury instructed on any theory of defense that the
evidence discloses, however improbable the evidence supporting it may be; it makes no difference which
side presents the evidence, as the trier of fact is required to weigh all of the evidence produced by either the
State or the defense before arriving at a verdict.
2. Criminal Law.
Test for necessity of instructing the jury is whether there is any foundation in the record for the defense
theory.
3. Criminal Law.
Testimony of defendant is not the determining factor as to what legal defenses may be shown by the
evidence; such a rule would improperly remove from the jury the question of the defendant's credibility.
4. Homicide.
Evidence in second degree murder prosecution warranted instruction on self-defense, and failure to so
instruct, as requested by defendant, was reversible error.
OPINION
By the Court, Young, D. J.
1
:
This is an appeal from the judgment of conviction of the defendant. Mr. Allen was
adjudged guilty of second degree murder and was sentenced to the Nevada State Prison.
Defendant has raised several issues on appeal, the principal issue being that the trial court
erred in not instructing the jury on self-defense. We agree and reverse the judgment solely on
that issue and for that reason have not discussed the other issues raised by appellant.
The facts of this case show that at about 11:00 p.m. on May 29, 1978, an argument started
between defendant-appellant, Ronald Durane Allen, a resident of the Evergreen
Apartments, and his next-door neighbor, Sharon Diane Williams.
____________________

1
The Governor designated the Honorable Lewellyn A. Young, Judge of the Sixth Judicial District Court, to
97 Nev. 394, 396 (1981) Allen v. State
Ronald Durane Allen, a resident of the Evergreen Apartments, and his next-door neighbor,
Sharon Diane Williams. As the argument grew more heated, the crowd in front of the
apartments occupied by Allen and Williams grew and included, among others, Raymond
Williams, Sharon's husband; Carrie Morris, Allen's housemate; Dorothy Lee Cooper, a
neighbor; Vance Shelton, a friend of Williams; and Robert Duane Williams, the victim and
Raymond Williams' brother.
As the argument grew to a climax, Allen went into his apartment and returned to the
crowd. Thereafter blows were exchanged between Sharon Williams. Allen and Raymond
Williams. Allen testified that Sharon slapped him first and he returned the blow, after which
Raymond Williams began punching him. This testimony was refuted by the Williamses. After
the fight began, Robert Duane Williams jumped or slid off the car on which he was sitting,
the car being parked immediately in front of the apartment building. Thereafter the testimony
again becomes confused and conflicting.
Several witnesses, i.e., Sharon Williams and Raymond Williams, testified that after the
fight began, Wayne, the victim, just slid off the car onto the ground without interfering in any
way with defendant. Several other witnesses testified differently.
2
Review of the pertinent
portions of the testimony indicates that the evidence was in conflict as to who was the
actual aggressor and what the victim actually did to the defendant.
____________________

2
Vance Shelton on direct examination by the state testified (Trial Transcript, Page 146, Line 25 to Page 147
through Line 5):
Q What happened then?
A Well, about that time Ronnie's wife came outside. And her and Diane switched words. That's
when Ronnie took his wife inside the house. He stayed in about a minute and a half, and then he come
back outside. He said that he wasn't going to argue no more. And he went over to Diane and swung at her.
I don't know if he hit her or not.
That's when Wayne went toward Ronnie. He went to push him back. Ronnie stepped back, and at the
same time he went to his side and he pulled something, like he was going up to hit him, but that's when
Wayne jumped off his car on Ronnie's shoulders, and Ronnie's arm went back like this and that's when
the gun went off.
Vance Shelton on cross-examination testified (Page 152, Line 10 to Page 153 through Line 17):
Q Then the other boy, you saw him jump on the top of Mr. Allen, didn't you?
A Yes, sir.
Q Did he grab him by both arms, or how did he grab him?
A He grabbed him around his shoulders.
Q And that was right after the blow was struck; is that right?
A Yes.
Q And at that time there was nothing in Mr. Allen's hand, was there?
A No, there wasn't.
Q And after he grabbed him, then the next thing you heard was what?
97 Nev. 394, 397 (1981) Allen v. State
Review of the pertinent portions of the testimony indicates that the evidence was in
conflict as to who was the actual aggressor and what the victim actually did to the defendant.
The jury could have found from the evidence that the victim jumped on the defendant's back
and that the defendant believed that he was being attacked with a knife, and therefore that
the defendant was acting in self-defense.
____________________
A A gunshot.
Q Where did it come from?
A It came from between Ronnie and Wayne.
Q You don't think he intended to shoot?
A No, he didn't.
Q He didn't intend to shoot?
A He wasn't even facing Wayne at the time.
Q He wasn't even facing him when the shot went off, was he?
A No, he wasn't.
Q Do you think there was a struggle over the gun?
A No, there wasn't. He had complete control over the gun.
Q But this other man had him by the arms?
A Yes. Well, when he went into his pocket, he pulled out the gun at this angle. And when Wayne
grabbed him, that forced his arms to be like this. Wayne had him like this around the shoulders, at the top
of the shoulders. And evidently his arm had to go up, because Wayne's chest was right here at his
shoulderblade. To be at that angle, I don't know how the gun went off.
Q In other words, the man that was shot was behind this man; is that right?
A Yes.
Q And he got shot from behind?
A Yes.
Holie Braudis on direct examination by the state testified (Page 174, Line 21 through Line 30):
Q What did Mr. Allen say to you at that time?
A Well, at that time he told me that some fellows jumped on him, and they had a knife and he had to
shoot him.
Q Did he tell you what he shot him with?
A Yes. I asked him what kind of gun did he have. He said, I had a .25.'
I said, Where did you shoot him at?'
He said, I shot him in the chest.'
He said, They had a knife and I was trying to defend myself.'
Dorothy Lee Cooper on cross-examination by; the defense testified (Page 171, Line 17 through Line
29):
Q But you say you didn't see somebody jump off the car and grab him by the arms?
A His brother jumped off the car.
Q And grabbed him by the arms?
A I believe so. He jumped off the car.
Q And when he grabbed him by the arms, what happened?
A That's when he started shooting.
Q But you didn't see a gun or anything until this man jumped off the car? You didn't, did you?
A I ain't seen it until he jumped off the car and jumped on him.
Q When he jumped on him, what happened? Tell the jury.
A He fired the gun and all of them went to running.
97 Nev. 394, 398 (1981) Allen v. State
believed that he was being attacked with a knife, and therefore that the defendant was acting
in self-defense. The jury therefore should have been instructed on self-defense, as requested
by counsel at trial.
[Headnote 1]
In every criminal case, a defendant is entitled to have the jury instructed on any theory of
defense that the evidence discloses, however improbable the evidence supporting it may be.
Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Barger v. State, 81 Nev. 548, 407 P.2d 584
(1965); State of Nevada v. Millain, 3 Nev. 409 (1867).
[Headnotes 2, 3]
It makes no difference which side presents the evidence, as the trier of the fact is required
to weigh all of the evidence produced by either the state or the defense before arriving at a
verdict. The test for the necessity of instructing the jury is whether there is any foundation in
the record for the defense theory. See United States v. Garcia, 452 F.2d 419 (5th Cir. 1971);
Brooke v. United States, 385 F.2d 279 (D.C. Cir. 1967); People v. McEvoy, 337 N.E.2d 437
(Ill.App. 1975); Thompson v. State, 521 S.W.2d 621 (Tex.Crim. 1974); cf. State v. Weaver,
217 S.E.2d 31 (S.C. 1975). The testimony of the defendant is not the determining factor as to
what legal defenses may be shown by the evidence; such a rule would improperly remove
from the jury the question of the defendant's credibility. Strauss v. United States, 376 F.2d
416 (5th Cir. 1967); see also State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
[Headnote 4]
Under the instant set of facts, the evidence warranted instruction on self-defense, and the
failure to so instruct was error. The judgment of conviction is reversed and the case is
____________
97 Nev. 399, 399 (1981) Hotel Riviera, Inc. v. Torres
HOTEL RIVIERA, INC., Appellant, v. EDWARD
TORRES, Respondent.
No. 12370
August 31, 1981 632 P.2d 1155
Appeal from declaratory judgment, Eighth Judicial District Court, Clark County; J.
Former employee brought action against former employer seeking a declaratory judgment
that a claimed agreement by employee not to compete with employer was unenforceable. The
district court entered judgment, ruling that the agreement was unreasonable, and employer
appealed. The Supreme Court, Springer, J., held that employment contract contained no
post-employment agreement not to compete and question of agreement's reasonableness was
therefore irrelevant.
Affirmed.
Lionel Sawyer & Collins, and Dennis L. Kennedy, Las Vegas, for Appellant.
Morton R. Galane, Las Vegas, for Respondent.
1. Contracts.
An agreement by an employee not to compete with employer after termination of employment is a
restraint of trade and contrary to public policy of state; such agreements will not be enforced by the courts
unless terms of restriction on employment are reasonable.
2. Contracts.
Making of a contract depends not on agreement of two minds in one intention, but on agreement of two
sets of external signs; not on the parties' having meant the same thing but on their having said the same
thing.
3. Contracts.
Under covenant not to compete in written employment contract prohibiting competition for the period, if
any, during which [employee] is being compensated pursuant to other provision specifying payment of
retirement compensation, employee was not required to accept retirement benefits and, where employee
was never compensated under retirement provision, restrictive covenant did not exist.
If a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon
wrong reasons.
OPINION
Declaratory judgment was entered in favor of Torres declaring that a claimed agreement by
Torres not to compete with Riviera was unreasonable and unenforceable.
Riviera was unreasonable and unenforceable. Riviera appeals; we affirm on grounds different
from those expressed by the trial court.
Riviera claims that the written employment contract between the parties, particularly
Section 4.1(b),
1
expresses an agreement on the part of Torres that he will not compete with
Riviera in Nevada for the rest of his life.
[Headnote 1]
After completing his employment term Torres filed suit seeking a court declaration that he
was not bound in the manner claimed by Riviera. The trial court ruled that under the
circumstances of this case an agreement to refrain from competition for life was unreasonable
and unenforceable after January 1, 1979 because it was unnecessary to protect the legitimate
business interests of Riviera. See Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792 (1967).
2

The proceedings below and in this appeal have been based on the assumption that the
written employment contract contained a post-employment agreement by Torres not to
compete with Riviera during his lifetime. The question litigated was whether or not such an
agreement was reasonable.
We have carefully scrutinized the employment contract and conclude that it contains no
post-employment agreement not to compete. The question of reasonableness is therefore
irrelevant.
Whatever might have been the intention of the parties, a reading of the unambiguous terms
of the employment contract shows clearly that the post-employment restrictive covenant,
taken for granted by counsel and the court below, does not exist.
____________________

1
The pertinent part of Section 4 of the employment contract reads as follows:
4. Covenant Not to Compete
4.1 The provisions of this section 4 shall be applicable during the following periods:
(a) The Employment Period;
(b) the period, if any, during which Torres is being compensated pursuant to Section 2.4 hereof; and
(c) for a period of five (5) years after termination of the Employment Period, in the event that the
Employment Period shall be terminated by reason of Torres' breach of this Agreement or other than as
specifically permitted by this Agreement.

2
An agreement by an employee not to compete with an employer after termination of employment is a
restraint of trade and contrary to the public policy of this state. Such agreements will not be enforced by the
courts unless the terms of restriction on employment are reasonable. Id.
[Headnote 2]
[T]he making of a contract depends not on the agreement of two minds in one intention,
but on the agreement of two sets of external signs,--not on the parties' having meant the same
thing but on their having said the same thing. Holmes, The Path of the Law, 10 Harv.L.Rev.
457, 464 (1897), quoted in R. Aldisert, The Judicial Process 32 (1978). If the parties to the
employment contract had wished to restrict Torres from engaging in gaming in Nevada for
the rest of this life, they should have said so. They most certainly did not.
Section 4 of the contract, captioned Covenant Not to Compete, imposes in subsections
4.1(a), (b) and (c) three different time periods during which Torres is required to refrain from
competitive activity. Two of the specified periods have expired; and the only remaining
possible period of competitive prohibition is that appearing in 4.1(b), which prohibits
competition by Torres for, the period, if any, during which Torres is being compensated
pursuant to Section 2.4 hereof.
3

The only question, then, is whether there has been any period during which Torres was
being compensated pursuant to Section 2.4 of the contract. The answer to the question is,
No. The period, if any, is nonexistent, for, as all agree, Torres at no time has been
compensated pursuant to Section 2.4 hereof. Consequently the contract does not contain a
post-employment prohibition against competition for the lifetime of Torres nor for any other
period provided for in Section 4.1(b) of the employment contract.
Although reading of the contract makes it quite clear that the 4.1(b) restrictive covenant
does not become operative absent Torres' being compensated under Section 2.4, we gave
counsel an opportunity to brief the point as it had not been considered either at trial or in the
briefing and oral argument of this appeal.
In its supplemental memorandum Riviera addressed this point by saying it did not matter
that Torres was not compensated pursuant to Section 2.4. Once Torres completed his
employment term, Riviera was required to pay him 2.4 retirement compensation;
therefore, argues Riviera, Torres is required to accept the compensation and the
attendant obligation not to compete for "so long as Riviera continued to make the
payments of $25,000 per year."4
____________________

3
Section 2.4 of the employment contract provides as follows:
2.4 If Torres' employment hereunder is terminated on or after December 31, 1978 (other than by
death or for cause), Riviera shall, in consideration of Torres' obligation under Section 4 hereof, pay to
Torres retirement compensation for the rest of his life at the rate of $25,000 per annum plus an additional
$5,000 per annum for each full year after 1978 during which Torres is a full time employee of Riviera,
provided, however, that the maximum amount of such retirement compensation shall, notwithstanding the
length of Torres' service as a full time employee, be $50,000 per annum. The retirement compensation
shall be paid in equal monthly installments.
employment term, Riviera was required to pay him 2.4 retirement compensation; therefore,
argues Riviera, Torres is required to accept the compensation and the attendant obligation not
to compete for so long as Riviera continued to make the payments of $25,000 per year.
4

[Headnote 3]
To begin with, Section 2.4 does not say that if Torres completes his employment term a
new situation arises in which Riviera is compelled to pay retirement benefits and Torres is
required to accept benefits and thus be obligated not to compete for so long as Riviera
continued to make payments. What the parties did say is that Torres would be bound only
during such period, if any,
5
that Torres was actually being compensated.
Further, it would be illogical to accept such a position. It offends reason to interpret the
contract to mean that mere completion of his employment term automatically locked Torres
into a post-employment non-competitive agreement for life or for so long as Riviera wanted
to pay him.
The only logical meaning of the language in Section 2.4 that Riviera shall pay retirement
benefits if Torres completes his employment term is that Torres' performance entitled him to
elect (as in the case of comparable employee benefits such as stock options) to retire and to
receive benefits if he were willing to accept also the obligation under Section 4; that is, the
covenant not to compete.
To say that Torres becomes absolutely bound by mere completion of his employment term
is to say, first, that he would be irrevocably bound for life if he performed his contract, but
would be bound for only five years (Section 4.1(c)) if he violated the contract; and, second,
that he would be bound for life to accept $25,000 per year in exchange for his proven
earnings in Nevada gaming in excess of $500,000 per year. Such an interpretation, then, is
both linguistically and logically unacceptable.
What the parties said in the employment contract is clear. If Torres completed his
employment term, he would become eligible to receive (but not compelled to accept)
retirement compensation for the rest of his life, in consideration of his continued
"obligation under Section 4," not to compete.
____________________

4
Appellant's Supplemental Memorandum, p. 4.

5
Court's emphasis. The phrase if any may be taken as an indication that the parties understand the
contingency of this part of the covenant's not going into effect. It would not, by the terms of the contract, go into
effect if Torres failed to complete his employment term or if he was not compensated pursuant to Section 2.4.
continued obligation under Section 4, not to compete. That mere performance by Torres of
his contractual obligation to complete the employment term irrevocably bound him not to
engage in gaming in Nevada is not only unsaid but unsound from the standpoint of logic and
reason.
[Headnote 4]
The trial court has declared the claimed covenant not to compete to be unenforceable. If
a decision below is correct, it will not be disturbed on appeal even though the lower court
relied upon wrong reasons. Nelson v. Sierra Constr. Corp., 77 Nev. 334, 342-43, 364 P.2d
402, 406 (1961); Burgert v. Union Pac. R.R., 240 F.2d 207, 212 (8th Cir. 1957). The trial
court's result is correct; so we will affirm the declaratory judgment.
Affirmed.
Gunderson, C. J., and Batjer and Mowbray, JJ., concur.
Manoukian, J., concurring:
I agree with this court's determination that Torres is not bound under the purported
prohibitory covenant. I also agree that we should not disturb on appeal a correct decision of a
lower court even if it is based on erroneous grounds. Nelson v. Sierra Constr. Corp., 77 Nev.
334, 343, 364 P.2d 402, 406 (1961). However, in affirming the declaratory judgment, I
believe it is imperative to identify the legal theory upon which the case should have been
decided. It is particularly important to do so here, because our decision will reach well
beyond the instant case. This state's main industry is gaming and there is intense and
sometimes unwholesome competition among major establishments and among key gaming
employees. The significant public interest in this case does not determine its outcome, but
such interest does warrant identification of the dispositive legal theory.
The Riviera and Torres entered into an employment contract under which he was to serve
as Riviera's chief operating officer for five years. Prior to the expiration of the employment
period, Torres learned that the contract he had signed apparently contained a lifetime
post-employment covenant not to compete. In the final year of Torres' employment, Riviera
offered him subsequent employment, however, the two parties could not agree on terms.
After completing his five year commitment, Torres terminated his employment.
During the trial, the court assumed that the employment contract contained a lifetime
post-employment prohibition against competition. Based upon this assumption, the trial
judge ruled that the covenant not to compete was unreasonable and unenforceable.
judge ruled that the covenant not to compete was unreasonable and unenforceable.
An agreement by an employee not to compete is generally considered in restraint of trade
and therefore unenforceable, unless reasonable in scope and breadth. Ellis v. McDaniel, 95
Nev. 455, 458, 596 P.2d 222, 224 (1979); Hansen v. Edwards, 83 Nev. 189, 191, 426 P.2d
792, 793 (1967). [P]ost employment anti-competitive covenants are scrutinized with greater
care than are similar covenants incident to the sale of a business. Ellis, supra, at 459, 596
P.2d at 224.
As the majority notes, however, the trial court's interpretation of subsection 4.1 as creating
a life-time prohibition against Torres from competition with the Riviera was erroneous, and
thus, we are not required to assess the reasonableness of the covenant.
It is important to point out that the trial court's error was its failure to perceive the
conditional nature of the contract provision in question. Generally, provisions of a contract
will be construed as mutually dependent and concurrent promises and not as conditions
precedent, unless the language plainly requires the latter construction. Rubin v. Fuchs, 459
P.2d 925, 928, (Cal. 1969). The language of subsection 4.1 explicitly provides that the
non-competitive provision of the contract is effective only during the period, if any, in
which Torres is receiving compensation pursuant to section 2.4.
1
The non-competitive
clause contains language that is clearly prefatory to any liability. Specifically, the terms made
Torres' election of retirement compensation a condition precedent to his being bound under
the covenant not to compete. Torres chose not to receive such benefits and therefore was not
bound by the covenant because there was no period of time during which Torres [was] being
compensated pursuant to Section 2.4.
I agree that appellant's remaining contentions are without merit, and concur in the result
affirming the declaratory judgment.
____________________

1
Section 2.4 essentially provided that Torres could receive a $25,000 retirement annuity upon the completion
of his employment with Riviera.
____________
97 Nev. 405, 405 (1981) Stickelman v. Moroni
JOHN STICKELMAN, CARROLL D. RASMUSSEN, LAWVON D. RASMUSSEN,
LOWELL C. McKIM, JEAN C. McKIM, and DARROLD E. TERMUNDE,
Appellants, v. MARY MORONI, Individually and as Executrix of the ESTATE OF
GINO MORONI, MARLENE ETTL, MICHAEL ETTL, DEANNA MORONI,
ALFRED MORONI, and EXTRA POLLINATING SERVICE, INC., a California
Corporation, et al., Respondents.
No. 10593
August 31, 1981 632 P.2d 1159
Appeal from judgment of the Fifth Judicial District Court, Nye County; Llewellyn A.
Young, Judge.
Alfalfa farmers brought action against parties who bought part of farmers' lands to recover
damages for fraud allegedly perpetrated by purchasers of land in inducing farmers to sell land,
and brought action against pollinating services for damages for breach of contract in
providing bees to pollinate farmers' alfalfa fields. The district court entered judgment for
defendants, and plaintiffs appealed. The Supreme Court held that: (1) trial court did not err in
receiving in evidence aerial photographs; (2) trial court did not abuse discretion in receiving
expert testimony concerning bees; and (3) doctrine of strict liability had no application in
action against pollinating service.
Affirmed.
Daniel R. Walsh, Carson City, for Appellants.
Vargas & Bartlett, and Robert W. Marshall, Reno; Erickson, Thorpe, Swainston & Cobb,
Ltd., Reno, for Respondents.
1. Evidence.
Requirements of statute governing authentication or identification were met in regard to testimony of
witness with knowledge relating to authenticity of aerial photograph; thus, trial court did not err, on theory
that photograph was not taken at time represented by proponents, in allowing photograph into evidence.
NRS 52.025.
Supreme Court will not disturb lower court's determination that expert testimony is admissible unless it is
clear that trial judge abused discretion vested in him in allowing such testimony.
3. Evidence.
Where, before testifying regarding bees, professor in entomology represented as expert on bees reviewed
depositions, diaries, and summaries of evidence of parties bringing action against pollinating service for
breach of contract in providing bees to pollinate parties' alfalfa fields, trial court did not abuse discretion in
receiving professor's expert testimony.
4. Products Liability.
Where purpose of bees was to pollinate alfalfa fields, and bees were no dangerous, doctrine of strict
liability had no application in action brought against pollinating service for failure of bees provided by
service to pollinate plaintiffs' alfalfa fields.
OPINION
Per Curiam:
The appellants commenced this action against respondent-defendants Moronis and Ettls to
recover damages for fraud perpetrated by them in inducing the appellants to sell them
appellants' land in Nye County.
Appellants in the same complaint sued respondent-defendant Extra Pollinating Service,
Inc. (hereinafter referred to as EPS) for damages for breach of contract in providing bees to
pollinate appellants' alfalfa fields. EPS did supply the bees but appellants claim the bees
failed to pollinate properly the alfalfa and alleged in their complaint for damages breach of
warranties of merchantability, fitness for a particular purpose, and fraudulent
misrepresentation. Appellants seek reversal in this court. This we decline to do and affirm.
THE FACTS
The Land Purchase
1. Appellants are farmers who moved to Nevada from the midwest; in 1966 they
purchased and commenced farming 2800 acres in Stonecabin Valley. From the start,
appellants encountered financial difficulties: they showed no profit in either 1966 or 1967.
After an unsuccessful attempt to sell part of their land, the appellants contracted with
respondents Moronis for the sale of 1900 of the 2800 acres; in the same transaction appellants
leased back 640 of the acres sold to the Moronis with the expectation of raising a crop of
alfalfa seed on the leased property. From the beginning of the lease appellants failed to
perform their obligations. In 1970 the Moronis reclaimed possession of the land. Appellants
then filed suit against the respondents Moronis alleging fraudulent misrepresentation in
inducing the appellants to sell their land.
The Bee Pollination
2. In order to pollinate the alfalfa, appellants contracted with EPS in 1969 to supply
leafcutter bees to the two parcels leased from the respondents Moronis. EPS promised to use
"the best of its ability" in order to achieve a successful pollination of the alfalfa seed
crops; to this end they brought onto the leased parcels over thirteen million bees, but the
bees did not perform.
the best of its ability in order to achieve a successful pollination of the alfalfa seed crops; to
this end they brought onto the leased parcels over thirteen million bees, but the bees did not
perform. Inclement weather defeated the efforts of the bees, EPS, and the appellants. In the
end, the attempt to achieve a successful pollination by using leafcutter bees failed. Appellants
then filed suit against EPS alleging breach of contract, breach of warranties of
merchantability, fitness for a particular purpose, and fraudulent misrepresentation. On appeal
appellants additionally argue that the doctrines of strict liability in tort and res ipsa loquitor
are applicable in holding EPS accountable for the bees' failure to pollinate the alfalfa.
THE EVIDENCE
Appellants' principal argument on this appeal is that the evidence presented below does
not support the judgment. We have reviewed the record and the 77 findings of fact entered by
the trial judge. The record is replete with evidence to support the findings. This court has held
repeatedly that where a question of fact has been determined by the trial court, this court will
not reverse unless the judgment is clearly erroneous or not based on substantial evidence.
NRCP 52(a). Kockos v. Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 (1974); Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); B & C Enterprises v. Utter, 88 Nev. 433, 498
P.2d 1327 (1972); Savini Constr. Co. v. A. & K. Earthmovers, Inc., 88 Nev. 5, 492 P.2d 125
(1972); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Richfield Oil Corp. v.
Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969). After a complete and exhaustive review
of the record before us, we are unable to conclude that any of the lower court's findings are
unsupported by substantial evidence.
THE PHOTOGRAPH
[Headnote 1]
Appellants contend that the trial court erred in receiving in evidence an aerial photograph.
They argue that the photograph was not taken at the time represented by respondents. We
have reviewed the testimony and conclude that the requirement of NRS 52.025 relating to the
authenticity of photographic evidence was met. The trial court did not err in allowing the
photograph into evidence.
THE EXPERT TESTIMONY
[Headnotes 2, 3]
Appellants also contend that the court erred in admitting the opinion testimony of Dr.
Thorp, an Associate Professor of Entomology. Dr. Thorp was presented to rebut the
testimony of appellants' expert witness on bees. Dr. Thorp reviewed the depositions,
diaries, summaries of plaintiffs' evidence and weather reports before testifying regarding
the bees.
Entomology. Dr. Thorp was presented to rebut the testimony of appellants' expert witness on
bees. Dr. Thorp reviewed the depositions, diaries, summaries of plaintiffs' evidence and
weather reports before testifying regarding the bees. This court will not disturb a lower court's
determination that expert testimony is admissible unless it is clear that the trial judge abused
the discretion vested in him in allowing such testimony. Provence v. Cunningham, 95 Nev. 4,
588 P.2d 1020 (1979). In the instant case it was not an abuse of discretion to receive the
expert witness testimony.
APPELLANTS' REMAINING CONTENTIONS
[Headnote 4]
On appeal appellants also suggest that the doctrine of strict liability in tort establishes the
liability of EPS for the bees' failure to pollinate. We do not agree. To support their strict
liability argument appellants argue that they need prove only that the bees were defective,
citing Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). We fail to follow
appellants' reasoning. In Ginnis this court adopted the following definition of defect in a strict
liability setting: 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. Ginnis v. Mapes Hotel Corp., supra, 413. The purpose of the bees was to pollinate
the alfalfa fields; the bees were not dangerous. The doctrine of strict liability has no
application in the instant case. Likewise we reject appellants' contention that the doctrine of
res ipsa loquitor is applicable. The lower court's finding that EPS did not breach the
provisions of its contract is supported by substantial evidence.
For the reasons herein expressed we affirm the judgment of the lower court in every
respect.
____________
97 Nev. 408, 408 (1981) Havas v. Engebregson
TYRONE HAVAS, Appellant, v. DARYL
ENGEBREGSON, Respondent.
No. 11019
September 9, 1981 633 P.2d 682
Appeal from judgment of dismissal; Eighth Judicial District Court, Clark County; Michael
E. Fondi, Judge.
Client commenced suits against attorney alleging negligence, professional malpractice and
damages. Clerk's default judgment was entered against attorney and the district court
subsequently entered order setting aside default and entered order declaring default
judgment void, and client appealed.
declaring default judgment void, and client appealed. The Supreme Court, Torvinen, D. J.,
held that: (1) trial court was correct in vacating default judgment, but (2) trial court erred in
granting motion to dismiss.
Richard A. Wright, Las Vegas, for Appellant.
Morse-Foley and Harold M. Morse, Las Vegas, for Respondent.
1. Judgment.
Where clerk's default judgment was not supported by affidavit, where defendant appeared in case by
filing motion for relief from default and where no notice of default judgment was given, trial court was
correct in vacating default judgment. NRCP 55(b)(l), (b)(2).
2. Judgment.
Where question of negligence was not litigated in lawsuit against attorney for return of files and for
money and goods advanced, question of negligence was not barred by res judicata.
3. Torts.
One of elements of tort of professional negligence is actual loss or damage resulting from professional's
negligence.
4. Judgment.
Determinations as to time when plaintiff knew or should have known of legal malpractice and time when
plaintiff suffered damage resulting from legal malpractice are questions of fact for trier of fact.
5. Judgment.
Where questions of fact existed as to whether client had cause of action for legal malpractice against
attorney when first case was commenced, and thus there was doubt as to whether legal malpractice cause of
action could have been included in such litigation and where such cause of action would not be barred by
res judicata in subsequent suit, district court erred in granting motion to dismiss subsequent suit.
OPINION
By the Court, Torvinen, D. J.
1

On June 25, 1973, Tyrone Havas as plaintiff commenced this suit against Daryl
Engebregson, a licensed practicing attorney, alleging negligence, professional malpractice
and damages (second Havas-Engebregson case). Engebregson was served and his default
entered July 19, 1973. A motion to set aside the default was filed by Engebregson July 26,
1973.
____________________

1
The Governor designated The Honorable Roy L. Torvinen, Judge of the Second Judicial District Court, to
was filed by Engebregson July 26, 1973. On July 27, 1973, a clerk's default judgment was
entered against Engebregson. On August 8, 1973, an order was entered setting aside the
default. At a later date another order was entered declaring the default judgment void
pursuant to NRCP 55(b)(1).
Early in 1970, Victor and Tyrone Havas, dba Courtesy Motors, retained Engebregson as
their attorney. Thereafter a suit, Kellett v. Tyrone Havas, dba Courtesy Motors, was
commenced and on December 16, 1970, a default judgment was entered against Havas.
Engebregson filed a motion to set aside the default judgment August 2, 1971. The trial court
in Kellett v. Havas entered its order denying the motion to set aside the default judgment May
1, 1972. The Havases paid the Kellett judgment in May, 1972.
On October 29, 1971, Victor and Tyrone Havas filed suit in two counts against
Engebregson (first Havas-Engebregson case) alleging in Count I that they had turned over
numerous files to Engebregson and that he: (a) has not performed his services as an attorney,
(b) has failed on occasion to attend court; and (c) has been unavailable for the plaintiffs'
consultation concerning their matters. The complaint goes on to allege that although
Engebregson agreed to return the plaintiffs' files, he failed to do so. Count I of the complaint
prayed only for the return of the files. Count II of the complaint alleged that Engebregson was
indebted to the Havases for money and goods advanced (after offsetting a smaller sum
admitted as owing to Engebregson for legal services rendered). Engebregson counterclaimed
for fees based on legal work performed, and for costs.
In this, the second Havas-Engebregson case, the trial judge decided that a cause of action
for malpractice arose sometime between the entry of the default judgment, December 16,
1970, and the filing of the motion to set aside that judgment, August 2, 1971. The trial court
held that malpractice was an issue which could have been resolved in the trial of the first case
and, therefore, the issue was barred by the doctrine of res judicata.
Havas raises two issues on this appeal. First, he claims that the default judgment filed July
27, 1973, is still valid and enforceable. Second, he asserts that the action for his files, and the
counterclaim for attorney's fees, are not a bar to the subsequent action for professional
malpractice.
1. Validity of the default judgment.
[Headnote 1]
Havas' contention that the default judgment is still valid and enforceable is without merit.
The clerk's default judgment was not supported by affidavit.
not supported by affidavit. NRCP 55(b)(1). Engebregson appeared in the case by filing his
motion for relief from the default July 26, 1973. No prior notice of default judgment was
given NRCP 55(b)(2). Under these circumstances, the court below was correct in vacating the
default judgment. See Cheek v. Bell, 80 Nev. 244, 391 P.2d 735 (1964).
2. Res judicata as a bar to the second action.
[Headnote 2]
Respondent contends that the question of negligence was litigated in the first
Havas-Engebregson lawsuit, and is therefore barred by the doctrine of res judicata. See
Landex, Inc. v. State ex rel. List, 94 Nev. 469, 582 P.2d 786 (1978).
A careful reading of the transcript in the first Havas-Engebregson case shows that the
question of negligent performance by Engebregson was specifically not tried. Although
testimony alluded to the Kellett judgment, both counsel informed the court that negligence
had not been pled and was not being tried in the case. The trial judge in that case filed an
eight-page decision which made no mention of any malpractice or negligence, and awarded
Engebregson attorney's fees for work performed on behalf of Victor and Tyrone Havas, doing
business as Courtesy Motors.
Respondent also argues that even if negligence was not actually litigated in the first
Havas-Engebregson lawsuit, the matter should have been litigated, and Havas is precluded
from raising the matter in subsequent litigation. See Reno Club v. Harrah et al., 70 Nev. 125,
260 P.2d 304 (1953).
In Jewett v. Patt, 95 Nev. 246, 247, 591 P.2d 1151, 1152 (1979), this court said: An
action for professional malpractice does not accrue until the plaintiffs know, or should know,
all facts material to the elements of the cause of action and damage has been sustained.
[Headnote 3]
One of the elements of the tort of professional negligence is, actual loss or damage
resulting from the professional's negligence. Sorenson v. Pavlikowski, 94 Nev. 440, 443,
581 P.2d 851, 853 (1978).
[Headnote 4]
Determinations as to the time when a plaintiff knew or should have known of legal
malpractice, and the time when a plaintiff suffered damages resulting form the legal
malpractice, are questions of fact for the trier of fact. See Budd v. Nixen, 491 P.2d 433,
437-38 (Cal. 1971). In the present case it is unclear when Havas knew or should have know
of all facts material to the alleged malpractice.
material to the alleged malpractice. It is also unclear when Havas suffered damages, if any, as
a result of Engebregson's alleged negligence.
2

[Headnote 5]
Accordingly, questions of fact exist as to whether Havas had a cause of action for legal
malpractice against Engebregson when the first Havas-Engebregson case was commenced. If
the legal malpractice cause of action had not yet accrued, it could not have been included in
the first Havas-Engebregson litigation, and it would not be barred by the doctrine of res
judicata in the subsequent suit. See Round Hill Gen. Improvement v. B-Neva, 96 Nev. 181,
606 P.2d 176 (1980); Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
Under these circumstances, the district court erred by granting the motion to dismiss.
3
Therefore, we reverse the judgment of the district court and remand for further proceedings.
Gunderson, C. J., and Manoukian and Batjer, JJ., and McKibben, D. J.,
4
concur.
____________________

2
Although a default judgment was entered in the Kellett matter in December, 1970, Engebregson filed a
motion to set aside the judgment in August, 1971. The motion was denied in May, 1972, and Havas paid the
judgment at that time. Of course, we express no opinion as to when the cause of action for legal malpractice
accrued.

3
The district court considered matters outside of the pleadings. In effect, therefore, the lower court treated
and disposed of the motion to dismiss as a motion for summary judgment. See MacDonald v. Kassel, 97 Nev.
305, 629 P.2d 1200 (1981); NRCP 12(b) and (c).

4
The Governor designated The Honorable Howard D. McKibben, Judge of the Ninth Judicial District Court,
to sit in the place of The Honorable John C. Mowbray, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 412, 412 (1981) Schaefer v. State Bar of Nevada
MICHAEL SCHAEFER, Appellant, v. STATE
BAR OF NEVADA, Respondent.
No. 12567
September 24, 1981
ORDER
Pursuant to our order in the appeal of Schaefer v. State Bar of Nevada, No. 12567, we
hereby authorize the publication, in accordance with SCR 121, of the following letter of
reprimand, submitted by the State Bar of Nevada Disciplinary Board, Southern District, Pat
Fitzgibbons, Chairman: Michael Schaefer, Esquire, 333 Nutmeg Street; San Diego,
California 92103
97 Nev. 412, 413 (1981) Schaefer v. State Bar of Nevada
Michael Schaefer, Esquire, 333 Nutmeg Street; San Diego, California 92103
At a formal hearing held on the 15th day of January, 1980, a hearing panel of the State Bar
of Nevada Disciplinary Board Southern District found that your conduct had violated
Supreme Court Rules 187 and 190 and Disciplinary Rules DR 7-102(A)(1) and DR
7-104(A)(1) of the Canons of Ethics of the American Bar Association as adopted by this
court.
That hearing panel found that you had knowingly and deliberately made repeated contacts
and held a conference with a party whom you knew to be represented by counsel other than
yourself. You even entered into negotiations, reached a settlement and took release from that
party without notifying his counsel of record. You had previously caused a lawsuit to be
brought against that party in an attempt to collect fees that you claimed to be owing to you.
After taking a release from this party you then proceeded to amend your complaint and take a
default judgment against that same party. All of this when you knew that this party was
represented by counsel and that counsel had even filed an answer in a lawsuit which you
initiated.
Your conduct was not a mere oversight conducted by a busy and overworked attorney.
Your conduct was willfully and knowingly carried on over a period of time which makes it
even worse.
By your conduct you have brought embarrassment and disgrace to the legal profession of
which you are a member. It is the order of this Board that in addition to this public reprimand
you be fined and assessed the costs of the disciplinary proceedings against you.
Dated this 11th day of February, 1980.
s/Pat Fitzgibbons, Chairman, State Bar of Nevada, Disciplinary Board, Southern District
It is so ORDERED.
Gunderson, C. J., and Manoukian, Batjer, Springer, and Mowbray, JJ., concur.
____________
97 Nev. 414, 414 (1981) Van Cleave v. Kietz-Mill Minit Mart
DAVID VAN CLEAVE, Appellant, v. KIETZ-MILL MINIT
MART; and JOSEPH E. ESKEY, Respondent.
No. 12165
September 30, 1981 633 P.2d 1220
Appeal from judgment of dismissal. Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Action was brought to recover against sellers of alcoholic beverages allegedly consumed
by minor before vehicle driven by him struck plaintiff while he was walking in parking lot.
The district court granted sellers' motion to dismiss, and plaintiff appealed. The Supreme
Court held that: (1) plaintiff failed to establish that sellers' sale of the beverages in question to
another minor was wanton and willful misconduct by merely alleging that sellers had
previously engaged in regularly, repeatedly and knowingly, for profit, selling intoxicating
beverages to minors, and (2) the sale was not proximate cause of injuries sustained by
plaintiff, absent any indication that sellers had any reason to foresee that minor to whom the
alcohol was sold would deliver it to second person, that he would deliver it to another minor
and that he would consume the alcohol, become intoxicated, and thereafter drive the vehicle
involved in the accident.
Affirmed.
Echeverria and Osborne, Chartered, and James M. Walsh, Reno, for Appellant.
Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, for Respondents.
1. Intoxicating Liquors.
Plaintiff, who sought to recover against sellers of alcoholic beverages allegedly consumed by minor
before vehicle driven by him struck plaintiff while he was walking in parking lot, failed to establish that
sellers' sale of the beverages in question to another minor was wanton and willful misconduct by merely
alleging that sellers had previously engaged in regular, repeatedly and knowingly, for profit, selling
intoxicating beverages to minors.
2. Negligence.
For an act to be proximate cause of an injury, it must appear that injury was natural and probable
consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the
attending circumstances.
3. Judgment.
Though inferences are to be drawn in favor of party opposing motion for summary judgment, opponent
must show that he can produce evidence at the trial to support his claim. NRCP 56(e).
4. Intoxicating Liquors.
Sale of alcoholic beverages to minor was not proximate cause of injuries sustained when person was
struck by a vehicle while walking across parking lot, absent any indication that sellers had any reason to
foresee that such minor would deliver the alcohol to second person, that he would deliver it to another
minor and that he would consume the alcohol, become intoxicated, and thereafter drive the vehicle
involved in the accident.
OPINION
Per Curiam:
Appellant alleged that while walking across a parking lot at the Washoe County
fairgrounds, he was struck by a vehicle driven by one David Thayer, receiving injuries which
have left him paralyzed. Among other defendants, appellant sued respondent Eskey, doing
business as Kietz-Mill Minit Mart (Mart). He alleged that the Mart sold alcoholic beverages
to a minor, in willful and wanton disregard of the laws of the State of Nevada and of the
consequences of the sale, proximately causing the injuries to appellant in that Thayer
consumed the alcoholic beverages sold by [respondents], became intoxicated and thereafter
caused [appellant's] injuries.
Respondents moved to dismiss for failure to state a claim, and presented to the court the
transcript of a deposition taken by appellant's counsel of one Robert Bill. Mr. Bill testified
that he had been six weeks short of his twenty-first birthday when he purchased beer at the
Mart, where no one asked him for identification. He further testified that he delivered the beer
to Lane Newman, a friend of Thayer's, on the evening appellant was injured.
The district court granted respondents' motion to dismiss and certified the judgment
pursuant to NRCP 54(b). We affirm.
Since matters outside the pleadings were presented to and not excluded by the court, the
motion was treated as a motion for summary judgment. NRCP 12(b); Cummings v. City of
Las Vegas Mun. Corp., 88 Nev. 479, 499 P.2d 650 (1972). Summary judgment is proper
when the moving party is entitled to judgment as a matter of law, and no genuine issue
remains for trial. Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258 (1981). A party opposing such
a motion for summary judgment must set forth specific facts showing that there is a genuine
issue for trial. NRCP 56(e); Tobler and Oliver v. Bd. Trustees, 84 Nev. 438, 442 P.2d 904
(1968); Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975).
[Headnote 1]
Appellant has attempted to characterize respondents' conduct as willful and wanton, on the
basis of the allegation that respondents had previously engaged in regularly, repeatedly and
knowingly, for profit, selling intoxicating beverages to minors. Appellant has cited no cases
in which past instances of serving minors would transform the nature of a sale such as that
alleged here into wanton and willful misconduct. We have described as willful or wanton
misconduct an act that the actor knows, or should know, will very probably cause harm,
Rocky Mt. Produce v. Johnson, 78 Nev. 44, 51-52, 369 P.2d 198, 202 (1962), or an act of
perversity, depravity or oppression. Bearden v. City of Boulder City, 89 Nev. 106, 110, 507
P.2d 1034, 1036 (1973). We are unable to find in the allegations any suggestion of special
circumstances attendant upon the sale in question which would bring it within such a
characterization. Compare Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979) (evidence of
direct administration of large amounts of 190 proof alcohol when actors had knowledge of its
dangerous nature); Ewing v. Cloverleaf Bowl, 572 P.2d 1155 (Cal. 1978) (experienced
bartender served 21 year old patron 10 straight shots of 151 proof rum plus three other drinks
in short period).
Appellant also argues that the act of selling liquor to a minor should be held to constitute
common law negligence or negligence per se. He urges us not to apply our holding in Hamm
v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), to the sale of an alcoholic
beverage to a minor. In the context of this case, however, we find it unnecessary to decide
this issue.
[Headnote 2]
Negligence is not actionable unless, without the intervention of an intervening cause, it
proximately causes the harm for which complaint was made. Thomas v. Bokelman, 86 Nev.
10, 13, 462 P.2d 1020, 1022 (1970). For an act to be the proximate cause of an injury, it
must appear that the injury was the natural and probable consequence of the negligence or
wrongful act, and that it ought to have been foreseen in the light of the attending
circumstances. Crosman v. Southern Pacific Co., 42 Nev. 92, 108-109, 173 P. 223, 228
(1918), quoting Milwaukee, etc. Railway v. Kellogg, 94 U.S. 469, 475 (1876). Whenever a
new cause intervenes which is not the consequence of the first wrongful cause, and which is
not under the control of the first wrongdoer, and which he could not with reasonable diligence
have foreseen, and except for which the final catastrophe could not have happened, then such
a result must be held too remote to furnish the basis of an action.
Konig v. N.-C.-O. Ry, 36 Nev. 181, 214-215, 135 P.1 141, 153 (1913).
[Headnotes 3, 4]
Taking into consideration that inferences will be drawn in favor of a party opposing a
motion for summary judgment, the opponent must nevertheless show he can produce
evidence at the trial to support his claim. Thomas v. Bokelman, supra at 14, 462 P.2d at
1023. In this case, appellant has not suggested that he can show more than respondents' sale
of alcoholic beverages to a minor, who left the premises and subsequently delivered the
alcohol to a second boy, who delivered to defendant Thayer who eventually consumed these
beverages, became intoxicated, and thereafter drove the car which injured the appellant.
There is nothing to suggest that the respondents, in light of the circumstances, had any reason
to foresee that the purchaser would deliver the beverages to another, or that that person or
another to whom he might give the beverage might, after becoming intoxicated, choose to
drive and subsequently injure the appellant.
Similarly, in Elliott v. Mallory Electric Corp., 93 Nev. 580, 571 P.2d 397 (1977), we
upheld a summary judgment for defendants when a plaintiff injured by a car thief sought to
impose liability upon those responsible for leaving keys in an unattended car. As we stated
then: There is nothing to suggest that the owner or bailee could reasonably foresee the theft
of the car and its negligent operation resulting in injury to the appellant. Id. at 586, 571 P.2d
at 401.
As we have noted, [c]ourts are reluctant to grant summary judgment in negligence cases
because foreseeability, duty, proximate cause and reasonableness usually are questions of fact
for the jury. . . . But when plaintiff as a matter of law cannot recover, defendant is entitled to a
summary judgment. Thomas v. Bokelman, supra at 13, 462 P.2d at 1022. (Citations
omitted.) This is such a case.
The judgment of the district court is accordingly affirmed.
____________
97 Nev. 418, 418 (1981) Realty Holdings v. Nevada Equities
REALTY HOLDINGS, INC., a Nevada Corporation, Appellant, v. NEVADA EQUITIES,
INC., a Nevada Corporation, NATIONAL EQUITIES INC., a New York Corporation,
and NEI CORPORATION, a Delaware Corporation, Respondents.
No. 11452
September 30, 1981 633 P.2d 1222
Complaint was filed seeking restitution of an amount allegedly overpaid in a contract
under mutual mistake of fact. The district court entered judgment in favor of defendants, and
appeal was taken. The Supreme Court held that: (1) total contract price was based upon a
mutual mistake of fact as to the balance of one of the stated assets, and thus plaintiff was
entitled to reformation of the contractual purchase price and restitution of the excess amount,
$63,860, paid to defendants, and (2) cost of refinancing was not certain at time contract was
entered into, and thus plaintiff could not recover refinancing costs for the subject note.
Affirmed in part; reversed in part and remanded.
Steffen & Simmons, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondents.
1. Reformation of Instruments; Sales.
Total contract price was based upon a mutual mistake of fact as to the balance of one of the stated assets,
and thus appellant was entitled to reformation of the contractual purchase price and restitution of the excess
amount, $63,860, paid to respondents.
Conceded negligence of appellant did not bar reformation of contract based upon mutual mistake.
Although refinancing provision in note was activated by reduced balance of note which had occurred at
time of transaction between appellant and respondents, refinancing did not take place until after close of
escrow, so that cost of the refinancing was not certain at the time the contract was entered into, and thus
appellant, who was entitled to reformation of contractual purchase price, could not recover refinancing
costs for the subject note.
A party must show what the actual agreement of the parties was in order to be entitled to reformation.
OPINION
Per Curiam:
Appellant filed a complaint against respondents, seeking restitution of an amount allegedly
overpaid on a contract under a mutual mistake of fact. The district court granted summary
judgment in favor of respondents, concluding that appellant was asking the court to rewrite
the contract in dispute, and that the amount in contention was de minimis. This appeal
followed.
Appellant and respondents negotiated a multimillion dollar contract to purchase the assets
of several corporations. As part of the transaction, appellant Realty Holdings, Inc., purchased
all the capital stock of Nevada Realty Corporation, thereby acquiring all of the corporation's
assets and liabilites. One of the assets was a note receivable which both parties believed had a
value of $683,377, but which had an actual value, at the time of the transaction, of $619,517,
because of a reduction provision of the note which had been activated by an increase in taxes.
Both parties in this appeal concede, and the district court found on uncontradicted evidence
submitted by both parties on the motion for summary judgment, that all parties mistakenly
believed that the note had a firm balance of $683,377 when the contract was entered into and
at the close of escrow for the transaction. The material submitted by respondents in support of
their motion for summary judgment (including the affidavit of the president of respondent
Nevada Equities, Inc.) further conceded that the parties based the purchase price on the
difference between the stated assets of the corporation and its stated liabilities, and that if the
actual balance of the note had been known at the close of escrow, the purchase price would
have been adjusted accordingly.
[Headnotes 1, 2]
Appellant contends that a mutual mistake of fact as to the balance of the note has been
shown. We are constrained to agree. A mutual mistake is a mistake reciprocal and common
to both parties, when each alike labored under the same misconception in respect to the terms
of the written agreement. Wilson v. Wilson, 23 Nev. 267, 273, 45 P. 1009, 1010 (1896); See
also Tarrant v. Monson, 96 Nev. 844, 619 P.2d 1210 (1980). We have held that:
It cannot be questioned at this late date that a court with equity powers (the district
courts of this state have such powers) may reform a written instrument where it appears
that there has been fraud, accident or mistake which has brought about a writing
not truly representing the actual agreement of the parties.
that there has been fraud, accident or mistake which has brought about a writing not
truly representing the actual agreement of the parties.
Roberts v. Hummel, 69 Nev. 154, 158, 243 P.2d 248, 250 (1952) (citations omitted); see also
Smart v. Valencia, 49 Nev. 411, 248 P. 46 (1926). Under the circumstances of this case, we
conclude that the total contract price was based upon a mutual mistake of fact as to the
balance of one of the stated assets, and that appellant is entitled to reformation of the
contractual purchase price and restitution of the excess amount, $63,860, paid to respondents.
See Restatement of Restitution, 21, comment (a) (1937). The conceded negligence of
appellant does not bar reformation based upon mutual mistake. See Aja v. Appleton, 86 Nev.
639, 472 P.2d 524 (1970) (deed to real property); see also Fraass Surgical Mfg. Co., Inc. v.
U.S., 571 F.2d 34 (Ct.Cl. 1978).
1

[Headnotes 3, 4]
Appellant also seeks to recover $8,381.75 incurred as refinancing costs for the subject
note. It is evident from the record that, although the refinancing provision of the note was
activated by the reduced balance of the note which had occurred at the time of the transaction
at issue here, the refinancing did not take place until after the close of escrow, and thus the
cost of the refinancing was not certain at the time the contract was entered into. A party must
show what the actual agreement of the parties was in order to be entitled to reformation. See
Aja v. Appleton, supra; Holman v. Vieira et al., 53 Nev. 337, 300 P. 946 (1931). Nothing in
the record before this court indicates what the agreement of the parties would have been with
respect to this amount, which was not certain and thus would have been susceptible to
bargaining, at the time the contract was entered into. As to this amount, summary judgment in
favor of respondents was proper.
The trial court concluded that the amount at issue here was de minimis in a multimillion
dollar contract. While the materiality of the amount sought with respect to the total contract
price is a consideration in a suit for rescission of the entire contract, see Canepa v. Durham,
62 Nev. 417, 153 P.2d 899 (1944), no such relief is sought here. We have been cited to no
case in which an amount in excess of $60,000 was found to be de minimis in a suit for
restitution of money paid by mistake, and we decline to so hold in this case.
____________________

1
We express no opinion as to whether a degree of negligence greater than the simple negligence found in this
case would bar such relief. See, e.g., Kontz v. B.P. John Furniture Corporation, 115 P.2d 319 (Or. 1941);
Peterson v. Eldredge, 246 P.2d 886 (Utah 1952).
de minimis in a suit for restitution of money paid by mistake, and we decline to so hold in
this case. See Concerned Parents v. Caruthersville Sch. D., 548 S.W.2d 554 (Mo. 1977).
Other contentions raised by appellant are meritless and need not be addressed. The
judgment of the district court is affirmed with respect to appellant's claim for restitution of
the costs of refinancing the note receivable. The judgment is reversed with respect to the
amount by which the balance of the note had been decreased when the contract was entered
into, and the cause is remanded for entry of summary judgment in favor of appellant on that
claim.
____________
97 Nev. 421, 421 (1981) Halfon v. Title Ins. & Trust Co.
DR. M. HALFON, SHEILA HALFON, LEON D. PESKIN and HENRIETTA PESKIN,
Appellants, v. TITLE INSURANCE AND TRUST COMPANY, JOE INGERSOLL,
BARBARA INGERSOLL, JACK WESLEY LINDELL and ELDORA GASKAMP
LINDELL, Respondents.
No. 12636
October 12, 1981 634 P.2d 660
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Vendors of real property commenced action against purchasers seeking deficiency
judgment after trustee's sale upon purchaser's default and recovery of condemnation award.
The district court awarded vendors judgment, in amount of condemnation award, and
purchasers appealed. The Supreme Court held that: (1) trial court's finding of fact as to fair
market value of secured property at time of trustee's sale was supported by substantial
evidence; (2) findings of fact, conclusions of law, and judgment of trial court regarding
whether monetary award in judgment represented condemnation award or deficiency
judgment was not so unclear that enforcement of judgment was impossible; and (3) vendors
were entitled under deed of trust, which required purchasers to assign to vendors any
condemnation award paid for taking of secured property, to only that portion of
condemnation award which satisfied deficiency after vendors purchased the property at
trustee's sale.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Appellants.
Morse-Foley and John H. Mowbray, Las Vegas, for Respondents.
District court's determination as to fair market value of real property will not be disturbed on appeal if it
is supported by substantial evidence.
2. Mortgages.
In action by vendors seeking deficiency judgment after trustee's sale upon purchaser's default, trial court's
determination as to fair market value of secured property at time of trustee's sale was supported by
substantial evidence.
3. Judgment.
Trial court's findings of fact, conclusions of law, and judgment in vendors' action for deficiency judgment
after trustee's sale upon purchaser's default and recovery of condemnation award was not so unclear as to
whether judgment in favor of vendors represented condemnation award or deficiency judgment as to make
enforcement of judgment impossible, where trial court specifically stated that vendors were entitled to
recover condemnation award of a certain amount.
4. Eminent Domain.
Vendors were entitled under deed of trust, which required purchasers to assign to vendors any
condemnation award paid for taking of secured property, to only that portion of condemnation award which
satisfied deficiency after vendors purchased the property at trustee's sale upon purchaser's default.
5. Eminent Domain.
Even absent a contractual provision requiring purchasers to assign to vendors any condemnation award
paid for taking of secured property, when property subject to mortgage or deed of trust is taken by eminent
domain proceedings, condemnation award becomes a substitute for the property, and mortgagee or
beneficiary has equitable lien on the award; however, secured party is entitled to only that portion of
condemnation award necessary to satisfy his lien, even where deed of trust specifically provides for
assignment of condemnation award to secured party.
OPINION
Per Curiam:
1

In September 1969, respondents Joe Ingersoll and Jack Lindell entered into an agreement
to sell a parcel of real property to appellants. The total sales price was $500,000. Pursuant to
agreement, appellants made a $100,000 cash down payment, and respondents released to
them a five-acre portion of the total parcel. Appellants then executed a promissory note for
the remaining principal of $400,000. Appellants were required to make monthly interest
payments until December 12, 1974, at which time the entire principal of $400,000 became
due and payable.2
____________________

1
The Honorable John C. Mowbray, Justice, voluntarily disqualified himself from the decision of this case.
which time the entire principal of $400,000 became due and payable.
2

As security, appellants executed a deed of trust on all the property except the five acres
which had previously been released to them. Paragraph 5 of this deed of trust specifically
required appellants to assign to respondents any condemnation award.
3
Some time later, the
Department of Highways condemned 1.379 acres of the secured property. In July 1974,
appellants stipulated to a condemnation award of $52,000. Appellants did not, however,
assign the condemnation award to respondents.
Appellants failed to make monthly interest payments in October, November and December
1974. In addition, appellants failed to make the principal payment due December 12, 1974.
On May 16, 1975, a trustee's sale was held at which respondents, the only bidders present,
purchased the secured property for $325,000. Several weeks later, respondents resold the
property for $375,000.
On August 14, 1975, respondents commenced an action against appellants seeking a
deficiency judgment and recovery of the condemnation award. The district court, sitting
without a jury, rendered judgment in respondents' favor for $52,000, the exact amount of the
condemnation award. This appeal followed.
[Headnotes 1, 2]
1. The district court made a specific finding of fact that the fair market value of the
secured property at the time of the trustee's sale was not in excess of $382,000. Appellants
contend that this figure was too low and that the court's finding was palpably contrary to the
evidence presented. We disagree.
The district court's determination as to the fair market value of real property will not be
disturbed on appeal if it is supported by substantial evidence. Unruh v. Streight, 96 Nev. 684,
615 P.2d 247 (1980); Tahoe Highlander v. Westside Fed. Sav., 95 Nev. 8, 588 P.2d 1022
(1979). In this case, one expert witness estimated the fair market value at $375,000.
Respondents also testified that in their opinion the fair market value was $375,000.
____________________

2
Respondent Title Ins. and Trust Co. was given the responsibility of collecting the monthly interest
payments.

3
Paragraph 5 provides:
Any award of damages in connection with any condemnation for public use of or injury to any
property or any part thereof is hereby assigned and shall be paid to Beneficiary, who may apply or release
such moneys received by him in the same manner and with the same effect as herein provided for
disposition of proceeds of insurance.
$375,000. Evidence was also presented that respondents actually sold the property for
$375,000 approximately three weeks after the trustee's sale. The district court was entitled to
rely on this evidence in fixing the fair market value, even though three other expert witnesses
estimated a higher fair market value. There is substantial evidence to support the district
court's determination.
[Headnote 3]
2. Appellants also contend that the findings of fact, conclusions of law, and judgment are
so unclear that enforcement of the judgment is impossible. Specifically, appellants argue that
it is impossible to discern whether the $52,000 judgment represents the condemnation award
or a deficiency judgment. This contention is without merit. The district court stated as
conclusion of law number 2:
Sellers (Plaintiffs) are thereby entitled to recover said condemnation award of
Fifty-two Thousand Dollars ($52,000.00) from Buyers together with interest thereon at
the rate of seven percent (7%) per annum from the date of entry of Judgment in the
action. (Emphasis added.)
It is clear to us that the judgment represented recovery of the condemnation award.
[Headnotes 4, 5]
3. We now must determine whether respondents were entitled to the entire condemnation
award. The deed of trust in question required appellants to assign to respondents any
condemnation award paid for the taking of the secured property. Even absent such a
contractual provision, when property subject to a mortgage or deed of trust is taken in
eminent domain proceedings, the condemnation award becomes a substitute for the property,
and the mortgagee or beneficiary has an equitable lien on the award. Copp v. Sands Point
Marina, Inc., 270 N.Y.S.2d 599 (N.Y. 1966); State v. Hemmingson, 359 P.2d 154 (Wash.
1961). The secured party, however, is only entitled to that portion of the condemnation award
necessary to satisfy his lien. Silverman v. Lefkowitz, 344 N.Y.S.2d 206 (App.Div. 1973);
Application of Lafayette Nat. Bank of Brooklyn, 4 N.Y.S.2d 356 (App.Div. 1938). This rule
applies even where, as here, the deed of trust specifically provides for assignment of the
condemnation award to the secured party. See Milstein v. Security Pacific National Bank, 103
Cal.Rptr. 16 (Ct.App. 1972). Thus, respondents were entitled only to that portion of the
$52,000 condemnation award necessary to satisfy the deficiency.
The fair market value of the secured property at the time of the trustee's sale was $382,000.
This figure is the measuring amount for purposes of computing the deficiency.
4
At the time
of the sale, appellants owed respondents $432,583.41, leaving a deficiency of $50,583.41. By
entering judgment for the entire condemnation award of $52,000, the district court awarded
respondents more than they were entitled to recover. Accordingly, we hereby modify the
judgment to $50,583.41.
We have considered the other issues raised by appellants and have found them to be
without merit.
____________________

4
NRS 40.459, which limits the permissible amount of a deficiency judgment, provides in pertinent part:
The court shall not render judgment for more than the amount by which the amount of indebtedness
which was secured by the mortgage, deed of trust or other lien at the time of the foreclosure sale or
trustee's sale, as the case may be, exceeded the fair market value of the property sold at the time of such
sale, with interest from the date of such sale.
____________
97 Nev. 425, 425 (1981) Steelman v. Lind
LOUIS P. STEELMAN, Appellant, v.
RULON LIND, Respondent.
No. 11333
October 13, 1981 634 P.2d 666
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Highway patrol trooper brought action against vehicle owner for personal injuries
sustained in an automobile accident. The district court granted summary judgment for the
vehicle owner, and trooper appealed. The Supreme Court, Batjer, J., held that fireman's rule
barred action by highway patrol trooper against owner of vehicle, which had been negligently
stopped on highway to retrieve beehives that had fallen from the vehicle onto highway and
which trooper had assisted by placing flares on highway to warn approaching vehicles and by
remaining at scene with red lights flashing, for personal injuries sustained when tractor-trailer
crashed into highway patrol car, forcing it into vehicle.
Affirmed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellant.
Dickerson, Miles & Pico, Bert O. Mitchell, Las Vegas, for Respondent.
1. Automobiles.
Fireman's rule barred action by highway patrol trooper against owner of vehicle which had been
negligently stopped on highway to retrieve beehives that had fallen from vehicle onto highway and which
trooper had assisted by placing flares on highway to warn approaching vehicles and by remaining at scene
with red lights flashing for personal injuries sustained when tractor-trailer crashed into highway patrol car,
forcing it into vehicle.
2. Negligence.
Public safety officer, in accepting salary and fringe benefits offered for job, assumes all normal risks
inherent in employment as matter of law and thus may not recover from one who negligently creates such
risk.
3. Negligence.
Whether negligently created risk which results in fireman's or policeman's injury is reason for his being at
scene in his professional capacity determines applicability of fireman's rule.
OPINION
The appellant, Louis P. Steelman, filed this action against respondent Rulon Lind for
personal injuries suffered in an automobile accident.
On July 28, 1976, Steelman, an on-duty Nevada Highway Patrol trooper, was called to
Interstate Highway 15, in Clark County, Nevada, where Lind was attempting to reload a
trailer with beehives filled with live bees which had slipped off the trailer onto the roadway.
Steelman positioned his highway patrol vehicle, with red lights flashing, some distance
behind the Lind vehicle and trailer, placed flares on the roadway to warn approaching
vehicles, then returned to his highway patrol vehicle while Lind continued to reload the hives.
As Steelman sat in his car, a tractor-trailer vehicle operated by Andrew Van Campen,
1
crashed into the rear of the highway patrol car, forcing it into the Lind trailer. Steelman was
trapped in the car for some time and suffered severe injuries. He was rendered legally blind
and permanently crippled and in all probability will be unemployable for the remainder of his
life.
____________________

1
Van Campen and the owner of the tractor-trailer rig he was operating were named as parties in the
complaint filed by Steelman, but a settlement was entered into between them and appellant. They are not parties
to this appeal. In Hubbard v. Boelt, 620 P.2d 156 (Cal. 1980), quoting from Walters v. Sloan, 571 P.2d 609, fn.
2 (Cal. 1977), Thus a police officer who while placing a ticket on an illegally parked car is struck by a speeding
vehicle may maintain action against the speeder but the rule [fireman's rule] bars recovery against the owner of
the parked car for negligent parking.
Respondent moved the district court for summary judgment on the sole ground that
Steelman, as a police officer, was barred by the fireman's rule
2
from bringing suit against
Lind, a private citizen. The district court ordered summary judgment, from which this appeal
is taken.
Relying on Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961), Steelman
suggests that whether he assumed the risk of the hazard involved at the scene of the
accident is a question of fact to be resolved. Steelman's reliance on Sierra Pacific is
misplaced. There, the trial court, viewing the complexity of that case, concluded that
assumption of the risk was not so clear that reasonable persons would be unable to differ and
concluded it was a question of fact for the jury. Here, the district court concluded that
Steelman's assumption of the risk was a matter of law and applied the fireman's rule.
[Headnote 1]
Upon the facts of this case, the fireman's rule is applicable to bar appellant's cause of
action. Steelman, fully aware of the hazard created by Lind's negligence,
3
and in the
performance of his duty, confronted the risk.
The origins of the rule lie in the area of tort law relating to the duty owed by an owner or
occupier of land toward one who comes upon the land. See Prosser, Business Visitors and
Invitees; 26 Minn.L.Rev. 573, 608-612. The rule developed from the notion that taxpayers
employ firemen and policemen, at least in part, to deal with future damages that may result
from the taxpayers' own negligence. To allow actions by policemen and firemen against
negligent taxpayers would subject them to multiple penalties for the protection. 2 Harper &
James, The Law of Torts (1956) 27.14 pp. 1503-1504.
A public safety officer in Steelman's position 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. Giorgi v.
Pacific Gas & Elec. Co., 72 Cal.Rptr. 119 (Cal.App. 1968); Walters v. Sloan, 571 P.2d 609
(Cal. 1977).
[Headnote 2]
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. See e.g., Maltman v. Sauer, 530 P.2d 254 {Wash.
1975); Buren v. Midwest Industries, Inc.,
____________________

2
Fireman's Rule as used in this opinion includes both feminine and masculine genders and is applied to bar
certain tort causes of action by firemen and policemen injured during the course of their hazardous occupations.
Walters v. Sloan, infra. While denominated the fireman's rule, it is applicable to policemen as well. Giorgi v.
Pacific Gas & Elec. Co., 72 Cal.Rptr. 119 (Cal.App. 1968).

3
Respondent's negligence was assumed by the trial court for the purpose of the motion for summary
judgment.
employment as a matter of law and thus may not recover from one who negligently creates
such a risk. See e.g., Maltman v. Sauer, 530 P.2d 254 (Wash. 1975); Buren v. Midwest
Industries, Inc., 380 S.W.2d 96, 98-99 (Ky. App. 1964). If this were not the rule, citizens
would be reluctant to seek the aid of a public safety officer or to have such aid sought in their
behalf upon the fear that a subsequent claim for injury by the officer might be far more
damaging than the initial fire or assault. To hold otherwise would create far too severe a
burden upon homeowners in keeping their premises reasonably safe for the unexpected
arrivals of police and firemen. See Aravanis v. Eisenberg, 206 A.2d 148 (Md.App. 1965). In
Krauth v. Geller, 157 A.2d 129, 131 (N.J. 1960), that court stated;
Probably most fires are attributable to negligence, and in the final analysis the policy
decision is that it would be too burdensome to charge all who carelessly cause or fail to
prevent fires with the injuries suffered by the expert retained with public funds to deal
with those inevitable, although negligently created, occurrences.
It was the duty of Steelman, a highway patrol trooper, to take affirmative action to protect
anyone found in a precarious situation upon the highway from additional harm. Action, such
as that taken by Steelman, on behalf of Lind, a motorist in distress, as well as other motorists
traveling upon the highway, forms a part of what troopers are hired to do and falls directly
under the ordinary course of the duties of the occupation.
As stated in Solgaard v. Guy F. Atkinson Co., 491 P.2d 821, 825, (Cal. 1971), firemen
cannot complain of negligence in the creation of the very occasion for [their] engagement.
Giorgi v. Pacific Gas & Elec. Co., supra, at 119; Walters v. Sloan, supra, at 612.
The beehives falling from the trailer onto the highway would have caused Steelman's
injury only in the sense that it created the occasion for his presence at the scene of the
accident.
[Headnote 3]
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. Scott v. E. L. Yeager Construction Co., 91 Cal.Rptr. 232 (Cal.App. 1970).
For the reasons expressed above, we hold that as a matter of law, appellant is barred by
the fireman's rule from maintaining an action against Lind and affirm the summary
judgment.
law, appellant is barred by the fireman's rule from maintaining an action against Lind and
affirm the summary judgment.
____________
97 Nev. 429, 429 (1981) Hernandez v. City of Reno
RICHARD LEON HERNANDEZ, Appellant, v. THE CITY OF RENO; COUNTY OF
WASHOE; CITY OF SALT LAKE CITY, STATE OF UTAH; COUNTY OF SALT
LAKE, STATE OF UTAH, Respondents.
No. 11920
October 13, 1981 634 P.2d 668
Appeal from judgment of dismissal in favor of the City of Reno, the County of Washoe,
and the City of Salt Lake City; from order denying motion to amend complaint, and from
order granting County of Salt Lake's motion to quash service of summons, Second Judicial
District, Washoe County; John W. Barrett, Judge.
Action was brought based upon an allegedly false arrest and subsequent false
imprisonment. The district court granted involuntary dismissals, granted motion to quash
service of summons as to one defendant, and denied plaintiff's motion to amend his complaint
to substitute State of Utah as a defendant for one of the John Doe defendants, and appeal
was taken. The Supreme Court, Gunderson, C. J., held that: (1) plaintiff's case-in-chief did
not make a sufficient showing against either the City of Reno or the County of Washoe; (2)
plaintiff's case-in-chief made a sufficient showing against City of Salt Lake City, where it
could be inferred that Salt Lake City authorities clearly intended plaintiff to be confined, and
authorities did not investigate or attempt to reconcile the difference between the description
they had put out through NCIC and the description of the suspect being held for them in
Reno; (3) denial of plaintiff's motion to amend complaint to substitute State of Utah as a
defendant was not error; and (4) order quashing service of process upon County of Salt Lake
was not appealable.
Reversed in part, affirmed in part.
[Rehearing denied December 7, 1981]
Nada Novakovich, Reno, for Appellant.
Wait, Shamberger, Georgeson, McQuaid & Thompson, Reno, for Respondent City of
Reno.
Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, for Respondent County of Washoe.
Hibbs & Newton, and Frank H. Roberts, Reno, for Respondent City of Salt Lake.
Vargas & Bartlett, and Frederic R. Starich, Reno, for Respondent County of Salt Lake.
In evaluating appeals from involuntary dismissals of action at the close of plaintiff's case, plaintiff's
evidence and all inferences that reasonably can be drawn from it must be deemed admitted and evidence
must be interpreted in the light most favorable to plaintiff. NRCP 41(b).
As to each defendant in action based upon an allegedly false arrest and subsequent false imprisonment,
plaintiff bore the burden of introducing sufficient evidence in his case-in-chief to establish a prima facie
case.
An actor is subject to liability to another for false imprisonment if he acts intending to confine the other
or a third person within boundaries fixed by the actor, his act directly or indirectly results in such a
confinement of the other, and the other is conscious of the confinement or is harmed by it.
In action based upon an allegedly false arrest and subsequent false imprisonment, plaintiff's case-in-chief
did not make a sufficient showing against the City of Reno, where Reno police arrested plaintiff on
probable cause, established by the near perfect match between the NCIC Want and plaintiff's name, age,
and physical characteristics, and plaintiff's subsequent detention in the Reno city jail was not without any
legal cause or justification as Salt Lake City authorities gave City of Reno verbal assurances that plaintiff
was their intended suspect, that they would extradite him, and that a certified warrant of arrest and
complaint were forthcoming to accomplish this purpose during the course of plaintiff's two week detention.
did not make a sufficient showing against the County of Washoe, where county's acceptance of plaintiff's
custody, and its continuance of his confinement, was justified by the appropriateness of his initial arrest,
and by his arraignment in justice court on a certified complaint and certified warrant of arrest.
6. Arrest.
Statute providing that a person arrested without a warrant for a felony committed out of state must be
taken before a judge or magistrate with all practicable speed and complaint must be made against him
setting forth the ground for the arrest contemplates that the demanding state shall be allowed a time which
is reasonable in the circumstances, in which to forward information necessary to allow a complaint to be
prepared and supported. NRS 179.205.
made a sufficient showing against the City of Salt Lake City, where it could be inferred that the Salt Lake
City authorities clearly intended plaintiff to be confined, and they did not investigate or attempt to
reconcile the difference between the description they had put out through NCIC and the description of the
suspect being held for them in Reno. NRCP 41(b).
In action based upon an allegedly false arrest and subsequent false imprisonment, denial of plaintiff's
motion to amend complaint to substitute State of Utah as the defendant for one of the John Doe
defendants after involuntary dismissals of respondents was not error, where plaintiff failed to show that the
State of Utah had actual notice of the institution of the action. NRCP 15(a).
Order quashing service of process on County of Salt Lake in action based upon an allegedly false arrest
and subsequent false imprisonment was not appealable; moreover, plaintiff had failed to demonstrate any
conceivable prejudice resulting from absence of the county as a party in action.
OPINION
This is an appeal from a judgment granting involuntary dismissals in an action based upon
an allegedly false arrest and subsequent false imprisonment, and from several other orders
entered by the district court. The appellant, Richard Leon Hernandez, brought suit against the
City of Reno, County of Washoe, City of Salt Lake City, County of Salt Lake, and
unidentified John Does, contending that they jointly and severally had falsely arrested and
unjustifiably confined him for some forty-two days.
At the inception of the litigation, the district court granted a motion to quash service of
summons as to the County of Salt Lake. At the close of appellant's case-in-chief, the court
granted motions for involuntary dismissals proffered by the City of Reno, County of Washoe
and City of Salt Lake City. Appellant then unsuccessfully moved to amend his complaint to
substitute the State of Utah as a defendant for one of the John Doe defendants. An appeal
has been taken from each of these adverse rulings.
The record before us indicates that appellant was a passenger in a car stopped by a City of
Reno police officer for a possible traffic violation on July 14, 1976. The officer ran warrant
checks on the driver of the car and on the appellant. The warrant check on the appellant
turned up an NCIC Want generated by the Salt Lake City police department for a Richard
Leon Hernandez, sought for burglary, theft, and theft by receiving stolen property in Salt
Lake City.
Leon Hernandez, sought for burglary, theft, and theft by receiving stolen property in Salt Lake
City. The NCIC Want was for an individual with the same name, date of birth, sex, race,
weight, eye color, and hair color as the appellant.
1

The Reno police took the appellant into custody despite his claims that he had never been
in Utah, and that he had not committed the alleged crimes. On July 15, 1976, the Reno police
telexed a complete description of the appellant, including his social security number, to Salt
Lake City, along with a request for a decision on his possible extradition. The Salt Lake City
authorities immediately informed the Reno police by phone that they would extradite the
appellant. On July 23, 1976, the Reno police received a certified warrant of arrest and a
certified complaint for one Richard L. Hernandez from the Salt Lake City authorities.
On July 28, 1976, the fifteenth day of his confinement, the appellant was arraigned in
justice court and transferred from the Reno City Jail to the Washoe County Jail. Appellant
was kept in Washoe County Jail until August 20, 1976, i.e. the day on which the Utah
authorities assumed custody over him. During appellant's stay in the Washoe County facility,
he continued to protest to the authorities that they had the wrong man. The Washoe County
authorities formally requested the Salt Lake City police to send a photo of the suspect they
were seeking with their NCIC Want. The Salt Lake City police responded with a mug
shot of appellant, which they had obtained from the Los Angeles police. A typed note
attached to the photo declared that, research indicates this photo may be of suspect Richard
Leon Hernandez. The Salt Lake City police sent this photo and note, even though a member
of their department, Detective B. Smith, personally knew the actual suspect in the NCIC
Want, had questioned him extensively, and could identify him.
Confronted with his photo, and told by Washoe County authorities that it was a picture of
the suspect wanted in Salt Lake City, Hernandez waived extradition to Utah on August 12,
1976. The Utah authorities took custody of appellant on August 20, 1976. At appellant's
arraignment hearing in Salt Lake County Court, at Salt Lake City, Detective B. Smith
confronted the appellant for the first time and quickly told the presiding judge: There has
been a great error. The Utah authorities ultimately released appellant on August 24, 1976,
gave him a "no complaint notice," and provided air transportation back to Reno.
____________________

1
The appellant was one inch taller and had a different social security number than the individual sought in the
Want; however, it does not appear in the record that this information was transmitted to the arresting Reno
officer.
authorities ultimately released appellant on August 24, 1976, gave him a no complaint
notice, and provided air transportation back to Reno.
The NRCP 41(b) Involuntary Dismissals
[Headnote 1]
An action may be dismissed at the close of a plaintiff's case on the ground that upon the
facts and the law the plaintiff has failed to prove a sufficient case for the court or jury.
NRCP 41(b). In evaluating appeals from involuntary dismissals of actions at the close of a
plaintiff's case, plaintiff's evidence and all inferences that reasonably can be drawn from it
must be deemed admitted and the evidence must be interpreted in the light most favorable to
plaintiff. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 337, 291 P.2d 1054 (1955);
Schwabacher & Co. v. Zobrist, 97 Nev. 625 P.2d 82 (1981); Bates v. Cottonwood Cove
Corp., 84 Nev. 388, 391, 441 P.2d 622 (1968).
[Headnotes 2, 3]
As to each respondent, appellant bore the burden of introducing sufficient evidence in his
case-in-chief to establish a prima facie case. To establish false imprisonment of which false
arrest is an integral part, it is . . . necessary to prove that the person be restrained of his liberty
under the probable imminence of force without any legal cause or justification. Marschall v.
City of Carson, 86 Nev. 107, 110, 464 P.2d 494 (1970). As summarized by the American
Law Institute, an actor is subject to liability to another for false imprisonment if (a) he acts
intending to confine the other or a third person within boundaries fixed by the actor, and (b)
his act directly or indirectly results in such a confinement of the other, and (c) the other is
conscious of the confinement or is harmed by it. Restatement (Second) of Torts 35 (1965).
[Headnotes 4, 5]
Appellant's case-in-chief, as preserved in the record, did not make a sufficient showing
against either the City of Reno or the County of Washoe. Hence, we affirm the district court's
order granting an involuntary dismissal to these parties. The Reno police arrested appellant on
probable cause, established by the near perfect match between the NCIC Want and
appellant's name, age, and physical characteristics.
[Headnote 6]
Nor do we believe appellant's subsequent detention in the Reno City Jail was without any
legal cause or justification, so far as the City of Reno's conduct was concerned.
so far as the City of Reno's conduct was concerned. A person arrested as appellant was, i.e.
without a warrant for a felony committed out of the state, must be taken before a judge or
magistrate with all practicable speed and complaint must be made against him setting forth
the ground for the arrest. See NRS 179.205. Thereafter, his answer shall be heard as if he
had been arrested on a warrant. Id. Clearly, however, the statute contemplates that the
demanding state shall be allowed a time which is reasonable in the circumstances, in which to
forward information necessary to allow a complaint to be prepared and supported. Thus, we
think it was proper for the district court to decide, as a matter of law, given the circumstances
of this case, that the jurors could not reasonably decide that the City of Reno had failed to
arraign appellant with all practicable speed. During the course of appellant's two-week
detention, the Salt Lake City authorities gave the City of Reno verbal assurances that
appellant Hernandez was their intended suspect, that they would extradite him, and that a
certified warrant of arrest and complaint were forthcoming to accomplish this purpose.
Similarly, we think the district court correctly concluded that Washoe County's acceptance of
appellant's custody, and its continuance of his confinement, was justified by the
appropriateness of his initial arrest, and by his arraignment in justice court on the certified
complaint and certified warrant of arrest.
[Headnote 7]
To the contrary, considering the evidence in appellant's case-in-chief in the light most
favorable to the appellant, we feel compelled to hold that appellant did establish a case
against the City of Salt Lake City, sufficient to withstand a motion pursuant to NRCP 41(b).
From the record now before us, it may be inferred that the Salt Lake City authorities clearly
intended appellant to be confined. Among other things, the record indicates they not only
placed the initial NCIC Want, but telephoned promising to extradite appellant. They
prepared and forwarded to Reno a certified warrant of arrest and a complaint. They forwarded
photos of the appellant. So far as appears, they did not investigate or attempt to reconcile the
difference between the description they had put out through NCIC and the description of the
suspect being held for them in Reno.
Without passing judgment on the ultimate quality of the evidence presented, or on the
credibility of the appellant's witnesses, but interpreting the record most favorably to appellant,
we believe the record warrants inferences sufficient to render unjustified the judgment of
dismissal in favor of Salt Lake City.
unjustified the judgment of dismissal in favor of Salt Lake City.
The Denial of Appellant's Motion to Amend
[Headnote 8]
When the involuntary dismissals of respondents City of Reno, County of Washoe and City
of Salt Lake City terminated the trial below, appellant moved to amend his complaint to
substitute the State of Utah as a defendant for one of the Doe defendants. The district court
denied this motion. In our view, this discretionary ruling did not constitute error.
After a responsive pleading is served, a complaint may be amended only by leave of court,
although leave shall be freely given when justice so requires. NRCP 15(a). In regard to
amendments seeking to bring in proper defendants, we have declared:
There appear to be three factors governing the determination when a proper
defendant might be brought into an action by amendment even though the statute of
limitations might have run. They are that the proper party defendant (1) have actual
notice of the institution of the action; (2) knew that it was the proper defendant in the
action, and (3) was not in any way misled to its prejudice.
Servatius v. United Resort Hotels, 85 Nev. 371, 373, 455 P.2d 621 (1969); Lunn v. American
Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980); Echols v. Summa Corp., 95 Nev. 720,
722, 601 P.2d 716 (1979).
In denying the appellant's motion to amend, the district court noted he had failed to show
that the State of Utah had actual notice of the institution of this action. Nothing in the record
appears to counter this explicit determination by the district court. Therefore, it does not
appear that the district court erred in denying appellant's motion to amend his pleadings to
include the State of Utah as a party defendant.
The Motion to Quash Service of Summons
[Headnote 9]
This court has heretofore held that an order quashing service of process is not appealable.
Jarstad v. National Farmers Union, 92 Nev. 380, 384, 552 P.2d 49 (1976). Moreover, from
the record, appellant has failed to demonstrate any conceivable prejudice resulting from the
absence of the County of Salt Lake as a party to this action.
We, accordingly, reverse the district court's order granting an involuntarily dismissal to
the City of Salt Lake City, and we remand this matter for a new trial as to that defendant.
an involuntarily dismissal to the City of Salt Lake City, and we remand this matter for a new
trial as to that defendant. We affirm all other orders and judgments of the district court from
which this appeal has been taken.
Manoukian, Batjer, Springer, and Mowbray, JJ., concur.
____________
97 Nev. 436, 436 (1981) Connell v. Carl's Air Conditioning
LORRAINE CONNELL, Appellant, v. CARL'S AIR
CONDITIONING, Respondent.
No. 12240
October 13, 1981 634 P.2d 673
Appeal from judgment upon a directed verdict, and from order denying new trial. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
In an automobile negligence personal injury action, plaintiff appealed from an adverse
verdict of the district court. The Supreme Court, Batjer, J., held that: (1) in light of driver's
testimony that he was on his way home and lack of evidence that there existed any
emergencies to which he could have been responding on day in question, as matter of law, he
could not have been acting within course and scope of his employment; (2) in light of
plaintiff's dilatory conduct in waiting until eve of trial to seek an amendment of complaint,
there was no abuse of discretion in denying leave; (3) plaintiff made no showing that
defendant employer expressly or impliedly consented to trying issue of negligent entrustment
of motor vehicle, and thus there was no error in failing to consider such issue, same having
not been pleaded; and (4) doctrine of negligent entrustment did not extend to employer who
neither entrusted nor placed vehicle with employee nor did anything more than facilitate its
financing.
Affirmed.
Pomeranz, Crockett & Myers, Las Vegas, for Appellant.
Thorndal, Gentner, Backus, Lyles & Maupin, Las Vegas, for Respondent.
1. Master and Servant.
Tortious conduct by employee in transit to or from work ordinarily will not expose employer to liability,
but exception exists when employee is engaged in special errand for employer, even though not
performed during usual working hours.
2. Automobiles.
In light of driver's testimony that he was on his way home and lack of evidence that there existed any
emergencies to which he could have been responding on day in question, as matter of law, he could not
have been acting within course and scope of his employment. NRCP 41(b), 50(a).
3. Pleadings.
In light of plaintiff's dilatory conduct in waiting until eve of trial to seek an amendment of complaint,
there was no abuse of discretion in denying leave. NRCP 15(a), (b), 50(a).
4. Automobiles.
Plaintiff made no showing that defendant employer expressly or impliedly consented to trying issue of
negligent entrustment of motor vehicle, and thus there was no error in failing to consider such issue, same
having not been pleaded. NRCP 15(b).
5. Automobiles.
Doctrine of negligent entrustment did not extend to employer who neither entrusted nor placed vehicle
with employee nor did anything more than facilitate its financing.
OPINION
Lorraine Connell filed a complaint on December 9, 1975 against Patrick Higgins
1
and his
employer, Carl's Air Conditioning (Carl's), for damages she sustained as a result of an
automobile collision. Higgins was apprehended as the driver of a hit and run vehicle that had
crashed into Connell's vehicle at approximately 5:15 p.m. on October 16, 1975. Higgins died
of unrelated causes before the trial. However, his deposition taken in January, 1977 was
received in evidence and read to the jury.
At the close of the plaintiff's case, Carl's moved under NRCP 41(b) for dismissal on the
ground that the evidence was not sufficient to show that Higgins was acting in the course and
scope of his employment at the time of the accident. The district court denied the motion.
However, after all evidence had been introduced, the district court granted Carl's motion for a
directed verdict upon this ground, pursuant to NRCP 50(a).
Higgins, according to his deposition, did not remember the accident at all. He did
remember leaving the office of a general contractor with whom Carl's did business, and the
next thing he remembered was being home. He also recalled feeling chest pains on his way
home. He further testified that he was on call 24 hours a day, and that on limited occasions
he would be required to use the vehicle to go to a job site in an emergency.
____________________

1
Iris Parraguirre, as special administratrix of the Estate of Patrick C. Higgins, and Connell entered into a
stipulation dismissing the claim with prejudice. The estate is not a party to this appeal.
24 hours a day, and that on limited occasions he would be required to use the vehicle to go to
a job site in an emergency. He testified that his normal workday was from 6:30 a.m. until
between 4:30 and 5:30 in the afternoon. Higgins also related that he had previously had
blackouts preceded by chest pains. Over objection, testimony of Higgins was also admitted to
the effect that his employer was familiar with his condition and had witnessed one such attack
prior to the date of the accident.
The president of Carl's testified that Higgins' usual work day was from 6:45 a.m. to about
3:30 p.m., and that over a three year period Higgins was only twice required to respond to late
calls. Butler further testified that Higgins did not have to account for his whereabouts during
working hours. There was no testimony introduced at trial affirmatively establishing that
Higgins was running any errands for Carl's or working overtime on the day of the accident.
The vehicle involved in the accident was owned by Higgins and had been purchased by
Higgins before he accepted employment with Carl's, but Carl's made the periodic purchase
payments and paid all the maintenance expenses.
Appellant claims the district court erred in granting a directed verdict in favor of Carl's
under NRCP 50(a), and in denying appellant's motions to amend her complaint to include a
theory of negligent entrustment.
NRCP 50(a)
2
provides that a motion for directed verdict, stating the specific ground
therefor, may be made at the close of the evidence offered by an opponent. The trial court,
and this court, must view the evidence and all inferences in the light most favorable to the
party against whom the motion is made, and may not test the credibility of the witnesses or
weigh the evidence. If there remains no question of fact to be decided, an order directing the
verdict is proper. Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975); Bliss
v. DePrang, 81 Nev. 599, 407 P.2d 726 (1965).
[Headnote 1]
We have held that whether an employee was acting within the scope of employment is
generally a question of fact within the province of the jury. However, tortious conduct by an
employee in transit to or from work ordinarily will not expose the employer to liability.
____________________

2
NRCP 50(a) provides, in pertinent part:
A motion for a directed verdict may be made at the close of the evidence offered by an opponent or at
the close of the case. . . . A motion for a directed verdict shall state the specific grounds therefor. The
order of the court granting a motion for a directed verdict is effective without any assent of the jury. If the
evidence is sufficient to sustain a verdict for the opponent, the motion shall not be granted.
the employer to liability. An exception exists when the employee is engaged in a special
errand for the employer, even though not performed during usual working hours. Molino v.
Asher, 96 Nev. 814, 618 P.2d 878 (1980); National Convenience Stores v. Fantauzzi, 94 Nev.
655, 584 P.2d 689 (1978).
[Headnote 2]
Appellant alleges that the evidence presents a question of fact for the jury. However, in
light of Higgins' testimony that he was on his way home and the lack of evidence that there
existed any emergencies to which Higgins could have been responding on the day question,
as a matter of law, Higgins could not have been acting within the course and scope of his
employment. The granting of the directed verdict pursuant to NRCP 50(a) was proper.
Appellant next contends that the district court erred in denying her motions, made before
and during trial, to amend her complaint to include a theory of negligent entrustment. We
disagree.
[Headnote 3]
A motion for leave to amend pursuant to NRCP 15(a) is addressed to the sound discretion
of the trial court, and its action in denying such a motion will not be held to be error in the
absence of a showing of abuse of discretion. Adamson v. Bowker, 85 Nev. 115, 450 P.2d 796
(1969). In light of appellant's dilatory conduct in waiting until the eve of trial to seek an
amendment, we find no such abuse. See Stephens v. Southern Nevada Music Co., 89 Nev.
104, 507 P.2d 138 (1973).
[Headnote 4]
Appellant also contends that the issue should have been considered pursuant to NRCP
15(b), which provides that when issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had been raised
by the pleadings. However, appellant has made no showing that the respondent expressly or
impliedly consented to trying the issue of negligent entrustment. See Schwartz v. Schwartz,
95 Nev. 202, 591 P.2d 1137 (1979).
Furthermore, the facts in this case viewed in a light most favorable to appellant do not
constitute a case of negligent entrustment.
[Headnote 5]
Higgins, the employee, purchased the vehicle before accepting employment with Carl's
and title was held in Higgins' name. There was no showing that Carl's had any control over
the vehicle, or did any more than facilitate its financing.
the vehicle, or did any more than facilitate its financing. The doctrine of negligent
entrustment does not extend to one who neither entrusts nor places a vehicle with another, see
Drake v. Morris Plan Company of California, 125 Cal.Rptr. 667 (Cal.App. 1975) (no liability
on part of one who financed sale of automobile to allegedly incompetent driver), or to one
who has no right to control the vehicle. Mills v. Continental Parking Corp., 86 Nev. 724, 475
P.2d 673 (1970).
Accordingly, the actions of the district court are affirmed in their entirety.
____________
97 Nev. 440, 440 (1981) State v. Chumphol
THE STATE OF NEVADA, Appellant, v. POOLSAWAS
CHUMPHOL, Respondent.
No. 12610
October 13, 1981 634 P.2d 451
Appeal from an order dismissing an information charging respondent with a violation of
NRS 202.360(2), Second Judicial District Court, Washoe County; William N. Forman, Judge.
The Supreme Court, Mowbray, J., held that statute prohibiting an unnaturalized foreign
born person from having in his possession any concealable pistol or firearm deprived alien of
equal protection.
Affirmed.
Calvin R. X. Dunlap, District Attorney, Edward B. Horn, Deputy District Attorney,
Terry A. Friedman, Reno, for Respondent.
State classifications which are based on alienage are subject to strict judicial scrutiny.
2. Constitutional Law; Weapons.
Even if State's purpose in enacting statute prohibiting an unnaturalized foreign born person from having
in his possession or control any pistol or other firearm capable of being concealed upon the person was
constitutionally permissible, which it was not, the statute was unnecessary to safeguard the interest argued
for in view of another statute which forbids all persons from unlawfully carrying concealable firearms, so
that the statute denied equal protection to aliens. NRS 202.350, 202.360, subd. 2.
OPINION
Following a nonjury trial, the lower court ordered the information filed against respondent
dismissed. The district court concluded that the statute respondent was charged with
violating, NRS 202.360(2), as it applies to aliens, is unconstitutional. We agree and affirm.
THE FACTS
On July 1, 1979, officers of the Reno Police Department responded to the complaint of a
tenant at an apartment complex that a neighboring tenant was standing in his doorway
brandishing a pistol. Upon responding, the officers encountered respondent, and removed
from him a .357 magnum pistol. Respondent identified himself as an alien. Respondent was
later arrested for violating NRS 202.360(2). After trial, the district court judge dismissed the
information on the ground that the statute is unconstitutional. The state has appealed that
order.
EQUAL PROTECTION
The relevant part of NRS 202.360(2) provides:
After July, 1, 1925, no unnaturalized foreign-born person . . . shall own or have in his
possession or under his custody or control any pistol, revolver or other firearm capable
of being concealed upon the person.
The state argues that it need only prove a rational basis in order for this court to determine
that the statute is constitutional.
[Headnote 1]
State classifications which are based on alienage are subject to strict judicial scrutiny.
Nyquist v. Mauclet, 432 U.S. 1 (1977); Examining Board v. Flores De Otero, 426 U.S. 572
(1976); In re Griffiths, 413 U.S. 717 (1973); Graham v. Richardson, 403 U.S. 365 (1971).
The cases cited by appellant for the proposition that classifications based on alienage are no
longer subject to strict scrutiny are not relevant to the discussion here. Both Ambach v.
Norwich, 441 U.S. 68 (1979) and Foley v. Connelie, 435 U.S. 291 (1978), involve
classifications excluding aliens from fundamental government activities. As the High Court
noted: The rule for governmental functions, which is an exception to the general standard
applicable to classifications based on alienage, rests on important principles inherent in the
Constitution. Ambach v. Norwich, supra, 75. Therefore, we may find NRS 202.360(2)
constitutional only if the state is able to satisfy the burden of demonstrating "that its
purpose or interest is both constitutionally permissible and substantial, and that its use of
the classification is 'necessary . . . to the accomplishment' of its purpose or the
safeguarding of its interest."
the state is able to satisfy the burden of demonstrating that its purpose or interest is both
constitutionally permissible and substantial, and that its use of the classification is necessary
. . . to the accomplishment' of its purpose or the safeguarding of its interest. In re Griffiths,
supra, 721-722.
A person does not exhibit a tendency toward crime merely because he or she is a
noncitizen. See Raffaelli v. Committee of Bar Examiners, 496 P.2d 1264 (Cal. 1972). As the
California Supreme Court noted in that case, classification based upon alienage is the
lingering vestige of a xenophobic attitude which . . . should now be allowed to join those
[other] anachronistic classifications among the crumbled pedestals of history. Id. at 1266.
[Headnote 2]
Even were we to conclude that the state's purpose is constitutionally permissible, which we
cannot, the statute is not necessary to safeguard the argued interest. NRS 202.350
1
adequately forbids the unlawful carrying of concealable firearms. Citizens and noncitizens
alike are subject to the penalties designated in that statute for its violation.
For the above reasons we agree with the district court judge and affirm his order.
Manoukian, Batjer, and Springer, JJ., concur.
Gunderson, C. J., concurring:
I agree that respondent may not be penalized for the crime with which he was charged.
However, I believe our decision might be based on narrower grounds than the constitutional
contentions proffered by respondent's counsel.
Respondent purchased his firearm in Reno. I understand the prosecution to concede that he
did so only after filling out a federal form, on which he forthrightly revealed his status as an
alien, and after a waiting period prescribed by local ordinance had expired. In short, when
respondent bought the gun, he believed he was acting lawfully, and governmental agencies,
which permitted the purchase, all fostered that belief.
____________________

1
1. It is unlawful for any person within this state to:
(b) Carry concealed upon his person:
(1) Any explosive substance, other than fixed ammunition;
(2) Any dirk, dagger or dangerous knife, or
(3) Any pistol, revolver or other firearm, or other dangerous or deadly weapon.
____________
97 Nev. 443, 443 (1981) Stevens v. State
JEAN M. STEVENS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11702
JEAN M. STEVENS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 12526
October 13, 1981 634 P.2d 662
Appeals from judgment of conviction and from a denial of a motion for new trial, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted before the district court of embezzlement, six counts of forgery,
seven counts of unlawful use of public money and seven counts of grand larceny, and she
appealed. The Supreme Court held that admission of nontestifying codefendant's extrajudicial
statements, which jury would have almost certainly viewed as inculpating the defendant,
violated defendant's right of cross-examination which was secured by confrontation clause,
and the error in admitting such statements could not be deemed harmless.
William M. O'Mara, Reno, for Appellant.
Richard H. Bryan, Attorney General, Robert A. Bork, Richard E. Thornley, Brooke
Nielsen, Deputy Attorneys General, Carson City, for Respondent.
Criminal Law.
In proceeding in which defendant was convicted of embezzlement and of multiple counts of forgery,
grand larceny and unlawful use of public money and in which there was no direct evidence of guilt,
admission of nontestifying codefendant's extrajudicial statements, which jury would have almost certainly
viewed as inculpating the defendant, violated defendant's right of cross-examination which was secured by
confrontation clause, and the error in admitting such statements could not be deemed harmless.
OPINION
Per Curiam:
In Case No. 11702, Jean M. Stevens is appealing from a judgment of conviction for
forgery (six counts), embezzlement, unlawful use of public money (seven counts), and grand
larceny (seven counts), all involving finances of the Nevada American Revolution
Bicentennial Commission. In Case No. 12526, Stevens appeals from an order denying her
motion for a new trial on the charges concerned in Case No.
Stevens appeals from an order denying her motion for a new trial on the charges concerned in
Case No. 11702. As grounds for appeal, she assigns numerous errors; however, we reverse
appellant's convictions, and remand this matter for a new trial, because admission of a
codefendant's statements at Stevens' trial violated the rule articulated in Bruton v. United
States, 391 U.S. 123 (1968), and the error may not be deemed harmless. Other issues need not
be decided.
Appellant's codefendant, Oliver, made several inculpatory statements to the authorities in
grand jury proceedings and to a United States Secret Service Special Agent. Each of these
statements implicated appellant. At the joint trial of Oliver and Stevens, the prosecution
introduced the grand jury statement against Oliver, and Oliver's counsel introduced her
statement given to the Special Agent. Prior to introducing the grand jury statement against
Oliver, the prosecution excised from it all express references to Stevens and to one Vicki
Nash.
1
Prior to introducing the statement his client had given to the Special Agent, Oliver's
counsel excised all references to Stevens, but he left intact references to Vicki Nash. Oliver
did not testify at the trial; hence, she was thus not subject to cross-examination by appellant's
counsel. When admitting Oliver's statements, the trial judge did not instruct the jury that they
could only be considered in determining Oliver's guilt or innocence and could not be
considered in determining the guilt or innocence of the appellant.
At the end of the trial below, the prosecutor acknowledged that, there was no direct
evidence offered that Jean Stevens illegally handled any NARBC checks. There is no
evidence that she cashed them, deposited them or in any way criminally dealt with those
checks. However, he urged that there was strong circumstantial evidence.
It appears likely that the jury read the appellant's name into the blanks in each one of
Oliver's statements introduced at the trial below. The circumstantial links between Oliver and
Stevens, referred to by the prosecutor, and the fact that Oliver and appellant were being tried
together made it not only natural, but seemingly inevitable, that the jury would infer appellant
to be the person referred to in the blanks in Oliver's statements.
In Bruton v. United States, 391 U.S. 123 (1968), the Court held that at a joint trial where
one defendant does not testify, the introduction into evidence of a nontestifying defendant's
confession, which probably inculpated the codefendant, violated the codefendant's right
of cross-examination, secured by the Confrontation Clause of the Sixth Amendment.
____________________

1
In her defense to the charges against her, appellant sought to establish that it had been Oliver and Nash, the
chairman of Nevada's Bicentennial Commission, who had committed the offenses of which she had been
charged.
confession, which probably inculpated the codefendant, violated the codefendant's right of
cross-examination, secured by the Confrontation Clause of the Sixth Amendment. 391 U.S. at
126. We have declared that,
the mere finding of a violation of the right to confront witnesses does not automatically
require reversal of the conviction. In some cases the properly admitted evidence of guilt
is so overwhelming, and the prejudicial effect of the codefendant's admission is so
insignificant by comparison that it is clear beyond a reasonable doubt that the improper
use of the admission was harmless error.
Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981); see Davies v. State, 95 Nev. 553, 558,
598 P.2d 636 (1979). On the other hand, where the evidence of guilt is woven from
circumstantial evidence, Harrington v. California, 395 U.S. 250, 254 (1969), and it is not
clear beyond a reasonable doubt that the improper use of the admission was harmless error,
then a violation of Bruton will mandate a reversal of the conviction. See Corbin, cited above.
Here the jury almost certainly looked to Oliver's redacted, incriminating, extrajudicial
statements, particularly the one made to the Secret Service Special Agent, in determining
appellant's guilt. Accordingly, admission of Oliver's statements in this joint trial violated
appellant's right of cross-examination secured by the Confrontation Clause of the Sixth
Amendment. Therefore, we reverse and remand this matter for a new trial.
____________
97 Nev. 445, 445 (1981) Ludwig v. State
GERALD ALLEN LUDWIG, Appellant, v. THE
No. 12628
October 13, 1981 634 P.2d 664
Appeal from conviction, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Defendant was convicted by jury in the district court of second degree kidnapping, sexual
assault and conspiracy to commit crime. Defendant appealed. The Supreme Court held that:
(1) search warrant adequately protected privacy interest at stake, and where it was lawful for
police to enter and search residence and where police had probable cause to arrest defendant,
his arrest was constitutionally permissible notwithstanding absence of arrest warrant, and
{2) defendant by initiating communication with police on their entry into his apartment
with search warrant waived his right to remain silent.
standing absence of arrest warrant, and (2) defendant by initiating communication with police
on their entry into his apartment with search warrant waived his right to remain silent.
Affirmed.
Elliot A. Sattler, Las Vegas, for Appellant.
James Tufteland and Randall F. Weed, Deputy District Attorneys, Clark County, for
Respondent.
1. Courts.
Case holding that, absent exigent circumstances, Fourth Amendment prohibits police from making
warrantless and nonconsensual entry into suspect's home in order to make routine felony arrest is not
retroactively applicable. U.S.C.A.Const. Amend. 4.
2. Arrest.
Search warrant adequately protected privacy interest at stake, and where it was lawful for police to enter
and search residence and where police had probable cause to arrest defendant, his arrest was
constitutionally permissible notwithstanding absence of arrest warrant. U.S.C.A.Const. Amend. 4.
3. Criminal Law.
Defendant, by initiating communication with police on their entry into his apartment with search warrant
waived his right to remain silent. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Appellant was convicted by jury of second degree kidnapping, sexual assault, and
conspiracy to commit a crime. In this appeal, we are required to determine whether the
warrantless arrest of appellant was constitutionally infirm, and if so, whether the trial court
erred in not excluding appellant's confession. Because we determine that the arrest was
proper, we conclude that the trial court did not err in admitting evidence of the confession at
trial.
On June 14, 1979, Patricia was attacked and kidnapped by a man she later identified as the
appellant, Gerald Allen Ludwig. An unidentified man joined her assailant and drove her to a
motel in Henderson, Nevada, where she was taken into a room and sexually assaulted. After
the assault, when the victim was left alone in the room, she freed herself and called the
police.
On July 3, 1979, officers from the Henderson and Las Vegas Metropolitan Police
Departments arrived at Ludwig's apartment.
Metropolitan Police Departments arrived at Ludwig's apartment. The officers had obtained a
search warrant for the premises, and although they had probable cause to arrest Ludwig, they
did not obtain an arrest warrant because an unidentified Deputy District Attorney allegedly
had informed the officers that there was no need for one. Upon entering the premises, the
officers immediately arrested Ludwig and informed him of his rights pursuant to Miranda.
While executing the search warrant, officers discovered stolen United States Government
property. One of the officers advised Ludwig that he believed that the property was stolen and
that he would return it to Nellis Air Force Base. Ludwig responded that he wished to speak
with the officer alone, and went into the bedroom with two officers. Ludwig then offered to
make a deal with police; he would tell them whatever they wanted to know about his
involvement in the kidnapping and assault of Patricia if the police would not report him to the
Air Force to avoid a possible dishonorable discharge. Finally, a bargain was struck whereby
the police would merely return the property to the Base without disclosing its source and
Ludwig confessed to both the kidnapping and sexual assault.
Appellant's primary contention is that because the arrest was made without an arrest
warrant, even though police were lawfully within the premises pursuant to a search warrant
which is not challenged, the arrest was constitutionally infirm. Appellant relies primarily
upon Payton v. New York, 445 U.S. 573 (1980).
[Headnotes 1, 2]
Because the arrest in this case occurred prior to Payton, Payton, therefore, is inapplicable.
See Hatley v. State, 97 Nev. 360, 630 P.2d 1225 (1981). Furthermore, even if Payton were
applicable, the issuance of a search warrant adequately protected the privacy interests at stake.
Because it was lawful for the police to enter and search the residence, and because the police
had probable cause to arrest appellant, his arrest was constitutionally permissible
notwithstanding the absence of an arrest warrant. See Michigan v. Summers,
___
U.S.
___
,
49 U.S.L.W. 4776 (June 22, 1981).
[Headnote 3]
Appellant also challenges admission of his confession on Fifth Amendment grounds.
However, when the stolen Air Force property was discovered during the search, appellant
precipitated the exchange which led to the confession. Appellant himself, by initiating the
communication with police, waived his right to remain silent.
waived his right to remain silent. Edwards v. Arizona, 451 U.S. 477, 49 U.S.L.W. 4496 (May
18, 1981); see also Rhode Island v. Innis, 446 U.S. 291 (1980).
Accordingly, the judgment of the trial court is affirmed.
____________
97 Nev. 448, 448 (1981) Fuller v. Incopero
CAROL A. FULLER and MARY ANN ASTI, Appellants, v. FRANK
V. INCOPERO and CHRISTINA M. INCOPERO, Respondents.
No. 12131
October 13, 1981 634 P.2d 452
Appeal from judgment upon a jury verdict and from order denying motion for judgment
notwithstanding the verdict. First Judicial District Court, Carson City, Michael E. Fondi,
Judge.
Vendor and her agent appealed from judgment of the district court which awarded
purchasers of residential property $8,000 in compensatory damages and $10,000 in punitive
damages for fraudulent misrepresentation, and $1,050 in compensatory damages plus $2,500
in punitive damages for slander of title. The Supreme Court held that while evidence was
sufficient to support inference that vendor and her agent negligently failed to ascertain true
dimensions of property, evidence was not sufficient to justify award of punitive damages.
Stokes, Shaw, Heaton and Doescher, Ltd., Carson City, for Appellants.
Eck, Harkins & Beckett, Ltd., Carson City, for Respondents.
1. Fraud.
Evidence was sufficient to support inference that vendor of residential property and her agent negligently
failed to ascertain true dimensions of property and fraudulently misrepresented dimensions to purchasers.
2. Fraud.
Evidence that vendor of residential property and her agent negligently failed to ascertain true dimension
of property was insufficient to support finding of oppression, fraud or malice, express or implied, so as to
warrant award of punitive damages.
OPINION
Per Curiam:
This case arises from a dispute between the seller and her agent (appellants) and the buyers
(respondents) of residential property in Carson City. Respondents contended that appellants
fraudulently misrepresented to them the dimensions of the property, and that appellants later
wrongfully and maliciously caused a notice of default and election to sell to be filed on the
property, to respondents' damage.
The jury awarded respondents $8,000 in compensatory damages and $10,000 in punitive
damages for fraudulent misrepresentation, and $1,050 in compensatory damages plus
$2,500 in punitive damages for slander of title. Appellants' only contention upon appeal is
that the verdict was not based upon substantial evidence.
[Headnotes 1, 2]
Upon review of the record, and in light of the jury instructions, to which no objections
were raised either below or in this court, we are unable to find that appellants have
demonstrated error with regard to the verdicts for respondents or the awards of compensatory
damages.
1
However, we do not find in the record sufficient evidence to justify the awards of
punitive damages, and therefore modify the judgment to that extent.
In Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974), defendant
corporation sold a residential building lot to plaintiffs, and subsequently approved their
building plans, without warning plaintiffs that the portion of the lot upon which they planned
to build was situated in the flood plain of a mountain stream, although this fact was known to
the corporation's management. We found that [t]he record contains evidence to show
negligence and unconscionable irresponsibility. Still, after careful consideration and
extensive debate, we find insufficient evidence to support a finding of oppression, fraud or
malice, express or implied.' Id. at 315, 526 P.2d at 89.
Similarly, in this case, while the record may be read to support an inference that the seller
and her agent negligently failed
____________________

1
In particular, we note that the jury was instructed that fraudulent misrepresentation could be found if the
plaintiffs had established that the defendants knew or believed that the representations were false or that they
did not have sufficient information to make such representations or that the Defendants should have known that
the information was false. (Emphasis added.) Compare Sanguinetti v. Strecker, 94 Nev. 200, 206, 577 P.2d
404, 408 (1978); Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975).
to ascertain the true dimensions of the property, it is barren of any evidence which would
support an award of punitive damages.
We therefore modify the judgment in favor of respondents by striking the awards of
$10,000 and $2,500 in punitive damages, and otherwise affirm.
____________
97 Nev. 450, 450 (1981) Knapp v. Lemieux
BARBARA KNAPP, HERSCHELL KNAPP, BEECHER KNAPP and JERRY
HURLBERT, Appellants, v. F. LEMIEUX, WILLIAM L. CLOUD, C. E.
BIRMINGHAM, Respondents.
No. 13164
October 13, 1981 634 P.2d 454
Appeal from default judgment, order denying motion to vacate default, and order denying
reconsideration, Fifth Judicial District Court, Esmeralda County; William P. Beko, Judge.
The Supreme Court held that respondents' failure to file an answering brief would be
treated as a confession of error where appellants filed a timely opening brief, respondents did
not file an answering brief, and in response to an order to show cause, counsel for respondent
filed affidavit which neither set forth sufficient reasons for the failure to file an answering
brief, nor demonstrated good cause why such failure should not be treated as a confession of
error.
Robert M. Apple, Las Vegas, for Appellants.
A. D. Demetras, Goldfield, for Respondents.
Appeal and Error.
Supreme Court would treat respondents' failure to file an answering brief as a confession of error in
granting of default judgment in their favor where appellants filed opening brief on their appeal from orders
denying their request to vacate default judgment, respondents did not file an answering brief, and in
response to order to show cause, counsel for respondents filed affidavit which neither set forth sufficient
reasons for failure to file an answering brief, nor demonstrated good cause why such failure should not be
treated as a confession of error. NRAP 31(a), (c).
97 Nev. 450, 451 (1981) Knapp v. Lemieux
OPINION
Per Curiam:
This is an appeal from a default judgment and from orders denying appellants' request to
vacate the judgment. Appellants filed a timely opening brief, but respondents have not filed
an answering brief. NRAP 31(a). On June 9, 1981, we ordered respondents to show cause
why their failure to file a brief should not be treated as a confession of error. In response to
our order, counsel for respondents filed an affidavit which neither sets forth sufficient reasons
for the failure to file an answering brief, nor demonstrates good cause why that failure should
not be treated as a confession of error.
Having reviewed appellants' brief, the record on appeal, and counsel's affidavit, we elect to
treat respondents' failure to file an answering brief as a confession of error. NRAP 31(c); see
Las Vegas Sun, Inc. v. Nelson, 96 Nev. 85, 619 P.2d 534 (1980).
The default judgment and the order denying vacation of the judgment are reversed. This
case is remanded to the district court for further proceedings.
____________
97 Nev. 451, 451 (1981) Collura v. State
GARY W. COLLURA, Appellant, v. THE STATE
No. 12050
October 14, 1981 634 P.2d 455
Appeal from judgment of conviction of first degree murder upon a jury verdict, Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that omission of words without authority of law and with malice
aforethought from information charging defendant with murder, which possible
insufficiency was first noted, sua sponte, by trial court at close of trial, did not substantially
prejudice defendant in preparation of his defense where criminal complaint filed in court
prior to preliminary hearing did specify without authority of law and with malice
aforethought and notice of allegation of aggravating circumstances specifically informed
defendant prior to trial that State intended to put into evidence aggravating circumstances in
the event jury returned verdict of guilty to murder in the first degree.
Affirmed.
Leavitt, Graves & Leavitt, Las Vegas, for Appellant.
James Tufteland and Raymond D. Jeffers, Deputy District Attorneys, Clark County, for
Respondent.
When the accused proceeds to trial without challenging sufficiency of the information or indictment, an
element of waiver is involved.
2. Criminal Law.
Where defendant has not objected to charging document until after trial and without showing of
prejudice, the sufficiency of the information is tested by a reduced standard, and Supreme Court may look
to the entire record to determine whether the accused had notice of what later transpired at trial.
3. Criminal Law.
Omission of the words without authority of law and with malice aforethought from information
charging defendant with murder, which possible insufficiency was first noted, sua sponte, by trial court at
close of trial, did not substantially prejudice defendant in preparation of his defense where criminal
complaint filed in court prior to preliminary hearing did specify without authority of law and with malice
aforethought and notice of allegation of aggravating circumstances specifically informed defendant prior
to trial that State intended to put into evidence aggravating circumstances in the event jury returned verdict
of guilty to murder in the first degree. NRS 173.075, subds. 1, 3, 175.552.
OPINION
Per Curiam:
In response to a report of a shooting at a residence, Las Vegas Police found the body of a
Glen Leroy Volk, dead from gunshot wounds. Approximately one month later appellant
walked into the San Diego, California, Sheriff's office and, after receiving his Miranda
warnings, voluntarily confessed to killing Volk. Appellant was tried and convicted of first
degree murder upon a jury trial. On appeal, the main issue raised by appellant is the
sufficiency of the charging document.
The charging information was entitled Murder (Felony--NRS 200.010 and 200.030) and
stated that appellant . . . did then and there willfully and feloniously kill Glen Leroy Volk, a
human being, by shooting at and into the body of said Glen Leroy Volk with a firearm. The
appellant contends that because of the omission of the words without authority of law and
with malice aforethought he was not fully informed of the nature of the accusation and
was thereby substantially prejudiced in the preparation of his defense.
the nature of the accusation and was thereby substantially prejudiced in the preparation of his
defense.
Appellant made no objection to any defect in the charging information prior to trial or
during trial. The possible insufficiency of the charging document was first noted, sua sponte,
by the trial court at the close of trial.
[Headnotes 1, 2]
Our statute requires that the information or indictment contain a concise and definite
written statement of the essential facts constituting the offense charged including a citation
of the statute, . . . or other provision of law which the defendant is alleged therein to have
violated. NRS 173.075(1)(3). Nonetheless, when the accused proceeds to trial without
challenging the sufficiency of the information or indictment an element of waiver is involved.
Simpson v. District Court, 88 Nev. 654, 661, 503 P.2d 1225, 1230 (1972). Where, as in the
instant case, the appellant has not objected to the charging document until after trial and
without a showing of prejudice, the sufficiency of the information is tested by a reduced
standard. State v. Jones, 96 Nev. 71, 74, 605 P.2d 202, 204 (1980); Vincze v. State, 86 Nev.
546, 549, 472 P.2d 936, 938 (1970). We may look to the entire record to determine whether
the accused had notice of what later transpired at trial. See Simpson v. District Court, 88 Nev.
at 661, 503 P.2d at 1230; Vincze v. State, 86 Nev. at 549, 472 P.2d at 938.
[Headnote 3]
Even if the charging information is insufficient in that it does not contain every element
that it should, appellant was not thereby prejudiced. The criminal complaint, filed in justice
court prior to the preliminary hearing, did specify without authority of law and with malice
aforethought in addition to the aforementioned language of the charging information.
Moreover, pursuant to NRS 175.552, appellant had further notice that the State sought a
conviction of murder, including a possible death penalty, by the Notice of Allegation of
Aggravating Circumstances. Such document specifically informed appellant prior to trial that
the state intend[ed] to put on evidence of aggravating circumstances under NRS 200.033 in
the event the trial jury returns a verdict of guilty to murder in the first degree.
Appellant was sufficiently informed of the charges and the particular act alleged to have
been committed by him to enable him to defend against the accusation. Other claims of error,
most raised for the first time on appeal, are without merit and need not be addressed.
most raised for the first time on appeal, are without merit and need not be addressed.
1
concur.
____________________

1
Honorable Cameron Batjer. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 454, 454 (1981) Grondin v. State
BARRY EDWARD GRONDIN, Appellant, v. THE
No. 12463
October 16, 1981 634 P.2d 456
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
The Supreme Court held that where memorandum of points and authorities filed in district
court violated prohibition that counsel must avoid briefing against his client's position and
where argument of defense attorney at post-conviction proceeding that petition was frivolous
was instrumental in causing denial of petition and where counsel neglected to request that
evidentiary hearing be conducted on merits of petition when it was apparent that at least one
constitutional issue was posed, there was failure to provide required caliber of representation
in post-conviction proceedings.
Norman Y. Herring, State Public Defender, Michael K. Powell, Special Deputy Public
1. Criminal Law.
Where memorandum of points and authorities filed in district court violated prohibition that counsel must
avoid briefing against his client's position and where argument of defense attorney at post-conviction
proceeding that petition was frivolous was instrumental in causing denial of petition and counsel
neglected to request that evidentiary hearing be conducted on merits of petition
when it was apparent that at least one constitutional issue was posed, there was
failure to provide required caliber of representation in post-conviction proceedings.
causing denial of petition and counsel neglected to request that evidentiary hearing be conducted on merits
of petition when it was apparent that at least one constitutional issue was posed, there was failure to
provide required caliber of representation in post-conviction proceedings. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Claim that performance of his trial attorney denied defendant his Sixth Amendment right to effective
representation was, under circumstances of case, question of fact, and defendant therefore should have
evidentiary hearing, with opportunity to be present thereat, on merits of his petition. U.S.C.A.Const.
Amend. 6; NRS 177.365.
3. Criminal Law.
Where although district court denied post-conviction petition from bench on November 15, 1978, order
was not actually filed until December 12, 1980, filing of notice of appeal was timely. NRAP 4(b).
OPINION
Per Curiam:
Appellant, Barry Edward Grondin, was convicted by a jury of second degree murder on
November 26, 1976. The judgment of conviction was affirmed by this court on January 9,
1978. Grondin v. State, 94 Nev. 5, 573 P.2d 205 (1978).
Appellant filed a petition for post-conviction relief in district court on June 15, 1978,
requesting to proceed in forma pauperis and to have counsel appointed in his behalf. The
petition, which alleged that appellant received ineffective assistance of counsel at trial, was
denied and this appeal followed.
Appellant cites three grounds which he contends justify reversal: (1) the attorney
representing him at the post-conviction stage of the proceedings denied him the Sixth
Amendment right to effective assistance of counsel;
1
(2) the trial court erred by failing to
conduct an evidentiary hearing on the merits of his petition for post-conviction relief in which
he raised constitutional issues of law and fact; and (3) the attorney representing him at trial
also failed to provide him with effective assistance of counsel in violation of the Sixth
Amendment.
The case law is well-settled as to the minimum standard that is expected of lawyers in
representing criminal defendants. In the recent case of Lenz v. State, 97 Nev. 65, 624 P.2d 15
(1981), this court restated that rule:
Effective counsel does not mean errorless counsel, but rather counsel whose
assistance is within the range of competence demanded of attorneys in criminal cases.
Jackson v. Warden, 91 Nev. 430, 432
____________________

1
Appellant is represented by different counsel in this appeal.
v. Warden, 91 Nev. 430, 432, 537 P.2d 473 (1975). Nevada law presumes that counsel
fully discharge their duties, and that presumption can only be overcome by strong and
convincing proof to the contrary. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6
(1974). The standard by which a claim of counsel ineffectiveness is to be tested is
whether the performance of counsel was of such low caliber as to reduce the trial to a
sham, a farce or a pretense. Id. 97 Nev. at 66, 624 P.2d at 16.
[Headnote 1]
Upon examining the record on appeal, we conclude that counsel for appellant at the
post-conviction proceedings failed to provide the required caliber of representation. The
memorandum of points and authorities which he filed in the district court violated the
prohibition set forth in Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), that counsel must
avoid briefing against his client's position. The record also clearly indicates that the argument
of appellant's attorney at the post-conviction proceeding on November 15, 1978, that the
petition was frivolous, was instrumental in causing the district court to deny the petition.
Moreover, counsel failed to protect the rights of appellant by neglecting to request that an
evidentiary hearing be conducted on the merits of the petition, when it was apparent that at
least one constitutional issue was posed.
[Headnote 2]
Appellant asserts that the district court should have accorded him a hearing on the merits
of his petition for post-conviction relief because he raised constitutional questions of law and
fact. Appellant's claim that the performance of his trial attorney denied him of his Sixth
Amendment right to effective representation is, under the circumstances of this case, a
question of fact. We stated in Doggett v. State, 91 Nev. 768, 771, 542 P.2d 1066, 1068
(1975):
Where factual allegations are made which, if true, could establish a right to relief, a
convicted person must be allowed an evidentiary hearing on such issue, unless the
available record repels such allegations. Fine v. Warden, 90 Nev. 166, 521 P.2d 374
(1974).
Appellant, therefore, should have had an evidentiary hearing on the merits of his petition,
but because counsel at the post-conviction stage of the proceedings neglected his
responsibility, such a hearing was neither requested nor conducted.
Appellant contends here that trial counsel also provided inadequate legal assistance.
Because a hearing was not conducted on the merits of the petition, the district court did not
have sufficient information when rendering its judgment.
have sufficient information when rendering its judgment. It would, therefore, be inappropriate
for this court to address that issue before a decision has been made by the district court in
compliance with this opinion.
[Headnote 3]
Accordingly, the judgment of the district court denying appellant's petition for
post-conviction relief is reversed and remanded with instructions that an evidentiary hearing
be conducted on the merits of the petition and that, pursuant to NRS 177.365, appellant be
present at such hearing.
2

It is so ORDERED.
____________________

2
Respondent's contention that the notice of appeal was not filed timely is without merit. Although the district
court denied the petition from the bench on November 15, 1978, the order was not actually filed until December
12, 1980. In accordance with NRAP 4(b), the filing of the notice of appeal was timely.
____________
97 Nev. 457, 457 (1981) Sierra Creek Ranch v. J. I. Case
SIERRA CREEK RANCH, INC., a Nevada Corporation; F. GRAHAM HOLLISTER, Sr.;
His Wife, JANET G. HOLLISTER; and F. GRAHAM HOLLISTER, Jr.; and His Wife,
JOYCE A. HOLLISTER, Appellants, v. J. I. CASE, a Delaware Corporation Qualified to do
Business in Nevada, and INDUSTRIAL LEASING CORPORATION, an Oregon
Corporation, Respondents.
No. 11937
October 16, 1981 634 P.2d 458
Appeal from judgment. Ninth Judicial District Court, Douglas County; Michael E. Fondi,
Judge.
Suit was brought for breach of express and implied warranties allegedly made on sale of a
used wheel loader. Seller counterclaimed. From a judgment of the district court in favor of
the defendants counterclaimants, an appeal was taken. The Supreme Court held that: (1) trial
court's finding that expressed warranty covering power train, engine and transmission of
wheel loader was not breached was factual determination which would not be disturbed
where supported by substantial evidence, and (2) whether sale of used loader after its
repossession was conducted in commercially reasonable manner in compliance with statutes
was factual question which would not be disturbed on appeal if supported by substantial
evidence.
Affirmed.
Eck, Harkins & Beckett, Carson City, for Appellants.
Allison, Brunetti, MacKenzie & Taylor, Carson City, for Respondent J. I. Case.
Laxalt & Berry and Richard L. Davenport, Carson City, for Respondent Industrial Leasing
Corporation.
1. Sales.
Provision of sales contract that Seller makes no representations or warranties, express or implied
(including the implied warranties of merchantability and fitness) excluded warranties, if any, outside
contract. NRS 104.2316.
Trial court's finding that expressed warranty covering power train, engine and transmission of wheel
loader was not breached was factual determination which would not be disturbed where supported by
substantial evidence.
Whether sale of used loader after its repossession was conducted in commercially reasonable manner in
compliance with statutes was factual question which would not be disturbed on appeal if supported by
substantial evidence. NRS 104.2706, 104.9504, subd. 3.
Where no cross appeal had been taken by counterclaimant, Supreme Court would not consider
counterclaimant's contention on appeal that district court erred in refusing to award it attorney fees and
costs. NRAP 4(a), 28(h), 34(d).
OPINION
Per Curiam:
This appeal is from entry of a judgment in favor of respondents.
J. I. Case sold a W-24 used wheel loader to Sierra Creek Ranch. The retail installment
contract set forth the price and also provided that Case would warrant proper operation of the
power train, engine and transmission for 90 days, in spite of a general written disclaimer that
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS). Industrial Leasing Corporation subsequently purchased the loader and leased it
back to Sierra Creek Ranch.
The loader soon developed a leak in the hydraulic system which resulted in a malfunction.
Case made attempts to repair the hydraulic system without success. Sierra Creek refused to
make any further lease payments. On April 14, 1975, Industrial Leasing gave notice of its
repossession of the loader. Industrial Leasing held the loader in Reno, Nevada until
December, 1975, and then consigned it for $12,500 to an equipment wholesaler in
Stockton, California.
Leasing held the loader in Reno, Nevada until December, 1975, and then consigned it for
$12,500 to an equipment wholesaler in Stockton, California. After making some repairs on it,
the wholesaler resold the loader in July, 1976 for over $20,000.
Sierra Creek Ranch filed a complaint against J. I. Case and Industrial Leasing alleging
breach of express and implied warranties. Sierra Creek asked for rescission of the purchase
and the lease agreements, and claimed damages for loss of equipment and profits. Industrial
Leasing counterclaimed against Sierra Creek and the Hollisters, as guarantors, for the
difference between the amount due on the lease and the resale price, plus incidental damages.
The trial court dismissed appellants' complaint with prejudice, and awarded respondent
Industrial Leasing $14,669 on its counterclaim.
[Headnote 1]
1. Whether there was a warranty covering the claimed defect and whether it was breached
are the issues raised by appellants. The trial court correctly determined that the disclaimer
contained in the contract of sale excluded warranties, if any, outside the contract.
NRS 104.2316
1
provides that implied warranties of merchantability or fitness may be
modified or excluded by appropriate conspicuous language.
In Bill Stremmel Motors v. IDS Leasing Corp., 89 Nev. 414, 514 P.2d 654 (1973), this
court held that a disclaimer written conspicuously, in capital letters, was sufficient to preclude
the existence of any implied or express oral warranties.
[Headnote 2]
The trial court found as a matter of fact that the expressed warranty covering the power
train, engine and transmission was not breached. In General Electric Supply Co. v. Mt.
Wheeler Power, Inc., 94 Nev. 766, 767-68, 587 P.2d 1312, 1313 (1978), this court stated:
Where a trial court, sitting without a jury, makes factual determination based upon
conflicting evidence, those determinations will not be disturbed where, as here, they are
supported by substantial evidence. Havas v. Engebregson, 94 Nev. 336, 580 P.2d 122
(1978). See also Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 {1950); Orr Ditch &
Water Co. v.
____________________

1
NRS 104.2316 provides in pertinent part:
2. Subject to subsection 3, to exclude or modify the implied warranty of merchantibility or any part
of it the language must mention merchantability and in case of a writing must be conspicuous, and to
exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.
Language to exclude all implied warranties of fitness is sufficient if it states, for example, that There are
no warranties which extend beyond the description on the face hereof.
Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950); Orr Ditch & Water Co. v. Silver
State Lodge, 58 Nev. 292, 78 P.2d 95 (1938).
[Headnote 3]
2. Whether the sale of the used loader after its repossession was conducted in a
commercially reasonable manner in compliance with NRS 104.2706 and NRS 104.9504(3) is
a question of fact to be determined by the trial court. That determination will not be disturbed
on appeal if it is supported by substantial evidence. Jones v. Bank of Nevada, 91 Nev. 368,
535 P.2d 1279 (1975). The court below found that the resale of the loader was conducted in
a commercially reasonable manner. Evidence in the record supports this finding.
The entire thrust of appellants' position is a request that this court weigh the evidence and
reach a position contrary to that of the trial court. That is not the function of this court.
Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968).
[Headnote 4]
3. No cross appeal has been filed by respondent Industrial Leasing Corporation. We will
therefore not consider its contention that the district court erred in refusing to award it
attorney fees and costs. See NRAP 4(a), 28(h), and 34(d). Moresi v. Swift, 15 Nev. 215, 220
(1880); compare Leonard v. Bowler, 72 Nev. 165, 298 P.2d 475 (1956) (not required when
respondent could not have appealed). Industrial's claim for attorney fees on this appeal is
denied.
Gunderson, C. J., and Batjer, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
Honorable Noel Manoukian, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 461, 461 (1981) State Bd. Equal. v. Sierra Pac. Power
THE STATE BOARD OF EQUALIZATION and NEVADA TAX COMMISSION,
Administrative Agencies of the State of Nevada; Jack J. Hunter, Jr., Chairman, William E.
Mooney, Robbins E. Cahill, Frances F. Martin, W. Howard Winn, Ira H. Kent, Sebastian S.
Mikulich, Jerome D. Mack and Ruby Dalton, as Members of Said Board and Commission,
Appellants, v. SIERRA PACIFIC POWER COMPANY, a Nevada Corporation, Respondent.
No. 12033
October 16, 1981 634 P.2d 461
Appeal from a judgment of the district court which modified a decision of the Nevada
State Board of Equalization. First Judicial District Court, Carson City, Stanley A. Smart,
Judge.
State Board of Equalization assessed value of property of taxpayer, and taxpayer appealed
decision of Commission on ground that its failure to follow provisions of Nevada
Administrative Procedure Act invalidated assessment formulae. The district court ordered
refund, and State Board of Equalization and Tax Commission appealed. The Supreme Court,
Mowbray, J., held that: (1) devising assessment formulae was adoption of regulations and,
therefore, failure to follow notice and hearing requirements of Administrative Procedure Act
would invalidate assessment formulae amendments, and (2) order that tax receivers of
counties refund overpaid taxes did not bind counties which were not before court.
Affirmed in part; reversed in part.
Richard H. Bryan, Attorney General, Timothy Hay and Tudor Chirila, Deputy Attorneys
General, Carson City, for Appellants.
Calvin R. X. Dunlap, District Attorney, Washoe County, for Washoe County Amicus
Curiae.
Lionel Sawyer & Collins, Richard G. Campbell, Charles H. McCrea, Jr. and Mary K.
Pickering, for Respondent.
The title placed upon administrative pronouncement does not determine whether or not agency is
engaging in rule making.
A properly adopted substantive rule establishes a standard of conduct which has force of law and in
subsequent administrative proceedings involving substantive rule, issues are whether adjudicated facts
conform to rule.
Assessment formulae amendments were in fact regulations promulgated by Tax Commission and,
therefore, failure to follow notice and hearing requirements of Administrative Procedure Act
invalidated assessment formulae amendments. NRS 233B.060, 361.320, subd. 5.
The Tax Commission is free to amend its regulations; it need only follow procedures of
Administrative Procedure Act which are meant to establish minimal procedural requirements governing
regulation-making practice of state agencies. NRS 233B.060.
5. Taxation.
Judgment of lower court ordering State Board of Equalization to direct tax receivers of counties to
refund overpaid taxes did not bind counties which were not before court.
OPINION
This appeal is focused upon the method used by appellant, the State Board of Equalization,
in assessing the value of the property of respondent Sierra Pacific Power Company
(hereinafter referred to as Sierra). The district court in passing on the ruling of the Board
held in its judgment below that the Board had failed to follow the notice and hearing
requirements of the Nevada Administrative Procedure Act, and, therefore, that the Board's
ruling was invalid. We agree. The district court went further and also ordered the Board to
direct the tax receiver of eleven counties to refund to Sierra the taxes collected under the
formulae.
1
The counties have filed an amicus brief challenging that part of the lower court's
judgment, principally on the grounds that the counties were never made a party to these
proceedings. We agree and reverse that part of the judgment below.
STATEMENT OF THE FACTS
By its decision of March 4, 1975, the Nevada State Board of Equalization, upon
recommendation of the Tax Commission (both hereinafter referred to individually and
collectively as Commission), amended the formulae for assessing the taxable value of
property held by Sierra. Commission uses three different historical assessment methods to
determine the property value of Sierra: (1) the cost indicator approach; (2) the income
indicator approach; and (3) the stock-debt indicator method.
____________________

1
In its petition for judicial review in the district court of the assessment formulae, Sierra did not seek a refund
from the counties.
method. By its March 4 decision, Commission amended important characteristics of each of
the three respective approaches: (1) in calculating the book cost indicator of value,
contributions in aid of construction were no longer to be offset, but included in book value;
(2) a flow-through method of accounting was utilized rather than a normalization method;
and (3) the present worth of leased properties was to be included in calculating the stock-debt
indicator of value. These changes resulted in a $1,792,000.00 increase in the valuation of
Sierra's property; accordingly, Sierra was liable for an increased tax liability of $74,611.07.
Commission admitted the amendments were made without the adoption of written rules or
regulations, and that the notice and hearing provisions of the Administrative Procedure Act
applicable to regulation amendment, NRS 233B.060, were not followed.
In the district court Sierra appealed the decision of Commission on the ground that its
failure to follow the provisions of the Nevada Administrative Procedure Act invalidated the
regulations. The district court agreed by finding that the assessment formulae were
regulations within the meaning of the Administrative Procedure Act; therefore, in order to
amend them, Commission had to comply with the hearing and notice requirements of the
Administrative Procedure Act. On account of the failure to follow these procedures, the
district court invalidated the regulations and ordered Commission to require the counties' tax
receivers to refund the overpaid taxes; Commission appeals.
THE ADMINISTRATIVE PROCEDURE ACT
NRS 361.320 requires that the property owned by Sierra be centrally assessed by
Commission for taxation purposes. In order to carry out this duty, the legislature requires
Commission to adopt formulae providing the methods utilized to determine the full cash
value of Sierra's property. NRS 361.320(5).
2
Appellants contend that the requirements of the
Administrative Procedure Act for amending regulations do not pertain to these formulae: (1)
the terms rule or regulation are not contained in NRS 361.320(5); (2) in order to be
effective, the appraiser must be at liberty to change techniques without being subject to the
confines of the notice and hearing requirements of NRS 233B.060. We do not agree.
____________________

2
NRS 361.320(5) states:
The Nevada tax commission shall adopt formulas, and cause them to be incorporated in its records,
providing the method or methods pursued in fixing and establishing the full cash value of all franchises
and property assessed by it. The formulas shall be adopted and may
[Headnote 1]
1. For the purposes of the Administrative Procedure Act, regulation is defined in NRS
233B.038; the pertinent portion provides:
Regulation defined. Regulation means an agency rule, standard, directive or
statement of general applicability which effectuates or interprets law or policy, or
describes the organization, procedure or practice requirements of any agency. The term
includes a proposed regulation and the amendment or repeal of a prior regulation.
The title placed upon an administrative pronouncement does not determine whether or not the
agency is engaging in rule making. Cf. United Parcel Serv., Inc. v. Oregon Transp. Com'n,
555 P.2d 778 (Or.App. 1976).
[Headnote 2]
A number of courts have struggled with the concept of rule or regulation in administrative
law. A properly adopted substantive rule establishes a standard of conduct which has the
force of law. In subsequent administrative proceedings involving a substantive rule, the issues
are whether the adjudicated facts conform to the rule. Pacific Gas & Electric Co. v. Federal
Power Com'n, 506 F.2d 33, 38 (D.C.Cir. 1974). The Oregon Supreme Court, in Morgan v.
Stimson Lumber Co., 607 P.2d 150, 154 (Ore. 1980), interpreted administrative rule making
under a statute similar to ours:
Thus agency rule making may be the means prescribed by the legislature for regulating
an area of activity, setting rates, standards, requirements, or procedures. . . . An agency
makes a rule, within the broad meaning of that term, when it does nothing more than
publish its official position on how it interprets a requirement, standard, or procedure
already provided in the governing statute itself, and how it proposes to administer this
statutory provision.
Despite the contentions of appellants that devising assessment formulae is not the adoption of
regulations, the plain language of NRS 233B.040(1) leads us to conclude otherwise: To the
extent authorized by the statutes applicable to it, each agency may adopt reasonable
regulations to aid it in carrying out the functions assigned to it by law and shall adopt such
regulations as are necessary to the proper execution of those functions."
____________________
be changed from time to time upon its own motion or when made necessary by judicial decisions, but the
formulas shall in any event show all the elements of value considered by the Nevada tax commission in
arriving at and fixing the value for any class of property assessed by it.
functions assigned to it by law and shall adopt such regulations as are necessary to the proper
execution of those functions. (Emphasis added.)
[Headnote 3]
When Commission promulgated formulae for determining the value of Sierra's property, it
does so at the express direction of the legislature. NRS 361.320(5). These formulae are
utilized in subsequent assessment proceedings to determine the taxable value of Sierra's
property. These formulae represent the official position of Commission on how the property
of Sierra will be assessed, and are pronouncements of what methods of assessment will be
utilized. The formulae are in fact regulations promulgated by Commission at the express
direction of the legislature in order for Commission to carry out its duty of assessing and
taxing Sierra's property. Therefore, the failure to follow the notice and hearing requirements
of NRS 233B.060 invalidates the assessment formulae amendments promulgated by
Commission. Gibbens Co. v. Archie, 92 Nev. 234, 548 P.2d 1366 (1976).
[Headnote 4]
2. We find no merit in appellants' contention that appraisers must be at liberty to change
assessment formulae at will. Commission is free to amend its regulations; it need only follow
the provisions of NRS 233B.060 which are meant to establish minimum procedural
requirements governing the regulation-making process of state agencies. Gibbens Co. v.
Archie, supra, 235.
THE JUDGMENT AGAINST THE COUNTIES
[Headnote 5]
In its petition for review of the Commission's amended formulae, Sierra did not name the
counties as parties, although Sierra did allege that it was aggrieved by an overpayment of
taxes because of the improperly amended formulae. The lower court ordered the State Board
of Equalization to direct the tax receivers of the counties to refund the overpaid taxes to
Sierra. Because the eleven counties were not before the district court, we have determined
that this part of the lower court's judgment does not bind the counties.
In ordering the State Board of Equalization to direct the counties to refund the tax monies,
the district court judge relied on NRS 361.405.
3
He necessarily determined, without any
party raising or litigating the issue, that the changes in valuation had less than a
substantial effect on tax revenue, NRS 361.405{3)4; he then ordered the counties to
refund the overpaid taxes without allowing them any opportunity to be heard.
____________________

3
The pertinent portion of NRS 361.405 provides:
Secretary of state board of equalization to certify changes in
party raising or litigating the issue, that the changes in valuation had less than a substantial
effect on tax revenue, NRS 361.405(3)
4
; he then ordered the counties to refund the overpaid
taxes without allowing them any opportunity to be heard. This was error. Because the
counties were not before the district court, the judgment is not legally enforceable against
them. Provident Bank v. Patterson, 390 U.S. 102 (1968). We therefore reverse that part of the
lower court's order requiring the State Board of Equalization to require the counties to refund
the overpaid taxes to Sierra.
For the above reasons, we affirm that part of the lower court's order finding the
Commission's regulations to be invalid on account of its failure to follow the APA notice and
hearing requirements; and, reverse that part of the order directing the counties to refund the
amount of the overpaid taxes.
Gunderson, C. J., and Manoukian and Springer, JJ., and Zenoff, Sr. J., concur.
5

____________________
assessed valuation to county auditors, tax receivers; duties of county auditors, tax receivers.
1. The secretary of the state board of equalization forthwith shall certify any change made by the
board in the assessed valuation of any property in whole or in part to the county auditor of the county
wherein such property is assessed, and whenever the valuation of any property is raised, the secretary of
the state board of equalization shall forward by certified mail to the property owner or owners affected,
notice of such increased valuation.

4
3. As soon as changes resulting from cases having less than a substantial effect on tax revenue have
been certified to him by the secretary of state board of equalization, the county tax receiver shall adjust
the assessment roll or the tax statement or make a tax refund, as directed by the state board of
equalization.

5
Honorable Cameron Batjer, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
97 Nev. 467, 467 (1981) Sun Valley Ford v. District Court
SUN VALLEY FORD, INC., a California Corporation, Petitioner, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of
Washoe and PETER I. BREEN, DISTRICT JUDGE, Respondents, FRANCOISE S.
GUILLET, by and Through Her Guardian ad Litem, DENISE GERBICH, Real
Party in Interest.
No. 13400
October 16, 1981 634 P.2d 464
Defendant in personal injury suit petitioned for writ of mandamus to require trial court to
grant defendant's motion to quash service of process. The Supreme Court held that although
request by defendant to associate counsel did not serve any limiting or jurisdictional purpose,
neither did it request relief additional to that necessary to protect defendant from allegedly
defective service of process; therefore, denial of defendant's motion to quash service of
process, on a finding that defendant had made a general appearance in the case by filing of
motion to associate counsel, was improper.
Petition granted.
Robert R. Parker, Sparks, and John L. Winingham and Shelly Kramer, San Francisco,
California, for Petitioner.
Erickson, Thorpe, Swainston & Cobb, Ltd., and, Vargas & Bartlett, Reno, and Allison,
Brunetti, MacKenzie & Taylor, Carson City, for Respondents.
1. Appearance.
Although request by defendant in personal injury suit to associate counsel did not serve any limiting or
jurisdictional purpose, neither did it request relief additional to that necessary to protect defendant from
allegedly defective service of process; therefore, denial of defendant's motion to quash service of process,
on a finding that defendant had made a general appearance in the case by filing of motion to associate
counsel, was improper.
2. Process.
Failure by defendant in personal injury suit to reply to plaintiff's opposition to the motion to quash
service of process for lack of jurisdiction did not support denial of that motion, as such reply is
discretionary, and as the opposition was not timely filed. WDCR 11(2), (3).
OPINION
Per Curiam:
In this mandamus proceeding petitioner contends the district court should be required to
grant petitioner's motion to quash service of process.
Petitioner is one of several defendants in an action in the district court in which the
plaintiff is seeking recovery for personal injuries allegedly sustained in an automobile
accident. Petitioner, owner and lessor of the vehicle in which plaintiff was a passenger, is a
car dealership located in Concord, California. The accident occurred in Tuolumne County,
California.
On October 17, 1980, petitioner moved to quash service of process for lack of jurisdiction.
On that same day petitioner appeared specially in order to move for an order associating
petitioner's out-of-state attorneys. Opposition to the motion to quash was not filed and,
pursuant to Rule 11(3) of the Second Judicial District Rules of Practice, petitioner's request
for submission of the motion was filed December 11, 1980. On December 23, 1980,
petitioner was served with plaintiff's opposition to the motion to quash. On February 5, 1981,
the district court denied petitioner's motion to quash service of process on a finding that
petitioner had made a general appearance in the case by filing its motions to associate
counsel. Another reason for the denial was the fact that no rebuttal to plaintiff's opposition to
the motion to quash was filed by petitioner. Petitioner moved for reconsideration of the order
denying the motion to quash. Reconsideration was denied on June 2, 1981. This petition
followed and a stay of all proceedings pending below was issued by this court on June 11,
1981.
[Headnote 1]
This court has considered the issue of general and special appearances a number of times,
but never in the context of a motion to associate counsel. We have held that when a defendant
seeks relief additional to that necessary to protect him from service of process, he enters a
general appearance. Davis v. District Court, 97 Nev. 332, 629 P.2d 1209 (1981); Deros v.
Stern, 87 Nev. 148, 483 P.2d 648 (1971); Barnato v. Dist. Court, 76 Nev. 335, 353 P.2d 1103
(1960). In each of those cases, the party sought substantial relief such as dismissal of the
complaint, denial of a motion to amend a complaint, or attorney fees. In the instant situation,
although petitioner's request to associate counsel did not serve any limiting or jurisdictional
purpose, neither did it request relief additional to that necessary to protect petitioner from
allegedly defective service of process. It is fundamentally unfair to construe such a request as
a general appearance, and the district court's ruling was erroneous.
[Headnote 2]
We are also unpersuaded that petitioner's failure to reply to the plaintiff's opposition to
the motion to quash supports the district court's denial of the motion.
the plaintiff's opposition to the motion to quash supports the district court's denial of the
motion. The record before this court does not show on what date plaintiff's opposition to the
motion to quash service of process was filed. We are aware, however, that such opposition
was not served on petitioner until December 23, 1980, or some two months after the motion
to quash was made, and some 11 days after petitioner had requested submission of the
motion. Rule 11(2) of the Second Judicial District Rules of Practice provides that parties
opposing motions shall file and serve answering points and authorities within 10 days after
service of a motion. Subsection three (3) of the rule provides that the moving party may then
file reply points and authorities and, at the expiration of that time period, either party may
move for submission of the motion. We note not only that a reply to opposition is
discretionary, but also that such opposition was not, apparently, timely filed. Under these
circumstances, we cannot countenance utilization of petitioner's failure to reply as support for
the denial of the motion to quash.
Having determined that the district court erred in refusing to grant the motion to quash
service on the grounds stated, we order issuance of a writ of mandamus compelling the
district court to vacate its order denying the motion to quash and to dispose of the motion on
the merits.
____________
97 Nev. 469, 469 (1981) Majority of Residents v. City of Sparks
MAJORITY OF THE RESIDENTS OF MONGOLO SUBDIVISION OF WASHOE
COUNTY, NEVADA, Appellants, v. CITY OF SPARKS, NEVADA, Respondent.
No. 12953
October 16, 1981 634 P.2d 466
Appeal from an order of the district court dissolving its Order Temporarily Staying
Annexation, and permitting the City of Sparks to proceed with its annexation of the
Mongolo Subdivision. Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
The district court granted temporary stay and, subsequently, acting upon City's petition, set
it aside, and subdivision residents appealed. The Supreme Court held that where property was
surrounded by City and where actual use of land was residential, land could be annexed.
Affirmed.
Johnson, Belaustegui, Robison & Adams, Reno, for Appellants.
Steven P. Elliott, City Attorney, City of Sparks, for Respondent.
1. Municipal Corporations.
Where property sought to be annexed by City was surrounded by City and where actual use was
residential, fact that it was zoned agricultural did not preclude annexation. NRS 268.660, subd. 2.
Under statute permitting annexation of territory surrounded by City which is subdivided for residential,
commercial or industrial purposes, it is actual use of land, and not possible uses permitted by zoning
ordinance which controls court's determination of purpose for which land is subdivided. NRS 268.660,
subd. 2.
OPINION
Per Curiam:
The respondent, City of Sparks, annexed the Mongolo Subdivision which is completely
surrounded by the City. A majority of the residents, both in number and assessed valuation,
obtained in the district court an order temporarily staying the City's annexation proceedings,
which the court, acting upon the City's petition, later set aside. The residents have appealed
that decision.
NRS 268.660(2) sets forth the statutory standards for the annexation of territory by a City
where, as here, the property owners protest:
2. Annexation of territory to a city may be approved over any protest if:
(a) The territory proposed to be annexed is entirely surrounded by such city and;
(1) Does not exceed 40 acres in area; or
(2) Is subdivided for residential, commercial or industrial purposes. . . .
The Mongolo Subdivision consists of 42.497 acres of land and it is divided into thirty-one
lots of not less than one acre in size.
[Headnote 1]
Since the Subdivision exceeds 40 acres, the only issue presented is whether the
Subdivision is subdivided for residential, commercial or industrial purposes. While the
parties have stipulated that the Subdivision is completely surrounded by the City, appellants
argue that the City may not annex the Subdivision because it is zoned A-1 First Agricultural
under the Washoe County Zoning Ordinance.
Washoe County Zoning Ordinance. However, the A-1 designation permits a variety of uses,
including single family dwellings.
1

There is nothing in the record to indicate any agricultural use of the property. The district
judge found, and the record supports the finding, that the area in question has become a
residential community with no dispute that single family residences occupy the thirty-one
lots. Appellants do not dispute this finding. They argue, however, that the property's
agricultural character is fixed as a matter of law by its zoning classification. Respondent
contends that the zoning classification is not conclusive, and that the actual use made of the
land controls the purposes for which it is subdivided.
[Headnote 2]
Appellants have cited us no authority in support of their position. The only decision which
has considered the relationship between a parcel's zoning and its character for purposes of
annexation has looked to the actual use of the land, and not its zoning classification.
Thompson v. City of Salisbury, 211 S.E.2d 856 (N.C.App. 1975) (golf course is a
commercial development although located on land zoned residential). Other jurisdictions, in
construing a variety of state annexation statutes, have looked to the actual character of the
land in determining the validity of an annexation. See, e.g., Louallen v. Miller, 317 S.W.2d
710 (Ark. 1958); Webber v. City of Scottsbluff, 188 N.W.2d 814 (Neb. 1971). It is the actual
use of the land, and not the possible uses permitted by the zoning ordinance, that controls the
court's determination of the purpose for which the land is subdivided. Thompson, supra. The
fact that the word agriculture appears in the caption of the zoning classification is not
controlling.
Because the rule of law applied by the district judge was correct, and because Appellants
do not challenge the court's factual finding that the actual use of the land is residential, we
affirm the order of the district court.
2
concur.
____________________

1
The relevant provisions of the zoning ordinance are:
ARTICLE 6 A-1 First Agricultural
A. Uses permitted on a lot or parcel of land having he required area and required width:
1. Single family dwellings of a permanent nature, and accessory buildings and uses thereto. . . .

2
____________
97 Nev. 472, 472 (1981) Shields v. State
KAY L. SHIELDS, Appellant, v. THE
No. 12942
October 16, 1981 634 P.2d 468
Appeal from judgment of conviction and sentence and from denial of a motion for
resentencing, Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was convicted in the district court of selling a controlled substance and was
sentenced to ten years imprisonment. Defendant appealed. The Supreme Court held that the
trial court's failure to provide defense counsel with police reports contained in a presentence
report violated the presentence report statute and deprived defendant of due process.
Houston, Moran & Kennedy, Las Vegas, for Appellant.
1. Constitutional Law; Criminal Law.
Trial court's failure to provide defense counsel with police reports contained in presentence report
violated presentence report statute and deprived defendant of due process, especially where sentencing
decision manifestly was affected by the missing information. NRS 176.156; U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Persons convicted of crime should have opportunity to make informed comments on, and response to, all
factual assertions contained in presentence investigation report. NRS 176.156.
OPINION
Per Curiam:
Appellant pleaded guilty to a charge of selling a controlled substance in return for
dismissal of a charge of conspiracy to sell a controlled substance. Notwithstanding
recommendations of probation both by the Department of Parole and Probation, and by the
Clark County District Attorney's office, the district court sentenced the appellant to ten years
imprisonment on the sale conviction. Appellant appeals from this sentence and from the
denial of his motion for a resentencing.
Prior to sentencing appellant, the court reviewed the Department of Parole and Probation's
presentence report, which included reports from the Las Vegas Metropolitan Police
Department.
97 Nev. 472, 473 (1981) Shields v. State
Department. Although these police reports concerned investigations into incidents involving
appellant, i.e. the alleged sale of a controlled substance and the conspiracy to sell a controlled
substance, the district court did not include them in the materials it gave to appellant's
attorney prior to the sentencing.
1

[Headnote 1]
Appellant contends the court's failure to provide his counsel with the entire presentence
report, i.e. specifically the police officers' reports, violated NRS 176.156 and deprived him of
due process of law. We agree. Accordingly, we reverse the sentence imposed and remand this
matter to the district court for resentencing.
NRS 176.156 declares that, [t]he court shall disclose to . . . counsel for the defendant and
to the defendant, the factual content of the report of the presentence investigation and the
recommendations of the probation service and afford an opportunity to each party to
comment thereon. (Emphasis added.) The language of NRS 176.156 is mandatory. The
police reports were part of the factual content of the report of the presentence investigation,
and appellant's attorney had no opportunity to comment on the assertions they contained
because he did not know before the sentencing hearing that the judge would consider them.
Moreover, the district Judge's sentencing decision manifestly was affected by information
contained in the reports. In imposing a ten-year sentence upon appellant, the judge revealed
both his examination of the reports, and their impact on his decision, asserting: I have gone
through the police reports in this matter, and to be quite frank about it, I am just surprised and
shocked at the recommendation . . . Thus, lack of notice to the appellant must be deemed
prejudicial.
[Headnote 2]
NRS 176.156 contemplates that persons convicted of crimes should have the opportunity
to make informed comments on, and response to, all factual assertions contained in
presentence investigation reports. Accordingly, we reverse his sentence and remand this
matter for a resentencing hearing conducted in accord with NRS 176.156. Appellant shall be
released from custody pending resentencing and any appeal in the above matter, upon the
posting of a bond in the sum of $20,000.
The additional issue raised by appellant need not be addressed.
____________________

1
Although the record on appeal is unclear on this point, respondent has conceded in its answering brief that
the court did not provide appellant with copies of the officers' reports.
____________
97 Nev. 474, 474 (1981) Carson Ready Mix v. First Nat'l Bk.
CARSON READY MIX, INC., Appellant, v. FIRST NATIONAL BANK OF NEVADA, a
Nevada Corporation, and NICK HOLT, Respondents.
No. 10899
October 22, 1981 635 P.2d 276
Appeal from judgment upon a jury verdict. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Plaintiff appealed from decision of the district court after judgment was entered, pursuant
to jury verdict, in favor of defendants. The Supreme Court held that appellant failed to
preserve for appeal its claims of error regarding trial court's failure to give several of its
proposed instructions where plaintiff's alleged raising of specific objections and citing
relevant authority on instructions to trial court during conference in judge's chambers was not
included in record on appeal, when court was convened for purpose of settling instructions on
the record, plaintiff's counsel did not state grounds for voiced objections and copies of
proposed instructions of plaintiff in record on appeal did not contain citations to relevant
authority, despite the fact that plaintiff submitted affidavit by trial counsel describing
conference in judge's chambers.
Affirmed.
Sheerin, O'Reilly & Walsh, Carson City, for Appellant.
Lionel Sawyer & Collins, and Richard Horton and Charles H. McCrea, Jr., Reno, for
Respondent First National Bank of Nevada.
Kenneth J. Jordan, Carson City, for Respondent Nick Holt.
Appellant failed to preserve for appeal its claims of error regarding trial court's failure to give several of
its proposed instructions where appellant's alleged raising of specific objections and citing relevant
authority to trial court during conference on instructions in judge's chambers was not included in record on
appeal, when court was convened for purpose of settling instructions on the record, appellant's counsel did
not state grounds for objections to instructions, and copies of proposed instructions of appellant in record
on appeal did not contain citations to relevant authority, despite the fact that appellant submitted affidavit
by trial counsel describing conference in judge's chambers. NRCP 51.
Supreme Court cannot consider matters not properly appearing in the record on appeal.
It is the responsibility of appellant to make an adequate appellate record. NRCP 51; NRAP 10(c).
OPINION
Per Curiam:
Carson Ready Mix, Inc., and its wholly owned subsidiary, Carson Masonry Supply,
brought suit against First National Bank of Nevada (FNB) and Nick Holt, the former manager
of Carson Masonry Supply, seeking to collect certain funds deposited at FNB's Capital Plaza
branch in Carson City. The jury rendered a verdict for defendants, and Carson Ready Mix
appeals from the judgment entered upon that verdict.
Appellant contends that the district court erred by failing to give several of its proposed
instructions. Respondents assert that appellant failed to preserve for appeal its claims of error
as required by NRCP 51.
1

[Headnote 1]
Appellant asserts that trial counsel did comply with Rule 51 by raising specific objections
and citing relevant authority to the court below during a conference in the judge's chambers.
Unfortunately, neither the objections nor the citations are included in the record on appeal.
When the judge convened court for the purpose of settling the instructions on the record,
appellant's counsel did indicate that he objected to the judge's refusal to give certain specific
instructions, but did not state the grounds of his objections. In response to a motion to dismiss
this appeal, appellant submitted an affidavit by trial counsel describing the conference in the
judge's chambers. Counsel for appellant also submitted copies of proposed instructions which
did include citations to relevant authority. The proposed instructions contained in the record
on appeal do not, however, contain such citations.
Our holdings with regard to the application of NRCP 51 make clear the importance of the
record made by counsel in lodging objections. As we noted in Otterbeck v. Lamb, 85 Nev.
456, 460-61, 456 P.2d 855, 858-859 (1969):
If no objection to an instruction is made, there is no compliance with Rule 51 and the
error is not preserved for appellate consideration.
____________________

1
NRCP 51 provides, in pertinent part:
No party may assign as error the giving or the failure to give an instruction unless he objects thereto
before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the
grounds of his objection. . . .
appellate consideration. Wagon Wheel v. Mavrogan, [78 Nev. 126, 369 P.2d 688
(1962)]; Hotel Riviera v. Short, [80 Nev. 505, 396 P.2d 855 (1964)]; Shoshone
Coca-Cola Bottling Co. v. Dolinski, [82 Nev. 439, 420 P.2d 855 (1966)]. If an
objection is so general that it does not state any ground, review will be denied. Lathrop
v. Smith, [71 Nev. 274, 288 P.2d 212 (1955)]. If it is merely contended that an
instruction is proper and should be given, review is precluded unless there is plain
error. Downing v. Marlia, [82 Nev. 294, 417 P.2d 150 (1966)] . . . .
We have therefore held that when the record does not contain the objections or exceptions to
instructions given or refused, we would not consider appellant's claim of error with regard to
those instructions. Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235 (1976); Shoshone
Coca-Cola v. Dolinski, supra.
[Headnote 2]
The attempt by appellant's counsel to supply the missing predicate for appellate review by
affidavit and by a document not appearing in the record is of no avail. We cannot consider
matters not properly appearing in the record on appeal. As this court stated long ago in
Alderson v. Gilmore, 13 Nev. 84, 85 (1878), We have no power to look outside of the record
of a case. We have consistently recognized this limitation. E.g., Lewis v. State, 93 Nev. 638,
572 P.2d 211 (1977); Johnstone v. State, 93 Nev. 427, 566 P.2d 1130 (1977); Coffman v.
State, 93 Nev. 32, 559 P.2d 828 (1977); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701
(1970); A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Campbell v. Baskin, 68 Nev.
469, 235 P.2d 729 (1951). See State of Nevada v. Washoe Co., 7 Nev. 83, 90-91 (1871).
[Headnote 3]
It is the responsibility of appellant to make an adequate appellate record. Greene v. State,
96 Nev. 555, 612 P.2d 686 (1980). The Nevada Rules of Appellate Procedure delineate the
proper procedures to be followed for the designation of the record on appeal. Rule 10(c)
2
makes explicit provision for the procedure to be followed when no report of proceedings
has been made.
____________________

2
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.
the procedure to be followed when no report of proceedings has been made. We have earlier
had occasion to note, with regard to a similar failure to follow procedural rules for the
correction of an appellate record: If a wrong has been committed the law intends that the
party injured shall have a remedy; but where it provides the manner in which relief shall be
given, the path pointed out should be followed.' Johnson v. State, 82 Nev. 338, 340, 418
P.2d 495, 496 (1966), quoting State v. Collyer, 17 Nev. 275, 279, 30 P. 891, 892 (1883). See
also State v. Hill, 32 Nev. 185, 105 P. 1025 (1909).
Furthermore, the difficulty here is not merely in the failure of the record on appeal to
conform to the rules in some technical respect. In essence, the problem lies in the failure of
the record made in the court below to reflect fully and accurately what occurred. That defect
cannot be corrected here. This court has no power to alter or amend the record of the lower
court. State v. Hunter, 48 Nev. 358, 362, 232 P. 778, 779 (1925). See Dearden v. Galli, 70
Nev. 410, 269 P.2d 1014 (1954).
Finally, we note that the source of the problem lies in the practice of holding conferences
regarding instructions in judges' chambers and off the record. In view of the need for
precision in establishing compliance with NRCP 51 as a prerequisite for appellate review,
conferences regarding instructions should be on the record.
Since the record properly before us establishes no error which has been preserved for
appellate review, the judgment must be affirmed.
Gunderson, C. J., and Manoukian, Batjer, and Mowbray, JJ., and Christensen D. J.
3
,
concur.
____________________

3
The Governor designated the Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, to
____________
97 Nev. 477, 477 (1981) Harvey v. State
CLARENCE A. HARVEY and BERNICE DEE BECKUM, Appellants,
No. 11473
October 22, 1981 634 P.2d 1199
Appeal from judgment of conviction upon jury verdict, Fifth Judicial District Court,
Esmeralda County; William P. Beko, Judge.
Defendants were convicted in the district court of robbery and of use of deadly weapon in
commission of crime, and they appealed.
appealed. The Supreme Court held that facts and circumstances present in criminal case were
such that trial court knew or reasonably should have known that conflict of interest existed in
counsel's representation of defendants, and failure to inquire of counsel or of defendants in
face of such representation resulted in denial of effective assistance of counsel.
Norman Y. Herring, State Public Defender, J. Gregory Damm, Deputy Public Defender,
Carson City, for Appellants.
Richard H. Bryan, Attorney General, Carson City; Andrew D. Demetras, District Attorney,
Esmeralda County, for Respondent.
1. Criminal Law.
Representation of multiple defendants by single attorney is fraught with risks of conflict and should be
approached with caution by parties, counsel and trial court.
2. Criminal Law.
Facts and circumstances present in criminal case were such that trial court knew or reasonably should
have known that conflict of interest existed in counsel's representation of defendants, and failure to inquire
of counsel or of defendants in face of such representation resulted in denial of effective assistance of
counsel.
OPINION
Per Curiam:
On October 24, 1978, appellants were convicted by a jury of robbery and the use of a
deadly weapon in the commission of a crime, NRS 200.380, 193.165. Both appellants were
represented by one appointed counsel throughout the proceedings. No inquiry was made by
the court as to the possibility of conflict of interest in the multiple representation by one
counsel. Appellants contend that such multiple representation denied them effective
assistance of counsel. We agree.
[Headnote 1]
Representation of multiple defendants by a single attorney is fraught with the risks of
conflict, and should be approached with caution by the parties, counsel and the trial court.
Harvey v. State, 96 Nev. 850, 619 P.2d 1214 (1980). An inquiry by the trial court as to
possible conflict of interests would have been mandated if this case had been tried subsequent
to Harvey.
[Headnote 2]
Whether Harvey should be applied retroactively is an issue we need not decide since we
determine that the facts and circumstances present in this case were such that the trial
court knew or reasonably should have known that a conflict existed.
we need not decide since we determine that the facts and circumstances present in this case
were such that the trial court knew or reasonably should have known that a conflict existed.
Cuyler v. Sullivan, 446 U.S. 335 (1980). The facts presented at the preliminary hearing and at
the arraignment before the district court indicated that a difference in the degree of
involvement existed as to the two defendants.
Other factors were considered in our determination. Only appellant Beckum was placed on
the witness stand. Although she did not directly implicate her codefendant, she did testify to
gambling by appellant Harvey prior to the time of the robbery and she identified the gun
introduced by the state despite the defense motion to suppress the gun. Additionally, the
combination of the differing amount of involvement of the defendants in the crime charged
and the difference in the criminal records of the two, as revealed by the presentence reports,
contribute to the possibilities of conflict of interest and the possibility that defense counsel
was precluded from entering into plea negotiations or from arguing at sentencing the relative
culpability of appellants. See Holloway v. Arkansas, 435 U.S. 475, 490 (1978).
The failure of the trial court to inquire of counsel or appellants in the face of multiple
representation by a single attorney resulted here in a denial of effective assistance of counsel
and a new trial is required free from the effect of joint representation.
Inasmuch as the case is remanded for a new trial, the other errors alleged by appellants
need not be reached at this time.
____________
97 Nev. 479, 479 (1981) Sierra Pac. v. Public Serv. Comm'n
SIERRA PACIFIC POWER COMPANY, a Nevada Corporation, Appellant, v. THE PUBLIC
SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of Nevada,
and HEBER P. HARDY, EVO A. GRANATA and JANET S. MACDONALD,
Commissioners, Respondents.
No. 11189
October 22, 1981 634 P.2d 1200
Appeal from judgment affirming Public Service Commission order. First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Electric company appealed from affirmation by the district court of an order entered by the
Public Service Commission which disapproved of electric company's accounting procedure
regarding its sales of electricity to other utilities. The Supreme Court, Springer, J., held
that: {1) the Commission's order did not amend language of its previous general order in
violation of the Nevada Administrative Procedure Act, and thus electric company's due
process rights of notice and opportunity to be heard were not denied, and {2) order of the
Commission was supported by ample evidence and did not constitute an abuse of
discretion.
which disapproved of electric company's accounting procedure regarding its sales of
electricity to other utilities. The Supreme Court, Springer, J., held that: (1) the Commission's
order did not amend language of its previous general order in violation of the Nevada
Administrative Procedure Act, and thus electric company's due process rights of notice and
opportunity to be heard were not denied, and (2) order of the Commission was supported by
ample evidence and did not constitute an abuse of discretion.
Affirmed.
John Madariaga and Susan L. Oldham, Reno, for Appellant.
Richard H. Bryan, Attorney General, and George Keele, Deputy Attorney General, Carson
City, for Respondents.
Order of the Public Service Commission on a rate application disapproving of certain of electric
company's accounting methods in selling electricity to other utilities did not amend language of a previous
general order issued by the Commission in violation of the Nevada Administrative Procedure Act, and thus
electric company's due process rights of notice and opportunity to be heard were not violated. NRS
233B.010 et seq.; U.S.C.A.Const. Amend. 14.
2. Electricity.
Order of the Public Service Commission disapproving of certain accounting procedures of electric
company regarding its sales of electricity to other utilities was supported by ample evidence and did not
constitute an abuse of discretion. NRS 704.110, subd. 5, 704.185.
OPINION
This is an appeal from the district court's affirmation of an order entered by the Public
Service Commission (PSC) in rate application No. 1289.
Sierra Pacific Power Company (Sierra Pacific) filed a rate increase application with the
PSC on September 26, 1977, in which they requested $2,802,310. The application requested
permission to raise electric rates due to increased fuel costs. The PSC held a public hearing
on the application and on November 29, 1977, issued its Opinion and Order granting
$1,158,410 of the $2,802,310 increase requested by Sierra Pacific.
Sierra Pacific filed a complaint in the district court, as provided for in NRS 704.540. This
complaint alleged that the PSC had erred in granting only a portion of the amount
requested in the application.
had erred in granting only a portion of the amount requested in the application. Sierra Pacific
alleged that the PSC exceeded its statutory authority in its interpretation of accounting
procedures and that the record before the PSC did not support the PSC's accounting treatment
of certain energy sales.
We believe that both the PSC and the district court were correct and therefore affirm the
judgment of the district court.
NRS 704.110(5) and NRS 704.185 permit public utilities to use a deferred energy
accounting procedure to account for and recover increased costs incurred in the purchase of
fuel or of power. The PSC promulgated General Order 21 to provide a mechanism whereby
utilities could elect to use the deferred energy accounting procedure pursuant to these NRS
provisions. By electing to follow accounting methods established by the PSC, a utility is
enabled to recover these increased costs without having to go through the ordinary and
relatively cumbersome rate increase process. Sierra Pacific used such deferred accounting to
reflect changes in costs of fuels and purchased power, and filed with the PSC this rate
application to recover incurred costs.
The controversy involves Sierra Pacific's sale of surplus power as economy energy and
interchange energy to Pacific Gas and Electric Company (P.G. & E.) and Utah Power &
Light Company (U.P. & L.) and the accounting method used to reflect the amounts received
therefrom.
In this case, Sierra Pacific credited the amounts they received from P.G. & E. and U.P. &
L. to Account 447, which is for sales for resale, instead of Account 555, which is for
purchased power. The significance of this accounting treatment is that when the receipts
from the sales are credited to Account 555, the ratepayer's liability for the increased fuel costs
is immediately reduced by the amount of the sales. By crediting the receipts to Account 447,
as Sierra Pacific contends they should be, the ratepayers bear the total increase in fuel costs,
despite the fact that some of the energy produced from the fuel has been sold to other utilities.
The PSC, in reviewing these accounting practices, concluded that their approval of Sierra
Pacific's procedure would be tantamount to approving an increase in Sierra Pacific's earnings
without the benefit of a general rate increase application filed pursuant to NRS 704.100 and
704.110, contrary to General Order 21.
[Headnote 1]
The PSC's order (Docket No. 1289) required that, among other things, all future gross
receipts from economy energy sales be credited by Sierra Pacific to Account 555.
sales be credited by Sierra Pacific to Account 555. Here, as in the district court, Sierra Pacific
argues that the order amended the language of the PSC's previous general order, in violation
of the Nevada Administrative Procedure Act (APA), NRS 233B, which allegedly resulted in a
denial of their due process rights of notice and opportunity to be heard. This argument is
without merit.
The PSC's order is harmonious with the purpose behind deferred energy accounting and
results in an immediate lowering of utility rates. The opinion accompanying the order states:
Turning now to Account 555 we are of the opinion that the plain language of this
account together with Section 2.42 of General Order No. 21 clearly contemplates and
indeed requires the recording of net settlements associated with interchange energy
transactions. We interpret net settlements in this respect to be the result of netting the
gross receipts between Applicant and [other power companies with whom Sierra
Pacific has interconnection agreements.]
The PSC's opinion decided what amount of certain energy sales should be credited to
Account 555
1
, and did not promulgate new regulations in violation of the APA.
[Headnote 2]
Contrary to Sierra Pacific's further argument, the order of the PSC was supported by ample
evidence which was introduced at the hearing. The function of this court in this instance is the
same as that of the district court. We have reviewed the evidence presented to the
administrative body and determined that their actions were neither arbitrary nor capricious.
There was no abuse of discretion. Southwest Gas v. Pub. Serv. Comm'n, 86 Nev. 662, 474
P.2d 379 (1979); No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967).
Gunderson, C. J., and Zenoff, Sr. J.,
2
and Mowbray, J., concur.
____________________

1
A. This account shall include the cost at point of receipt by the utility of electricity purchased for resale. It
shall include, also, net settlements for exchange of electricity or power, such as economy energy, off-peak
energy for on-peak energy, spinning reserve capacity, etc. In addition, the account shall include the net
settlements of transactions under pooling or interconnection agreements wherein there is a balancing of debits
and credits for energy, capacity, etc. Distinct purchases and sales shall not be recorded merely because debit and
credit amounts are combined in the voucher settlement.

2
Honorable Cameron Batjer, who was disqualified. Nev. Const. art. 6, 19; SCR 10.
Although I reach the same result as the majority opinion, I believe that it fails to go far
enough in addressing the questions posed in this appeal. The background of NRS 704.110(5)
and NRS 704.185 and the deferred accounting procedure is satisfactorily set forth in the
majority opinion. My basic concern stems from the majority's failure to address definitions of
technical terms and its failure to fully discuss the substantial evidence question.
Sierra Pacific Power (Sierra) elected to use the deferred accounting procedure, and after
one year, filed an application for increased electrical rates to produce revenues of $2,802,310.
A public hearing on this application was held before the Public Service Commission (PSC).
In its order and opinion the PSC granted $1,158,410 of the requested increase determining
that sales of surplus power (economy energy
1
) and interchange energy
2
to Pacific Gas and
Electric Company (PG & E) and Utah Power and Light Company (UP & L) should have been
credited to Account 555
3
rather than Account 447.
4
The significance of this accounting
treatment is that by crediting the income of the sales to Account 555, the ratepayers'
liability for increased fuel costs is decreased by the gross amount of the off-system sales.
____________________

1
Economy energy is defined as, Energy produced and supplied from a more economical source in one
system, substituted for that being produced or capable of being produced by a less economical source in another
system. Glossary of Electric Utility Terms, Edison Electric Institute (N.Y., N.Y.) p. 32.

2
Interchange energy is defined as Kilowatt hours delivered to or received by one electric utility system from
another. They may be returned in kind at a later time or may be accumulated as energy balances until the end of
a stated period. Settlement may be by payment or on a pooling basis. Glossary of Electric Utility Terms, p. 33.

3
The parameters of what shall be included in Account 555 are enunciated in the Federal Energy Regulatory
Commission Uniform System of Accounts, 18 CFR 101:
555 Purchased power.
A. This account shall include the cost at point of receipt by the utility of electricity purchased for
resale. It shall include, also, net settlements for exchange of electricity or power, such as economy
energy, off-peak energy for on-peak energy, spinning reserve capacity, etc. In addition, the account shall
include the net settlements for transactions under pooling or interconnection agreement wherein there is a
balancing of debits and credits for energy capacity, etc. Distinct purchases and sales shall not be recorded
as exchanges and net amounts only recorded merely because debit and credit amounts are combined in
the voucher settlement.

4
That which is to be included in Account 447 is similarly outlined in 18 CFR 101, 447 Sales for resale. A.
This account shall include the net billing for electricity supplied to other electric utilities or to public authorities
for resale purposes.
The significance of this accounting treatment is that by crediting the income of the sales to
Account 555, the ratepayers' liability for increased fuel costs is decreased by the gross amount
of the off-system sales. By crediting the sales to Account 447, as Sierra asserts is proper, the
profits are not reflected in the rate structure, but flow instead to Sierra's stockholders.
Sierra appeals the district court's affirmation of the PSC's opinion and order allowing only
the 1.1 million rate increase. I agree with the majority that the PSC did not promulgate new
regulations in violation of the Administrative Procedure Act (NRS 233B). Clearly, an
agency charged with the duty of administering an act is impliedly clothed with power to
construe it as a necessary precedent to administrative action. Matter of George, 579 P.2d
354, 358 (Wash. 1978). Analogously, NRS 288.110 charges the board with that
responsibility and great deference should be given to the agency's interpretation when it is
within the language of the statute. Clark County School District v. Local Gov't, 90 Nev. 442,
446, 530 P.2d 117 (1974). See also, City of Los Angeles v. Public Utilities Commission, 542
P.2d 1371, 1383 (Cal. 1975). Unless the interpretation is plainly erroneous or inconsistent
with the regulation, deference will generally be given to an administrative agency's
interpretation of regulations it has drafted. McCulloch Gas Processing Corp. v. Black Hills
Oil Marketers, Inc., 462 F.Supp. 834 (D.C.Wyo. 1978); Jordan v. Arnold, 472 F.Supp. 265
(M.D.Penn. 1979).
Here, the PSC's opinion merely decided what amounts, if any, of certain energy sales
should be credited to Account 555. It was not, as Sierra asserts, the promulgation of new
regulations in violation of NRS 233B. The Commission clearly acted within its authority.
Contrary to Sierra's position, the PSC did not determine that the sales were exchanges of
energy under Account 555, but rather that the plain language of this account [555] together
with Section 2.42 of General Order 21 clearly contemplates and indeed requires the recording
of the net settlements associated with interchange energy transactions. (Emphasis added.) In
its opinion, the PSC did note that Account 555 provides that the net settlements for the
exchange of electricity shall be recorded in that account . . . [and] that distinct purchases and
sales shall not be recorded as exchanges, however,
[this] does not mean that distinct sales shall not be recorded in Account 555 but merely
that the account shall not contain an entry reflecting only the net amount of purchases
and sales as in the case of exchange power, such that the gross amount of the
purchases should be debited to Account 555 and the gross amount of sales should
be credited to Account 555 without any netting.
that the gross amount of the purchases should be debited to Account 555 and the gross
amount of sales should be credited to Account 555 without any netting.
This determination is supported by the record.
Mr. McElwee, Sierra's rate manager, testified that in a reverse situation (i.e., Sierra
purchasing power from UP & L or PG & E), the entire expense would be booked in Account
555. In addition, all sales were made pursuant to Sierra's interconnection agreements with
both PG & E and UP & L, there exists a mutual assistance agreement to sell energy
between Sierra and UP & L, and purchases of power by Sierra from UP & L and PG & E are
common.
Although Sierra's ratepayers do receive some net benefit from the sales because the
increased generation slightly decreases kilowatt per hour production cost, the benefits under
Sierra's proposed accounting adjusted the benefits of the sales to accrue to [Sierra's]
stockholders, through increased dividends. These economy energy sales are nontariff or off
system sales. As indicated in the testimony of Dennis Polosky, chief rate engineer of the
PSC, even irrespective of deferred energy accounting, the benefits of such transactions
should be apportioned to Nevada ratepayers. . . . Nevada ratepayers are in fact called upon to
bear the costs of generation stations as well as transmission . . . lines, they should
correspondingly be the recipients of their share of the benefits gained by the Company's
[Sierra's] use of those facilities. See Re Public Service Co. of Oklahoma, 19 PUR 4th 190,
199 (1977) ( availability--not assured' sales constitute a sale of a firm customers' reserves . .
. [i]t is only fair that the firm customers bearing the cost of the reserves receive the benefit of
Off-system sales). Clearly, there is substantial evidence to support the inclusion of the sales in
Account 555. Southwest Gas v. Pub. Serv. Comm'n, 86 Nev. 662, 474 P.2d 379 (1979).
There is also substantial evidence to support that portion of the PSC's decision which
designates that all future receipts from economy energy sales be credited to Account 555. The
continuing interchange agreements between Sierra, UP & L and PG & E indicate that the
sales would be identical to those in the instant case, in which we have found substantial
evidence to support the PSC's determination relative to the inclusion of present sales in
Account 555. I deem this language in the opinion merely interpretive insofar as future sales
are concerned.
I find appellant's remaining contentions to be without merit and would also affirm the
decision of the trial court.
____________
97 Nev. 486, 486 (1981) Varner v. State
DUANE MILTON VARNER, Jr., and LINDA LOU VARNER,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 11591
October 22, 1981 634 P.2d 1205
Appeal from judgments of conviction, Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
Defendants were convicted before the district court of slot machine cheating, and they
appealed. The Supreme Court held that error committed by trial court in responding to jury's
question without notifying parties or submitting requested information in presence of
representative from both prosecution and each defendant was harmless where answer
provided was correct.
Affirmed.
[Reporter's note: Opinion in Varner v. State, No. 11591, filed June 24, 1981, 97
Nev.Adv.Op. 108 (630 P.2d 750), was recalled August 14, 1981]
William N. Dunseath, Public Defender, Jane G. McKenna, Deputy Public Defender,
Washoe County, for Appellants.
Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial judge in prosecution for slot machine cheating erred by responding to jury's questioning regarding
relevance of Miranda warnings to defendant's statement without either notifying parties or submitting
requested information in presence of representative from both prosecution and each defendant, but such
error was harmless where answer which court provided, that advisement was irrelevant as to whether
statement was voluntary, was correct. NRS 175.451.
2. Criminal Law.
If information of point of law arising in cause is given to jury after they retire for deliberation, mandatory
word shall applies to presence of counsel. NRS 175.451.
OPINION
Per Curiam:
Convicted of slot machine cheating, appellants contend on appeal that a communication by
the district court to the jury during deliberations was error.
during deliberations was error. We agree, but we affirm the judgments of conviction.
Just prior to being booked at the police station and not in response to any police
interrogation, appellant Duane Milton Varner, Jr., told the police that his wife and another
man taken into custody should be released because Varner was responsible for it all.
Because the statement was presented to the jury without any showing of voluntariness, a
motion for mistrial was made by appellant Duane Milton Varner. Finding that the statement
was voluntary, the court denied the motion and instructed the jury at the conclusion of the
evidence to disregard appellant's statement if they decided that it was not made voluntarily.
1
During deliberations, the jury sent a note to the district court judge asking, At what point
were Mr. Varner's rights first read to him? and by whom? (does this concern us?) The judge
wrote no and his initials on the note and returned it to the jury.
[Headnotes 1, 2]
The district judge committed error by responding to the jury's question without either
notifying the parties or submitting the requested information in the presence of a
representative from both the prosecution and each defendant. NRS 175.451 states:
After the jury have retired for deliberation . . . if they desire to be informed on any
point of law arising in the cause . . . the information required shall be given in the
presence of, or after notice to, the district attorney and the defendant or his counsel.
We have stated in regards to this statute that the mandatory word shall applies to the
presence of counsel if the information requested is given. Tellis v. State, 84 Nev. 587, 445
P.2d 938 (1968).
However, the error that the district court committed was harmless under the facts
presented on appeal. In essence, the response of the trial judge amounted to an instruction that
the circumstances surrounding the advisement of rights in this case pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966), were irrelevant as to whether the statement made by appellant
was voluntary. A careful examination of the record on appeal discloses that the statement in
issue here did not result from police questioning. As we stated in Burns v. State, 88 Nev. 215,
495 P.2d 602 {1972), the requirements set forth in Miranda for custodial interrogations do
not apply to volunteered utterances.
____________________

1
Appellants did not object to this instruction, nor did they request any other instructions on the subject of the
voluntary or volunteered character of Varner's statement.
P.2d 602 (1972), the requirements set forth in Miranda for custodial interrogations do not
apply to volunteered utterances. The answer which the district court provided was thus
correct.
2

The judgments of conviction are, therefore, affirmed.
____________________

2
At the hearing in district court on voluntariness, even appellant's counsel conceded that Miranda did not
apply:
[Defense Counsel]: Interrogation eminent [sic] within two feet, two-and-a-half or three feet, and I just
believe that this statement is without having been given his rights. It is not proper.
The Court: Well, does that fit in to [sic] the Miranda ruling, though?
[Defense Counsel]: Well, Your Honor, I have to say no because there was not interrogation exactly at
that point.
____________
97 Nev. 488, 488 (1981) Dromiack v. Director of Prisons
MICHAEL DROMIACK, Appellant, v. DIRECTOR,
NEVADA DEPARTMENT OF PRISONS, Respondent.
No. 13020
October 22, 1981 634 P.2d 1197
Appeal from order denying petitions for post-conviction writs of habeas corpus. First
Judicial District Court, Carson City; Frank B. Gregory, Senior Judge.
The Supreme Court held that where Supreme Court had remanded, 96 Nev. 269, 607 P.2d
1145 (1980), for evidentiary hearing on merits of habeas corpus petition but, on remand,
district court denied petition without evidentiary hearing, order of district court would be
reversed and case would again be remanded for evidentiary hearing on merits of claims.
Michael K. Powell, Carson City, for Appellant.
Habeas Corpus.
Where Supreme Court remanded for evidentiary hearing on merits of habeas corpus petition but, on
remand, district court denied petition without evidentiary hearing, order of district court was reversed and
case was again remanded for evidentiary hearing on merits of claims.
97 Nev. 488, 489 (1981) Dromiack v. Director of Prisons
OPINION
Per Curiam:
In Dromiack v. Warden, 96 Nev. 269, 607 P.2d 1145 (1980), this court reversed an order
of the district court denying appellant's petition for a writ of habeas corpus. We held that
appellant's petition sufficiently alleged good cause for failure to raise in any previous
proceeding the issues he asserted in the present petition. Cf. Junior v. Warden, 91 Nev. 111,
532 P.2d 1037 (1975). We remanded for an evidentiary hearing on the merits of the petition.
On remand the district court denied appellant's petition without an evidentiary hearing. The
state acknowledges that no evidentiary hearing was held and that the district court did not
comply with the mandate of our previous opinion in this case. Accordingly, we reverse the
order of the district court, and we remand this case for an evidentiary hearing on the merits of
appellant's claims.
____________
97 Nev. 489, 489 (1981) Carbonneau v. Warden
JAMES R. CARBONNEAU, Appellant, v. WARDEN OF
THE NEVADA STATE PRISON, Respondent.
No. 12635
October 22, 1981 634 P.2d 1197
Appeal from district court order denying petition for post-conviction relief. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Defendant, who had been convicted of attempted escape, appealed from order of the
district court denying post-conviction relief. The Supreme Court, Springer, J., held that: (1)
since defendant failed to raise defense of double jeopardy by motion or otherwise before trial
or at any time during the criminal proceedings, he waived the defense; (2) there was nothing
in record to suggest that due process was denied during entry of defendant's guilty plea or at
any stage leading up to judgment of conviction; and (3) alleged due process irregularities in
prison proceedings occurring after defendant's attempted escape could not be relied upon to
set aside the criminal conviction.
Affirmed.
Michael K. Powell, Carson City, for Appellant.
1. Criminal Law.
Since defendant had failed to raise defense of double jeopardy by motion or otherwise before trial or at
any time during criminal proceedings, he waived the defense. NRS 174.075, subd. 2, 174.105;
There was nothing in record to suggest that defendant was denied due process during entry of his guilty
plea or at any stage leading up to judgment of conviction for attempted escape. U.S.C.A.Const. Amend. 14.
Alleged due process irregularities in prison proceedings occurring after defendant's attempted escape
could not be relied upon to set aside his criminal conviction for attempted escape. U.S.C.A.Const. Amend.
14.
OPINION
This is an appeal from a district court order denying post-conviction relief. NRS 177.315
authorizes relief from a conviction which is in violation of the United States Constitution or
the constitution of this state. We find no constitutional violations and affirm the order below.
Following a plea of guilty Carbonneau was convicted on July 17, 1978, of the crime of
attempted escape. Such conviction, he claims, is double jeopardy because he had already been
punished by prison officials for the attempted escape. He did not raise the defense of double
jeopardy at the time of his plea or at any time during the criminal proceedings.
This court held in Shuman v. Sheriff, 90 Nev. 227, 523 P.2d 841 (1974), that trial and
conviction of an inmate who has previously been disciplined for the same offense does not
constitute double jeopardy.
We are asked to reexamine the Shuman ruling in the light of later United States Supreme
Court cases relating to successive prosecutions.
1
It is not necessary for us to consider this
question, however, because failure to raise the defense of former jeopardy prior to his plea
and criminal conviction constitutes a waiver of this legal defense. People v. Belcher, 520 P.2d
385, 388 (Cal. 1974).
____________________

1
Breed v. Jones, 421 U.S. 519 (1974); Serfass v. United States, 420 U.S. 377 (1974); North Carolina v.
Pearce, 395 U.S. 711 (1969).
At common law double jeopardy could be raised by plea autrefois acquit (already
acquitted) or autrefois convict (already convicted). Prior to the enactment of the Nevada
Criminal Procedure Law in 1967, the common law pleas were codified as special pleas of
once in jeopardy and former judgment of conviction or acquittal.
2
This court has
recognized double jeopardy as a defense which must be pleaded and a defense which could be
waived. See In re Somers, 31 Nev. 531, 538 (1909); State v. Johnson, 11 Nev. 273 (1876).
After enactment of the Nevada Criminal Procedure Law, the defense of double jeopardy
was no longer raised as a special plea or plea in bar, but rather by motion before trial. By
NRS 174.075(2)
3
the special pleas were abolished, and the defenses formerly raised by
such pleas can now be raised only by motion to dismiss or to grant appropriate relief, as
provided in [the Nevada Criminal Procedure Law].
NRS 174.105
4
dictates that defenses and objections based on defects in the institution of
the prosecution (other than certain specified defenses) may be raised only by motion before
trial. It is further provided that all defenses and objections available to the defendant must be
included. Failure to do so constitutes a waiver thereof.
Based on the language of NRS 174.075(2) and 174.105, we hold that the defense of double
jeopardy may be raised only by motion before trial and that failure to so raise it constitutes a
waiver.
____________________

2
1911 Cr. Prac. 256; RL 7106.

3
NRS 174.075(2) provides as follows:
All other pleas, and demurrers and motions to quash are abolished, and defenses and objections raised
before trial which heretofore could have been raised by one or more of them shall be raised only by
motion to dismiss or to grant appropriate relief, as provided in this Title.

4
NRS 174.105 provides as follows:
1. Defenses and objections based on defects in the institution of the prosecution, other than
insufficiency of the evidence to warrant an indictment, or in the indictment, information or complaint,
other than that it fails to show jurisdiction in the court or to charge an offense, may be raised only by
motion before trial. The motion shall include all such defenses and objections then available to the
defendant.
2. Failure to present any such defense or objection as herein provided constitutes a waiver thereof,
but the court for cause shown may grant relief from the waiver.
3. Lack of jurisdiction or the failure of the indictment, information or complaint to charge an offense
shall be noticed by the court at any time during the pendency of the proceeding.
[Headnote 1]
Since appellant has failed to raise the defense of double jeopardy by motion or otherwise
before trial or at any time during the criminal proceedings, he will be deemed to have waived
the defense; therefore post-conviction relief on this ground was properly denied.
[Headnotes 2, 3]
Appellant also charges that he was deprived of his liberty without due process of law.
There is nothing in the record to suggest that due process was denied during the entry of the
plea or at any stage leading up to the judgment of conviction. Certainly alleged due process
irregularities in the prison proceedings cannot be relied upon to set aside the criminal
conviction.
The trial court was correct in denying post-conviction relief. We affirm.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
____________
97 Nev. 492, 492 (1981) Lemberes v. State
PETER LEMBERES and JAMES VERNON, Appellants,
No. 10001
October 26, 1981 634 P.2d 1219
Appeal from judgment of conviction, upon a jury verdict, and from order denying motion
for a new trial. Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Defendants were convicted in district court of bribery of a public official and perjury, they
appealed. The Supreme Court, Batjer, J., held that: (1) although grand jury, which was
investigating corruption or possible criminal activities by public officials in city government,
did not return an indictment, defendants were not entitled to dismissal of perjury charges
arising from their grand jury testimony on basis that proceedings violated due process; (2)
information charging perjury offense, which specified substance of the grand jury testimony
which was alleged to be false and which contrasted that with the facts which the State alleged
to be true, was not insufficient for failure to include the testimony itself; and (3) trial court
committed reversible error in admitting preliminary hearing testimony by one defendant's
superior after declarant stated his intention to claim privilege against self-incrimination
with regard to all matters upon which he had testified upon preliminary examination and
then refused to answer specific questions from preliminary examination as propounded to
him by counsel.
testimony by one defendant's superior after declarant stated his intention to claim privilege
against self-incrimination with regard to all matters upon which he had testified upon
preliminary examination and then refused to answer specific questions from preliminary
examination as propounded to him by counsel.
Manoukian, J., concurred in part, dissented in part.
Breen, Young, Whitehead & Belding, and Peter A. Perry, Reno, for Appellants.
Although grand jury, which was investigating corruption or possible criminal activities by public officials
in city government, did not return an indictment against them, defendants were not entitled to dismissal of
perjury charges arising from their grand jury testimony on basis that proceedings violated due process.
2. Perjury.
Information charging perjury is not required to set forth particular words alleged to have been falsely
stated. NRS 199.10.
Generally, an information which charges an offense solely in terms of conclusory language does not
provide adequate notice of the charges to accused and therefore does not state a public offense.
4. Perjury.
Information charging perjury offense, which specified substance of the grand jury testimony which was
alleged to be false and which contrasted that with the facts which the State alleged to be true, was not
insufficient for failure to include the testimony itself.
5. Criminal Law.
In prosecution for bribery of a public official and perjury, trial court committed reversible error in
admitting preliminary hearing testimony by one defendant's superior after declarant stated his intention to
claim privilege against self-incrimination with regard to all matters upon which he had testified upon
preliminary examination and then refused to answer specific questions from preliminary examination as
propounded to him by counsel. U.S.C.A.Const. Amend. 5; NRS 51.055, subd. 1(b), 51.325, 171.198,
subd. 7.
6. Statutes.
A special statute, to extent of any necessary repugnancy, will prevail over general statute.
7. Statutes.
Where express terms of repeal are not used, presumption is always against an intention to repeal an
earlier statute, unless there is such inconsistency or repugnancy between the statutes as to preclude the
presumption, or the latter statute revises the whole subject matter of the former.
OPINION
Appellants were each convicted of bribery of a public official in violation of NRS 197.020
1
and perjury in violation of NRS 199.120.
2
They were sentenced to five years on each
count, plus a $5,000 fine on the bribery count. The sentences were suspended and each
appellant was placed on probation for three years.
Beginning in July, 1974, the Washoe County Grand Jury conducted an investigation into
the actions and conduct of public officials of the City of Sparks. Appellants James Vernon
and Peter Lemberes were members of the Sparks city council. Between February 12 and April
9, 1975, Vernon and Lemberes each appeared at a number of special sessions of the grand
jury and gave testimony which became the subject of the perjury charge. On April 23, 1975,
the grand jury issued an Interim Report, in which it referred evidence of possible
misconduct by Vernon and Lemberes to the District Attorney.
On August 22, 1975, the District Attorney filed an information charging Vernon and
Lemberes with bribery in connection with an alleged offer of money to a fellow councilman
in exchange for his opposition to the granting of a gaming license. The information charged
that Vernon, while a city councilman and an employee of Meadow Gold Dairies of Nevada,
had solicited the business of one Sidney Doan, Jr., at the Sierra 76
____________________

1
Every person who gives, offers or promises, directly or indirectly, any compensation, gratuity or
reward to a person executing any of the functions of a public officer other than as specified in NRS
197.010, 199.010 and 218.590, with intent to influence him with respect to any act, decision, vote or
Auto-truck Plaza located in other proceeding in the exercise of his powers or functions, shall be
punished by imprisonment in the state prison for not less than 1 year nor more than 10 years, and may be
further punished by a fine of not more than $10,000.

2
Every person having taken a lawful oath or made affirmation in a judicial proceeding or in any other
matter where, by law, an oath or affirmation is required and no other penalty is prescribed, or who
willfully and corruptly makes an unqualified statement of that which he does not know to be true, or who
swears or affirms willfully, corruptly and falsely in a matter material to the issue or point in question, or
who suborns any other person to make such unqualified statement or to swear or affirm in such manner is
guilty of perjury or subornation of perjury, as the case may be, and shall be punished by imprisonment in
the state prison for not less than 1 year nor more than 10 years, and may be further punished by a fine of
not more than $10,000.
Auto-truck Plaza located in Sparks. According to the information, when Vernon learned that
Doan had decided against giving the account to Meadow Gold, Vernon told him that he
would have difficulty getting licensed in Sparks. The information further charged that at
Vernon's inducement, Lemberes offered fellow councilman Michael Schultz compensation to
influence Schultz to argue and vote against a gaming license for the operation of slot
machines at the Sierra 76 truck stop. It was charged that at specified grand jury appearances,
Vernon and Lemberes committed perjury by willfully, corruptly and falsely denying these
facts under oath.
[Headnote 1]
1. Preliminarily, appellants contend that the trial court erred in denying their motion to
dismiss the information on the ground that the prosecutor improperly used the grand jury as a
discovery tool.
Appellants particularly specify that they do not challenge the right of the grand jury to turn
over evidence to the prosecutor, or the prosecutor's right to make such evidence public upon
court order. Appellants rely instead upon a due process argument based primarily on the
analysis in United States v. Doss, 563 F.2d 265 (6th Cir. 1977). In that case, the federal court
reversed judgments of conviction for perjury based upon testimony given before a grand jury
regarding crimes for which the defendant had already been indicted. The court held that
substantial grand jury questioning of a secretly indicted defendant on the subject of the
indictment represents prosecutional abuse which violates the due process clause of the Fifth
Amendment and the right to counsel provision of the Sixth Amendment, and that such a
proceeding is void. 563 F.2d at 278-79. The court pointed out that the proceedings were
without constitutional, statutory or case authority because [t]he function of the grand jury
clearly terminates with the issuance of the indictment. Id. at 276.
This approach in Doss was, in turn, based upon Brown v. United States, 245 F.2d 549 (8th
Cir. 1957), in which the court also reversed a perjury conviction based on testimony before a
grand jury, when the record showed that the grand jury through the prosecutor
caused the defendant to be brought before it, without subpoena or opportunity to seek
and take advice, for the purpose of extracting testimony from him, with a view to
prosecuting him for perjury and without any purpose of obtaining from him any
evidence upon which, in whole or in part, it could find a true bill against anyone for
any offense committed in whole or in part in Nebraska [the state in which the grand
jury was sitting] . . . .
in part, it could find a true bill against anyone for any offense committed in whole or in
part in Nebraska [the state in which the grand jury was sitting] . . . .
245 F.2d at 554. The court held that since such a purpose was not within the competency of
the grand jury, the testimony obtained was not material to a legitimate inquiry and could
therefore not form the basis of a perjury charge under the applicable federal statute. Cf.
United States v. Icardi, 140 F.Supp. 383 (D.D.C. 1956).
Appellants contend that because the grand jury in this case did not return an indictment,
Brown and Doss should be applied. Appellants' argument ignores the clear distinction
between the factual settings of those cases and this one. Here, appellants make no claim that
the grand jury was without authority to inquire into corruption or possible criminal activities
by public officials in the city government of Sparks. See NRS 172.175(1)(c).
In United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979), cert. denied 445 U.S. 962
(1980), the court reversed a dismissal of perjury charges against a former district attorney,
while upholding dismissal of the underlying kidnapping charges investigated by the grand
jury. The court noted that the validity of the charge on the underlying offense had no bearing
on the propriety of the investigation itself. Because it is an investigatory agency, and because
its primary function is to safeguard defendants from prosecution without probable cause, not
to aid the government, the grand jury must necessarily be able to investigate activities that it
might later decline to indict. 601 F.2d at 1327. The court refused to apply Doss, noting that
the testimony upon which the perjury charge was based did not follow an indictment.
In United States v. Mandujano, 425 U.S. 564 (1976), the Supreme Court refused to
suppress evidence of false statements given to a grand jury in a prosecution for perjury,
despite a claim that they were not preceded by appropriate Miranda warnings. Chief Justice
Burger, writing for the plurality, noted that the authority to compel the attendance and the
testimony of witnesses is indispensable to the exercise of the legitimate powers of the grand
jury, id. at 571, and that [i]n this constitutional process of securing a witness' testimony,
perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to
the basic concepts of judicial proceedings. Effective restraints against this type of egregious
offense are therefore imperative. Id. at 576. The Chief Justice distinguished federal cases,
such as Brown, voiding convictions for perjury "where the investigatory body was acting
outside its lawful authority." Id. at 5S2, n. S. No such situation exists here.
perjury where the investigatory body was acting outside its lawful authority. Id. at 582, n. 8.
No such situation exists here.
Those cases which have held that a party named, but not indicted, by grand jury reports are
entitled to have such specific references expunged, e.g., Biglieri v. Washoe Co. Grand Jury,
95 Nev. 696, 601 P.2d 703 (1979); Application of Jordan, 439 F.Supp. 199 (S.D.W.Va.
1977), are not applicable here. The course of action the grand jury may decide to follow after
its investigation cannot retroactively negate the legitimacy of its investigation, carried out
pursuant to its lawful authority. Cf. State v. Porro, 417 A.2d 573 (N.J.App. 1980) (reversing
order which had dismissed indictment on ground prosecutor later questioned accused before
grand jury).
We therefore reject appellants' contention that the information must be dismissed because
the proceedings violated due process.
[Headnote 2]
2. Appellants also contend that the trial court erred in denying their motion to dismiss the
perjury count on the basis that it failed to state an offense. Appellants argue that an
information charging perjury must set forth the particular words alleged to have been falsely
stated. We are unable to find such a requirement in the statutes or cases from Nevada or in the
cases from other jurisdictions which have been cited by appellants.
[Headnote 3]
It is true that allegations of perjury which are set forth in the conclusory language of the
relevant statute, without specifying the subject of the testimony or the manner in which it is
alleged to be false, have been held to be insufficient to state a public offense. United States v.
Slawik, 548 F.2d 75 (3d Cir. 1977); United States v. Simplot, 192 F.Supp. 734 (D.Utah
1961); Paxton v. Walters, 231 P.2d 458 (Ariz. 1951); People v. Aud, 288 N.E.2d 453 (Ill.
1972). This is merely a specific application of the general rule that an information which
charges an offense solely in terms of such conclusory language does not provide adequate
notice of the charges to the accused and therefore does not state a public offense. See, e.g.,
Sheriff v. Levinson, 95 Nev. 436, 596 P.2d 232 (1979).
[Headnote 4]
In this case, however, the information did specify the substance of the testimony which
was alleged to be false and did contrast that with the facts which the state alleged to be true.
See, e.g., Ex Parte Sheldon, 44 Nev. 268, 193 P. 967 (1920).
Whether the precise testimony given did in fact contain willful unqualified false
statement[s], Taylor v. Sheriff, 85 Nev. 505, 506, 457 P.2d 961, 962 (1969), to the effect
alleged in the information, was a matter for proof at trial. See United States v. Brumley, 560
F.2d 1268 (5th Cir. 1977) (reversed for failure of proof). The information was not insufficient
for failure to include the testimony itself.
[Headnote 5]
3. Regarding the trial, appellants have raised a number of contentions. We find it
necessary to deal only with the issue of the admission of preliminary hearing testimony by
one Ronald Averett, Vernon's superior at Meadow Gold during the time of the alleged
bribery.
At the time of the trial, Averett testified in open court, out of the presence of the jury,
stating his intention to claim the privilege of the Fifth Amendment with regard to all matters
upon which he had testified at the preliminary examination. He then refused to answer the
specific questions from the preliminary examination as propounded to him by counsel. The
trial court thereupon permitted portions of the previous testimony to be read to the jury. The
state has conceded that under LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980), it was error
for the district court to admit such testimony. The state argues, however, that LaPena should
be overruled, or, alternatively, that Averett's testimony did not incriminate the appellants. We
are not persuaded by either of these contentions.
In LaPena we held that it was error for the district court to admit preliminary hearing
testimony under the general evidence code provisions governing admission of prior
testimony, NRS 51.325, and unavailability, NRS 51.055(1)(b), rather than abiding by the
specific requirement of NRS 171.198(7) governing admission of preliminary hearing
testimony as substantive evidence in a criminal trial. This ruling was entirely consistent with
our analysis in Barker v. State, 95 Nev. 309, 314, 594 P.2d 719, 722 (1979), and Drummond
v. State, 86 Nev. 4, 7, 462 P.2d 1012, 1014 (1970).
3

[Headnotes 6, 7]
The state suggests that since the evidence code was enacted after the specific provision
related to preliminary hearing testimony, we should consider that as a matter of statutory
construction the evidence code should prevail. This argument, of course, ignores the basic
tenet that "the special statute, to the extent of any necessary repugnancy, will prevail
over the general one."
____________________

3
The state was therefore ill-advised to rely upon the dictum in Sparkman v. State, 95 Nev. 76, 81, 590 P.2d
151, 155 (1979), which contained no reference to NRS 171.198(7).
course, ignores the basic tenet that the special statute, to the extent of any necessary
repugnancy, will prevail over the general one. Ronnow v. City of Las Vegas, 57 Nev. 332,
365, 65 P.2d 133, 146 (1937). Furthermore, [w]here express terms of repeal are not used, the
presumption is always against an intention to repeal an earlier statute, unless there is such
inconsistency or repugnancy between the statutes as to preclude the presumption, or the later
statute revises the whole subject-matter of the former. Id., 65 P.2d at 145.
Since we perceive no basis for finding an intent to repeal NRS 171.198(7), we will
continue to give effect to the more stringent requirements for unavailability which the
legislature has imposed for use of preliminary hearing testimony.
The state also contends that appellants were not prejudiced by the use of Averett's
testimony. Given the diligence with which the District Attorney pursued the task of having
the evidence admitted, this argument is not persuasive.
Averett testified at the preliminary examination that he was aware that Vernon was
soliciting the business of Sid Doan for Meadow Gold, and that he had at one time talked to
Mr. Doan, under the impression that Meadow Gold had the milk business. Averett
specifically denied telling Vernon that he should no longer solicit Doan's business because
Doan had asked for a loan. He also specifically denied that he ever called Vernon at home
and told him to stop soliciting Doan's business at the truck stop on behalf of Meadow Gold.
These denials directly tended to contradict grand jury testimony by Vernon, offered in
evidence by the state, in which Vernon claimed that Averett had told him to stop soliciting
Doan's business and pulled him off the account. Such testimony was given in response to
questions about Vernon's contacts with Doan after learning that Doan had given the business
to another dairy. It was, therefore, relevant to the state's entire theory of the activities, and
motives, of Vernon and Lemberes. We are unable to conclude that the admission of this
testimony could have been harmless beyond a reasonable doubt. See Drummond v. State,
supra at 8-9, 462 P.2d at 1014-15.
The convictions are therefore reversed, and the case is remanded for further proceedings in
accordance with this opinion.
Gunderson, C. J., and Springer and Mowbray, JJ., concur.
Manoukian, J., concurring in part and dissenting in part:
I agree with that part of the majority opinion which holds that the proceedings did not
violate defendants' right to due process of law and that there was no error in the trial
court's refusal to dismiss the perjury count.
that the proceedings did not violate defendants' right to due process of law and that there was
no error in the trial court's refusal to dismiss the perjury count. However, I am unable to
subscribe to the majority's conclusion that La Pena v. State, 96 Nev. 43, 604 P.2d 811 (1980),
mandates reversal. Accordingly, I dissent. In light of the substantial evidence of guilt
independent of Averett's preliminary hearing testimony, the error in admitting his testimony
at trial can fairly be characterized as harmless beyond a reasonable doubt. Drummond v.
State, 86 Nev. 4, 462 P.2d 1012 (1970).
I would affirm the convictions.
____________
97 Nev. 500, 500 (1981) Helms Constr. v. State ex rel. Dep't Hwys.
HELMS CONSTRUCTION AND DEVELOPMENT CO., a Nevada Corporation; and JACK
B. PARSON CONSTRUCTION COMPANY, a Utah Corporation, Appellants, v. STATE OF
NEVADA, on Relation of its Department of Highways, Respondent.
No. 11365
October 26, 1981 634 P.2d 1224
Appeal from declaratory judgment, Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
Contractors who incurred increased cost of petroleum-based products in completing
contracts with Nevada Department of Highways brought suit seeking declaratory relief. The
district court denied relief, and contractors appealed. The Supreme Court held that: (1) in
Uniform Commercial Code doctrine of commercial impracticability was inapplicable; (2)
common-law doctrine of commercial impracticability or impossibility of performance did not
afford relief; (3) contracts were not subject to reformation under doctrine of mutual mistake;
and (4) contract terms did not provide for relief sought.
Affirmed.
Petersen & Petersen, Reno, and Taylor & Ulin, Seattle, Washington, for Appellants.
Richard H. Bryan, Attorney General, and William M. Raymond, Deputy Attorney General,
Assistant Chief Counsel, Department of Highways, Carson City, for Respondent.
1. Contracts.
Uniform Commercial Code doctrine of commercial impracticability was inapplicable to contractors'
claims to recover increased cost of petroleum-based products, where case involved performance contracts
and not sales contracts. NRS 104.2615.
2. Highways.
Contractors were not entitled to recover increased cost of petroleum-based products incurred in
completing contracts with Nevada Department of Highways on ground of common-law doctrine of
commercial impracticability or impossibility of performance, since Arab oil embargo, although perhaps not
within contemplation of the parties, was reasonably foreseeable.
Reformation is available as equitable remedy to party seeking to alter written instrument which, because
of mutual mistake of fact, fails to perform to parties' previous understanding or agreement.
4. Highways.
Contractors, which incurred increased cost of petroleum-based contracts due to Arab oil embargo, were
not entitled to reformation of contracts with Nevada Department of Highways, where there was nothing in
the record to indicate that parties at any time entertained express or implied agreement concerning
petroleum price increases and concomitant contract modifications, and belief in continuing availability of
reasonably priced oil could not be perceived as a mutual mistake of fact.
5. Highways.
Terms of contracts with Nevada Department of Highways did not provide relief for contractors who
incurred increased cost of petroleum-based products due to Arab oil embargo.
OPINION
Per Curiam:
In this appeal, we are asked to decide whether the trial court erred in denying appellants'
price adjustments on their contracts with the Nevada State Highway Department.
In 1972, appellants bid for and received contracts with the State Highway Department.
During the performance of one of the contracts and shortly before commencement of the
second, the Arab bloc nations imposed an oil embargo, dramatically increasing the cost of
petroleum-based products. Appellants completed the contracts and submitted claims to the
Highway Department to recover these increased costs. Helms' claim was for $97,048.56 and
Parson claimed $37,088.88. The state rejected both claims, the district court denied
appellants' declaratory relief and Helms and Parson appealed to this court. Appellants seek
reversal asserting, inter alia, that the trial court erred in determining that appellants were
not entitled to recover increased costs pursuant to the terms of the contract or pursuant
to the doctrines of commercial impracticability or impossibility of performance or mutual
mistake.
trial court erred in determining that appellants were not entitled to recover increased costs
pursuant to the terms of the contract or pursuant to the doctrines of commercial
impracticability or impossibility of performance or mutual mistake. Finding no error, we
affirm.
[Headnote 1]
The trial court found that the Uniform Commercial Code doctrine of commercial
impracticability, NRS 104.2615,
1
was inapplicable, and in view of the fact that this case
involves performance contracts and not sales contracts, we agree with that determination.
[Headnote 2]
Alternatively, appellants contend that the common law doctrine of commercial
impracticability or impossibility of performance should afford the same relief as the Uniform
Commercial Code provision. Although we recognize that the statutory doctrine of
commercial impracticability [has] its roots in the common law doctrine of frustration or
impossibility, Eastern Airlines, Inc. v. Gulf Oil Corp., 415 F.Supp. 429, 438 (S.D.Fla. 1975),
appellants fail to demonstrate commercial impracticability or impossibility under either the
statutory or common law standards.
In Nebaco, Inc. v. Riverview Realty Co., 87 Nev. 55, 57, 482 P.2d 305, 307 (1971), we
noted that performance would be excused if the promisor's performance is made impossible
or highly impractical by the occurrence of unforeseen contingencies [citation], but if the
unforeseen contingency is one which the promisor should have foreseen, and for which he
should have provided, this defense is unavailable to him. [Citations].
2

The Arab oil embargo, although perhaps not within the contemplation of the parties, has
been held by other courts to have been "reasonably foreseeable."
____________________

1
NRS 104.2615:
Delay in delivery or nondelivery in whole or in part by a seller . . . is not a breach of his duty under a
contract for sale if performance as agreed has been made impracticable by the occurrence of a
contingency, the nonoccurrence of which has a basic assumption on which the contract was made. . . .

2
The doctrine of impossibility or impracticability is usually invoked to excuse non-performance. However,
there is nothing necessarily inconsistent in claiming commercial impracticability for the method of performance
actually adopted; the concept of impracticability assumes performance was physically possible. Moreover, a rule
making non-performance a condition precedent to recovery would unjustifiably encourage disappointment of
expectations. Transatlantic Financing Corp. v. United States, 363 F.2d 312, 315 n. 1 (D.C.Cir. 1966).
been reasonably foreseeable. Eastern Airlines, supra, at 441; Missouri Public Service Co.
v. Peabody Coal Co., 583 S.W.2d 721, 728 (Mo.App. 1979). Furthermore, in order for an
unforeseen cost increase to excuse performance, the increase must be more than merely
onerous or expensive, it must be positively unjust to hold the parties bound. Eastern
Airlines, supra, at 438. See also Publicker Industries, Inc. v. Union Carbide Corp., 17 U.C.C.
Rep. 989, 992 (D.C.E.D.Pa. 1975). In the instant case, Parson prays for a sum equivalent to .6
of one percent of its total contract and Helms prays for a sum amounting to 2.7 of its bid.
Such cost overruns do not render performance of the contract commercially impracticable.
[Headnotes 3, 4]
Appellants also urge that the contract is subject to reformation under the doctrine of
mutual mistake. Reformation is available as an equitable remedy to a party seeking to alter a
written instrument which, because of a mutual mistake of fact, fails to conform to the parties'
previous understanding or agreement. Sperry Rand Corp. v. United States, 475 F.2d 1168,
1174 (Ct.Cl. 1973); National Presto Industries v. United States, 338 F.2d 99, 106 (Ct.Cl.
1964). There is nothing in the record of the instant case, however, to indicate that the parties
at any time entertained an express or implied agreement concerning petroleum price increases
and concomitant contract modifications; nor can belief in the continuing availability of
reasonably priced oil be perceived as a mutual mistake of fact in this case.
Appellants' remaining assignment of errorthat the contract terms provide for the relief
soughtis without merit. Thus, finding no basis in law or equity for appellants' recovery, we
affirm the judgment of the trial court.
____________
97 Nev. 503, 503 (1981) Litteral v. State
JAMES NORMAN LITTERAL, Appellant, v. THE
No. 12054
October 26, 1981 634 P.2d 1226
Appeal from conviction, after a jury trial, of robbery with the use of a deadly weapon,
battery with the intent to commit robbery, and battery with a deadly weapon; Second Judicial
District Court, Washoe County; William N. Forman, Judge.
The Supreme Court, Mowbray, J., held that: (1) trial court properly refused to give
instruction that defendant had to take property with specific intent to deprive the victim
permanently of his property in order to be convicted of robbery, and {2) defendant's
convictions for both battery with intent to commit robbery and battery with a deadly
weapon, arising from same incident, constituted impermissible double punishment,
because upon combination of robbery conviction with one of the two battery convictions,
no additional factual findings would be needed to satisfy all elements of second battery.
property with specific intent to deprive the victim permanently of his property in order to be
convicted of robbery, and (2) defendant's convictions for both battery with intent to commit
robbery and battery with a deadly weapon, arising from same incident, constituted
impermissible double punishment, because upon combination of robbery conviction with one
of the two battery convictions, no additional factual findings would be needed to satisfy all
elements of second battery.
Affirmed in part; reversed in part.
William N. Dunseath, Public Defender, Michael B. McDonald, Deputy Public Defender,
Calvin R. X. Dunlap, District Attorney and Edward B. Horn, Deputy District Attorney,
1. Robbery.
Robbery under statute is a general intent crime which is meant to include all violent takings from the
person or presence of another, and therefore trial court properly refused to give instruction requested by
defendant that the defendant had to take the property with the specific intent to deprive the victim
permanently of his property; overruling Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980). NRS
200.380.
2. Criminal Law.
Test to determine whether charged offenses are same for double jeopardy purposes is whether each
provision requires proof of a fact which the other does not. U.S.C.A.Const. Amend. 5
3. Criminal Law.
Where defendant was convicted of robbery with use of a deadly weapon, his convictions for both battery
with intent to commit robbery and battery with a deadly weapon, arising from same incident, constituted
impermissible double punishment, because upon combination of the robbery conviction with one of the two
battery convictions, no additional factual findings would be needed to satisfy all elements of the second
battery. NRS 193.165, 200.380, 200.400, 200.400, subd. 3, 200.481, 200.481, subd. 2(d);
OPINION
By The Court, Mowbray, J.:
A jury convicted James Norman Litteral, the appellant, of (1) robbery with the use of a
deadly weapon, (2) battery with the intent to commit robbery, and {3) battery with a
deadly weapon.
the intent to commit robbery, and (3) battery with a deadly weapon. He was sentenced to a
term of fifteen years for the robbery with an additional fifteen years to run consecutively for
the use of a deadly weapon; he was also sentenced to two concurrent ten year terms for each
battery conviction. On appeal, appellant urges error: (1) the trial court did not instruct the jury
that specific intent was an essential element of robbery; and (2) the constitutional prohibition
against double jeopardy precludes convictions for both batteries.
THE FACTS
On November 28, 1978, the proprietor of a jewelry shop was alone in his store. Appellant
and a woman entered. Displaying a knife, appellant ordered the proprietor into the back room.
Although the proprietor told the appellant to take anything that he wanted and pleaded with
the appellant not to attack him, the appellant beat the proprietor with a claw hammer
inflicting numerous and serious injuries about the face, head, neck and body of the proprietor.
During this attack, the appellant directed his female companion to rob the shop, which she did
by taking cash, four small gold pieces and one diamond ring.
THE INSTRUCTION ON ROBBERY
The district judge, when instructing the jury on the crime of robbery, followed the
statutory definition of robbery as set forth in NRS 200.380.
1
The court refused, over
appellant's objection, to instruct the jury that the defendant had to take the property with a
specific intent to deprive the victim permanently of his property. Ever since State v. Sala, 63
Nev. 270, 169 P.2d 524 (1946), we have held that robbery is a specific intent crime.2 Since
the trial in the instant case, we have reaffirmed that ruling in Turner v. State, 96 Nev. 164
____________________

1
NRS 200.380:
Robbery: Definition; penalty.
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of
the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent
or overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used
merely as a means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it
appears that, although the taking was fully completed without the knowledge of the person from whom
taken, such knowledge was prevented by the use of force or fear.
intent crime.
2
Since the trial in the instant case, we have reaffirmed that ruling in Turner v.
State, 96 Nev. 164, 605 P.2d 1140 (1980).
[Headnote 1]
In Turner, we reversed a felony murder conviction on the grounds that the jury had not
been instructed concerning every element of robbery, which was the underlying felony. The
missing instruction, on which reversal was predicated, related to the requirement that the
defendant have the specific intent to deprive the victim permanently of his property.
The linchpin of Turner's holding is this court's decision in Sala, which stated that specific
intent to deprive the victim permanently of the property taken was an essential element of the
crime of robbery, 63 Nev. at 288-289, 169 P.2d at 533. Sala, however, made no reference to
the governing statutory language or to any other Nevada authority, but relied on the general
common law rule citing 46 Am.Jur. 10. We are convinced that this statement in Sala,
whether dictum or not, was error and it is overruled. As a result, so is Turner.
Robbery, a felony at common law, requires the intent to steal or take property from the
person or presence of another by the use of threats or violence.
3
The use of threats or
violence and the presence of the victim distinguish robbery from the lesser included offense
of larceny. At common law a traditional requirement of the crime of robbery was a specific
intent to deprive the victim permanently of his property. Specific intent may be defined as
an intent to steal which is actually a part of the actor's thought processes, as contrasted to
the general intent which may be inferred from the voluntary commission of the actus reus.
4

Where, however, the Legislature in defining the crime of robbery speaks of wrongful or
unlawful taking as our Nevada statute provides, it has been held that the statutory definition
is more limited than the common law definition and no intent is necessary except the
intention of doing the act denounced by the statute. See Traxler v. State, 251 P.2d 815
(Okla.Crim. 1952).
5
Traxler, supra, construed a statute defining robbery as the "wrongful
taking of personal property . . . by means of force or violence."
____________________

2
Judge Forman stated in his ruling:
All right, well, in my opinion our Supreme Court would not follow Sala v. State and include an
element which is not set forth in the statute, so I am going to overrule the objection to Instruction No. 20.

3
W. LaFave and A. Scott, Handbook on Criminal Law, 696 (1972).

4
Id. at 202.

5
See also People v. Moseley, 566 P.2d 331 (Colo. 1977); People v. Banks, 388 N.E.2d 1244 (Ill. 1979);
State v. Thompson, 558 P.2d 1079 (Kan. 1976).
Traxler, supra, construed a statute defining robbery as the wrongful taking of personal
property . . . by means of force or violence. 251 P.2d at 827. The statute previously had
prohibited a felonious taking instead of a wrongful taking. The court held that although
the word felonious incorporated all the common law elements of robbery, including
specific intent, the words wrongful taking did not; all that was required under the statute
was a taking by means of force or violence. We interpret the words unlawful taking in NRS
200.380 in the same manner as the Oklahoma court interpreted the words wrongful taking.
6

In People v. Banks, supra, the Illinois Supreme Court has recently decided that specific
intent to deprive a victim permanently of his property is not an element of the crime of
robbery as defined in the Illinois Criminal Code.
7
The supreme court's analysis in Banks of
robbery as a general intent offense led it to reverse its earlier decision in People v. White, 365
NE.2d 337 (1977), which it felt misconstrued the intention of the Legislature in drafting the
robbery statute.
The Illinois court in Banks said at p. 1247:
. . . what is essential to the offense of robbery . . .: depriving a person, in his or her
presence, of property, through force or intimidation. As a matter of policy, we do not
think the duration of the deprivation is pertinent nor intended to be so by the legislature.
(Citations omitted.) The various definitions of deprivation' or deprive' emphasize this;
for example, Webster's Third New International Dictionary 606 (1971) defines deprive'
as to take away: remove, destroy; to take something away from: divest, bereave; . . . to
keep from the possession, enjoyment, or use of something.' Black's Law Dictionary 529
(rev. 4th ed. 1968) defines deprive' as [t]o take . . . a taking altogether, a seizure, a
direct appropriation, dispossession of the owner. . . . It connotes want of consent.' What
is relevant then is the substantial interference, temporary or permanent, with property
rights without consent. And what is intended by the legislature is to prevent the use of
force and threats against persons as a means of inducing them to part with their
property.
____________________

6
The predecessor of our statute NRS 200.380, like that of the Oklahoma statute construed in Traxler, defined
robbery as a felonious taking. See State v. Luhano, 31 Nev. 278 (1909). However, at the time Sala was
decided it had been amended to prohibit an unlawful taking. The Sala opinion did not address the significance
of this change in the statutory language.

7
Ill. Rev. Stat. ch. 38, 18-1 (1977) provides in part:
Robbery. (a) A person commits robbery when he takes property from the person or presence of
another by the use of force or by threatening the imminent use of force. . . .
the use of force and threats against persons as a means of inducing them to part with
their property. The intent to steal may include the intent to permanently deprive but is
not limited to it and extends to the taking away, stealing or even preventing the owner
from his or her continued and free enjoyment of his property.' (M. Bassiouni, Criminal
Law 336-37 (1978)).
We conclude, therefore, that NRS 200.380 defines robbery as a general intent crime which
is meant to include all violent takings from the person or presence of another. The district
judge did not err in refusing to give the requested specific intent instruction.
DOUBLE JEOPARDY
Appellant finally suggests that, if a person is convicted of the crime of robbery with the
use of a deadly weapon, it is an unconstitutional double punishment to convict him for the
two batteries; he concedes that conviction for robbery and one battery is proper. We must
agree.
[Headnote 2]
The test to determine whether charged offenses are the same for double jeopardy purposes
was set forth in Blockburger v. United States, 284 U.S. 299 (1932): The applicable rule is
that where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not. Blockburger v.
United States, supra, at 304. See also United States v. Rone, 598 F.2d 564 (9th Cir. 1979),
cert. denied, 445 U.S. 946 (1980); United States v. Cambindo Valencia, 609 F.2d 603 (2d
Cir. 1979), cert. denied, 446 U.S. 940 (1980); State v. Johnson, 600 P.2d 1249 (Wash. 1979),
cert. dismissed, 446 U.S. 948; State v. Smith, 585 P.2d 1006 (Kan. 1978), cert. denied, 441
U.S. 964 (1979), rehearing denied, 444 U.S. 889 (1979).
[Headnote 3]
NRS 200.380, supra, defines robbery. NRS 193.165 provides for an enhanced penalty
upon the factual finding that a deadly weapon was used in the commission of the crime.
8
The
statute does not prescribe two penalties for one offense.
____________________

8
Additional penalty when deadly weapon used in commission of crime; restriction of probation.
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime. The sentence prescribed
does not prescribe two penalties for one offense. Woofter v. O'Donnell, 91 Nev. 756, 542
P.2d 1396 (1975). The batteries charged, NRS 200.400 and 200.481 add the element of the
willful and unlawful use of force or violence upon the person of another. Under 200.400(3),
9
a separate penalty is provided if the battery was with the intent to rob; under 200.481(2)(d),
10
the penalty is different if a deadly weapon is used.
Since appellant stands convicted of the robbery with use of a deadly weapon and battery
with intent to commit robbery, there is no additional factual finding needed to satisfy all the
elements of the crime of battery with the use of a deadly weapon. The one remaining element,
the unlawful use of force on another, is necessarily included with the conviction of the battery
with the intent to rob. A substitution of the conviction for battery with the use of a deadly
weapon for that of battery with intent of committing robbery, when coupled with a conviction
for robbery with use of a deadly weapon, yields the same result. To allow the conviction for a
second battery to stand constitutes an impermissible double punishment.
We therefore remand to the lower court for resentencing in accord with the views herein
expressed.
____________________
by this section shall run consecutively with the sentence prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact. . . .

9
Assault or battery with intent to commit a crime: Definitions; penalties.
3. Any person convicted of battery with intent to kill, commit sexual assault, mayhem, robbery or
grand larceny shall be punished by imprisonment in the state person for not less than 2 years nor more
than 10 years, and may be further punished by a fine of not more than $10,000 except that if a battery
with intent to commit a sexual assault is committed, and if the crime results in substantial bodily harm to
the victim, the person convicted shall be punished by imprisonment in the state prison for life with or
without the possibility of parole, as determined by the verdict of the jury, or the judgment of the court if
there is no jury.

10
NRS 200.481(2)(d) provides:
If the battery is committed with the use of a deadly weapon, by imprisonment in the state prison for
not less than 2 years nor more than 10 years and may be further punished by a fine of not more than
$10,000.
____________
97 Nev. 510, 510 (1981) One 1978 Chev. v. County of Churchill
ONE 1978 CHEVROLET VAN, Model #CG21305, 2 Wheel Drive, Temporary Identification
Number, California 7233613, VIN# CGL 258U190010, Appellant, v. THE COUNTY OF
CHURCHILL, STATE OF NEVADA, ex rel. DAVID M.
BANOVICH, Sheriff of Churchill County, Nevada, Respondent.
No. 12157
October 26, 1981 634 P.2d 1208
Appeal from judgment of forfeiture; Third Judicial District Court, Churchill County;
Stanley A. Smart, Judge.
Sheriff filed complaint for forfeiture of van of defendant after he was arrested for sale of
amphetamine from the van, and defendant's wife contested forfeiture of her interest on ground
that she was owner of van who did not consent to its use in illegal manner and who was
without knowledge of its illegal use by defendant. The district court ordered forfeiture of
defendant's wife's interest, and appeal was taken. The Supreme Court, Batjer, J., held: (1) that
forfeiture statute did not permit forfeiture of co-owner's interest in vehicle when no
knowledge of or consent to illegal act in question; (2) under forfeiture statute, claimant was
only required to establish prima facie entitlement to protection of statute whereupon such
testimony would shift burden to county to make contrary showing; and (3) county did not
refute claimant's showing that she lacked such knowledge.
Reversed and remanded with instructions.
Robert-Bruce Lindsay, Reno, for Appellant.
John S. Hill, District Attorney, Churchill County, for Respondent.
1. Forfeitures.
Forfeiture statute does not allow forfeiture of co-owner's interest in vehicle when no knowledge of or
consent to illegal act in question is shown. NRS 453.301, subd. 5(b).
2. Forfeitures.
Claimant seeking to avoid forfeiture due to lack of knowledge of or consent to illegal act in question need
do no more, to establish prima facie entitlement to protection of statute, than to deny knowledge, and such
testimony shifts burden to county to make contrary showing. NRS 453.301, subd. 5(b).
3. Drugs and Narcotics.
Where defendant's wife unequivocally denied that she had any knowledge, prior to her husband's arrest,
of his possession of controlled substance in van of which wife was a co-owner, such testimony
established prima facie entitlement to protection of statute precluding forfeiture as to
one without knowledge of or consent to illegal act in question, and thus where
county's evidence did not establish knowledge, forfeiture of wife's interest in van was
improper.
established prima facie entitlement to protection of statute precluding forfeiture as to one without
knowledge of or consent to illegal act in question, and thus where county's evidence did not establish
knowledge, forfeiture of wife's interest in van was improper. NRS 453.301, 453.301, subd. 5(b).
OPINION
On October 25, 1978, F. Douglas Fischer was arrested in Fallon, Nevada, after he sold
amphetamine, a controlled substance, to an undercover narcotics officer. A search warrant
was obtained for the van from which Fischer made the sale and amphetamine was seized
from a refrigerator in the van.
On behalf of Churchill County, the Sheriff filed a complaint for forfeiture of the van
pursuant to NRS 453.301.
1
Douglas Fischer did not contest the forfeiture of his interest in
the van. Shelley Fischer, Douglas' wife, contests the forfeiture of her interest on the ground
that she is an owner of the van who did not consent to its use in an illegal manner and who
was without knowledge of its illegal use by Douglas. Stipulations at the forfeiture hearing
limited the factual issue presented for the district court's determination to whether Mrs.
Fischer knew that Douglas was using the van to sell a controlled substance or consented to
such use.
The district court concluded that NRS 453.301(5)(b) required no actual consent or
knowledge in order to forfeit a co-owner's interest in a vehicle. The court also found that
Mrs. Fischer's testimony was insufficient to entitle [her] to the protection of NRS
453.301(5)(b). On these grounds, the district court ordered the forfeiture of Mrs. Fischer's
interest. We find that the district court erroneously construed the applicable statute and
accordingly reverse the judgment.
____________________

1
The following are subject to forfeiture:
. . . .
5. All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to
transport, or in any manner to facilitate the transportation, for the purpose of sale, possession for sale or
receipt of property described in subsections 1 or 2, except that:
. . . .
(b) No conveyance is subject to forfeiture under this section by reason of any act or omission
established by the owner thereof to have been committed or omitted without his knowledge or consent.
[Headnote 1]
1. We cannot agree with the district court's conclusion that NRS 453.301(5)(b), despite its
plain language, allows forfeiture of a co-owner's interest in a vehicle even if no knowledge of
or consent to the illegal act in question is shown. The statute provides that a vehicle is not
subject to forfeiture on the basis of any act or omission established by the owner thereof to
have been committed or omitted without his knowledge or consent.
The court reasoned that notwithstanding the wording of the statute, [c]onsent is
inherent in the nature of co-ownership, citing People v. One 1941 Buick Club Coupe, 165
P.2d 44 (Cal.App. 1946). In so doing, the court mistakenly relied upon a case in which the
court was called upon to construe a statute which did not protect an innocent owner, and
refused to imply such a limitation on behalf of a co-owner. Compare, e.g., In re One 1965
Ford Mustang, 463 P.2d 827 (Ariz. 1970) (construing forfeiture statute, absolute on its face,
as inapplicable to innocent owner).
On the other hand, NRS 453.301, drawn from the Uniform Controlled Substances Act,
505, expressly limits the forfeiture power when the owner establishes that the act justifying
the forfeiture was committed without his knowledge or consent. See State v. Ozarek, 573
P.2d 209 (N.M. 1978); State v. Meyers, 263 S.E.2d 835 (N.C.App. 1980).
The law does not favor forfeitures and statutes imposing them must be strictly
construed. Wilshire Insurance Co. v. State, 94 Nev. 546, 550, 582 P.2d 372, 375 (1978); See,
e.g., Golden Fleece Co. v. Cable Con. Co., 12 Nev. 312, 326-27 (1877) (forfeiture provision,
arguably applicable to one locator of mining claim, would not apply to his innocent
co-locators). To accept the construction adopted by the lower court would be to deprive the
limitation on forfeitures explicitly established by the legislature of any force and effect, since
mere ownership would be sufficient to justify a forfeiture. [N]o part of a statute should be
rendered nugatory, nor any language turned to mere surplusage, if such consequences can
properly be avoided'. Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871), quoted in
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 472 P.2d 530 (1970).
In short, the lower court's ruling precluded Mrs. Fischer from establishing, under the
express terms of the statute, that her interest in the vehicle is not subject to forfeiture on the
ground that she neither had knowledge of nor consented to the illegal use of the van by her
co-owner. This was error.
2. Alternatively, the court ruled that if actual knowledge were required under the statute,
Mrs. Fischer's unsubstantiated assertion that she lacked such knowledge was insufficient to
entitle her to the protection of the statute. In so doing, the court misconstrued the respective
burdens of the county and of an owner in forfeiture proceedings pursuant to the statute.
[Headnote 2]
The county sought to show that Mrs. Fischer knew of Douglas' illegal use of the van. Mrs.
Fischer unequivocally denied that she had any knowledge, prior to her husband's arrest, of his
possession of a controlled substance. A claimant need do no more to establish a prima facie
entitlement to the protection of the statute. Such testimony shifts the burden to the county to
make a contrary showing. State v. Ozarek, supra; State v. Meyers, supra. See also Garner v.
State, 175 S.E.2d 133 (Ga.App. 1970); State v. One (1) Certain 1969 Ford Van, 191 N.W.2d
662 (Iowa 1971). Upon consideration of the record in this case, we are constrained to find
that this burden has not been met.
[Headnote 3]
The county summarizes its evidence of Mrs. Fischer's knowledge and involvement as
follows: her traveling with Douglas Fis[c]her from Farmington, New Mexico in the Van; the
location of the Amphetamine in the Van, in the refrigerator section therein; her being the
person initially contacted by [the undercover agent] relative to setting up a buy with her
husband; her presence in Room 411 at the Bonanza Inn Motel, Fallon, Churchill County,
Nevada; and her subsequent admission to Respondent's attorney, John S. Hill, that she knew
that her husband had Amphetamines and had obtained them from a truck driver in Oregon,
without clarifying that she obtained this information subsequent to the time of his arrest and
as a result of the transaction herein. . . . No evidence was offered by the county that in her
contact with the agent, or in the agent's subsequent discussion with Douglas in Room 411 at
the Bonanza Inn Motel, any reference was made to a controlled substance or its purchase.
Mrs. Fischer emphatically denied that her statement to Mr. Hill, made some time after her
husband's arrest, reflected any knowledge she had prior to the arrest. Mr. Hill did not testify
to the contrary.
This court long ago held that since forfeitures are not favored in the law, they are only held
to exist when facts clearly justify. Indiana Nevada v. Gold Hills, 35 Nev. 158, 166, 126 P.
166, 126 P. 965, 967 (1912). Such is not the case here. We therefore reverse the judgment
insofar as it effects the forfeiture of the interests of Shelley Fischer, and remand this case with
instructions to enter judgment against plaintiff-respondent and in favor of said claimant.
____________
97 Nev. 514, 514 (1981) McCall v. State
JAMES EDWARD McCALL, Appellant, v. THE
No. 12265
October 26, 1981 634 P.2d 1210
Appeal from judgment of conviction and order denying motion for a new trial, Second
Judicial District Court, Washoe County; John W. Barrett, Judge.
The district court convicted defendant of second degree kidnapping with the use of a
deadly weapon and of possession of a controlled substance, and defendant appealed. The
Supreme Court held that: (1) details of prior felony convictions were admissible where
defendant sought on direct examination to explain them away or to minimize his guilt; (2)
failure to object to seating of alien juror at time of voir dire constituted waiver; (3) trial court
did not improperly exclude testimony that defendant was mentally deficient and thus unable
to form specific intent to kidnap; and (4) case would be remanded for clarification of
sentencing.
Affirmed in part; remanded in part.
and Richard F. Cornell, Deputy District Attorney, Washoe County, for Respondent.
1. Witnesses.
Details of prior felony convictions are admissible where defendant has sought on direct examination to
explain them away or to minimize his guilt.
2. Jury.
Failure to object to seating of alien juror at time of voir dire constitutes a waiver.
3. Criminal Law.
In prosecution for second degree kidnapping with the use of a deadly weapon and possession of a
controlled substance, trial court did not err in excluding testimony that defendant was mentally deficient, in
view of fact that evidence was offered, at trial, to show that defendant was unable to perform specific intent
to kidnap and there was no indication that evidence was offered, as contended on appeal, to support
defense of duress or to show lack of voluntariness of admissions made to police.
4. Criminal Law.
Where evidence is not offered for a particular purpose at trial, an appellate court will not consider it for
that purpose on appeal.
5. Criminal Law.
Where there existed inconsistency between sentence imposed at sentencing hearing and sentence imposed
in final written judgment, and thus Supreme Court, on appeal of conviction, was unable to determine what
sentence district court actually intended to impose on defendant, case would be remanded to district court
for clarification of sentencing.
6. Criminal Law.
Purpose of habitual criminal statute is not to charge separate substantive crime but to allege a fact which
may enhance punishment, and thus imposition of separate sentence for being an habitual criminal is
improper. NRS 207.010.
OPINION
Per Curiam:
Appellant was convicted of second degree kidnapping (NRS 200.310(2)) with the use of a
deadly weapon (NRS 193.165) and possession of a controlled substance (NRS 453.336). At
sentencing, appellant was found to be an habitual criminal (NRS 207.010) and sentenced to
two 15-year terms to run consecutively and one 6-year term to run concurrently. Appellant
contends that the judgment of conviction should be reversed for several reasons.
[Headnote 1]
1. Appellant first contends that details of his prior felony convictions were improperly
admitted. This contention is without merit. At trial, appellant testified on direct examination
regarding his two prior felony convictions and attempted to explain them away. It is settled
that details of prior felony convictions are admissible where the defendant has sought on
direct examination to explain them away or to minimize his guilt. United States v. Barnes,
622 F.2d 107 (5th Cir. 1980); United States v. Wolf, 561 F.2d 1376 (10th Cir. 1977).
[Headnote 2]
2. Appellant next argues that he was denied his right to a jury trial before twelve citizens
because one juror was an alien.
jury trial before twelve citizens because one juror was an alien. Prior to voir dire, defense
counsel received the juror's questionnaire indicating that she was a citizen of British
Columbia. Appellant failed to object at the time of voir dire, but moved for a mistrial
subsequent to trial and sentencing when he discovered that the juror was an alien. Failure to
object to the seating of an alien juror at the time of voir dire constitutes a waiver. See United
States v. Haywood, 452 F.2d 1330 (D.C.Cir. 1971); Charles v. State, 133 S.W.2d 26 (Ark.
1939); State v. Wainwright, 376 P.2d 829 (Kan. 1962); cf. McComb v. District Court, 36
Nev. 417, 136 P. 563 (1913) (untimely objection to nonresident grand juror constitutes
waiver).
[Headnotes 3, 4]
3. Appellant also contends that critical state of mind evidence was improperly excluded.
At trial, appellant offered testimony that he was mentally deficient and thus unable to form
the specific intent to kidnap. The judge excluded this evidence, ruling that second degree
kidnapping is a general, not a specific, intent crime. Appellant does not now contend that this
ruling was erroneous.
1
However, appellant argues that this same evidence was also relevant
to his duress defense, and to show lack of voluntariness of admissions made to the police.
There is no indication that the evidence was offered for these purposes at trial. Where
evidence is not offered for a particular purpose at trial, an appellate court will not consider it
for that purpose on appeal. State v. Wilson, 557 P.2d 18 (Wash.App. 1976); cf. NRS
47.040(1)(b); Van Valkenberg v. State, 95 Nev. 317, 594 P.2d 707 (1979) (supreme court
will not review exclusion of evidence where trial counsel makes no offer of proof).
4. Appellant's final contention is that the district court erroneously imposed a separate
sentence on him for being an habitual criminal. The record is unclear on the issue of
sentencing. At the sentencing hearing, the district court adjudicated appellant an habitual
criminal. The court then orally sentenced appellant on the kidnapping and controlled
substance counts, adding an enhancement for the use of a deadly weapon. It is unclear,
however, whether the sentence included an habitual criminal enhancement.
[Headnotes 5, 6]
In the final written judgment, the court sentenced appellant on the kidnapping and
controlled substance counts, and then imposed a separate sentence on the habitual criminal
charge.
____________________

1
We express no opinion as to whether second degree kidnapping requires a specific intent.
Whether the sentence included a deadly weapon enhancement is unclear. Because of the
inconsistency between the sentence imposed at the sentencing hearing and the sentence
imposed in the final written judgment, we are unable to determine what sentence the district
court actually intended to impose on appellant. Therefore, we remand this case to the district
court solely for clarification of sentencing.
2

The judgment of conviction is affirmed. The sentencing order is remanded for
clarification.
____________________

2
We note that if the written judgment reflects the district court's intended sentence, it must be modified. As
presently written, it imposes a separate sentence on appellant for being an habitual criminal. This is
impermissible. The purpose of the habitual criminal statute is not to charge a separate substantive crime, but to
allege a fact which may enhance the punishment. See Cohen v. State, 97 Nev. 166, 625 P.2d 1170 (1981); Lisby
v. State, 82 Nev. 183, 414 P.2d 592 (1966).
____________
97 Nev. 517, 517 (1981) Stevens v. Duxbury
JOHN MICHAEL STEVENS, ANN ELIZABETH STEVENS, JAMES EDWARD
STEVENS, Minors, by Their Guardian ad Litem, Sherri Lynn Stevens, and SHERRI LYNN
STEVENS, Surviving Widow of CHARLES A. STEVENS, Deceased, Appellants, v.
MILLARD HENRY DUXBURY, M.D., Respondent.
No. 12095
October 26, 1981 634 P.2d 1212
Appeal from order denying motion for new trial. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Widow and children of deceased patient appealed from a judgment of the district court
denying their motion for new trial in wrongful death action against physician. The Supreme
Court held that: (1) widow and children were entitled to an instruction regarding a specialist's
standard of care, was physician was assigned to the case on basis of his specialization, and as
alleged cause of death was directly related to physician's field of expertise, and (2) failure of
trial court to give an instruction regarding a specialist's standard of care was prejudicial error.
Reversed.
Galatz, Earl & Biggar, Las Vegas, for Appellants.
Robert Sader, Reno, and Hardy, Erich & Brown, Sacramento, California, for Respondent.
1. Physicians and Surgeons.
Widow and children of deceased patient were entitled, in wrongful death action against physician, who
was a specialist in internal medicine, to an instruction regarding a specialist's standard of care, as physician
was assigned to the case on the basis of his specialization, and as the alleged cause of death was directly
related to physician's field of expertise.
Failure of trial court, in wrongful death action by widow and children of deceased patient against
physician, who was a specialist in internal medicine, to give an instruction regarding a specialist's standard
of care was prejudicial error, as physician's duty was in issue, as opposing counsel offered highly divergent
characterizations of the appropriate law, and as it was not clear from the record that even the expert
witnesses knew by which standard they were to evaluate physician's conduct.
OPINION
Per Curiam:
This is an appeal from a denial of a motion for a new trial. The sole issue we consider is
whether it was reversible error to instruct the jury regarding the standard of care applicable to
a general practitioner rather than the standard appropriate for a medical specialist. We
conclude that it was.
Appellants' decedent was admitted to the hospital for treatment of injuries resulting from
the crash of a small plane. The admitting physician assigned respondent Duxbury, a specialist
in internal medicine, to assist on the case. After several days' treatment, respondent was
discharged by the patient's mother. Four days later, the patient died.
Appellants commenced this action for wrongful death. They charged that decedent had
died from a pulmonary complication caused by respondent's negligence. Following a jury
trial, a verdict was returned in respondent's favor.
During the settling of jury instructions, appellants' attorney requested that the jury be
instructed as to the higher standard of care applicable to medical specialists.
1
The request
was denied; instead the trial judge instructed the jury regarding the standard of care to
which an ordinary physician is held.2 Appellants contend that the use of the latter
instruction constituted reversible error.
____________________

1
Appellants requested the following instruction:
It is the duty of a physician or surgeon who holds himself out as a specialist in a particular field of
medical, surgical, or other healing science, to have the knowledge and skill ordinarily possessed, and to
use the care and skill ordinarily used by reputable specialists practicing in the same field.
A failure to perform such duty is negligence.
denied; instead the trial judge instructed the jury regarding the standard of care to which an
ordinary physician is held.
2
Appellants contend that the use of the latter instruction
constituted reversible error.
We have previously held that an incorrect instruction concerning a duty or standard of care
is a substantial error requiring a new trial. See Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855
(1969); Murdock v. Petersen, 74 Nev. 363, 332 P.2d 649 (1965).
Both respondent and the trial judge have conceded that appellants' refused instruction
correctly stated the law. Respondent argues, however, that the use of a lower standard was not
prejudicial. His contention is based on the premise that the appropriate standard of care was
never at issue during the trial. In support of this view, respondent notes that all expert
witnesses were themselves internists. He further claims that since plaintiffs' counsel carefully
specified the standard of care during his questioning, the jurors were properly informed.
[Headnote 1]
We disagree with respondent. Appellants were clearly entitled to an instruction regarding a
specialist's standard of care. Respondent was a specialist in internal medicine; it is
uncontroverted that he was assigned to the case on the basis of his specialization. The alleged
cause of death was directly related to respondent's field of expertise.
[Headnote 2]
We further cannot agree that the refusal of the correct instruction was harmless error. It is
true that all expert testimony at the trial came from internal medicine specialists; it is also true
that plaintiffs' counsel stressed the correct standard of care to be applied. The record is
replete, however, with instances of confusing, misleading and obviously incorrect
characterizations of the law. For example, in examining a defense witness, defense counsel
asked the following question: "Doctor, in the course of your practice and experience in the
medical community in this area, have you become familiar with the concept of the
standard of care that is expected of a physician attending patients in this community?"
____________________

2
The trial court gave the following instruction:
In performing professional services for a patient, a physician or surgeon has the duty to have that
degree of learning and skill ordinarily possessed by an ordinarily prudent physician.
It is his further duty to use the care and skill ordinarily exercised by an ordinarily prudent physician in
similar circumstances and to use reasonable diligence and his best judgment and the exercise of his skill
and the application of his learning in an effort to accomplish the purpose for which he is employed.
A failure to do so is a form of negligence that is called medical malpractice.
Doctor, in the course of your practice and experience in the medical community in this area,
have you become familiar with the concept of the standard of care that is expected of a
physician attending patients in this community? (Emphasis supplied.) Defense counsel's
question was a misstatement of the applicable law. See Orcutt v. Miller, 95 Nev. 408, 595
P.2d 1191 (1979). In questioning plaintiff's expert, defense counsel asked, Do you know
what the legal definition is of the standard of care expected of a physician in private practice
in Nevada? Upon the witness's averment that he could not state the standard, counsel asked
the following question: [W]hen you render criticisms of another doctor, in your own mind
are you equating the standard of care with optimal care or ordinary care? In addition, he
questioned one of plaintiff's experts as to whether or not a certain procedure was routine . . .
for all people in the Reno area to order. . . .
Jury instructions are intended to provide clear guidance for the jurors. McPhee v.
Reichel, 461 F.2d 947, 951 (3rd Cir. 1972). The purpose of a specific instruction on the
appropriate standard of care for a medical specialist is to alert the jury that they must apply a
higher standard. Id.
We find that instructing the jury on the wrong standard was prejudicial. The specialist's
duty was in issue. Opposing counsel offered highly divergent characterizations of the
appropriate law. Furthermore, it is not clear from the record that even the expert witnesses
knew by which standard they were to evaluate respondent's conduct. Under these
circumstances, we are not persuaded that the jury knew the correct legal standard to be
applied.
Because of our disposition of this issue, we need not reach other objections raised by
appellants. The order denying appellants' motion for a new trial is reversed.
____________
WILLIAM ORVAL GIBBONS, Appellant, v. THE
No. 11988
October 26, 1981 634 P.2d 1214
Appeal from judgment of conviction. Third Judicial District Court, Lander County;
Stanley A. Smart, Judge.
Defendant was convicted in the district court of first degree murder, and defendant
appealed. The Supreme Court, Springer, J., held that although number of factors in case could
lead to conclusion that defendant was not afforded effective assistance of counsel, more
appropriate vehicle for presenting claim of ineffective assistance of counsel would be
through post-conviction relief and not through appeal.
could lead to conclusion that defendant was not afforded effective assistance of counsel, more
appropriate vehicle for presenting claim of ineffective assistance of counsel would be through
post-conviction relief and not through appeal.
Affirmed.
Jacquette & Kilpatrick, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; George G. Holden, District Attorney
and Hy Forgeron, Deputy District Attorney, Lander County, for Respondent.
Criminal Law.
Even though there were number of factors which could lead to conclusion that defendant convicted of
first degree murder was not afforded effective assistance of counsel during his prosecution, where it was
possible that counsel could rationalize his performance at evidentiary hearing held for purpose of inquiry
into issue of effective assistance of counsel, more appropriate vehicle for presenting claim of ineffective
assistance of counsel would be through post-conviction relief and not through appeal of judgment of
conviction.
OPINION
This is an appeal from a conviction of first degree murder. The sole issue presented is
whether appellant Gibbons's court-appointed attorney represented his client in a manner that
would satisfy the Sixth Amendment right to competent counsel.
1
Powell v. Alabama, 287
U.S. 45 (1932).
There are a number of factors in this case which could lead to the conclusion that Gibbons
was not afforded effective assistance of counsel.
Counsel waived four of eight peremptory challenges, thereby allowing to remain on the
jury four jurors who had expressed opinions concerning Gibbons's guilt and who had been
unsuccessfully challenged for cause by counsel.
Counsel failed to move for change of venue under circumstances which appear reasonably
to call for such a motion.
Counsel failed to object to the admission of Gibbons's confession although there appears
from the record substantial grounds for making such objection. Counsel failed to object
notwithstanding his strenuous objection to the confession's admissibility at the preliminary
examination.
____________________

1
Counsel representing appellant on appeal did not represent him in the court below.
Counsel called Gibbons to testify at a time when Gibbons was taking Adapin, an
antidepressant medication which Gibbons testified affected him very weirdly. Describing
the effects of the drug, Gibbons said, I can't walk straight. I have no control of straight
walking or stopping. My legs seem real nil. Slight tendency to smile and laugh and kind of a
little bit oddball. It's almost like in another world. During his testimony Gibbons complained
that as a result of the drug, his mind kept getting drawn off on something else all the time.
Counsel moved the court for an order authorizing the employment of a qualified
criminologist, arguing that this case turns exactly on interpretation from physical evidence.
Counsel told the court, We don't think we have a prayer in the world . . . to fully
cross-examine the State's expert . . . if we don't have our own expert. . . . The trial court
authorized the employment and payment of an expert witness for the defense; counsel, after
all this, failed to employ such an expert to assist in preparation for trial or to testify at trial.
Counsel had no ascertainable defense theory. At the preliminary examination he told the
court that the defendant admitted shooting his father-in-law but that if the shooting is
accidental it is not a crime. Counsel also relied on the defense of self-defense telling the
magistrate that if the shooting was in self-defense then it is not a crime, and that is what the
court is here to determine.
After offering multiple admissions of his client's homicidal shooting with accompanying,
inconsistent defenses of accident and self-defense, counsel called his client to the stand at
trial and heard him testify thus:
Q. Did you in fact shoot Ernest Marvin Guest?
A. No.
We cannot tell from anything in counsel's opening statement or closing argument whether
the defense relied on accident, self-defense or Gibbons's not having shot his father-in-law at
all.
It is difficult to conceive of a reason for any of the foregoing actions of counsel which
would be consistent with effective advocacy. Nevertheless, we are hesitant to draw any final
conclusions on the question of effectiveness of counsel on the basis of examination of the
trial record alone. It is possible, we suppose, that counsel can rationalize his performance at
an evidentiary hearing held for the purpose of inquiry into the matter. See Donovan v. State,
94 Nev. 671, 584 P.2d 708 (1978).
If there had been an evidentiary hearing in which Gibbons's trial counsel had testified, this
would become something more than a matter of conjecture.
than a matter of conjecture. See Jackson v. Warden, 91 Nev. 430, 537 P.2d 473 (1975). The
uncertainty presented by this case has led us to conclude that the more appropriate vehicle for
presenting a claim of ineffective assistance of counsel is through post-conviction relief. This
conclusion is harmonious with our policy of declining to review factual issues that have
neither been raised nor determined before a district judge. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 623 P.2d 981 (1981).
Based upon the record before us, judgment is affirmed.
____________
97 Nev. 523, 523 (1981) Title Ins. & Trust v. Chicago Title
TITLE INSURANCE AND TRUST COMPANY, Appellant, v. CHICAGO TITLE
INSURANCE COMPANY, NIZARALI T. NAZARALI, ROBERT W. FULLMER and
ANNELIESE FULLMER, and SADRUDIN K. SULEMAN, Respondents.
No. 11298
October 26, 1981 634 P.2d 1216
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Title insurer filed action for declaration of rights of parties in parcel of real property which
was sold at foreclosure sale by trustee pursuant to provisions of deed of trust. The district
court determined that sale was void because notice had not been given as required by statute,
and appeal was taken. The Supreme Court, Batjer, J., held that: (1) when a contract for sale of
real property is duly recorded, vendee under such a contract is entitled to notice of foreclosure
sale, and (2) in absence of notice to vendee under recorded contract for sale of real property,
trustee's sale was void under foreclosure statute.
Affirmed.
[Rehearing denied January 13, 1982]
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Appellant.
Albright & McGimsey, Las Vegas, for Respondent Chicago Title Insurance Company.
Paul Carelli, III, Las Vegas, for Respondents Fullmer.
John Manzonie, Las Vegas, for Respondent Nazarali.
1. Mortgages.
When a contract for sale of real property is duly recorded, vendee under such a contract is entitled to
notice of foreclosure sale pursuant to statute. NRS 107.080, subd. 3.
2. Deeds.
One who has acquired legal title by deed from a vendor is entitled to status of successor in interest.
3. Mortgages.
Legislature intended that purchaser of real estate who is grantor of deed of trust should have reasonable
opportunity to cure a default or deficiency before property may be sold by trustee, and that such
opportunity should be extended to one who holds under such a grantor. NRS 107.080.
4. Mortgages.
In absence of notice of foreclosure sale to vendee under recorded contract for sale of real property,
trustee's sale was void under foreclosure statute. NRS 107.080.
OPINION
This action was filed by appellant, Title Insurance and Trust Company, for a declaration of
the rights of the parties in a parcel of real property which was sold at a foreclosure sale by
appellant as trustee, acting pursuant to the provisions of a deed of trust. The sale was
challenged on the basis that notice had not been sent to the vendee of the grantor. Ruling
upon cross-motions for summary judgment, the court below determined that the sale was void
because notice had not been given as required by NRS 107.080.
1
In 1975, respondents
Fullmer purchased a parcel of real property and executed a note and deed of trust on the
property, with the sellers Moser as beneficiaries, and appellant as trustee.
____________________

1
NRs 107.080 provides, in pertinent part, regarding deeds of trust (emphasis added):
2. The power of sale must not be exercised . . . until:
(a) . . . the grantor has for a period of 35 days, computed as prescribed in subsection 3, failed to make
good his deficiency in performance or payment. . . .
3. The. . .35-day period provided in paragraph (a) of subsection 2 commences on the first day
following the day upon which the notice of default and election to sell is recorded in the office of the
county recorder of the county in which the property is located and a copy of the notice of default and
election to sell is mailed by certified mail with postage prepaid to the grantor or to his successor in
interest at the address of the grantor or his successor in interest if known, otherwise to the address of the
trust property. Such notice of default and election to sell must describe the deficiency in performance or
payment and may contain a notice of intent to declare the entire unpaid balance due and payable if
acceleration is permitted by the obligation secured by the deed of trust, but acceleration must not
In 1975, respondents Fullmer purchased a parcel of real property and executed a note and
deed of trust on the property, with the sellers Moser as beneficiaries, and appellant as trustee.
On June 2, 1977, the Fullmers entered into a long-term installment contract for sale of the
property to respondent Suleman. The contract provided that Suleman was entitled to
immediate possession of the property, upon which was constructed the Peter Pan Motel. Title
was reserved to the vendors. A collection escrow was established at Chicago Title Insurance
Company, into which vendee Suleman agreed to make monthly deposits and out of which
Chicago Title agreed to make monthly payments on various obligations of the Fullmers,
including the obligation on the Moser note secured by the deed of trust. The contract of sale
was recorded on July 14, 1977.
Although Chicago Title had received the vendee's check, it failed to send the September
payment to the Mosers until October 7. Meanwhile, on September 21, a notice of breach and
election to sell under the deed of trust was recorded, and a copy mailed to the Fullmers as
grantors, but not to the vendee, Suleman. On December 2, 1977, Suleman's interests in the
contract were assumed by respondent Nazarali, pursuant to an unrecorded agreement. On
December 28, the trustee executed, published and mailed to grantor a Notice of Trustee's Sale
set for January 20, 1978. Once again, no notice was sent to the Fullmers' contract vendee as
of record, Suleman. The trustee's sale was held and the property purchased by one Bailey.
Shortly thereafter Title Insurance discovered the recorded contract of sale and filed this action
for declaratory relief. Subsequently, it purchased the interest of Bailey.
[Headnote 1]
The major issue presented for resolution is whether Suleman, as a purchaser under a
recorded long-term real estate installment contract, was entitled to notice of the trustee's sale
as a successor in interest pursuant to NRS 107.080(3). The trustee argues that the term
should not apply to one who has not yet obtained legal title to the property. Respondents
argue that through application of the doctrine of equitable conversion, a real estate contract
vendee is and should be considered a successor in interest. Taking into account the policy
considerations involved, we are of the view that when a contract for the sale of real property
is duly recorded, the vendee under such a contract is entitled to notice pursuant to NRS
107.0S0{3).
____________________
occur if the deficiency in performance or payment is made good and any costs, fees and expenses incident
to the preparation or recordation of such notice and incident, to the making good of the deficiency in
performance or payment are paid within the time specified in subsection 2.
the sale of real property is duly recorded, the vendee under such a contract is entitled to notice
pursuant to NRS 107.080(3).
The term successor in interest is not defined in the statute. Nor has it been
authoritatively defined elsewhere. Indeed, it has been noted that no single definition is
applicable in every legal context. Safer v. Perper, 569 F.2d 87, 95 (D.C.Cir. 1977), citing
Howard Johnson Co. v. Hotel Employees, 417 U.S. 249 (1974).
[Headnote 2]
It is undisputed that one who has acquired legal title by deed from a vendor is entitled to
the status of a successor in interest. See Call v. Thunderbird Mortgage Co., 375 P.2d 169
(Cal. 1962). On the other hand, it has been held that a mortgagee of a real estate contract
vendee is not a successor in interest, so as to be entitled to statutory notice of forfeiture or
cancellation of such a contract. Miles Homes, Inc. of Iowa v. Grant, 134 N.W.2d 569 (Iowa
1965). According to the Iowa court, the term successor in interest under the statute
denotes one who has actually succeeded to the rights of the vendee in the real estate, not to
one who may succeed to such rights. Id. at 570. In Bremner v. Alamitos Land Co., 53 P.2d
382 (Cal.App. 1936), however, the court upheld a finding that a plaintiff vendee who had not
received a deed was successor in interest to a vendor, observing: The word successor' has a
twofold meaning. It may be used in the sense of one entitled to succeed as well as in the sense
of one who has in fact succeeded. Id. at 383.
[Headnote 3]
We have previously recognized that a vendee under a contract for the sale of real estate has
an equitable ownership interest in the land. Harrison v. Rice, 89 Nev. 180, 510 P.2d 633
(1973). Cf. McCall v. Carlson, 63 Nev. 390, 172 P.2d 171 (1946) (optionee, as opposed to
contract vendee, has merely a contract right to acquire a property interest). We have also
expressly recognized the utility of the land sale contract as a security device, while expressing
concern that legislative protection for real estate buyers be given effect. Moore v. Prindle, 80
Nev. 369, 394 P.2d 352 (1964). It is clear from a reading of NRS 107.080 that the legislature
intended that a purchaser of real estate who is a grantor of a deed of trust should have a
reasonable opportunity to cure a default or deficiency before the property may be sold by the
trustee, and that such opportunity should be extended to one who holds under such a grantor.
Cf. Century Enterprises, Inc. v. Butler, 526 P.2d 1350 (Colo.App. 1974) (rights of contract
vendee not made party to foreclosure action, not extinguished by Sheriff's sale).
[Headnote 4]
We therefore agree with the district court that in the absence of notice to the vendee under
a recorded contract for sale of the real property, the trustee's sale was void under NRS
107.080. Finding appellant's other claims of error to be without merit, we accordingly affirm.
____________
97 Nev. 527, 527 (1981) O'Brien v. State
PAUL ALLEN O'BRIEN, Appellant, v. THE
No. 12147
October 26, 1981 634 P.2d 1206
Appeal from judgment of conviction of robbery. Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
The Supreme Court, Batjer, J., held that where defendant stated that he did not wish to
answer some of the questions directed to him by police without consulting an attorney or
without having an attorney with him, questioning by police after that statement, where
questions related directly to the robbery, was improper, and entitled defendant to new trial
because defendant's statements were admitted at trial.
Leavitt, Graves & Leavitt, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General; Robert Miller, District Attorney, and James
Tufteland and Gerald Waite, Deputy District Attorneys, Clark County, for Respondent.
Criminal Law.
Where suspect accused of robbery stated that he did not wish to answer some of the questions
directed to him by police without consulting an attorney or without having an attorney with him,
questioning by police after that statement, where questions related directly to the robbery, was improper,
and entitled defendant to new trial because defendant's statements were admitted at trial. U.S.C.A.Const.
Amend. 5.
OPINION
O'Brien was convicted of robbery and the penalty was enhanced because he used a deadly
weapon in the commission of the crime.
On September 27, 1978, at about 9:30 a.m., the Decatur Vegas Village Store in Las Vegas,
Nevada, was the scene of an armed robbery. Two employees observed a white male adult in
the store carrying a brown paper shopping-type bag with what appeared to be two shotgun
barrels sticking out of one end of the bag. The cashier on duty was at her check-stand when
the suspect approached her, laid the brown bag on the counter, demanded money, ordered her
onto the floor, and fled through the front doors. A bookkeeper at Vegas Village observed the
suspect run from the store and enter a tan colored van. She observed that he remained in the
van for a few minutes before driving away. After receiving a description of the van supplied
from a witness to a similar robbery on October 10, 1978, detective Ron Olthoff recognized
the van and kept it under surveillance until dark, when he sealed it and had it towed to the
police laboratory.
The police began surveillance of appellant's residence on October 10, 1978. His wife,
Sandra O'Brien, signed a consent for the search of the van. As a result of the search, a brown
paper bag, double-barreled shotgun, ammunition and cash were seized. The next day,
appellant was arrested and advised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). He was subsequently convicted by a jury and sentenced to 15 years on the robbery
conviction and 15 years for the use of a deadly weapon in the commission of a crime. The
sentences were to run consecutively.
Appellant contends that on October 11, 1978, when the detectives transported him to the
police department, he should not have been questioned after he stated that he did not wish to
answer some of the questions without consulting an attorney or without having an attorney
with him. We agree.
The state contends that the appellant never expressed an intention to exercise his Fifth
Amendment privilege so as to preclude all questioning. It claims that the appellant only
objected to specific questions, and that the police scrupulously honored these objections by
asking other questions, and that any admission which was gained as a result of further
questioning was properly admissible. The state's position is without legal support.
In Miranda v. Arizona, supra, the United States Supreme Court explicitly stated: If the
individual states that he wants an attorney, the interrogation must cease until an attorney is
present. 384 U.S. at 474. Cf. Michigan v. Mosley, 423 U.S. 96 (1975); Rhode Island v.
Innis, 446 U.S. 291 (1980).
In the case at bar, the appellant did not want to talk about the robbery. The questions he
was asked after his requesting an attorney related directly to the robbery. The police officers
clearly and persistently violated the mandate of the high court. Because of the admission of
appellant's statements, the judgment of conviction must be reversed and the case remanded
for a new trial.
We need not consider the appellant's other assignments of error.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and Griffin, D. J.,
1
concur.
____________________

1
in place of The Honorable Gordon Thompson, Justice, Retired. Nev. Const. art. 6, 4.
____________
97 Nev. 529, 529 (1981) Hern v. State
BRIAN PATRICK HERN, Appellant, v. THE STATE
No. 12319
October 27, 1981 635 P.2d 278
Appeal from judgment of conviction for first degree murder, Eighth Judicial District
The Supreme Court, Manoukian, J., held that evidence concerning nature and extent of
injuries defendant inflicted upon child, coupled with evidence as to repeated blows,
constituted evidence of willfulness, premeditation and deliberation sufficient to support
defendant's conviction of first degree murder.
Affirmed.
Gerald W. Hardcastle, Las Vegas, for Appellant.
James Tufteland and Ronald C. Bloxham, Deputy District Attorneys, Clark County, for
Respondent.
97 Nev. 529, 530 (1981) Hern v. State
1. Homicide.
On appeal challenging determination that homicide was of first degree rather than of second degree, issue
was not whether Supreme Court would have found beyond reasonable doubt that defendant was guilty of
first degree murder, but whether jury, acting reasonably, could have been convinced to that certitude by
evidence it had right to consider. NRS 200.010, 200.030, subd. 1(a).
2. Homicide.
Malice aforethought is element of crime of murder, but malice aforethought and premeditated homicide is
murder in first degree; intentional homicide without premeditation is, in absence of legally cognizable
provocation or mitigating circumstances, murder in second degree. NRS 200.010, 200.030, subd. 1(a).
3. Homicide.
Evidence concerning nature and extent of injuries defendant inflicted upon child, coupled with evidence
as to repeated blows, constituted evidence of willfulness, premeditation and deliberation sufficient to
support defendant's conviction of first degree murder. NRS 200.010, 200.030, subd. 1(a).
4. Homicide.
Direct evidence of premeditation is not required in order to establish first degree murder. NRS 200.00,
200.030, subd. 1(a).
OPINION
Appellant Hern was convicted by jury of first degree murder. From the judgment and
sentence fixing his punishment at life imprisonment without the possibility of parole, he
appeals. The sole issue requiring our consideration is whether the homicide committed by
appellant constituted first or second degree murder. On review of the record, we affirm.
On February 17, 1979, Hern beat to death Curtis Wayne Fausett, three years of age, the son
of Kimla Huddleston. Hern had lived with Huddleston since January of 1978. During the
evening of February 17, Huddleston left for her employment, leaving Hern in charge of
Curtis.
Although the record shows generally that Hern's relationship with Curtis was equivalent to
a father-son relationship, it also reveals that Hern had physically beaten the child on a number
of prior occasions to such an extent as to constitute child abuse. Indeed, he had agreed with
Huddleston to refrain from any physical discipline of the child. On the date in question,
however, and during the mother's absence, when Curtis spilled some milk, Hern began to
spank the child. The spanking transcended the limits of reasonable discipline and
developed into a severe beating which is the undisputed cause of the child's death.
97 Nev. 529, 531 (1981) Hern v. State
of the child's death. The medical cause of death was internal hemorrhaging.
Appellant contends that there was no evidence introduced at trial to establish that Curtis'
death was a result of a willfull, deliberate, and premeditated act on his part, as required by
NRS 200.030(1)(a). Specifically, he claims that if he is guilty of murder at all, it must be
murder in the second degree. Authority for this court to modify the judgment appealed from
is found in NRS 177.265.
[Headnote 1]
The determination of the degree of crime is almost invariably left to the discretion of the
jury. On appeal, we are confined to reviewing the evidence most favorably in support of its
determination. Azbill v. State, 88 Nev. 240, 252, 495 P.2d 1064, 1072 (1972); State v. Ah
Tom, 8 Nev. 213, 217 (1873). Although Hern argues and we acknowledge that the jury's
discretion is not absolute, Azbill, supra, at 252; Ah Tom, supra, at 217; People v. Tubby, 207
P.2d 51, 54, (Cal. 1949), the jury must be given the right to make logical inferences which
flow from the evidence. See Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409 (1977).
The applicable standard of review is well established. The issue is not whether this court
would have found beyond a reasonable doubt that appellant was guilty of first degree murder,
but whether the jury, acting reasonably, could have been convinced to that certitude by the
evidence it had a right to consider. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980);
see also Jackson v. Virginia, 443 U.S. 307 (1979). Where there is substantial evidence in the
record to support the verdict of the jury, it will not be overturned by an appellate court.
Tellis v. State, 85 Nev. 679, 679-80, 462 P.2d 526, 527 (1969). We turn now to determine
whether respondent met its burden in proving first degree murder or whether a verdict for a
lesser included degree was required.
Murder, and this includes murder of the first degree as well as murder in the second
degree, is defined as the unlawful killing of a human being with malice aforethought. NRS
200.010. The critical question confronting us is whether, upon a review of the evidence most
favorably in support of the judgment, Azbill, supra, at 252, 495 P.2d at 1072, a reasonable
interpretation indicates a sufficiency of evidence to establish that the homicide was murder of
the first degree, as distinguished from murder in the second degree. To make this
determination, we must clearly distinguish the two degrees of murder.
97 Nev. 529, 532 (1981) Hern v. State
Although leaving much to the discretion of the jury, the legislature, in defining degrees of
murder, requires the exercise of that discretion to be sufficiently supported by the facts. NRS
200.030(2)(a) and (b) provide that:
2. Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of
willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of rape, kidnaping,
arson, robbery, burglary or sexual molestation of a child under the age of 14 years. . . .
(Emphasis added.)
NRS 200.030(2) defines murder of the second degree as comprehending all other kinds of
murder.
The homicide under consideration was clearly not perpetrated by any of the specifically
characterized means, such as poisoning, nor was it committed in the perpetration of any of the
enumerated felonies. Therefore, to constitute first degree murder, it must fall within the
category of any other kind of willful, deliberate, and premeditated killing.
[Headnote 2]
Malice is not synonymous with either deliberation or premeditation. To view it otherwise
would obliterate the distinction between the two degrees of murder. Malice aforethought is an
element of the crime of murder, but malice aforethought and premeditated homicide is
murder in the first degree; intentional homicide without premeditation is, in the absence of
legally cognizable provocation or mitigating circumstances, murder in the second degree.
It is clear from the statute that all three elements, willfulness, deliberation, and
premeditation, must be proven beyond a reasonable doubt before an accused can be convicted
of first degree murder. Compare, State v. Wong Fun, 22 Nev. 336, 40 P. 95 (1895).
[Headnote 3]
Hern testified that he remembered grabbing the child and starting to spank him and that his
next memory was standing over the child's body. In addition to this testimony, a defense
psychiatrist testified that being a child abuse victim himself, appellant may not have had the
intent to kill the child or the ability to premeditate. Other testimony was introduced showing
that Hern evidenced affection for the victim. From this, the appellant concludes that
insufficient evidence was presented to convict him of first degree murder.
97 Nev. 529, 533 (1981) Hern v. State
appellant concludes that insufficient evidence was presented to convict him of first degree
murder. We remain unpersuaded.
Prosecution testimony was presented that appellant lied to paramedics at the scene
concerning the circumstances surrounding the death. Other evidence involved an admission
by appellant that he beat and kicked the victim prior to the child's death. Immediately upon
being informed of the child's death, and in the presence of the appellant, the mother yelled at
Hern, Now you finally did it, you killed him. The autopsy, analyzed by Dr. Giles Sheldon
Green, a Clark County medical examiner, showed that Curtis died of internal hemorrhage
resulting from injury to the liver. External examination of the child's body further disclosed
approximately thirty bruises, including to the head, chest, penis, abdomen, back, buttock,
thighs and lower legs, anus and arms. Based on the abrasions and bruises he observed on the
child's body, Dr. Green concluded that Curtis was a victim of child abuse.
From the appellant's instant and previous abuse of Curtis, leading inexorably to his death,
the jury could find that premeditation, or fixed purpose to kill, requisite for first degree
murder, was formed prior to his death. Therefore, it was permissible for the jury to find that
Hern formed an intent to kill through the extreme physical abuse, and that appellant caused
the death with premeditation. The nature and extent of the injuries, coupled with repeated
blows, constitutes substantial evidence of willfulness, premeditation and deliberation. See
Turpen v. State, 94 Nev. 576, 587, 583 P.2d 1083, 1084, cert. denied, 439 U.S. 968 (1979).
[Headnote 4]
Premeditation is generally established by circumstantial evidence. Direct evidence is not
required. See Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409. Malice aforethought,
and premeditation may be deduced from the circumstances of the killing, such as the use of
certain means calculated to produce death. Moser v. State, 91 Nev. 809, 812, 544 P.2d 424,
426 (1976). The jury must be given the prerogative to make logical inferences derived from
the evidence. We should not, and will not, interfere with a jury determination which is
supported by substantial evidence. See Curtis v. State, 93 Nev. 504, 507, 568 P.2d 583,
584-85 (1977). Any other result would leave prosecutors, defenders and judges without
guidance in such cases. If the result were to the contrary, then absent direct evidence of
premeditation, a first degree murder conviction would be most difficult, if not impossible, to
obtain if the victim is a child who has not been killed with a gun or other dangerous
weapon--but severely beaten, as in the instant case.
97 Nev. 529, 534 (1981) Hern v. State
difficult, if not impossible, to obtain if the victim is a child who has not been killed with a
gun or other dangerous weapon--but severely beaten, as in the instant case.
We find the remaining issues to be without merit.
The conviction for first degree murder is affirmed.
Gunderson, C. J., and Batjer, Mowbray, and Springer, JJ., concur.
____________
97 Nev. 534, 534 (1981) Princess Sea Indus. v. State of Nev.
PRINCESS SEA INDUSTRIES, INC., MEAD PUBLISHING, INC., d/b/a LAS VEGAS
PANARAMA; and GALAXY COMPOSITION, INC., d/b/a LAS VEGAS MIRROR,
Appellants, v. STATE OF NEVADA, CLARK COUNTY, a Political Subdivision of the State
of Nevada, BOARD OF CLARK COUNTY COMMISSIONERS, ROBERT H.
BROADBENT, JACK R. PETITTI, THALIA DONDERO, R. J. RONZONE, MANUEL
CORTEZ, SAMUEL BOWLER, and DAVID CANTER, Constituting the Members of Said
Board; ROBERT MILLER, District Attorney, Clark County, Nevada, RICHARD BRYAN,
Attorney General, State of Nevada, and JOHN McCARTHY, Sheriff of Clark County,
Nevada, Respondents.
No. 12252
October 28, 1981 635 P.2d 281
Appeal from judgment in consolidated proceedings, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Owner of legal brothel and two newspaper publishing concerns brought action against the
State of Nevada, county board of county commissioners, and other officials challenging
constitutionality of statute purporting to regulate advertising of houses of prostitution. The
district court denied relief requested, and plaintiffs appealed. The Supreme Court, Mowbray,
J., held that the statute did not clearly contravene constitutional principles theretofore
established as to commercial speech and thus was constitutional.
Affirmed.
Smith, Maurer & Cremen, Las Vegas, for Appellant Princess Sea Industries, Inc.; Edward
Bernstein, Las Vegas, for Appellants Mead Publishing, Inc. and Galaxy Composition, Inc.
Richard Bryan, Attorney General, Carson City, and Josh Landish, Deputy Attorney
General, Las Vegas, for Respondent State of Nevada; Robert Miller, District Attorney, Clark
County, and S. Mahlon Edwards, Deputy District Attorney, Las Vegas, for Respondents
Clark County, Board of County Commissioners, and Sheriff John McCarthy.
An act of the legislature is presumed to be constitutional and should be so declared unless it appears to be
clearly in contravention of constitutional principles; in cases of doubt, every possible presumption and
intendment will be made in favor of constitutionality.
2. Constitutional Law; Disorderly House.
Statute regulating advertising of houses of prostitution did not clearly contravene constitutional principles
theretofore established as to commercial speech and thus was constitutional. NRS 201.430, 201.440;
OPINION
Appellants, plaintiffs below, sought to have Assembly Bill 141, 1979 Nev. Stats., declared
unconstitutional, and to obtain an injunction against enforcement of its provisions. The
district court denied the relief requested. We affirm its judgment.
THE FACTS
The appellants include the owner of a legal Nye County brothel, and two newspaper
publishing concerns which have published and are willing to publish advertisements
concerning the brothel. The legislation in question purports to prohibit advertising of any
house of prostitution: Anywhere in any county, city or town where prostitution is prohibited
by local ordinance or where the licensing of a house of prostitution is prohibited by state
statute. The enactment also undertakes to punish: Any person, company, association or
corporation who knowingly allows any owner, operator, agent or employee of a house of
prostitution, or anyone acting on behalf of any such person, to advertise a house of
prostitution in his place of business. . . . Appellants have challenged these legislative
provisions, contending that advertisements they wish to publish are commercial speech
protected by the First Amendment to the United States Constitution.
THE CONSTITUTIONALITY OF THE LEGISLATION
NRS 201.430 and 201.440, as amended, do prohibit a variety of commercial speech, i.e.,
advertisements containing information concerning houses of prostitution, in certain areas
within the State of Nevada.1 This Court's task is to determine whether the quoted
legislative proscriptions must be declared unconstitutional, pursuant to principles
heretofore articulated by the United States Supreme Court.
the State of Nevada.
1
This Court's task is to determine whether the quoted legislative
proscriptions must be declared unconstitutional, pursuant to principles heretofore articulated
by the United States Supreme Court.
Expression concerning purely commercial transactions may fall within the ambit of the
First Amendment's protection. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455 (1978).
Still, the United States Supreme Court recognizes a commonsense' distinction between
speech proposing a commercial transaction, which occurs in an area traditionally subject to
government regulation, and other varieties of speech. Id. at 455-56. Accordingly,
commercial speech is afforded only, a limited measure of protection commensurate with its
subordinate position in the scale of First Amendment values. Furthermore, modes of
regulation that might be impermissible in the realm of non-commercial expression are
permitted. Id.
[Headnote 1]
As this Court has said repeatedly, an act of the legislature is presumed to be constitutional
and should be so declared unless it appears to be clearly in contravention of constitutional
principles. State ex rel. Tidvall v. District Court, 91 Nev. 520, 526, 539 P.2d 456 (1975). In
cases of doubt, every possible presumption and intendment will be made in favor of
constitutionality. Courts will interfere only in cases of clear and unquestioned violation of
fundamental rights. Id., 91 Nev. at 526-527, 539 P.2d at 460; see also Anthony v. State of
Nevada, 94 Nev. 337, 341, 580 P.2d 939 (1978); Damus v. County of Clark, 93 Nev. 512,
516, 569 P.2d 933 (1977); City of Las Vegas v. Ackerman, 85 Nev. 493, 499, 457 P.2d 525
(1969). The issue before us, then, is whether Assembly Bill 141 clearly contravenes
constitutional principles heretofore established as to commercial speech.
Bigelow v. Virginia, 421 U.S. 809 (1975), is distinctly the Supreme Court case closest to
the instant one on its facts. Still, that precedent is readily distinguishable. Bigelow involved
an effort to bar advertising of a clinic offering legal abortions, i.e., a medical service over
which a state government has but narrowly circumscribed power. See, e.g., Bellotti v. Baird,
428 U.S. 132 {1976); Singleton v. Wulff, 42S U.S. 106 {1976); Connecticut v. Menillo, 423
U.S. 9 {1975); Doe v. Bolton, 410 U.S. 179 {1973); Roe v.
____________________

1
NRS 201.430(2) details certain specific information sought to be proscribed from distribution to the public,
i.e.:
Inclusion in any display, handbill or publication of the address, location or telephone number of a house
of prostitution or of identification of a means of transportation to such a house, or of directions telling
how to obtain any such information, constitutes prima facie evidence of advertising for the purposes of
this section.
U.S. 132 (1976); Singleton v. Wulff, 428 U.S. 106 (1976); Connecticut v. Menillo, 423 U.S.
9 (1975); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). Moreover,
in Bigelow the high court explicitly stated that it was not deciding, the precise extent to
which the First Amendment permits regulation of advertising that is related to activities the
State may legitimately regulate or even prohibit. 421 U.S. at 825.
Prostitution is an activity which the State of Nevada may choose either to regulate or to
prohibit entirely. See NRS 244.345; see also Nye County v. Plankinton, 94 Nev. 739, 587
P.2d 421 (1978). Thus, at this time, absent further guidance from the Supreme Court, it
appears neither necessary nor wise for this Court to construe either Bigelow or other
commercial speech holdings as providing constitutional protection to advertising of
prostitution. Cf. St. Pierre v. State, 92 Nev. 546, 548, 554 P.2d 1126 (1976).
[Headnote 2]
In sum, the legislative enactment in question does not clearly contravene constitutional
principles as thus far articulated by the United States Supreme Court. Other constitutional
challenges are unmeritorious and require no discussion.
Gunderson, C. J., and Batjer, J., and Beko, D. J.,
2
concur.
I concur in the result. However, I believe that those in the majority fail to sufficiently
address the important First Amendment issue of this appeal. This Court has not had occasion
to decide a pure First Amendment question since our holding in Viale v. Foley, 76 Nev.
149, 350 P.2d 721 (1960). In light of the many recent United States Supreme Court holdings
bearing on this vital question, it is incumbent on this Court to re-examine and fully discuss
the First Amendment when it is dispositive of the case at hand.
The primary question presented and the sole issue confronted by my brethren, is whether
NRS 201.430 violates the First and Fourteenth Amendments because it substantially bans
advertising by a brothel in certain public areas and anywhere in counties where prostitution is
illegal. Additional issues raised for our consideration are: whether NRS 201.430 constitutes a
taking of property without due process of law; and whether the proscriptions of NRS
201.430 are unconstitutionally vague and overbroad.
____________________

2
The Governor designated the Honorable William P. Beko, Judge of the Fifth Judicial District Court, to sit in
the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, 4.
and whether the proscriptions of NRS 201.430 are unconstitutionally vague and overbroad.
Princess Sea Industries, Inc., a Nevada corporation, (hereinafter Princess Sea) is the owner
and operator of The Chicken Ranch brothel in Nye County, Nevada, situated approximately
65 miles northwest of Las Vegas, located in Clark County. The brothel appears to have
complied fully with all licensing and regulatory requirements applicable to it by reason of its
location in Nye County. Mead Publishing, Inc., d/b/a Las Vegas Panarama, (hereinafter
Mead) and Galaxy Composition, Inc., d/b/a Las Vegas Mirror, (hereinafter Galaxy) are in the
newspaper business, and there is evidence that Galaxy has in the past published advertising
for houses of prostitution, including Princess Sea. The distribution and content of the papers
particularly focus on the tourist industry of Clark County. Clark County has a population of
more than 250,000 people; therefore, prostitution is unlawful according to state statute, NRS
244.345(8). Additionally, a Clark County ordinance proscribes prostitution and solicitation
for purposes of prostitution. The record reflects that a substantial amount of the business of
southern Nevada brothels is derived from Clark County.
In 1979, the state legislature enacted Assembly Bill No. 141, amending NRS 201.430 and
NRS 201.440. The amendment limits commercial advertising of prostitution to areas of the
state where prostitution may be permitted and proscribes it entirely in any county, city or
town where prostitution is prohibited by local ordinance or state statute.
1
Thereafter,
plaintiff-appellants sought declaratory and injunctive relief from enforcement of the amended
statute. These three cases were consolidated and a hearing for injunction was held. The trial
court denied the request for injunctive relief and declared the legislation constitutional.
____________________

1
1. It is unlawful for any owner, operator, agent or employee of a house of prostitution, or anyone
acting on behalf of any such person, to advertise any house of prostitution:
(a) In any public theater, on the public streets of any city or town, or on any public highway; or
(b) Anywhere in any county, city or town where prostitution is prohibited by local ordinance or where
the licensing of a house of prostitution is prohibited by state statute.
2. Inclusion in any display, handbill or publication of the address, location or telephone number of a
house of prostitution or of identification of a means of transportation to such a house, or of directions
telling how to obtain any such information, constitutes prima facie evidence of advertising for the
purposes of this section.
1. First Amendment Rights
Appellants contend that the advertising regulation scheme of the amended statutes violates
their First Amendment rights to provide a free flow of commercial information. Virginia
Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 764 (1976). Although Princess
Sea is identified as the source of the advertisement, and Mead and Galaxy as past and
would-be future carriers of the ads, I perceive no significant difference among them in terms
of First Amendment protection. If the speech qualifies for protection under the First
Amendment, as made applicable to the states through the due process clause of the
Fourteenth Amendment (see Bigelow v. Virginia, 421 U.S. 809, 811 (1975); Schneider v.
State, 308 U.S. 147, 160 (1939)), protection is afforded to the communication, to its source,
and to its recipients. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at
756.
It should be noted that recent Supreme Court holdings have brought commercial speech
under the protective shield of the First Amendment. Central Hudson Gas v. Public Service
Com'n of N.Y., 447 U.S 557, 100 S.Ct. 2343 (1980) (regulated utilities' promotional
advertising); Bigelow v. Virginia, 421 U.S. 809 (abortion); Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. 748 (prescription drug prices); Bates v. State Bar of
Arizona, 433 U.S. 350 (1977) (lawyer advertising of fees). Contra, Breard v. City of
Alexandria, 341 U.S. 622 (1951); Valentine v. Chrestensen, 316 U.S. 52 (1942). However, as
the Court recognized in Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), and as
my brethren cursorily point out, commercial speech is not afforded a parity with other
constitutionally protected speech:
We have not discarded the common-sense' distinction between speech proposing a
commercial transaction, which occurs in an area traditionally subject to government
regulation, and other varieties of speech. To require a parity of constitutional protection
for commercial speech and noncommercial speech alike could invite dilution, simply by
a leveling process, of the force of the Amendment's guarantee with respect to the latter
kind of speech. Rather than subject the First Amendment to such a devitalization, we
instead have afforded commercial speech a limited measure of protection,
commensurate with its subordinate position in the scale of First Amendment values,
while allowing modes of regulation that might be impermissible in the realm of
noncommercial expression.
436 U.S. at 455-56.
Contrary to appellants' contention, Ohralik explicitly rejects a compelling state interest
level of judicial review and instructs that the reviewing court lower[ ] the level of
appropriate judicial scrutiny, id. at 457, when examining commercial advertisement. By
doing so, the Court reaffirmed its holding in Bigelow that a balancing of the interests
involved should be undertaken, assessing the First Amendment interest at stake and
weighing it against the public interest allegedly served by the regulation. Bigelow v.
Virginia, 421 U.S. at 826.
As noted by the majority, Bigelow is in certain respects similar to the case before us,
although there are fundamental factual distinctions. In Bigelow, a Virginia newspaper editor
was prosecuted for publishing an advertisement for a New York abortion clinic in a Virginia
newspaper. A Virginia statute made the advertising of such services a misdemeanor.
Balancing the competing interests involved, the Supreme Court declared the statute violative
of the publisher's First Amendment rights. Appellants assert that the proposed advertisement
in this case, like the advertisement in Bigelow, conveyed information of potential interest
and value to a diverse audience, id. at 822, to those with a general curiosity about, or
genuine interest in the subject matter or the law of another state and its development, id.,
including those readers seeking reform in their own state. Id. Prostitution, like abortion, is
not totally unnewsworthy. Id. Nevertheless, the advertisement of prostitution does not pertain
to fundamental constitutional interests as does the advertisement of abortion, see Roe v.
Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). Furthermore, contrary to
Bigelow, appellants' First Amendment interests do not coincide with constitutional interests
of the general public.
The present case further differs from Bigelow in that no interstate regulation has been
shown to exist. Nevada is not, under the guise of exercising internal police powers, bar[ring]
a citizen of another state from disseminating information about an activity that is legal in that
State. Bigelow v. Virginia, 421 U.S. at 824-25.
2
NRS 201.430 deals with entirely intrastate
regulation.
Even assuming that the advertisements in question are expressions protected by the First
Amendment, and that substantial individual and societal interests in the free flow of
commercial information are present, these interests relate to an activity which has been
afforded minimal constitutional protection and which the state may completely preclude.
____________________

2
It is noteworthy that although New York at the time of the advertisements in Bigelow allowed profitmaking
abortion referral agencies, it was not long before it enacted legislation proscribing that type of commercial
advertisement. New York adopted laws 1971, c. 725 effective July 1, 1971, amended by Laws 1972, c. 17 1,
now codified as Art. 45 of the State's Public Health Law (Supp. 1974-75).
expressions protected by the First Amendment, and that substantial individual and societal
interests in the free flow of commercial information are present, these interests relate to an
activity which has been afforded minimal constitutional protection and which the state may
completely preclude. See NRS 201.295, et seq. anc NRS 202.450, et seq. Thus, the state's
interests implicated in support of this statute are particularly strong. As this Court stated in
State ex rel. List v. AAA Auto Leasing, 93 Nev. 483, 486, 568 P.2d 1230, 1232 (1970):
Within its police power, the legislature may regulate commercial and business
affairs in order to promote the health, safety, morals and general welfare of its citizens
and to protect its citizens from injurious activities. Viale v. Foley, 76 Nev. 149, 350
P.2d 721 (1960). Pursuant to this power, the legislature may regulate an otherwise
legitimate business which, if conducted improperly, is detrimental to the public, or it
may prohibit a business activity which is essentially injurious to the public welfare,
provided such legislation is not prohibited by the Constitutions of the United States or
Nevada. [Citations omitted.] (Emphasis added.)
See also George v. United States, 196 F.2d 445 (9th Cir. 1952).
In addition to the state's general interest in protecting the public in commercial
transactions, Ohralik v. Ohio State Bar Association, 436 U.S. 460, and incidental to its police
powers, the state has a special interest in maintaining an atmosphere of decency and sound
morals, and therefore in counteracting the deleterious effect prostitution may have on the
public welfare. See State ex rel. Grimes v. Board, 53 Nev. 364, 372-73, 1 P.2d 570, 572
(1930).
3
Moreover, the Supreme Court has left little doubt as to the probable validity of a
statute such as the one in question when it stated: We have no doubt that a newspaper
constitutionally would be forbidden to publish a want ad proposing a sale of narcotics or
soliciting prostitutes. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388
(1973).
____________________

3
In the absence of express legislative findings we will presume the existence of facts that would support the
legislative judgment. Viale v. Foley, 76 Nev. at 154-55, 350 P.2d at 724. Nevertheless, here I note some of our
cases reflecting the adverse consequences of solicitation for purposes of prostitution and prostitution. Mayes v.
State, 95 Nev. 250, 591 P.2d 250 (1979) (thefts committed frequently by prostitutes after having sexual
intercourse with victims); Sheriff v. Horner, 96 Nev. 312, 608 P.2d 1106 (1980) (living from earnings of a
prostitute); Sheriff v. Hilliard, 96 Nev. 345, 608 P.2d 1111 (1980) (pandering); see also Comment, Preying on
Playgrounds, the Sexploitation of Children in Pornography and Prostitution, 5 Pepperdine L. Rev. 809 (1978).
This state interest must be balanced against appellants' interest in advertising the brothel.
The trial court found that the brothel is not an entirely lawful activity. Even assuming that
the maintenance of such a house is legal under the licensing scheme of NRS 244.345
4
as
manifested by the continued inclusion of subsection 8,
5
such legality is confined to certain
counties, including Nye. Relying on this legality, the appellants cite Virginia Pharmacy Board
v. Virginia Consumer Council, 425 U.S. 748, which held that a state may not completely
suppress the dissemination of concededly truthful information about entirely lawful activity,
id. at 773, even when that information could be categorized as commercial speech.
In the instant case, however, I perceive the advertisement as proposing no more than
simply a commercial transaction, markedly different from advertising which contains factual
material of clear public interest. Bigelow v. Virginia, 421 U.S. at 822. Indeed, the speech at
issue might be equated with a mere solicitation of patronage implicit in a trade name. See
Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 895, n. 10 (1979).
Here, the respondents contend that the regulation is a mere time, place and manner
restriction, a contention which I find rather persuasive. This issue need not be discussed;
however, in view of the fact that the legislature has expressly provided that local governments
have the power to license, regulate and suppress brothels in unincorporated cities or towns.
NRS 244.345(1)(b), 269.175; see Kuban v. McGimsey, 96 Nev. 105, 110, 605 P.2d 623, 626
(1980). Nothing precludes the state from completely proscribing speech concerning this
deleterious activity in Clark County, where prostitution is illegal. In addition, although the
majority does not explicate, implicit in its holding is the fact that the regulation before us
directly advances the governmental interest asserted.
____________________

4
NRS 244.345 reads in part:
1. Every natural person, firm, association of persons or corporation wishing to engage in the business
of conducting a billiard or pool hall, dancing hall, bowling alley, theater, softdrink establishment,
gambling game or device permitted by law, or other place of amusement, entertainment or recreation,
outside of an incorporated city or incorporated town, must:
(a) Make application . . . to the license board of the county in which the business is to be engaged in,
for a county license of the kind desired. . . .
(b) File that application with the required license fee with the county license collector. . . .

5
8. In any county having a population of 250,000 or more, the license board shall not grant any license
to a petitioner for the purpose of operating a house of ill fame or repute or any other business employing
any person for the purpose of prostitution.
holding is the fact that the regulation before us directly advances the governmental interest
asserted. It is plain that each appellant will suffer pecuniary loss, absent use of the printed
media. Yet, this does not translate into a First Amendment right which is not subject to
regulation. Moreover, Princess Sea is itself free to advertise where permitted to do so,
utilizing those manners or means authorized by, or not precluded by, the challenged
legislation. Princess Sea may also elect to advertise through the media outside the State of
Nevada.
The legislature has the right, indeed the responsibility, to determine that community
standards and mores and diverse social-economic circumstances may differ from one
community to another, and it may see fit to adopt, as here, a regulation to meet prevailing
conditions. Cf. Miller v. California, 413 U.S. 15 (1973) (applying contemporary community
standards in areas of obscenity). The measure of constitutional protection to which certain
expression is entitled depends in great part upon the content of the speeches. Central Hudson
Gas v. Public Service Com'n of N.Y., 447 U.S. 557, 100 S.Ct. at 2350. The speech at hand is
due little, if any, protection. It involves entertainment, not information or ideas.
6

In balancing the state's interests with the interests of appellant publishers, brothel owner,
and the public, I believe the state can suppress the type of advertising before this Court, no
matter how truthful the information presented. Although the First Amendment affords
commercial speech a limited measure of protection, it is equally true that the State does
not lose its power to regulate commercial activity deemed harmful to the public whenever
speech is a component of that activity. Ohralik v. Ohio State Bar Assoc., 436 U.S. at 456.
Here, I agree that the challenge to the legislation fails when balanced with the state's
legitimate regulatory interests.
2. Due Process
Appellants' second contention is that the statutory scheme regulating advertising
constitutes a taking of property without due process of law. This issue is not discussed by my
brethren, who apparently consider it without merit. Whether relief under this theory is
warranted requires a two-part analysis. First, it must be determined whether the right to
advertise is a property interest, and second, whether the regulation of such advertisement
constitutes a taking.
____________________

6
Moreover, some of the advertisements preserved in the record on appeal have the potential of enticing
persons under 21 years of age to visit or become employed as prostitutes in contravention of NRS 201.300 and
201.360(1)(g). Also noteworthy is the fact that the ads refer to out call service, a representation which I
consider to be misleading.
Advertising itself is a legitimate business, United Interchange, Inc. v. Spellacy, 136 A.2d
801, 806 (Conn. 1957), subject to reasonable regulation. Central Outdoor Advertising Co. v.
Evendale, 124 N.E.2d 189, 194 (Ohio 1954). It is also well settled that the right to engage in
any lawful business or occupation carries with it the concomitant right to advertise. Merit Oil
Co. v. Director of Div. of Necessaries of Life, 65 N.E.2d 529, 530 (Mass. 1946).
Furthermore, the right to advertise services or products is a valuable property right, the denial
of which may constitute a taking of property without due process of law. Serve Yourself
Gasoline Stations Ass'n v. Brock, 249 P.2d 545, 548 (1952); Levy v. Pontiac, 49 N.W.2d 80,
82 (1951).
Next, in determining whether the statute's application would constitute a taking without
due process (U.S. Const. Amend. V.; accord Nev. Const. art. 1 8), an examination of the
enacted regulation must be undertaken to determine its propriety as an exercise of the
legislature's police powers for the protection of public health, safety, morals, and general
welfare. Merit Oil Co. v. Director of Div. of Necessaries of Life, 65 N.E.2d at 531. My
examination of this aspect of appellants' claimed denial of their due process rights, is greatly
influenced by the fact that statutes are generally presumed to be valid and it is the burden of
appellants to demonstrate their unconstitutionality. Wilmeth v. State, 96 Nev. 403, 405, 610
P.2d 735, 737 (1980). Furthermore, if, as here, a statute was enacted incidental to the state's
police powers, it is presumed that the legislature intended to promote the public welfare.
Viale v. Foley, 76 Nev. at 152, 350 P.2d at 722. Here, the nature of the business which is the
source of the advertising, coupled with the encumbrances and liabilities explicated in my
preceding discussion regarding appellants' First Amendment claims are alone sufficient to
justify the advertising proscription and regulation.
Because I have determined that the legislation has a rational basis supporting its
enactment, I must now ask whether the proscription and regulation constitutes an
unwarranted taking of this property right. The leading Nevada case in this area is Viale v.
Foley, 76 Nev. 149, 350 P.2d 721, wherein we held that advertising of hotel and motel rates is
subject to legislative regulation. Viale indicates that when there is no absolute prohibition
against all forms of advertising, the statute must be construed as restrictive and regulatory of
the manner and means of advertising . . . rather than an absolute prohibition against any kind
of advertising [which] involves no absolute denial of a property right without due process of
law. Id. at 152-53, 350 P.2d at 722-23.
152-53, 350 P.2d at 722-23. NRS 201.430 merely restricts brothel advertising to those
counties where houses of prostitution may be licensed and prohibits such advertising only in
those counties where houses of prostitution are forbidden by state statute, such as Clark
County. In other areas of Nevada all forms and contents of brothel advertising remain
unregulated. Thus, similar to the statutory limitation in Viale, the challenged statute is merely
restrictive and regulatory of advertising. In my opinion, it involves no absolute denial of a
property right without due process of law.
If a previously lawful business can be prohibited, see Kuban, commercial advertising by an
existing business can be limited or precluded incidental to the state's police power, for the
reasons I have indicated. Here, as in Kuban, although the challenged legislation has a
significantly adverse economic impact upon appellants' ventures, id., at 112, 605 P.2d at
627, I believe that it does not unreasonably deprive appellants of any constitutionally
protected property rights. See Kuban, id.
Appellants have failed to meet their burden of overcoming the statute's presumption of
validity. I conclude, as does the majority, that this claim lacks merit.
3. Vagueness and Overbreadth
Appellants also contend that the words of the statute are vague. The language gives
sufficient warning of the proscribed acts. Wilmeth v. State, 96 Nev. at 404, 610 P.2d at 737;
Roth v. United States, 354 U.S. 476, 491 (1957).
In addition, appellants challenge the statute under the overbreadth doctrine derived from
the First and Fourteenth Amendments. Of course, the majority has already determined that
NRS 201.430 is not violative of Mead's and Galaxy's First Amendment rights. In addition, the
Supreme Court has stated that the justification for the overbreadth analysis applies weakly, if
at all, in the ordinary commercial context. . . . Bates v. State Bar of Arizona, 433 U.S. at
380. See also, Ohralik v. Ohio State Bar Assn., 436 U.S. at 462, n. 20. Because it remains
relevant to distinguish between commercial and noncommercial speech for purposes of
applying the overbreadth doctrine, see Bates at 380, and particularly on the facts of this case, I
believe that the overbreadth doctrine has no application. I agree with the majority that the
claim is without merit.
____________
97 Nev. 546, 546 (1981) Waldman v. Waldman
JOAN C. WALDMAN, Appellant, v. STEVE
WALDMAN, Respondent.
No. 12029
October 28, 1981 635 P.2d 289
Appeal from judgment granting decree of divorce and order denying motion to amend
judgment. Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
The district court granted decree of divorce and made dispositions with regard to parties'
property, and ex-wife appealed. The Supreme Court held that: (1) fact that properties were
purchased with community funds or a community obligation, without more, would be
insufficient to rebut presumption created by form of deeds which granted property in joint
tenancy, and (2) no evidence properly in record supported finding that there was community
debt of $130,000 owed to ex-husband's parents.
John Peter Lee, and Vincent Ochoa, Las Vegas, for Appellant.
James E. Barfield, Las Vegas, for Respondent.
In divorce proceeding, fact that home and unimproved real property were purchased with community
funds or a community obligation, without more, would be insufficient to rebut presumption created by form
of deeds granting title in joint tenancy.
2. Divorce.
Where no evidence properly in divorce record supported finding that there was community debt of
$130,000 owed to ex-husband's parents, such finding was set aside. NRCP 52(a).
OPINION
Per Curiam:
This matter was heard by the trial court, sitting without a jury. The court granted a decree
of divorce to appellant and made certain dispositions with regard to their property. Upon
consideration of the record, we conclude that several of appellant's assignments of error have
merit.
[Headnote 1]
We agree with appellant's contention that the record does not support determination by the
court below that the parties' home and a 2 1J2 acre parcel of unimproved real property
were community property.
97 Nev. 546, 547 (1981) Waldman v. Waldman
home and a 2 1/2 acre parcel of unimproved real property were community property. It is
undisputed that title to each property was held in joint tenancy. Accepting arguendo
respondent's contention that the properties were purchased with community funds or a
community obligation, this fact alone is insufficient to rebut the presumption created by the
form of the deed[s], Peters v. Peters, 92 Nev. 687, 691, 557 P.2d 713, 715 (1976).
[Headnote 2]
In addition, we agree with appellant's contention that no evidence properly in the record
supported the finding of the court that there was a community debt of some $130,000 owed to
respondent's parents. This finding must therefore be set aside pursuant to NRCP 52(a). Nor is
there any indication in the court's decree that it gave consideration to the factors set forth in
Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974), in failing to award any
alimony to appellant. See Johnson v. Steel, Incorporated, 94 Nev. 483, 581 P.2d 860 (1978).
Accordingly, we reverse the judgment except insofar as it granted appellant an absolute
and final decree of divorce from respondent and remand for retrial of the remaining issues.
Manoukian, Batjer, Springer, and Mowbray, JJ., and Legakes, D. J.
1
, concur.
____________________

1
The Governor designated The Honorable Robert G. Legakes, District Judge, to sit in place of The
Honorable E. M. Gunderson, Chief Justice, who voluntarily excused himself. Nev. Const. Art. 6, 4.
____________
97 Nev. 547, 547 (1981) Wilmack, Inc. v. District Court
WILMACK, INC., Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA IN AND FOR THE COUNTY OF WASHOE, and HONORABLE WILLIAM
N. FORMAN, DISTRICT JUDGE, Respondents.
No. 12549
October 29, 1981 635 P.2d 296
Products liability action was filed. Nonresident manufacturer, one defendant in action,
filed a special appearance for a motion to quash service. The district court denied motion,
whereupon petition in prohibition was filed. The Supreme Court held that Nevada's exercise
of jurisdiction over nonresident manufacturer would not be consistent with due process clause
when the only practical justification for doing so would be that Nevada was the most
convenient forum for the injured party and, although it could be inferred that product
manufactured by nonresident was sold indirectly to a Nevada business, there was no
assertion that nonresident manufacturer took part in, was aware of, or should have
foreseen transaction.
tured by nonresident was sold indirectly to a Nevada business, there was no assertion that
nonresident manufacturer took part in, was aware of, or should have foreseen transaction.
Petition granted.
[Petition for rehearing denied March 30, 1982]
Hibbs, Newton & Roberts, and Edward J. Lemons, Reno, for Petitioner.
Erickson, Thorpe, Swainston & Cobb; Wait, Shamberger, Georgeson, McQuaid &
Thompson, Reno, for Respondents.
Constitutional Law; Corporations.
Exercise of jurisdiction over a nonresident manufacturer in products liability action would not be
consistent with the due process clause of the Fourteenth Amendment when only practical justification for
doing so would be that Nevada was the most convenient forum for the injured party and, although it
could be inferred that product manufactured by nonresident was sold indirectly to a Nevada business,
there was no assertion that nonresident manufacturer took part in, was aware of, or should have foreseen
transaction. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Respondent and Real Party in Interest Carveth was seriously injured while a passenger in a
Volkswagen involved in a head-on collision near Truckee, California. Carveth, a California
resident, attributes his injuries to a modification made to the car at the request of a previous
owner. The work was done at an auto repair shop in Sparks, Nevada. In order to accomplish
the modification, it was necessary to remove the spare tire from its original position, where it
shielded the fuel tank. On impact, the tire was hurled into the passenger compartment,
injuring Carveth.
The purpose of this alteration was to install a Baja Bug Kit which was designed and
manufactured by Petitioner Wilmack. The kit was obtained from a Nevada resident who had
purchased it from a Nevada retailer. The mechanic who installed the kit and the retailer were
joined as defendants with Wilmack in the products liability complaint.
Wilmack filed a special appearance for a motion to quash service, claiming that the district
court lacked jurisdiction over Wilmack because it was neither incorporated nor qualified to
do business in Nevada, the accident did not occur here, and the injured plaintiff is not a
Nevada resident. The motion was denied and this petition followed.
Essentially, the issue presented in this appeal is whether this state's exercise of jurisdiction
over a nonresident manufacturer would be consistent with the due process clause of the
Fourteenth Amendment when the only practical justification for doing so would be that
Nevada is the most convenient forum for the real party in interest. Although there was at one
time a strong jurisprudential trend emphasizing convenience of forum over all other
jurisdictional considerations,
1
the United States Supreme Court has recently made it clear
that, while convenience of forum may be considered as one element, jurisdiction based upon
forum convenience alone is improper under the due process clause. World-Wide Volkswagen
v. Woodson, 444 U.S. 286 (1980).
In Abbott v. Harrah, 90 Nev. 321, 526 P.2d 75 (1974), this court applied the Hanson v.
Denkla, 357 U.S. 235 (1958) criteria in defining the outer limits of in personam jurisdiction
over an out of state defendant based upon a single act within the forum state. These criteria
are:
(1) that the defendant purposefully avail himself of the privilege of doing business or
causing important consequences within the state,
(2) the cause of action must arise from the consequences in the forum state of the
defendant's activities, and
(3) the activities or their consequences must have a substantial enough connection
with the state to make the exercise of jurisdiction reasonable.
Here, although it can be inferred that the kit was sold indirectly to a Nevada business, there
is no assertion that Wilmack took part in, was aware of, or should have foreseen that
transaction. Burns v. Second Judicial District, 97 Nev. 237, 627 P.2d 403 (1981). The
complaint simply fails to allege actions taken by Wilmack with relation to this forum which
would make our exercise of jurisdiction reasonable under federal standards.
Although our products liability long arm statute, NRS 14.080, states in the disjunctive the
three means by which a foreign manufacturer can become subject to service in Nevada,
2
this
court has limited that statute to apply only to service of process upon a foreign corporation
whose product has caused injury in this state.
____________________

1
It appears that the attraction of the most convenient forum will eventually be the jurisdictional test
applied. Metal-Matic, Inc., v. District Court, 82 Nev. 263, 267, 415 P.2d 617, 620 (1966).

2
A. NRS 14.080. Products Liability: Service of process on foreign manufacturers, producers, suppliers.
1. Any company, firm, partnership, corporation or association created and existing under the laws of
any other state, territory, foreign government or the Government of the United States, which
service of process upon a foreign corporation whose product has caused injury in this state.
Metal-Matic, Inc. v. District Court, 82 Nev. 263, 415 P.2d 617 (1966).
Even if the statute had not been so limited, under the facts of this case, because of the lack
of contacts between Wilmack and this forum, an exercise of this forum's jurisdiction under
NRS 14.080 would be inconsistent with both the due process clause of the Fourteenth
Amendment and extant case law of this jurisdiction. Burns v. Second Judicial District Court,
97 Nev. 237, 627 P.2d 403 (1981).
Accordingly, the petition for a writ of prohibition is granted.
Gunderson, C. J., and Batjer and Mowbray, JJ., and Zenoff, Sr. J.
3
, concur.
____________________
manufactures, produces, makes, markets or otherwise supplies directly or indirectly any product for
distribution, sale or use in this state may be lawfully served with any legal process in any action to
recover damages for injury to person or property resulting from such distribution, sale or use in this state
in the manner prescribed in this section. (Emphasis added.)

3
Honorable Charles E. Springer, who was disqualified. Nev. Const. art. 6, 19; SCR 10. Justice Noel E.
Manoukian disqualified himself subsequent to submission of this case; however, designation of a substitute
district judge does not appear essential to disposition of the issues presented.
____________
97 Nev. 550, 550 (1981) Ross v. Giacomo
TONI ROSS, Appellant, v. CARL A. GIACOMO, Administrator of
the Estate of ANTHONY L. GIACOMO, Deceased, Respondent.
No. 12142
October 29, 1981 635 P.2d 298
Judge.
Administrator brought action against defendant to recover monies which deceased had
advanced to defendant as down payment for purchase of house of prostitution. The district
court entered judgment in favor of administrator. Defendant appealed. The Supreme Court,
Mowbray, J., held that: (1) appeal was timely; (2) trial court did not commit reversible error
by refusing to submit plaintiff's proposed special verdict form to jury; and (3) evidence was
sufficient to support finding of undue influence exerted on deceased.
Affirmed.
Thompson, D. J., and Manoukian, J., concurred in part, dissented in part.
R. Paul Sorenson and Patrick R. Doyle, Las Vegas, for Appellant.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for Respondent.
Requirement that appeal be filed within 30 days after service of written notice of entry of judgment or
order appealed from is jurisdictional; untimely appeal may not be considered. NRAP 4(a).
2. Judgment; New Trial.
Untimely motions for new trial or judgment n. o. v. must be denied.
3. Judgment; New Trial.
By sending a second notice of entry of judgment on potential appellant, respondent was, in effect,
admitting something was wrong with the first notice and that it was, in fact, no notice at all; thus, second
notice vitiated first notice and motion for judgment n. o. v. or for new trial filed within ten days after
service of the second notice was timely. NRCP 50(b).
While appeal normally does not lie from denial of motion for judgment n. o. v., appeal from denial of
alternative motion for judgment n. o. v. or for new trial could be viewed as appeal from final judgment.
5. Trial.
Whether to require special verdict is discretionary determination to be made by trial court.
6. Appeal and Error; Trial.
In action to recover monies which deceased advanced to defendant as down payment for purchase of
house of prostitution, district court did not commit reversible error by refusing to submit plaintiff's
proposed special verdict form to jury.
7. Gifts.
An alleged gift will be presumed secured by undue influence where alleged donor is lacking in such
mental vigor as to enable him to protect himself against imposition even though his mental weakness is not
such as to justify his being regarded as totally incapacitated.
In action to recover monies deceased advanced to defendant as down payment for purchase of house of
prostitution, defendant failed to preserve for review on appeal issue that jury instruction was erroneous
where defendant raised issue for first time on appeal. NRCP 51.
9. Gifts.
Where alleged donor lacks such mental vigor as to enable him to protect himself against imposition,
burden of proof shifts to alleged donee to prove by clear and satisfactory evidence that gift was freely and
voluntarily made by donor.
10. Gifts.
Testimonial evidence was sufficient to support finding of undue influence exercised on deceased to have
him advance money to defendant as down payment for purchase by defendant of house of prostitution.
OPINION
Carl A. Giacomo, Administrator of the Estate of Anthony L. Giacomo, Deceased, brought
this action against the appellant Toni Ross to recover monies which Anthony Giacomo had
advanced to Ross as a down payment for the purchase by Ross of a house of prostitution in
Fallon, Nevada. The case was tried to a jury that found in favor of the Administrator and
against Ross who has appealed. We affirm.
THE FACTS
On July 27, 1977, Anthony Giacomo delivered $66,000 in cash to appellant Toni Ross.
Giacomo was in poor health at the time; he died sixteen days later.
It is undisputed that Giacomo's money was to be used by appellant as a down payment in
the purchase of the Lazy B. Ranch, a house of prostitution in Fallon, Nevada. A small portion
of the money was spent for a business license investigation, attorney's fees, and escrow costs.
The purchase never occurred, however, and after this action was commenced, the balance of
the money was deposited with the court clerk.
Both appellant and respondent, the administrator of Giacomo's estate, claimed the money
on deposit. Appellant alleged that Giacomo, a longtime friend, had made a gift of the money
to her and that she had no obligation to return it. Respondent claimed that the money was a
loan which appellant was obligated to repay. Alternatively, respondent alleged that Giacomo
had been unduly influenced by appellant and, that in any event, at the time of the transaction
Giacomo lacked mental capacity to make such a gift.
Following a jury verdict in favor of Giacomo's estate, a judgment was entered on March
22, 1979. Notice of entry of judgment was mailed to appellant's attorney the same day. Four
days later, on March 26, 1979, respondent mailed a second notice of entry of judgment,
together with notice of filing of a memorandum of costs. On April 9, 1979, appellant filed a
motion for judgment n.o.v. or, in the alternative, for a new trial. On May 1, 1979, the trial
judge denied the motion as both untimely and lacking merit.
untimely and lacking merit. This appeal from that order was commenced on May 24, 1979.
Before addressing the merits, we first must resolve procedural issues regarding the
timeliness of this appeal and the content of the notice of appeal.
THE TIMELINESS OF THE APPEAL
[Headnotes 1, 2]
An appeal must be filed within 30 days after service of written notice of entry of the
judgment or order appealed from. NRAP 4(a). This requirement is jurisdictional; an untimely
appeal may not be considered. Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113
(1960); Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731 (1953). The 30-day period is extended
by a timely filing of a motion for new trial or for judgment n.o.v. NRAP 4(a). In order to be
timely, these motions must be filed within 10 days after service of written notice of entry of
the judgment. NRCP 50(b).
1
Untimely motions for new trial or judgment n.o.v. must be
denied. Hunter v. Sutton, 45 Nev. 427, 195 P. 342 (1922); Yates v. Behrend, 280 F.2d 64
(D.C.Cir. 1960); cf. Oelsner v. Charles C. Meek Lumber Co., 92 Nev. 576, 555 P.2d 217
(1976). Likewise, untimely motions for new trial or for judgment n.o.v. do not toll the 30-day
period in which a notice of appeal must be filed. NRAP 4(a).
In this case, respondent sent two separate notices of entry of judgment. Appellant claims
she never received the first notice. She relied on the second notice, and her alternative motion
for judgment n.o.v. or for new trial is timely if dated from the second notice.
2
Respondent
argues that the motion for judgment n.o.v. or for new trial had to be filed within 10 days of
the first notice and that, therefore, this appeal must be dismissed as untimely.
3

[Headnote 3]
Under our rules, the respondent starts the appeal time running by serving notice of entry of
judgment on the potential appellant. Here, by sending two separate notices on different dates,
respondent created a confusing situation. While there is no indication that respondent
intended to deceive appellant, we do not believe it would be in accord with principles of
due process of law to allow respondent to benefit by the confusion he created, albeit
inadvertently. Cf. Kotecki v. Augusztiny, S7 Nev. 393
____________________

1
The 10-day period is extended by three days where, as here, the notice was served by mail. NRCP 6(e).

2
The filing of the motion 14 days after service of notice of entry of judgment by mail was permissible
because the 13th day fell on a Sunday. See NRCP 6(a).

3
If, contrary to respondent's contention, the motion was timely, appellant's subsequent notice of appeal was
also timely, since it was filed within 30 days after service of written notice of entry of the order denying the
motion. NRAP 4(a).
no indication that respondent intended to deceive appellant, we do not believe it would be in
accord with principles of due process of law to allow respondent to benefit by the confusion
he created, albeit inadvertently. Cf. Kotecki v. Augusztiny, 87 Nev. 393, 487 P.2d 925
(1971). By sending the second notice, we believe respondent was, in effect, admitting that
something was wrong with the first notice and that it was, in fact, no notice at all. We,
therefore, hold that the second notice vitiated the first notice, thus rendering it nugatory. See
Storey v. Castner, 306 A.2d 732 (Del. 1973).
4
We conclude that the motion for judgment
n.o.v. or for a new trial was timely, and we decline to dismiss this appeal.
We emphasize that there is no evidence in the record of collusion by the parties to extend
the time within which an appeal may be filed. On the contrary, respondent now strenuously
contends that this appeal must be dismissed as untimely. Accordingly, our holding in this case
in no way affects our continuing adherence to the rule announced in Culinary Workers v.
Haugen, supra, that the parties may not stipulate to extend the time within which an appeal
may be filed.
THE NOTICE OF APPEAL
We next must determine whether this appeal can be treated as an appeal from the final
judgment. The notice of appeal designates the order denying the motion for judgment n.o.v.
or for new trial as the order appealed from. No mention is made of the final judgment. This,
appellant asserts, is due to a typographical error.
The notice of appeal must designate the judgment, order or part thereof appealed from.
NRAP 3(c). We have refused, however, to allow this notice requirement to be a technical
trap for the unwary draftsman."
____________________

4
In Delaware, the court clerk apparently has the duty of sending notice to the parties of entry of judgment. In
Storey, the judge filed with the clerk a copy of a letter opinion and order denying a motion for remittitur or new
trial. For some reason, unclear in the opinion, the parties never received the notice. Later, the judge substituted a
second letter opinion and order. In holding that the second letter opinion superseded the first, the Delaware
Supreme Court stated:
It is manifest that the Trial Judge, in substituting the second opinion and order for the first, was
attempting to rectify some clerical mistake, oversight, or omission which resulted in the failure of counsel
to receive the first. . . . [W]e conclude on the basis of Rule 60(a) that the Trial Judge, in effect, vacated
his first opinion and order (although it was never actually withdrawn) and substituted the second for it,
thus making the date of the second the effective date for appeal purposes.
306 A.2d at 734.
trap for the unwary draftsman. Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536,
516 P.2d 1234, 1236 (1973); see Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419,
488 P.2d 917 (1971). In Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d 953
(1970), this court, relying on federal practice, held that an appeal from an order denying a
motion for new trial is an appeal from the final judgment, if the same can be inferred from the
notice of appeal, the designation of the record, and the posting of a supersedeas bond. Here,
the entire record was designated. Although no supersedeas bond was filed, none was
necessary, since the money in question was already in the possession of the court clerk.
[Headnote 4]
Respondent contends that the portion of the district court order which denies judgment
n.o.v. is not appealable. While an appeal normally does not lie from denial of a motion for
judgment n.o.v., Associates Finance Corp. v. Scott, 411 P.2d 174 (Ariz.App. 1966); State ex
rel. Nilsen v. Shalimar, 558 P.2d 1251 (Or.App. 1977), an appeal from the denial of an
alternative motion for judgment n.o.v. or for a new trial may be viewed as an appeal from the
final judgment. Gray v. General Motors Corp., 434 F.2d 110 (8th Cir. 1970). We conclude
that appellant intended to appeal from the final judgment. We now turn to the merits.
THE SPECIAL VERDICT
Appellant contends that the district court committed reversible error by refusing to submit
her proposed special verdict form to the jury. Subsequently, the jury rendered a general
verdict in favor of respondent.
[Headnotes 5, 6]
Whether to require a special verdict is a discretionary determination to be made by the trial
court. See United Assn. Journeymen v. Stine, 76 Nev. 189, 220, 351 P.2d 965, 981 (1960).
NRCP 49(a), which was taken verbatim from Fed. R. Civ. P. 49(a), provides in part: The
court may require a jury to return only a special verdict in the form of a special written
finding upon each issue of fact. (Emphasis added.) In applying this rule, the federal courts
have accorded the trial judge broad discretion in determining whether to require a special
verdict. See, e.g., Kornicki v. Calmar Steamship Corporation, 460 F.2d 1134 (3d Cir. 1972);
Judith Ann Liberian Transport Corp. v. Crawford, 399 F.2d 924 (9th Cir. 1968); 9 Wright and
Miller, Federal Practice and Procedure 2505, at 492-493 (1971). We have examined the
special verdict form offered by appellant and find no abuse of discretion on the part of the
district court in refusing to submit it to the jury.
offered by appellant and find no abuse of discretion on the part of the district court in refusing
to submit it to the jury.
THE INSTRUCTIONS
Appellant next contends that the district court gave an erroneous instruction regarding
undue influence, one of respondent's theories at trial. Appellant argues that since a general
verdict was rendered, it is impossible to determine what effect this alleged erroneous
instruction had on the jury. Indeed, we have previously stated that where a general verdict is
not accompanied by special interrogatories, substantial error in the charge of the trial court as
to any of the alternative theories of liability or defense requires remand for another trial.
Wood v. Southern Pacific Co., 88 Nev. 527, 501 P.2d 652 (1972); Otterbeck v. Lamb, 85
Nev. 456, 456 P.2d 855 (1969); Lightenburger v. Gordon, 81 Nev. 553, 579, 407 P.2d 728,
743 (1965) (Thompson, J., concurring).
[Headnotes 7, 8]
In the present case, however, we are not convinced that the jury instruction in question was
erroneous. The trial court instructed the jury as follows:
An alleged gift will be presumed secured by undue influence where the alleged
donor is lacking in such mental vigor as to enable him to protect himself against
imposition even though his mental weakness is not such as to justify his being regarded
as totally incapacitated.
This instruction is supported by case law. See McDonald v. Hewlett, 228 P.2d 83 (Cal.App.
1951); Gordon v. Bialystoker Center & Bikur Cholim, 396 N.Y.S.2d 896 (App.Div. 1977);
see also 38 Am.Jur.2d Gifts 93, at 893 (1968). Appellant objected to the instruction on the
ground that there was no evidence of undue influence. The district court correctly rejected
appellant's objection, since there was substantial evidence of mental incapacity which, as the
above-cited case law reflects, is highly probative on the question of undue influence.
Appellant now contends, for the first time on appeal, that this instruction was also
erroneous in view of the district court's failure to instruct the jury as to the elements of undue
influence. Appellant did not object to the instruction on this ground at trial, nor did she offer
an instruction defining undue influence. Therefore, we decline to consider this contention on
appeal. NRCP 51; Alpark Distributing, Inc. v. Poole, 95 Nev. 605, 600 P.2d 229 (1979).
THE SUFFICIENCY OF THE EVIDENCE
[Headnotes 9, 10]
Finally, appellant contends that insufficient evidence of undue influence was adduced at
trial to support a jury verdict on this theory. We disagree. The mental weakness of the donor
is an important element in raising a presumption of undue influence or in determining its
existence. Brown v. Cobb, 204 P.2d 264 (N.M. 1949). Indeed, where the alleged donor lacks
such mental vigor as to enable him to protect himself against imposition, the burden of proof
shifts to the alleged donee to prove by clear and satisfactory evidence that the gift was freely
and voluntarily made by the donor. McDonald v. Hewlett, supra; Gordon v. Bialystoker
Center & Bikur Cholim, supra.
In this case, the theory of undue influence is supported by the testimony of Dr. David
Dapra, a neurologist, who examined Giacomo 12 days prior to the alleged gift. Dr. Dapra
testified that, in lay terms, Giacomo suffered from diabetes which caused the closure of blood
vessels, hemorrhaging of the arteries behind the eyes, and difficulty with the hands and feet.
He noted that Giacomo did not know the day, month, or year, could not repeat a test phrase
three minutes after it was given him, and could not think properly because his brain was
being destroyed by lack of oxygen. Dr. Dapra concluded his testimony by diagnosing
Giacomo as incompetent within the meaning of NRS 159.019.
5
Thus, respondent made a
strong showing of mental infirmity which, in turn, shifted the burden of proof to appellant.
While appellant did testify that the $66,000 was fairly and freely given to her, the jury was
entitled to disbelieve this testimony.
Other issues raised by appellant have been considered and found to be without merit.
Gunderson, C. J., and Batjer, J., concur.
Thompson, D. J.,
1
concurring in part and dissenting in part, with whom Justice
Manoukian agrees: I respectfully dissent from that part of the majority opinion which
holds that the second notice of entry of judgment vitiated the first.
____________________

5
Incompetent' includes any person who, by reason of mental illness, mental deficiency, advanced age,
disease, weakness of mind or any other cause, is unable, without assistance, properly to manage and take
care of himself or his property.

1
The Governor commissioned The Honorable J. Charles Thompson, Judge of the Eighth Judicial District
Court, to sit in the place of The Honorable Gordon Thompson, Justice, Nev. Const. art. 6, 4.
I respectfully dissent from that part of the majority opinion which holds that the second
notice of entry of judgment vitiated the first.
The time to file a motion for judgment n.o.v. or for a new trial begins to run when a notice
of entry of the judgment is served. NRCP 50(b); 59(b). Service by mail is complete upon
mailing. NRCP 5(b). I find no authority or justification for the majority's holding that the time
to file post-trial motions terminates and then begins again when an additional notice is given.
The majority's reliance on Storey v. Castner, 306 A.2d 732 (Del. 1973) is misplaced. There,
the first notice, if sent, was never received. Here, counsel for appellant apparently received
the first notice but relied upon the second.
The second notice of entry was obviously intended to advise appellant that respondent had
filed a memorandum of costs as provided for in NRS 18.110. This second notice had the
memorandum attached to it and was used as a vehicle for service of the memorandum. It was
clearly not an admission that something was wrong with the first notice. In this regard, the
majority unfairly criticizes respondent's counsel for keeping appellant properly informed of
the papers being filed.
This court has previously held that a trial judge is without jurisdiction to extend the time
for filing a motion for new trial. Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113
(1960). NRCP 6(b) forbids an extension of time to file a motion for judgment n.o.v. Despite
these inflexible prohibitions, the majority has, in effect, allowed one party the unilateral right
to grant extensions to his opponent by serving successive notices of entry of the judgment. If
a second notice renders the first nugatory, a second notice filed more than 10 days after the
first will reinvest the trial court with jurisdiction to hear a post-trial motion even after the
time to file it has once expired. Indeed, because the time to appeal begins to run with the
service of a notice of entry of judgment, it appears that this court will, under today's holding,
be reinvested with jurisdiction on appeal when a second notice of entry of judgment is mailed
more than 30 days after the first.
Instead of finding that the second notice of entry vitiated the first, I would look to NRCP
60(b) as a source of relief for appellant. The federal courts have held in interpreting the
parallel federal rules, Fed. R. Civ. Pro. 59(b); 60(b), that under appropriate circumstances the
district court may entertain under NRCP 60(b) a motion for a new trial which is untimely
under NRCP 59(b) upon a showing of mistake, inadvertence, surprise, or excusable neglect.
John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., 239 F.2d 815 (3d. Cir. 1956);
Kruse v. Zenith Radio Corp., S2 F.R.D. 66 {W.D.Penn., 1979); and Crawford v. West India
Carriers, Inc.,
Kruse v. Zenith Radio Corp., 82 F.R.D. 66 (W.D.Penn., 1979); and Crawford v. West India
Carriers, Inc., 56 F.R.D. 32 (S.D.Fla. 1972). Such an application was made and denied by
Judge Gabrielli in this case. While the trial judge might have exercised his discretion to
relieve appellant from this procedural dereliction, he declined to do so. Under these
circumstances I perceive no reason that this court should find counsel for appellant to have
been misled or confused by the second notice.
I would dismiss the appeal as untimely.
On the merits I fully concur in the remainder of the majority opinion.
____________
97 Nev. 559, 559 (1981) Goldstein v. Hanna
RONALD J. GOLDSTEIN and MARY E. GOLDSTEIN,
Appellants, v. FUAD HANNA, Respondent.
No. 11852
October 29, 1981 635 P.2d 290
Appeal from judgment, Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Lessees of condominium with option to purchase sued owner to compel specific
performance of option. The district court entered judgment in favor of owner, and lessees
appealed. The Supreme Court, Gunderson, C. J., held that doctrine of equitable estoppel
precluded owner from claiming a forfeiture of the option rights upon their lapse.
Mowbray and Manoukian, JJ., dissented.
Martin Becker, and Patrick R. Doyle, Las Vegas, for Appellants.
Leonard A. Wilson, Las Vegas, for Respondent.
1. Estoppel.
Where there is a duty to speak, silence can raise an estoppel quite as effectively as can words.
2. Estoppel.
A duty to speak, from which silence can raise an estoppel, arises when another is or may come under a
misapprehension regarding the authority of the principal's agent; under such circumstances, the principal is
obligated to exercise due care, and to conduct himself as a reasonably prudent business person with normal
regard for the interests of others.
3. Principal and Agent.
Silence or failure to repudiate an agent's representations can give rise to an inference of affirmation.
4. Estoppel.
Doctrine of equitable estoppel is properly invoked whenever unconscionable injury would result from
denying enforcement of contract after one party had been induced by the other seriously to change his
position in reliance on the contract.
Where lessees of condominium with option to purchase relied on representations of owner's agent that
they need not consummate purchase on date originally set for closing, but that option would continue to be
valid until end of its original period, and where owner was silent and acquiesced in such
misrepresentations, owner's silence and acquiescence manifestly caused lessees to do what they otherwise
would not have done, that is, to permit a lapse of their valuable option rights; therefore, doctrine of
equitable estoppel precluded owner from claiming a forfeiture of the option rights upon their lapse.
OPINION
Appellants, Ronald and Mary Goldstein, sued respondent, Fuad Hanna, to compel specific
performance of an option to purchase Hanna's condominium. The district court entered
judgment in favor of Hanna. We reverse and remand.
On or about December 10, 1977, the parties entered into a lease relating to Hanna's
condominium in Clark County, Nevada. The lease granted the Goldsteins an option to
purchase the condominium, and declared the option may be exercised at any time after
December 1, 1977 and shall expire at midnight December 9, 1978 unless exercised prior
thereto. Callahan Realty conducted all negotiations on behalf of respondent Hanna, and was
designated in the agreement as his authorized agent. The Goldsteins dealt exclusively with
Callahan Realty, both as tenants and prospective purchasers. They had no direct dealings with
Hanna until after August 1978.
In the summer of 1978, the Goldsteins chose to exercise their option to purchase. They
contemplated a purchase from Hanna, with a simultaneous sale from themselves to another
purchaser. To effectuate this double sale, Callahan Realty established two escrows, both with
closing dates of August 29, 1978. Shortly before the escrows were to close, however, the
ultimate purchaser declined to perform.
Three days before their escrow with Hanna was due to close, the Goldsteins contacted Mr.
Callahan, and specifically advised him that they intended to complete the purchase. They
advised Callahan they would purchase the condominium themselves, rather than find another
purchaser.
1
Callahan informed the Goldsteins that they need not consummate the
purchase by August 29, because their option would continue to be valid under the terms
of the lease until December 9, 197S.
____________________

1
The uncontroverted testimony of Ronald Goldstein reflects that he was prepared to fund the escrow himself
when the ultimate purchaser declined to perform.
Goldsteins that they need not consummate the purchase by August 29, because their option
would continue to be valid under the terms of the lease until December 9, 1978. To insure
that respondent Hanna shared this understanding of the option terms, Mr. Goldstein requested
Callahan call to Hanna, in his presence and confirm the agent's representations.
Callahan called Hanna and advised him that the ultimate purchaser would not close escrow
as planned. Callahan also told Hanna that the Goldsteins' option to purchase would still be in
effect until expiration of the lease term. Although Hanna testified at trial that he never
authorized Callahan Realty to extend the escrow, the record indicates he never asserted that
the option would not remain viable following termination of the pending escrow. On this
issue, it appears he remained silent, and thus permitted the Goldsteins to rely on Callahan's
representations. Callahan Realty, as Hanna's agent, thereafter accepted the Goldsteins' check
for payments on the lease through October. Callahan Realty deposited the money in a trust
account and issued a check to Hanna for the lease payments, less commission.
On August 31, Hanna notified the escrow holder to consider the escrow cancelled. On
September 15, however, Hanna called the Goldsteins on at least two occasions and attempted
to purchase their option rights in the property.
2
After the Goldsteins rejected Hanna's offer,
they learned that Hanna purportedly had cancelled the escrow. Hanna then refused to
participate in a second escrow initiated by the Goldsteins.
On these facts, the district court entered judgment for Hanna, which we think was
erroneous. In our view, this case does not turn on whether Callahan correctly advised the
Goldsteins concerning their contract with respondent Hanna. Nor need we decide whether
Callahan had actual authority to alter the contract's terms. The doctrine of equitable estoppel
clearly precludes Hanna from claiming that the Goldsteins' rights under the lease-option
agreement expired on August 29, 1978.
According to 8B(1) of the Restatement (Second) of Agency (1958), an equitable estoppel
arises under the following circumstances:
(1) A person who is not otherwise liable as a party to a transaction purported to be
done on his account, is nevertheless subject to liability to persons who have changed
their positions because of their belief that the transaction was entered into by or for
him, if
____________________

2
Appellants' uncontradicted testimony is as follows:
Mr. Hanna offered to buy our interest out. Maybe I am not using the right phrase. He offered us
money to leave the property. He said that he wanted the place for himself.
their positions because of their belief that the transaction was entered into by or for
him, if
(a) he intentionally or carelessly caused such belief, or
(b) knowing of such belief and that others might change their positions because of it,
he did not take reasonable steps to notify them of the facts.
See also, Gardner v. Pierce, 22 Nev. 146, 36 P. 782 (1894).
[Headnotes 1-3]
Where there is a duty to speak, silence can raise an estoppel quite as effectively as can
words. A duty to speak arises when another is or may come under a misapprehension
regarding the authority of the principal's agent. Under such circumstances, the principal is
obligated to exercise due care, and to conduct himself as a reasonably prudent business
person with normal regard for the interests of others. Restatement (Second) of Agency 8B
comment d. (1958). Thus, a person remaining silent when he ought, in the exercise of good
faith, to have spoken, will not be allowed to speak when he ought, in the exercise of good
faith, remain silent. Gardner v. Pierce, 22 Nev. 146, 36 P. 782 (1894); see also Universal C.
I. T. Credit Corporation v. Wagner Motor Company, 72 Nev. 337, 305 P.2d 363 (1956);
Zunino v. Paramore, 83 Nev. 506, 435 P.2d 196 (1967). Similarly, silence or failure to
repudiate an agent's representations can give rise to an inference of affirmation. According to
94, comment a, of the Restatement (Second) Agency (1958):
Silence under such circumstances that, according to the ordinary experience and
habits of men, one would naturally be expected to speak if he did not consent, is
evidence from which assent can be inferred. Such inference may be made although the
purported principal had no knowledge that the other party would rely upon the
supposed authority of the agent; his knowledge of such fact, however, coupled with his
silence, would ordinarily justify an inference of assent by him. . . .
[Headnotes 4, 5]
In the instant case, during his telephone conversation with Callahan, Hanna made no effort
to assure that the Goldsteins were not misled or lulled by his agent's representations.
3
Hanna
knew the Goldsteins might not hasten to complete the August escrow while assuming
they still had several months to exercise the option.
____________________

3
The uncontroverted testimony of Mr. Goldstein indicates:
A. I was concerned having, on Callahan's advice, used the last month's rent, in restoring this so as not
to be in default of the agreement, and he called Mr. Hanna at that time, at my insistence, in my presence
he phoned him, and advised him of the problem, that there
Hanna knew the Goldsteins might not hasten to complete the August escrow while assuming
they still had several months to exercise the option. Consequently, Hanna's silence and
acquiescence in his agent's representations manifestly caused the Goldsteins to do what they
otherwise would not have done, i.e. to permit, at least arguably, a lapse of their valuable
option rights.
4
Persons ordinarily express dissent to acts done on their behalf which they
have not authorized or of which they do not approve. . . . Restatement (Second) of Agency
43 comment a. (1958). The doctrine of equitable estoppel is properly invoked whenever
unconscionable injury would result from denying enforcement of the contract after one party
has been induced by the other seriously to change his position in reliance on the contract.
Alpark Distributing Inc. v. Poole, 95 Nev. 605, 600 P.2d 229 (1979); Monarco v. Lo Greco,
35 Cal.2d 621, 220 P.2d 737 (Cal. 1950). In the case at bar, the detriment suffered by the
Goldsteins involves the loss of the benefit of their bargain: the right to purchase the property
for a specified sum.
Thus, we need not decide whether or not Callahan Realty would have had actual authority,
acting alone, to extend the Goldsteins' right to exercise the option or to interpret the contract's
meaning. In effect, Hanna imbued his agent, Callahan, with apparent authority to make the
representations upon which the Goldsteins relied. Apparent authority (when in excess of
actual authority) proceeds on the theory of equitable estoppel; it is in effect an estoppel
against the owner to deny agency when by his conduct he has clothed the agent with apparent
authority to act. Ellis v. Nelson, 68 Nev. 410, 233 P.2d 1072 (1951); see also, Nevada
National Bank v. Gold Star Meat Company, 89 Nev. 427, 514 P.2d 651 (1973); Tsouras v.
Southwest Plumbing & Heating, 94 Nev. 748, 587 P.2d 1321 (1978).
____________________
would be a delay in the closing of the escrow and that--and he informed Mr. Hanna on the phone
that--evidently he asked if this invalidated it, and he told him it did not, it was good until the end of
November.
Q. What did Mr. Callahan indicate to you after the telephone conversation?
A. No problem. This is the basic phrase he used, no problem, we will go ahead and obtain a new
buyer.
Q. Didn't Mr. Callahan also indicate to you he had full authority to make those representations?
A. Certainly. Yes.

4
The record indicates that but for Hanna's silence the Goldsteins would have completed the escrow as
scheduled. When Hanna informed the Goldsteins in mid-September 1978 that he did not intend to go through
with an escrow with them, the Goldsteins promptly deposited with Western Title Company the necessary
$82,000.00 to fulfill their part of the option agreement.
We therefore conclude that the doctrine of equitable estoppel precludes Hanna from
claiming a forfeiture of the Goldsteins' option rights. The cause is reversed and remanded for
further proceedings consistent with this opinion.
5

Batjer and Springer, JJ., concur.
Mowbray, J., dissenting:
Respectfully, I dissent.
As I understand the ruling, a landowner who offers his land for sale, enters into an escrow
agreement for that purpose which is not completed because the buyer fails to perform in
accordance with its terms may still be held liable thereafter by his silence. In this case it is
claimed that Callahan, a realtor, acting for the owner, verbally extended the escrow after its
extinguishment. The owner testified that he never authorized such an extension. The trial
court so found. But our ruling today concludes that the landowner did so, predicated on the
theory of estoppel by silence. I feel this pronouncement may endanger the orderly conduct
of commercial transactions. For these reasons I dissent. The judgment of the district court
should, in my opinion, be affirmed.
Manoukian, J., dissenting:
I cannot agree with the majority opinion, because the record and law support an opposite
result. Accordingly, I dissent.
In this appeal, appellants contend that the trial court erred in finding that respondent's
agent did not have the authority to extend an escrow closing date, and alternatively, that
absent such authority, respondent did not ratify the agent's unauthorized acts. The majority
concludes that the doctrine of equitable estoppel prevents respondent Hanna from claiming
that the Goldsteins' rights under the lease-option agreement expired on August 29, 1978. The
majority's reliance on the law of estoppel in the context of this case is misplaced. It merely
appears viable, because of the majority's omission of facts both material and relevant to the
disposition of this appeal. Not only is the principle announced by the Court today without
sound precedent, it is also a trap for unsuspecting prospective vendors.
On November 23, 1977, appellants-lessees and respondent-lessor entered into a
residential lease with option to purchase for a residential unit (hereinafter referred to as
Unit 21-E) in a development known as Regency Towers in Clark County.
____________________

5
In accord with the parties' joint stipulation, rental payments of $4,966.87 paid by the Goldsteins to Hanna,
pursuant to the district court's judgment, should be credited toward purchase of the condominium.
County. Appellants paid respondent $1,000 for the option to purchase the unit for $83,000,
which option was exercisable anytime between December 10, 1977, and December 9, 1978.
Callahan Realty, Inc., was named as respondent's agent regarding the lease.
On or about July 17, 1978, appellants exercised the option and the parties executed escrow
instructions which set forth the terms and conditions of the sale. The closing date was August
29, 1978, and the escrow included a provision that time was of the essence. Callahan Realty,
Inc., was named as the broker. The instructions did not authorize Callahan Realty, Inc., to
extend the closing date of the escrow.
The record shows that Callahan, apparently without the knowledge of respondent, was
coordinating a double escrow relative to Unit 21-E. The value of the unit was nearly twice
the lease-option purchase price. On approximately August 26, appellants were informed that
the third party buyer had withdrawn his offer to buy.
Shortly before the closing date of the escrow, appellants met with Gerald Callahan,
president of Callahan Realty, Inc., to discuss the problems with escrow financing. While
appellants were waiting, Callahan telephoned the respondent, Hanna. Hanna did not agree to
extend the August 29 closing date, nor did he authorize Callahan to extend it and, in fact,
indicated to Callahan that if appellants did not meet the escrow terms by then, the escrow
would be cancelled.
1
Callahan, nevertheless, did not relate this information to appellants,
and instead informed appellants that they could close at any time before the end of the option
period.
Appellants did not comply with the escrow agreement by the August 29 deadline,
2
and on
August 31, respondent sent a notice of cancellation of escrow to the escrow company.
____________________

1
Although the majority opinion states that the record indicates he [Hanna] never asserted that the option
would not remain viable following termination of the pending escrow, the record, in fact, indicates that Hanna
did exactly that. The majority states that to insure that respondent Hanna shared this (Callahan's) understanding
of the option terms, Mr. Goldstein requested Callahan call Hanna, in his presence, and confirm the agent's
representations. Callahan's own testimony shows that Hanna objected to an extension of the escrow beyond the
August 29, 1978, date. The majority's statement that Hanna apparently remained silent concerning the question
of the viability of the option is clearly contradicted by the record.

2
Irrespective of the majority opinion's reference to [t]he uncontradicted testimony of Ronald Goldstein
concerning his claimed ability to fund the escrow, the record raises substantial doubt as to appellants' ability to
fund the escrow by the August 29 closing date without participation of the third party buyer. While Ronald
Goldstein claimed he had sufficient monies to fund the escrow when he first approached Callahan in June or
July, he also testified: I was so firmly convinced nothing would
notice of cancellation of escrow to the escrow company. Thereafter, appellants did not deposit
the necessary funds until September 27, 1978. Appellants were subsequently unsuccessful in
this action for specific performance and respondent successfully counterclaimed for unpaid
rent. Appellants appeal from the adverse judgments.
It is the general rule that when an option is properly exercised, the option agreement is
terminated and is converted into a bilateral contract for the purchase and sale of the property.
Maloff v. B-Neva, Inc., 85 Nev. 471, 456 P.2d 438 (1969); 8 A. G. Thompson, Real Property
4446 (1963). And when the option exercised is part of a lease-option agreement, the
incidents of the lease agreement terminate as well, and the lessor-lessee relationship becomes
that of vendor-vendee. Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977);
Rosenthal v. Shapiro, 52 N.W.2d 859 (Mich. 1952). Accordingly, when appellants exercised
the option in July, 1978, the option terminated and the lease agreement was converted into a
contract for the purchase and sale of property.
3
As correctly noted by the trial judge,
Callahan's assertions that the option could be exercised after the August 29 closing date were,
therefore, erroneous legal conclusions.
Appellants reject application of the general rule discussed above, arguing first that Gerald
Callahan, as agent for respondent, had apparent authority to renew the option or extend the
escrow closing date beyond August 29, and that consequently, respondent's cancellation of
the escrow was wrongful. As we stated in Tsouras v. Southwest Plumbing & Heating, 94
Nev. 748, 751, 587 P.2d 1321, 1323 (1978), quoting 2 F. Mechem on Agency 725, 726
(2d ed. 903):
It is indispensible to keep in mind here that, as against the principal, there can be
reliance only upon what the principal himself has said or done, or at least said or
done through some authorized agent.
____________________
go amiss [with the third party escrow] that we depleted some of these funds in business investments in Alaska,
and then given two or three days' notice. . . . Furthermore, when the Goldsteins funded the second escrow in
late September, the money was deposited by Reames Food, Inc., a third party to the escrow, the title company
was instructed not to inform the seller (Hanna) of the deposit, the funds deposited in the account could not be
paid to the seller without written authorization from Reames Foods, Inc. and Reames could withdraw the funds
from the escrow account at any time.

3
The lease-option agreement itself unambiguously calls for the same result as the case authority cited above.
The lease states:
This option may be exercised at any time after December 10, 1977, and shall expire at midnight
December 9, 1978, unless exercised prior thereto. Upon expiration Owner shall be released from all
obligations hereunder and all of Tenants rights hereunder, legal or equitable, shall cease. (Emphasis
added.)
the principal, there can be reliance only upon what the principal himself has said or
done, or at least said or done through some authorized agent. The acts of the agent in
question can not be relied upon as alone enough to support an estoppel. If his acts are
relied upon there must also be evidence of the principal's knowledge and acquiescence
in them. . . .
Contrary to the majority view, appellants have failed to present any evidence of actions on
the part of respondent which could be construed as clothing Callahan with the apparent
authority to either extend the escrow or renew the option. See Tsouras v. Southwest Plumbing
& Heating, supra; Ellis v. Nelson, 68 Nev. 410, 418-19, 233 P.2d 1072, 1076 (1951). See
also Wilshire Insurance Co. v. State, 94 Nev. 546, 582 P.2d 372 (1978). Indeed, on
cross-examination, Callahan testified that he had no authorization to extend the escrow, and
that in the event appellants failed to timely comply, Hanna had instructed him to cancel the
escrow.
4
Any representations that Callahan made regarding any extension of the escrow or
regarding the option were merely hearsay, and, however much the [Goldsteins] may have
been lured into relying upon them, they did not affect the rights of the [seller]. Tsouras v.
Southwest Plumbing & Heating, supra, at 751, 587 P.2d at 1323, quoting Schlitz Brewing
Co. v. Grimmon, 28 Nev. 235, 249, 81 P. 43, 46 (1905). The determinations of the trial court
are supported by substantial evidence, and I would not disturb them. Harris v. Shell Dev.
Corp., 95 Nev. 348, 351, 594 P.2d 731, 733 (1979).
Appellants next contend that Hanna ratified Callahan's unauthorized actions by accepting
subsequent rental payments, allowing the option to be exercised in a manner that was not
specified in the agreement and by offering appellants money to vacate the premises before the
lease expired.
We long ago held that when a principal deliberately ratifies the unauthorized acts of an
agent, he will be bound thereby as fully as if the agent had been expressly authorized to do
the act. Clarke v. Lyon County, 8 Nev. 181 (1873). A principal is only held to ratify the
unauthorized act of an agent when he does so expressly, or, with full knowledge of the
transaction, accepts or receives some advantage from it, or when he fails to repudiate it
within a reasonable time after acquiring such knowledge.
____________________

4
Callahan also testified that customarily brokers are without the authority to extend an escrow. The
legislative scheme supports this representation, providing that any power over or concerning lands, or in any
manner relating thereto [shall be in writing or subscribed to by the transferor] or by his lawful agent thereunto
authorized in writing. NRS 111.205. Here, Callahan was unable to even produce a listing agreement.
it within a reasonable time after acquiring such knowledge. Edwards v. Carson Water Co., 21
Nev. 469, 34 P. 381 (1893). See also Goetz v. Security Industrial Bank, 508 P.2d 410
(Colo.App. 1973); Rakestraw v. Rodriques, 500 P.2d 1401 (Cal. 1972).
Here, there is no showing that respondent ratified Callahan's purported extension of the
escrow period or that he even had knowledge of Callahan's unauthorized act; respondent's
expressed intentions were to the contrary. The acts alleged by appellants to be a ratification of
Callahan's conduct did not relate to the closing of escrow and cannot be deemed a renewal of
the option or extension of the closing date.
On the authority of Tsouras v. Southwest Plumbing & Heating, supra, quoting 2 F.
Mechem on Agency 725, 726 (2d ed. 1903); Restatement (Second) of Agency, 8B(1)
(1958), I would reject as unmeritorious the claim of equitable estoppel. Hanna failed to take
any action, express or implied, that could be construed as clothing Callahan with the
necessary authority. It necessarily follows that appellants' reliance was inappropriate, as
application of the doctrine of estoppel would require that Hanna know about and acquiesce to
any assertion on which the Goldsteins purportedly relied. Tsouras v. Southwest Plumbing &
Heating, supra.
I would affirm the judgments of the trial court.
____________
97 Nev. 568, 568 (1981) Laursen v. State
SILAS HOWARD LAURSEN, Appellant, v. THE
No. 11156
October 29, 1981 634 P.2d 1230
Appeal from jury verdict finding appellant guilty of first degree murder, Second Judicial
District Court, Washoe County; Roy L. Torvinen, Judge.
The Supreme Court, Mowbray, J., held that: (1) in view of overwhelming evidence against
defendant and fact that he made a number of voluntary incriminating statements to officers,
and where it could not be seriously contended that jury would have decided differently had
formal statement not been introduced, error of trial court in failing to submit to jury the issue
whether formal statement was voluntarily made was not prejudicial, and (2) in view of, inter
alia, want of any affirmative evidence that defendant's statement was involuntary, error of
trial judge in placing upon him burden of proving that statement was involuntary was not
prejudicial.
of trial judge in placing upon him burden of proving that statement was involuntary was not
prejudicial.
Affirmed.
Fondi, D. J., and Manoukian, J., dissented.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney
1. Criminal Law.
Trial judge receives evidence on voluntariness of statement and determines whether statement was
voluntary, and, if so, it is admitted, but court must later submit issue by appropriate instruction to jury, and
where, although trial judge determined that statement was voluntarily made, he failed to submit issue to
jury, he committed error.
2. Criminal Law.
There is no constitutional mandate that voluntariness of statements be determined by both judge and jury.
3. Criminal Law.
In view of overwhelming evidence against defendant and fact that he made a number of voluntary
incriminating statements to officers, and it could not be seriously contended that jury would have decided
differently had formal statement not been introduced, error of trial court in failing to submit to jury the
issue whether formal statement was voluntarily made was not prejudicial. NRS 178.598.
4. Criminal Law.
Trial court erred in placing upon defendant the burden of proving that his statement was involuntary, rule
being that State must prove by preponderance of evidence that statement is voluntary.
5. Criminal Law.
In view of, inter alia, want of any affirmative evidence that defendant's statement was involuntary, error
of trial judge in placing upon him burden of proving that statement was involuntary was not prejudicial.
NRS 178.598.
OPINION
Appellant Laursen planned to kill one of his sons-in-law; however, he missed his shot and
killed another son-in-law. He was convicted of first degree murder. On the day of the
homicide, appellant drank several beers. Approximately three hours after the shooting he
gave a post-Miranda statement which was incriminating.
after the shooting he gave a post-Miranda statement which was incriminating. Over objection,
the trial judge found the statement to be voluntary, and admitted it into evidence. Appellant
contends two errors: the trial judge failed to instruct the jury on the issue of whether the
statement was voluntary; and, the trial court placed the burden of proving the voluntariness of
the statement on the appellant.
[Headnote 1]
1. After appellant's arrest the officers took him to the Washoe Medical Center for a blood
alcohol test. There he was advised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). The appellant told the officers at the station:
. . . I fired two or three rounds and I never in my life missed anything, even a deer,
but I missed that son-of-a-bitch I was after.
Question: Did you know what you were doing when you went down to Tom's
house?
Answer: You bet, I was going to stomp ass, sure was.
Appellant claims the court erred in failing to instruct the jury on the voluntariness of this
statement. Nevada follows the Massachusetts rule when the voluntariness of a defendant's
statement is put in issue. Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968). Under this rule
the trial judge receives evidence on the voluntariness of the statement and determines whether
the statement was voluntary. If so, it is admitted. However, the court must later submit the
issue by appropriate instruction to the jury. Carlson v. State, supra. In this case while the trial
judge determined that the statement was voluntarily made, the court failed to submit the issue
to the jury. Therefore, the court committed error.
[Headnotes 2, 3]
We have held, however, that such error is subject to the harmless error rule, Brimmage v.
State, 93 Nev. 434, 567 P.2d 54 (1977); Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974).
There is no constitutional mandate that voluntariness of such statements be determined by
both judge and jury. Lego v. Twomey, 404 U.S. 477, 490 (1972). NRS 178.598 sets the
standard for the harmless error rule: Any error, defect, irregularity or variance which does
not affect substantial rights shall be disregarded. In the instant case the error was harmless.
Here, as in Grimaldi, supra, the question of guilt or innocence . . . is not a close one, 90
Nev. at 86, 518 P.2d at 617, and [t]he proof . . . was so great that the confession could not
have altered or affected the results of the trial. Id. at 87, 518 P.2d at 617.
The evidence against appellant was overwhelming. Besides the formal statement, appellant
made a number of voluntary incriminating statements to officers. The record reflects a
conscious decision by him to go to the trailer where the homicide was committed with two
loaded large calibre rifles. It cannot be seriously contended the jury would have decided
differently.
[Headnote 4]
2. The trial court likewise erred by placing upon the appellant the burden of proving that
the statement was involuntary. In Nevada, the state must prove by a preponderance of the
evidence that a statement is voluntary. Scott v. State, 92 Nev. 552.554 P.2d 735 (1976)
[Headnote 5]
However, the evidence of voluntariness was such that, had the trial judge applied the
proper standard of proof, the result would have been the same. Appellant did not offer any
affirmative evidence that his statement was involuntary; he stated, when asked whether he
would have made the statement had he not been drinking, that he couldn't say one way or the
other. There was testimony from one of the officers that he appeared sober, and there was
evidence that his blood alcohol content, taken half an hour before the questioning, was .193,
down from .223 an hour earlier. Given this state of the evidence, we find no prejudice
resulting from the trial court's erroneous determination that appellant had the burden of proof.
Because appellant's other contentions are without merit, we affirm.
Gunderson, C. J., and Batjer, J., concur.
Fondi, D. J.,
1
dissenting, with whom Manoukian, J., agrees:
I respectfully disagree with the majority opinion. The majority states that appellant
Laursen planned to kill one of his sons-in-law but missed his shot and killed another
son-in-law. This is the very factual question which was taken away from the jury by virtue of
the errors committed by the trial court and which are commented upon in the majority
opinion. Appellant had been drinking quite heavily on the day of the homicide and the
shooting was preceded by a number of interfamily squabbles that day and the preceding day
involving appellant, his two daughters, their husbands and appellant's son.
____________________

1
The Governor designated the Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit
in place of Justice Gordon Thompson. Nev. Const. art. 6, 4.
The majority recognizes that the trial judge committed error when the rule set forth in
Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968) was not followed. Had the jury been
allowed to determine for itself whether the statement was voluntary or involuntary, it might
very well have decided the latter. The statements would then have been disregarded.
The majority concedes that the evidence against appellant includes substantial evidence of
his intoxication at the time the incriminating statements were made. The majority goes on,
however, to state that the evidence against appellant was overwhelming and that there were a
number of other voluntary incriminating statements to officers. This court has held that
intoxication raises an issue of voluntariness. Tucker v. State, 92 Nev. 486, 553 P.2d 951
(1976). The standard this court has applied when determining whether or not to exclude
incriminating statements is that unless it is shown that the defendant was so intoxicated that
he was unable to understand the meaning of his statements, the statements are voluntary.
Stewart v. State, 92 Nev. 168, 171, 547 P.2d 320, 321 (1976). Therefore, to state that
appellant made a number of voluntary incriminating statements to officers simply begs the
question at issue.
The majority relies on Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974) and Brimmage
v. State, 93 Nev. 434, 567 P.2d 54 (1977) to support its holding that the errors committed by
the trial court are subject to harmless error analysis, and would not have changed the outcome
of the trial. I simply cannot agree with this position in the context of that case. This court has
heretofore in Carlson v. State, supra, outlined a specific procedure to be followed in cases of
this nature. To adopt the position announced by the majority simply substitutes the subjective
judgment of this court on a question of fact which should be left to the subjective judgment of
the jury as the triers of fact.
First degree murder can be proven if the state is able to demonstrate that the homicidal act
itself was committed with premeditation and deliberation. Whenever a criminal defendant is
voluntarily intoxicated during the commission of a crime requiring premeditation and
deliberation, the fact that he was intoxicated can be considered by the jury to determine
whether he acted with premeditation and deliberation. NRS 193.220. Vincent v. State, 97
Nev. 169, 625 P.2d 1172 (1981). In the context of this case, where defense counsel admitted
guilt as to second degree murder, and where the primary issue contested at trial was the
existence of premeditation and deliberation, the error cannot be deemed harmless.
The trial court also erred by refusing to allow appellant's wife to testify to exculpatory
evidence regarding what appellant had told her when he left for Davis' trailer.
wife to testify to exculpatory evidence regarding what appellant had told her when he left for
Davis' trailer. An objection was made and sustained on the basis of the hearsay rule. A
declarant's then state of mind is admissible hearsay under NRS 51.105(1).
But for the errors committed by the trial court, the jury may not have found premeditation
and deliberation beyond a reasonable doubt.
Therefore, appellant's conviction should be reversed and case the remanded for a new trial.
____________
97 Nev. 573, 573 (1981) Schneider v. State
TERRY LEE SCHNEIDER, Appellant, v. THE
No. 12450
November 3, 1981 635 P.2d 304
Appeal from a jury verdict convicting appellant of burglary and a sentence of life
imprisonment without possibility of parole as an habitual offender. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
The Supreme Court, Springer, J., held that defendant was not entitled to eight peremptory
jury challenges, even though conviction would subject him to life sentence as habitual
offender, where offense charged was burglary, which was not punishable by death or life
imprisonment, habitual criminal statute constituted status determination and not separate
offense.
Affirmed.
Morgan D. Harris, Public Defender; Thomas L. Leen, Deputy Public Defender, Clark
Jury.
Defendant was not entitled to eight peremptory jury challenges, even though conviction would subject
him to life sentence as habitual offender, where offense charged was burglary, which was not punishable
by death or life imprisonment, habitual criminal statute constituted status determination and not separate
offense. NRS 175.051, 207.010.
OPINION
Appellant Schneider appeals from his conviction of burglary and his sentence of life
imprisonment without possibility of parole as an habitual offender.
The only substantial issue before us on this appeal is whether the trial court erred in
refusing to allow appellant eight peremptory challenges by reason of his being subject to
imprisonment for life as an habitual offender.
NRS 175.051
1
provides that if the office charged is punishable by death or life
imprisonment the accused is entitled to eight peremptory jury challenges; if the offense
charged is punishable for any other term, the accused is entitled to only four peremptory
challenges. The offense charged in this prosecution is burglary, which is not punishable by
death or life imprisonment. Therefore, appellant is entitled to four peremptory challenges, not
eight.
A person having three previous felony convictions is subject to a criminal enhancement
sentence of life imprisonment upon conviction of a fourth felony. NRS 207.010.
2
Because
this fourth conviction of appellant would subject him to a life sentence, he argues that it
was error not to permit him to exercise the eight challenges provided in NRS 175.051{1).
____________________

1
175.051 Number of peremptory challenges.
1. If the offense charged is punishable by death or by imprisonment for life, each side is entitled to
eight peremptory challenges.
2. If the offense charged is punishable by imprisonment for any other term or by fine or by both fine
and imprisonment, each side is entitled to four peremptory challenges.
3. The state and the defendant shall exercise their challenges alternately, in that order. Any challenge
not exercised in its proper order is waived.

2
NRS 207.010, in pertinent part, provides as follows:
207.010 Habitual criminals: Definition; punishment; trial or primary offnse.
* * *
2. Every person convicted in this state of any crime of which fraud or intent to defraud is an element,
or of petit larceny, or of any felony, who has previously been three times convicted, whether in this state
or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to
a felony, or who has previously been five times convicted, whether in this state or elsewhere, of petit
larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element,
shall be punished by imprisonment in the state prison for life with or without possibility of parole. * * *
3. Conviction under this section operates only to increase, not to reduce, the sentence otherwise
provided by law for the principal crime.
4. It is within the discretion of the district attorney whether or not to include a count under this
section in any information, . . . .
fourth conviction of appellant would subject him to a life sentence, he argues that it was error
not to permit him to exercise the eight challenges provided in NRS 175.051(1).
The answer to appellant's argument is that adjudication under the habitual criminal statute
constitutes a status determination and not a separate offense. See, e.g., Hollander v. Warden,
86 Nev. 369, 373, 468 P.2d 990, 992 (1970); Lisby v. State, 82 Nev. 183, 189, 414 P.2d 592,
595 (1966). Therefore, the only offense charged is that of burglary.
The foregoing reasoning is supported by the courts of jurisdictions with statutory schemes
similar to ours. Cases upholding the rule that habitual offender proceedings do not control the
number of peremptory challenges allowed include the following: Tatum v. United States, 330
A.2d 522 (D.C.App. 1974); Inmon v. State, 383 So.2d 1103 (Fla.App. 1980); State v. Boyd,
481 P.2d 1015 (Kan. 1971); cert. denied, 405 U.S. 927 (1972); People v. Ross, 269 N.W.2d
532 (Mich.App. 1978); Yates v. State, 396 So.2d 629 (Miss. 1981); State v. Watkins, 272
N.W.2d 839 (S.D. 1978).
Other points raised in this appeal are without merit. The judgment of the trial court is
affirmed.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and O'Donnell, D. J.,
3
concur.
____________________

3
The Governor designated the Honorable Thomas O'Donnell, District Judge of the Eighth Judicial District, to
sit in this case in place of The Honorable Cameron Batjer, who voluntarily recused himself. Nev. Const. art. 6,
4.
____________
97 Nev. 575, 575 (1981) Varela v. City of Reno Civil Serv.
LOUIS VARELA, Appellant, v. CITY OF RENO CIVIL SERVICE COMMISSION, CITY
OF RENO CITY MANAGER, CITY OF RENO CHIEF OF POLICE JAMES PARKER,
Respondents.
No. 11254
November 4, 1981 635 P.2d 577
Appeal from judgment affirming decision of administrative agency. Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
City jailer appealed from judgment of the district court affirming decision of city civil
service commission upholding discharge of jailer from his job for using excessive force on
inmate.
inmate. The Supreme Court held that evidence that jailer struck inmates on two occasions
was sufficient to support finding of commission.
Affirmed.
[Rehearing denied February 24, 1982]
Jerome M. Polaha, and John L. Conner, Reno, for Appellant.
Louis S. Test, City Attorney; Charles L. Eddleman, Assistant City Attorney, Reno, for
Respondents.
Record presented adequate basis for conclusion that city civil service commission did not act arbitrarily
in discharging city jailer from his job for using excessive force on inmates.
Evidence that city jailer struck certain named inmates on two occasions was sufficient to support decision
of city civil service commission to uphold discharge of jailer on ground that he had used excessive force on
inmates.
Public interest in prevention of abusive conduct toward jail inmates justified discharge of city jailer from
his job prior to affording jailer an evidentiary hearing before city civil service commission.
OPINION
Per Curiam:
Appellant was discharged from his job as jailer for the Reno Police Department on April
21, 1977, for using excessive force on inmates. He appealed to the Reno Civil Service
Commission, which upheld the termination. Appellant then petitioned the district court,
which affirmed the Commission's decision.
1

Appellant was discharged by the acting City Manager on the recommendation of the Chief
of Police. In a Bill of Particulars, appellant was informed that the dismissal was based upon
two specified instances in which he had allegedly used excessive force by striking,
dragging or kicking certain named jail inmates, and upon three specified prior incidents in
which appellant had been reprimanded for physical or verbal abuse of inmates. The Bill listed
those sections of the Rules and Regulations of the Civil Service Commission and the
Operations Manual of the Reno Police Department which appellant was accused of violating
by such conduct.
____________________

1
All proceedings below were conducted as if the Administrative Procedure Act were directly applicable. All
parties now take the position that this was error, but that no substantial rights were affected. See State ex rel.
Sweikert v. Briare, 94 Nev. 752, 588 P.2d 542 (1978).
accused of violating by such conduct. A list of potential witnesses was also appended.
Appellant was informed that he might appeal the decision to the Commission within ten days.
On appeal, the Commission conducted a full evidentiary hearing. Appellant did not dispute
striking the inmates on the two occasions charged, but essentially claimed that the amount of
force he had used was reasonable or necessary under the circumstances. Other witnesses
disputed this contention. The Commission found that appellant had used excessive force on
each of the two occasions, as charged, and affirmed the order of the City Manager. The
district court, in a carefully reasoned opinion, refused to overturn the Commission's
determination.
1. Appellant claims that the Commission's decision must be overruled because no expert
testimony was presented defining a standard for excessive force, citing particularly Nevada
State Board of Pharmacy v. Garrigus, 88 Nev. 277, 496 P.2d 748 (1972). In Garrigus we held
that without evidence that such practice was violative of the profession's standards, it was
improper for the Board to revoke appellants' pharmacy licenses for furnishing excessive
quantities of narcotic drugs to an individual, when such drugs were furnished only on
prescription and only after inquiry of the prescribing doctor.
[Headnote 1]
In this case, there is no similar problem presented. Appellant claimed that his actions were
provoked, or were required in order to maintain control. This version of the facts was
disputed by other witnesses. Resolution of this dispute in the testimony was fully within the
competence of the Commission, and the record presents an adequate basis for concluding that
the Commission did not act arbitrarily. See Turk v. Nevada State Prison, 94 Nev. 101, 575
P.2d 599 (1978); Moore v. Board of Trustees, 88 Nev. 207, 495 P.2d 605 (1972).
[Headnote 2]
2. Nor are we persuaded by appellant's related contention that the record does not contain
substantial evidence to support the Commission's findings. We are mindful, as was the judge
below, that neither the trial court, nor this court, should substitute its judgment for the
administrator's determination. We should not pass upon the credibility of witnesses or weigh
the evidence, but limit the review to a determination that the board's decision is based upon
substantial evidence. No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 281, 429 P.2d 66,
68 (1967), quoted in State ex rel. Sweikert v. Briare, 94 Nev. 752, 588 P.2d 542 (1978).
[Headnote 3]
3. Appellant contends that he was denied procedural due process because he was not
afforded an evidentiary hearing until after his initial termination. Respondents do not contest
appellant's assertion that he had a constitutionally protected property interest in his position
with the police department. Compare Bishop v. Wood, 426 U.S. 341 (1976). They argue,
however, that this is an appropriate case for application of the exception to the
predetermination hearing requirement for extraordinary or exigent circumstances. State ex
rel. Sweikert v. Briare, supra, 94 Nev. at 755, 588 P.2d at 544. We agree.
The Chief of Police had made a preliminary determination, approved by the acting City
Manager, that appellant exhibited a pattern of abusive conduct toward jail inmates warranting
dismissal. The public interest in prevention of such conduct fully justifies the relatively short
delay pending an evidentiary hearing by the Commission. Cf. Mathews v. Eldridge, 424 U.S.
319 (1976).
We need not deal with appellant's remaining contentions, as they are either without merit,
or raised for the first time on this appeal. See Munoz v. State ex rel. Dep't of Hwys., 92 Nev.
441, 552 P.2d 42 (1976).
Accordingly, we affirm.
2

____________________

2
Present counsel did not represent appellant in proceedings below.
____________
97 Nev. 578, 578 (1981) Ford v. District Court
PRISCILLA FORD, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE, THE HONORABLE
JOHN W. BARRETT, a District Judge Thereof; LAKE'S CROSSING CENTER FOR THE
MENTALLY DISORDERED OFFENDER; and, LOUIS RICHNAK, M.D., Medical
Director, Respondents.
No. 13635
November 6, 1981 635 P.2d 578
On original petition for writ of prohibition or, in the alternative, mandamus, the Supreme
Court held that trial court acted in excess of its jurisdiction in ordering, at a time petitioner
had been found competent to stand trial, compliance with previous order issued while
petitioner was adjudged to have been incompetent to stand trial which required petitioner to
submit to administration of drugs if medically indicated.
Petition granted.
William N. Dunseath, Public Defender, and Dennis E. Widdis, Deputy Public Defender,
Washoe County, for Petitioner.
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondents.
Mental Health.
Trial court acted in excess of its jurisdiction in ordering, at a time petitioner had been found
competent to stand trial, compliance with previous order issued while petitioner was adjudged to have
been incompetent to stand trial which required petitioner to submit to administration of drugs if medically
indicated. NRS 178.425, 433.001 et seq.
OPINION
Per Curiam:
Petitioner is charged with 52 felony counts. On January 29, 981, she was found to be
incompetent to stand trial and was committed pursuant to NRS 178.425.
1
On April 29, 1981,
petitioner was ordered to submit to treatment including the administration of drugs.
Subsequently, on August 4, 1981, petitioner was found competent to stand trial and, in fact,
the trial of the charges against petitioner is proceeding at this time. Apparently, petitioner has
refused medication and on October 9, 1981, upon motion by the state, the court ordered
compliance with the April 29, 1981, order which included submission to the administration of
drugs, if medically indicated. The petitioner contends that the court acted in excess of its
jurisdiction in issuing its order of October 9, 1981. We agree.
We do not now determine whether NRS 178.400 et seq., which deals with inquiries into
the sanity of defendants, provides authority for the use of forced medication on persons
subject to its provisions. We do, however, hold that petitioner, having been determined to be
competent to stand trial, is not subject to the detention and treatment provisions of NRS
178.425, and that she is not now committed, either as an incompetent pretrial detainee or as
a mentally ill person under the Nevada Mental Health and Mental Retardation Law, NRS
433.001 et seq.
____________________

1
NRS 178.425(1) provides, in part:
If the court finds the defendant insane, the judge shall order the sheriff to convey him forthwith, . . .
into the custody of the administrator of the mental hygiene and mental retardation division of the
department of human resources for detention and psychiatric treatment at the Nevada state prison or at a
facility operated by the mental hygiene and mental retardation division.
incompetent pretrial detainee or as a mentally ill person under the Nevada Mental Health and
Mental Retardation Law, NRS 433.001 et seq. Thus, the trial court acted in excess of its
jurisdiction in ordering compliance with the order of April 29, 1981, which was issued while
the petitioner was adjudged to have been incompetent to stand trial.
Accordingly, a writ of mandamus shall issue forthwith directing the respondent court to
vacate its order of October 9, 1981, which directed compliance with the April 29, 1981,
order.
Writ granted.
____________
97 Nev. 580, 580 (1981) Miller v. A & R Joint Venture
PETER MILLER, Appellant, v. A & R JOINT VENTURE,
JOSEPH F. ARROYO, JOHNNY RIBEIRO, Respondents.
No. 12669
November 24, 1981 636 P.2d 277
Appeal from grant of motion for summary judgment, Second Judicial District Court,
Lessee appealed from a summary judgment of the district court in favor of lessor in suit for
personal injuries suffered when lessee fell on ice on sidewalk outside leased premises. The
Supreme Court held that lease provision requiring lessor to maintain sidewalks and exterior
areas, but relieving lessor from all liability resulting from a failure to do so, unless lessee
gave written notice of need to repair the premises was a valid exercise of the freedom of
contract, and therefore, since lessee failed to give lessor written notice of the need to repair
the premises, the suit was barred by that provision.
Affirmed.
Chubb & Silverman, Sparks, for Appellant.
Leggett & Hamilton, Reno, for Respondents.
Landlord and Tenant.
Lease provision requiring lessor to maintain sidewalks and exterior areas, but relieving lessor from all
liability resulting from failure to do so, unless lessee gave lessor written notice of the need to repair the
premises, was a valid exercise of the freedom of contract, and therefore, since lessee failed to give lessor
written notice of the need to repair the premises, suit by lessee for injuries sustained in slip and fall on
sidewalk of premises, in which lessee alleged negligent construction of sidewalk and negligent failure to
safely maintain the exterior, was barred by that provision.
OPINION
Per Curiam:
Peter Miller brought an action against A & R Joint Venture, Joseph Arroyo, and Johnny
Ribeiro (A & R) in the district court, for personal injuries suffered when Miller fell on ice on
the sidewalk outside the print shop he had leased from A & R. The district court granted A &
R's motion for summary judgment. Miller appeals.
THE FACTS
In September of 1977, Miller leased space from A & R in a commercial development
constructed by them, for the operation of his business, a printing shop. The lease contained a
provision requiring A & R to maintain the sidewalks and exterior areas, but relieving A & R
from all liability resulting from their failure to maintain these areas, unless Miller gave them
written notice of the need to repair the premises.
1
Miller never gave any notice of any need
to repair.
In November of 1978, while on his way to the communal bathroom, Miller slipped on an
icy path that had accumulated on the sidewalk outside his shop. The cause of the
accumulation of ice was alleged to be insufficient drainage caused by the design of the
sidewalk, in violation of the municipal building code, Sparks Municipal Code 15.04.010;
Uniform Building Code 2905(f). Miller broke his leg in the fall, and was unable to continue
working as a printer.
Miller sued A & R for his injuries, alleging negligent construction of the sidewalk, and
negligent failure to maintain safely the icy area. A & R moved for summary judgment,
asserting the exculpatory provision of the lease as a complete defense. The district judge
granted the motion, finding that the notice provision had not been complied with, and that the
action was therefore barred.
____________________

1
Clause 10 of the lease provided, in pertinent part:
Lessor shall, at Lessor's expense, repair and maintain only the exterior walls, exterior roof and
cement-embedded or sub-surface non-accessible plumbing, sidewalks, driveways, landscaping, parking
lots of said premises. . . . Lessor shall not be liable to Lessee or any other party whatsoever for any
damage or injury caused by Lessor's failure to keep or maintain said exterior walls, exterior roof,
cement-embedded or sub-surface non-accessible plumbing, landscaping, sidewalks, driveways and
parking lots unless Lessee has given Lessor or Lessor's agent designated herein written notice of the
need to repair said portions of said premises and Lessor has failed to make said repairs within a
reasonable time after receiving written notice. (Emphasis added.)
THE EXCULPATORY PROVISION OF THE LEASE
On this appeal, Miller argues that the exculpatory provision of the lease violates public
policy, and is therefore invalid, insofar as it shields A & R from civil liability for damages
resulting from a building code violation.
An exculpatory provision such as the one in this case is generally regarded as a valid
exercise of the freedom of contract. See, e.g., F. P. Plaza, Inc. v. Sugrue, 241 S.E.2d 644
(Ga.App. 1978); Commercial Warehouse Co. v. Hyder Brothers Inc., 411 P.2d 978 (N.M.
1965). We are not convinced that public policy requires us to refuse to enforce this provision,
which was freely contracted to by the parties. The lease provision was a valid exercise of the
freedom of contract. See Swisscraft Novelty Co. v. Alad Realty Corp., 274 A.2d 59
(N.J.Super. 1971). The lessee failed to give the lessor the written notice of the need to repair
the premises as mandated by the lease agreement. We therefore affirm the order of the district
court granting summary judgment.
2
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice to sit in the place of The
The Honorable Noel Manoukian, Justice, with the consent of counsel, voluntarily recused himself and has
taken no part in the decision of this appeal.
____________
97 Nev. 582, 582 (1981) Brown v. Kellar
WILLIAM W. BROWN, Appellant, v. CHARLES L.
KELLAR, Respondent.
No. 12741
November 30, 1981 636 P.2d 874
Appeal from order dismissing complaint as to respondent, Eighth Judicial District Court,
Robert G. Legakes, Judge.
Appeal was taken from order of the district court dismissing complaint against one
defendant for failure to state a claim upon which relief could be granted. The Supreme Court
held that complaint alleging that individual defendant acted individually and on behalf of a
corporation in fraudulently misrepresenting the condition of property being sold to plaintiff
was sufficient to state a claim against the individual upon which relief could be granted.
Denton & Denton, Ltd., Las Vegas, for Appellant.
Charles L. Kellar, Las Vegas, in propria persona.
1. Pleading; Pretrial Procedure.
On motion to dismiss for failure to state a claim for relief, courts must construe the pleading liberally and
draw every fair intendment in favor of plaintiff, and allegations in the complaint must be accepted as true.
NRCP 12(b)(5).
2. Fraud.
The circumstances that must be detailed in complaint alleging fraud include averments as to time, place,
identity of the parties involved, and the nature of the fraud or mistake; malice, intent, knowledge and other
conditions of the mind of a person may be averred generally. NRCP 8(a), 9(b).
3. Fraud.
Complaint alleging that individual defendant acted individually and on behalf of a corporation in
fraudulently misrepresenting the condition of property being sold to plaintiff was sufficient to state a claim
against the individual on which relief could be granted.
OPINION
Per Curiam:
Appellant brought suit in district court against, among other defendants, respondent Kellar.
Respondent moved to dismiss the complaint against him on the grounds that he could not be
held individually liable for the actions alleged in the complaint and because enforcement of
the agreement would violate the statute of frauds. The district court construed the motion as a
motion to dismiss for failure to state a claim upon which relief could be granted, NRCP
12(b)(5), and granted the motion.
[Headnote 1]
On a motion to dismiss for failure to state a claim for relief, the trial court and this court
must construe the pleading liberally and draw every fair intendment in favor of the plaintiff.
Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980). Allegations in the complaint must be
accepted as true. San Diego Prestressed v. Chicago Title Ins., 92 Nev. 569, 555 P.2d 484
(1976).
[Headnote 2]
NRCP 8(a) requires that a pleading contain only a short and plain statement showing that
the pleader is entitled to relief. In actions involving fraud, the circumstances of the fraud are
required by NRCP 9(b) to be stated with particularity. The circumstances that must be
detailed include averments to the time, the place, the identity of the parties involved, and the
nature of the fraud or mistake.
nature of the fraud or mistake. 5 Wright and Miller, Federal Practice and Procedure 1297 at
p. 403 (1969). Malice, intent, knowledge and other conditions of the mind of a person may be
averred generally. NRCP 9(b); see Occhiuto v. Occhiuto, 97 Nev. 143, 625 P.2d 568 (1981).
[Headnote 3]
Application of these rules to this case reveals a complaint which is sufficient as against
Kellar. The complaint alleges, among other things, that Kellar acted individually and on
behalf of a corporation in fraudulently misrepresenting the condition of property being sold to
appellant. Accepting all allegations as true, the complaint states at least one claim against
Kellar upon which relief could be granted. Accordingly, we reverse the order of the district
court dismissing the complaint against respondent, and we remand this matter to the district
court for further proceedings.
____________
97 Nev. 584, 584 (1981) Hosmer v. Avayu
EDWARD S. HOSMER and AUDREY HOSMER, d/b/a ED AND AUDREY'S
RESTAURANT, Appellants, v. DELIA AVAYU, Respondent.
No. 12931
December 4, 1981 636 P.2d 875
Appeal from grant of motion for summary judgment, Eighth Judicial District Court, Clark
Tenants brought action for damages against landlord for breach of covenant to repair the
roof of a leased restaurant, and landlord counterclaimed for rent. The district court granted
landlord's motion for summary judgment, and tenants appealed. The Supreme Court held that:
(1) trial court erred in denying recovery to tenants on ground that tenants had not abandoned
premises since abandonment, although required for tenants to maintain constructive eviction
action, was not required to maintain action for breach of lease, and (2) on landlord's claim for
rent, genuine issues of material fact existed on question whether rent was due, precluding
summary judgment.
[Rehearing denied February 22, 1982]
Kelly Swanson, Las Vegas, for Appellants.
Marilyn Romanelli, Las Vegas, for Respondent.
Although tenant must abandon leased premises in order to maintain constructive eviction as cause of
action or as defense to landlord's action for rent, tenant may nevertheless remain in possession and sue
landlord for breach of lease.
In tenants' action for breach of covenant to repair roof of leased restaurant, trial court erred in denying
tenants recovery on ground that tenants had not abandoned premises since abandonment, although required
for tenants to maintain constructive eviction action, was not required to maintain action for breach of lease.
3. Judgment.
On landlord's claim for rent, genuine issues of material fact existed on question whether rent was due,
precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment granting a landlord's claim for rent and
denying tenants' claim for damages for breach of covenant to repair the roof of the leased
premises.
Appellants Edward and Audrey Hosmer (tenants) commenced this action against Delia
Avayu, individually and as heir to the estate of Isaac Avayu, their landlord. They sought
damages for breach of a covenant to repair the roof of the restaurant, the property under lease,
and also for constructive eviction. Landlord answered and counterclaimed for unpaid rent.
Landlord moved for summary judgment on tenants' complaint and on landlord's
counterclaim. The district judge viewed the tenants' action as one predicated solely on
constructive eviction and held that the action was thus barred by tenants' failure to vacate the
premises. The court granted summary judgment, therefore, in favor of landlord; the court also
granted landlord's motion of summary judgment for rent due. Tenants appeal. We reverse.
THE FACTS
In November of 1978, the tenants assumed an existing lease between Isaac Avayu and
Mary Fiosco, not a party to this action. This lease was to continue in effect until May, 1979,
and did not put the burden of major repairs on the lessee. Preliminary correspondence
between the parties' counsel indicated a concern that the roof of the restaurant was in
disrepair. Tenants stated that they would not enter into any lease agreement unless the
landlord repaired the roof. Landlord, through counsel, agreed that the roof would be repaired.
Tenants took possession of the premises in November, 1978. They discovered that the roof
had not been repaired. They immediately made demand upon the landlord to repair it. He
assured them that it would be repaired within a few days. The repairs were never made.
At the same time that the tenants took possession, the parties executed a new lease, which
was to become effective on June 1, 1979. The new lease did, in fact, place the burden of
repairing the roof on the lessee. However, this lease was not yet in effect at the times relevant
to this lawsuit.
Heavy rains caused serious leakage in the restaurant, resulting in damage to the tenants'
supplies. The damage rendered the dining room of the restaurant unusable. The Las Vegas
City Building Department ordered tenants not to use the dining room until the roof was
repaired. It was partitioned off and not used again.
Tenants did not abandon the premises, but continued to operate their restaurant in the
remaining usable portion of the building. Thereafter, they made repeated efforts to have the
landlord repair the roof but their efforts met without success.
THE SUMMARY JUDGMENT
[Headnotes 1, 2]
1. Tenants' complaint stated a cause of action for breach of the covenant to repair the roof.
This is a separate cause of action from constructive eviction. Although a tenant must abandon
the leased premises in order to maintain constructive eviction as a cause of action or as a
defense to the landlord's action for rent, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602
P.2d 182 (1979), a tenant may nevertheless remain in possession and sue the landlord for
breach of the lease. Guntert v. City of Stockton, 126 Cal.Rptr. 690 (Ct.App. 1976); Perry
Properties v. Servico Protective Covers, Inc., 399 N.Y.S.2d 744 (App.Div. 1977). To hold
otherwise would deprive the tenant of his right to retain his leasehold and enforce the lease
covenants. For this reason it was error for the court to grant summary judgment against
tenants on their claim for damages for breach of covenant to repair the roof.
[Headnote 3]
2. Landlord's motion for summary judgment on her counterclaim for rent was not
supported by any affidavits or other competent evidence. All that is attached to landlord's
motion is a copy of a lease, not signed by the tenants. The document does not comply with
the provisions of NRCP 56{e).1
document does not comply with the provisions of NRCP 56(e).
1

Tenants' answer denies every allegation of the counterclaim. It cannot be said, therefore,
that the pleadings resolved all genuine issues of material fact; rather, they were put in issue.
Since the motion for summary judgment was not supported by any competent evidence, it
also was erroneously granted.
The judgment of the district court is reversed, and the cause is remanded for a trial on the
merits.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and O'Donnell, D. J.,
2
concur.
____________________

1
NRCP 56(e) states, in part:
(e) Form of Affidavits; Further Testimony, Defense Required. Supporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be admissible 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. . . .

2
The Governor designated the Honorable Thomas J. O'Donnell, Judge of the Eighth Judicial District Court,
to sit in the place of The Honorable Cameron Batjer, Justice. Nev. Const. art. 6, 4.
____________
97 Nev. 587, 587 (1981) Sly v. Barnett
AUDRIA SLY, Appellant, v. ELMA BARNETT, Executrix of the
Estate of Jeannette Carolyn Howe, Deceased, Respondent.
No. 12554
December 14, 1981 637 P.2d 527
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Addeliar
D. Guy, Judge.
Plaintiff appealed from a judgment of the district court holding that no joint tenancy
relationship existed between plaintiff and defendant's decedent so as to entitle plaintiff to
traceable bank account funds. The Supreme Court, Springer, J., held that decedent did not
intend to create a joint tenancy where she was the sole contributor to both accounts, she
maintained at all times exclusive dominion and control of the savings account passbook and
the checking account checks, deposit slips and deposit book, and she withdrew all funds and
thus closed both accounts without the consent of plaintiff and redeposited the funds in
individual accounts on which plaintiff was not a signatory.
97 Nev. 587, 588 (1981) Sly v. Barnett
Affirmed.
Rickdall & Shulman, Las Vegas, for Appellant.
William R. Devlin, Las Vegas, for Respondent.
1. Joint Tenancy.
There was no joint tenancy in checking and savings accounts where one party was sole contributor to
both accounts, that party maintained at all times exclusive dominion and control over savings account
passbook and checking account checks, deposit slips and deposit book, and that party withdrew all funds
and thus closed both accounts without consent of other party and then redeposited funds in individual
accounts on which other party was not signatory.
2. Joint Tenancy.
Although withdrawal of all funds does not of itself terminate joint tenancy, withdrawal is evidence that
joint tenancy was never intended.
3. Joint Tenancy.
One party's lack of contribution to bank accounts does not preclude possibility of joint tenancy, but is
evidence of lack of intent to create joint tenancy.
4. Joint Tenancy.
One party's exclusive control of banking account passbooks is competent evidence against presumption
of joint tenancy.
OPINION
This appeal is from a summary judgment entered in favor of respondent Barnett, executrix
of the estate of Carolyn Howe, and defendant below.
The issue in this case is whether a joint tenancy relationship existed between appellant Sly
and decedent Howe so as to entitle appellant to traceable bank account funds even though the
balance of the accounts had been withdrawn by Howe prior to her death.
The matter was submitted to the trial court on cross-motions for summary judgment with
an accompanying stipulation of facts; there is, accordingly, no material issue of fact. See City
of Las Vegas v. Cragin Indus., 86 Nev. 933, 478 P.2d 585 (1970).
[Headnote 1]
From the stipulated facts it appears that Sly and Howe together opened two bank accounts
and that by the terms of the bank signature cards, they agreed to be joint depositors, owning
the money "jointly with the right of survivorship."
97 Nev. 587, 589 (1981) Sly v. Barnett
owning the money jointly with the right of survivorship. At the time the accounts were
opened, NRS 663.015 was in effect.
1
Section 1 of the statute states that where the signatory
forms at the bank so provide, joint tenancy is presumed to have been created.
2
The parties
agree the presumption is rebuttable. There is thus, under the circumstances of this case, only a
prima facie showing of joint tenancy, which then open[s] the door to competent evidence
that something other than a joint tenancy was actually intended. Marrow v. Moskowitz, 174
N.E. 460 (N.Y. 1931).
It is reasonable that the joint tenancy presumption may be rebutted. Courts have
acknowledged the hardship which a contrary view might impose on parties having
convenience accounts, as where an incapacitated person might have a joint account for the
sole purpose of financial management. See Yakima Adjustment Serv., Inc. v. Durand, 622
P.2d 408 (Wash.App. 1981) (upholding a summary judgment where uncontroverted affidavits
were filed denying an intent to establish a joint tenancy.)
In the instant case, the following evidence supports a finding that Carolyn Howe did not
intend to create a joint tenancy: Howe was the sole contributor to both accounts; Howe
maintained at all times exclusive dominion and control over the savings account passbook
and the checking account checks, deposit slips and deposit book; Howe withdrew all funds
and
____________________

1
NRS 663.015 provided as follows:
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 the depositor and one, two or more persons,
and in form to be paid to the survivor or survivors of them, such deposit and any additions thereto made
by any such persons, after the making thereof, shall become the property of such persons as joint tenants,
and 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 acquittances of the person or persons to whom such payment
is made shall be 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.
The current Statute is found at NRS 100.085.

2
Section 2 of the statute creating a conclusive presumption of survivorship is not applicable in this case
because all funds were withdrawn from the account by Howe prior to her death. Frank v. Frank, 93 Nev. 659,
572 P.2d 530 (1977).
97 Nev. 587, 590 (1981) Sly v. Barnett
thus closed both accounts without the consent of appellant and Howe redeposited the funds in
individual accounts on which appellant was not a signatory.
An analogous situation was presented in Paterson v. Comastri, 244 P.2d 902 (Cal. 1952)
(cited with approval in Frank v. Frank, 93 Nev. 659, 572 P.2d 530 (1977)). Mary Gilmour
opened a checking account with her sister (Paterson). The funds deposited were obtained by
Gilmour during the years of her marriage. Gilmour made all withdrawals on the account and
always controlled the passbook. When she later remarried, Gilmour withdrew all funds from
the account, without the consent of her sister, and deposited them in a joint checking account
with her new husband. In a suit instituted by Paterson after her sister's death the trial court
found that there had been no intent to establish a joint tenancy, notwithstanding the form of
the banking account. The California Supreme Court affirmed.
[Headnotes 2-4]
Although it is generally held that a withdrawal of all funds does not of itself terminate a
joint tenancy,
3
withdrawal is evidence that a joint tenancy was never intended. See Matter of
Coddington's Estate, 391 N.Y.S.2d 760 (N.Y.App. 1977); In re Will of Filfilley, 313
N.Y.S.2d 793 (N.Y.Sur.Ct. 1970); see also, Paterson v. Comastri, supra. It is also true that
appellant's lack of contribution to the accounts does not preclude the possibility of
survivorship. Wallace v. Riley, 74 P.2d 800 (Cal.App. 1937); Gatewood v. Griffin, 549 P.2d
829 (Okla.App. 1976). It is, however, evidence of lack of intent. See Paterson v. Comastri,
supra; Yakima Adjustment Serv., Inc. v. Durand, supra. In addition, one party's exclusive
control of the account passbooks is competent evidence against the presumption of joint
tenancy. Paterson v. Comastri, supra. Based on these uncontroverted facts, the court could
properly have concluded that the presumption of joint tenancy was rebutted. We therefore
affirm the summary judgment entered by the court below.
4
concur.
____________________

3
See Marrow v. Moskowitz, supra; State v. Gralewski's Estate, 159 P.2d 211 (Or. 1945).

4
____________
97 Nev. 591, 591 (1981) Bushnell v. State
JOSEPH BUSHNELL and PATRICK DORAN, Appellants,
No. 12896
December 17, 1981 637 P.2d 529
Appeal from a judgment of conviction for attempted escape, First Judicial District Court;
The Supreme Court held that: (1) delay occurring between offense and preliminary hearing
did not result in denial of defendants' right to speedy trial, and (2) court improperly imposed
harsher sentence upon one defendant as a result of his refusal to waive his Fifth Amendment
right not to incriminate himself.
Affirmed in part, reversed and remanded in part.
[Rehearing denied January 29, 1982]
J. Gregory Damm, State Public Defender, and Michael K. Powell, Carson City, for
Appellants.
1. Arrest.
Apprehension of defendants in off-limits area of correctional institution did not constitute arrest
within meaning of statute requiring that arrested person be taken before magistrate without unnecessary
delay. NRS 171.178, subd. 1.
2. Criminal Law.
When record established that preliminary hearing was scheduled beyond 15-day prescribed period due to
overcrowded calendar, such delay was permissible. NRS 171.196, subd. 2.
3. Criminal Law.
Even if statute requiring that arrested person be taken before magistrate without unnecessary delay is
applicable, reversal is not required without showing that delay caused defendant to be deprived of fair trial
or caused defendant to suffer prejudice. NRS 171.178, subd. 1.
4. Criminal Law.
Without showing of prejudice, mere passage of five months time between date defendants were
apprehended in off-limits area of correctional institution and preliminary hearing did not violate
defendants' right to speedy trial. NRS 171.178, subd. 1, 171.196.
5. Criminal Law.
Supreme Court will normally not interfere with broad discretion granted to trial court in sentencing.
6. Criminal Law.
Where lower court announced that sole reason for imposing sentence of five years on defendant and two
years on his two codefendants was fact that defendant maintained his innocence, harsher sentence was
improperly imposed as result of defendant's refusal to waive his Fifth Amendment
right not to incriminate himself.
sentence was improperly imposed as result of defendant's refusal to waive his Fifth Amendment right not to
incriminate himself. U.S.C.A.Const. Amend. 5.
7. Criminal Law.
Defendant retains his Fifth Amendment rights after jury verdict because appellate process is still open to
him. U.S.C.A.Const. Amend. 5.
8. Criminal Law.
Imposition of harsher sentence based upon defendant's exercise of constitutional rights is an abuse of
discretion and sentence cannot stand. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
On August 13, 1979, appellants and a third individual were inmates at the Northern
Nevada Correctional Center and were apprehended in an off-limits area of the institution.
The inmates were placed under close supervision and transferred to the maximum security
facility of the Department of Prisons. Administratively, appellants were charged with a
disciplinary violation for attempted escape and were given penalties involving segregation by
the prison authorities. As a result of the disciplinary proceedings, a referral for prosecution
was made to the attorney general. On December 5, 1979, a complaint was brought by the
attorney general alleging attempted escape, NRS 212.090. Appellants appeared before the
justice court magistrate on December 5, 1979. They were appointed counsel and a
preliminary hearing was set for January 6, 1980, and was held on that date.
Appellants first urge that the delay occurring between the offense on August 13, 1979, and
the preliminary hearing on January 16, 1980, resulted in denial of their right to a speedy trial
under the Sixth Amendment, NRS 171.178(1) and NRS 171.196. Appellants do not complain
of the delay between the preliminary hearing and the trial of the case.
[Headnotes 1, 2]
NRS 171.178(1) requires that an arrested person be taken before a magistrate without
unnecessary delay. Subsection 3 of that statute specifies the procedures to be followed when
more than 72 hours elapse between the arrest and the first appearance. Appellants contend
that the apprehension of appellants on August 13, 1979, constituted an arrest within the
meaning of NRS 171.178. We disagree. It is true that appellants were taken into custody
when apprehended on that date. However, the custody taken was simply a continuation of
the custody granted to the institution by the sentencing court and was not an arrest
within the meaning of NRS 171.17S.
the custody taken was simply a continuation of the custody granted to the institution by the
sentencing court and was not an arrest within the meaning of NRS 171.178. See Wammack v.
Sheriff, 86 Nev. 162, 466 P.2d 849 (1970); State v. Keith, 543 P.2d 235 (Wash. 1975).
Appellants contend that a second delay resulted in deprivation of their right to a speedy trial
in that the preliminary hearing was scheduled beyond the 15-day period prescribed by NRS
171.196(2). When the record establishes, as it does here, that the hearing was scheduled
beyond the statutory limit due to an overcrowded calendar, such a delay is permissible.
Stevenson v. Sheriff, 92 Nev. 535, 554 P.2d 255 (1976).
[Headnotes 3, 4]
Even if the statute were applicable, reversal is not required without a showing that the
delay caused the defendant to be deprived of a fair trial or caused the defendant to suffer
prejudice. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969). The concerns underlying the
application to inmates of the right to a speedy trial, as expressed in Smith v. Hooey, 393 U.S.
374 (1969), have not been shown. Therefore, without a showing of prejudice, we cannot find
that the mere passage of time violated appellants' right to a speedy trial.
Appellant Doran has challenged the sentence he received, alleging that the court imposed a
harsher sentence upon him as a result of Doran's refusal to waive his Fifth Amendment right
not to incriminate himself. We agree. The court asked Doran at the sentencing hearing if he
still maintained his innocence, and Doran replied that he did. The court then imposed a
sentence of three years on Doran's two codefendants, and sentenced Doran to five years.
[Headnotes 5-8]
This court will normally not interfere with the broad discretion granted to the trial court in
sentencing. However, the lower court in this case announced that the sole reason for the
disparity in sentences was the fact that Doran maintained his innocence.
1
Doran had not
waived his right to remain silent. A defendant retains his Fifth Amendment rights after a jury
verdict because the appellate process is still open to him. United States v. Rodriguez, 498
F.2d 302 (5th Cir. 1974). Imposition of a harsher sentence based upon the defendant's
exercise of his constitutional rights is an abuse of discretion and the sentence cannot stand.
Thomas v. United States, 368 F.2d 941 (5th Cir.
____________________

1
The court stated in pronouncing sentence: The reason for the disparity between Mr. Doran and the others,
they acknowledged their guilt after having been found guilty in light of the overwhelming evidence in this
proceeding and the admissions of the other two defendants.
Cir. 1966); cf. North Carolina v. Pearce, 395 U.S. 711 (1969) (exercise of right to appeal); In
re Lewallen, 590 P.2d 383 (Cal. 1979) (refusal to plead guilty).
Therefore, we affirm the judgments of conviction of both Bushnell and Doran. However,
the sentence of Doran is reversed and the case is remanded to the district court with
instructions that the sentence of five years be vacated and a sentence of three years be
imposed.
____________
97 Nev. 594, 594 (1981) Horvath v. Gladstone
CHARLES HORVATH and JEAN HORVATH, Appellants, v. SCOTTY
GLADSTONE and LORRAINE GLADSTONE, Respondents.
No. 12943
December 17, 1981 637 P.2d 531
An appeal from summary judgment, Eighth Judicial District Court, Clark County; Michael
R. Griffin, Judge.
Appeal was taken from order of the district court granting summary judgment and
directing appellants to remove the second story of their home. The Supreme Court held that
despite prior litigation upholding enforceability of restrictive covenant against homeowners
who had both constructive and actual notice of covenant imposing a one-story height
limitation on buildings in subdivision and who was proceeding to build second story in direct
violation of the covenant, doctrine of res judicata did not preclude a new balancing of the
equities in subsequent litigation presenting issue as to whether restrictive covenant was
enforceable against a party who purchased the house with the second story already completed,
where that party had constructive notice of the restriction, but no actual or constructive notice
of any pending litigation or dispute as to the second story.
John Peter Lee, Ltd., and James C. Mahan and Richard McKnight, Las Vegas, for
Appellants.
Gladstone & Stark, Las Vegas, for Respondents.
1. Judgment.
District court was without jurisdiction to amend judgment in favor of plaintiffs because no notice to
amend was filed and no notice was given to plaintiffs. NRCP 59(e).
2. Judgment.
Doctrine of res judicata precludes parties or their privies from relitigating a cause of action which has
been finally determined by a court of competent jurisdiction.
3. Judgment.
In determining application of doctrine of res judicata, pertinent inquiries are: whether the issue decided in
the prior adjudication was identical with the issue presented in the action in question; whether there was a
final judgment on the merits; and whether the party against whom the judgment is asserted was a party or in
privity with a party to the prior adjudication.
4. Judgment.
Despite prior litigation upholding enforceability of restrictive covenant against homeowners who had
both constructive and actual notice of covenant imposing a one-story height limitation on buildings in
subdivision and who were proceeding to build second story in direct violation of the covenant, doctrine of
res judicata did not preclude a new balancing of the equities in subsequent litigation presenting issue as to
whether restrictive covenant was enforceable against a party who purchased the house with the second
story already completed, where that party had constructive notice of the restriction, but no actual or
constructive notice of any pending litigation or dispute as to the second story.
OPINION
Per Curiam:
Appellants Charles and Jean Horvath have appealed from an order granting summary
judgment to respondents and directing appellants to remove the second story of their Las
Vegas home. We reverse and remand.
This appeal is a continuation of the dispute in Gladstone v. Gregory, 95 Nev. 474, 596
P.2d 491 (1979). In that case the Gregorys and the Gladstones owned adjacent residential
properties in a Las Vegas subdivision. A Declaration of Restrictions included a one-story
height limitation on buildings within the subdivision. In May, 1977, the Gregorys commenced
construction of a second story addition to their home. The Gladstones sought injunctive relief
to restrain the construction project. The district court denied relief based upon findings of
changed conditions in the neighborhood and abandonment of the restrictions by other home
owners within the subdivision. This court reversed, finding that the evidence did not justify
the district court's conclusions. We directed the district court to enter an appropriate order.
Construction of the second story had continued pending the Gladstones' appeal, and the
construction was complete long before this court's decision in Gladstone. One year before this
court's reversal, the Gregorys sold their home to the Horvaths, appellants herein.
[Headnote 1]
On August 15, 1979, in accordance with our opinion in Gladstone, the district court
entered an order granting a permanent injunction and ordering the Gregorys to remove the
second story.
1
Shortly thereafter, the Gladstones informed the Horvaths of the injunction,
and demanded removal of the second story. The Gladstones then initiated the present action
against the Horvaths, seeking a judgment requiring the Horvaths to remove the second story.
The district court granted the Gladstones' motion for summary judgment on the ground that
the doctrine of res judicata precluded relitigation of issues relating to enforcement of the
restriction. The Horvaths were ordered to remove the second story by October 9, 1980. We
granted a stay pending this appeal by the Horvaths.
2

[Headnotes 2, 3]
The doctrine of res judicata precludes parties or their privies from relitigating a cause of
action which has been finally determined by a court of competent jurisdiction. In reviewing
the district court's res judicata determination, three inquiries are pertinent: (1) whether the
issue decided in the prior adjudication was identical with the issue presented in the action in
question; (2) whether there was a final judgment on the merits; and (3) whether the party
against whom the judgment is asserted was a party or in privity with a party to the prior
adjudication. Paradise Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973), cert.
denied, 414 U.S. 865 (1973); see Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 122
P.2d 892 (Cal. 1942).
[Headnote 4]
Applying these factors to the present case, it is apparent that the issue decided in the prior
adjudication was not identical with the issue in the present litigation. The issue in the
Gladstone case dealt with the enforceability of a restrictive covenant against a homeowner
who had both constructive and actual notice of the covenant, and who was proceeding to
build the second story in direct violation of the covenant. The issue in
____________________

1
An amended judgment was entered on August 30, 1979, deleting reference to removal of the second story.
However, the Horvaths apparently concede that the amended judgment was void. The district court was without
jurisdiction to amend the August 15, 1979 judgment because no motion to amend was filed and no notice was
given to the Gladstones. NRCP 59(e); Dredge Corp. v. Peccole, 89 Nev. 26, 505 P.2d 290 (1973); United Pac.
Ins. Co. v. St. Denis, 81 Nev. 103, 399 P.2d 135 (1965); see also Oelsner v. Charles C. Meek Lumber Co., 92
Nev. 576, 555 P.2d 217 (1976).

2
A cross-complaint by the Horvaths against the Gregorys is still pending in district court. See NRCP 54(b).
the present case is whether the restrictive covenant is enforceable against a party who
purchased the house with the second story already completed, where that party had
constructive notice of the restriction, but where there was no actual or constructive notice of
any pending litigation or dispute as to the second story.
The distinction between the two issues is significant. In the Gladstone-Gregory context we
held that the equitable principle of relative hardship was not available to the Gregorys. 95
Nev. at 480, 596 P.2d at 495. In the present case, which deals with a purchaser who has
performed no act in violation of the restrictions, and who merely purchased a house which
contained an existing violation of the restrictions, we perceive no reason to preclude a
balancing of equities as in the Gladstone-Gregory litigation.
3

Because the issues in the two cases were not identical, the district court erred by using the
doctrine of res judicata to grant summary judgment against the Horvaths. Accordingly, we
reverse the judgment and remand for further proceedings.
4

____________________

3
The Gladstones argue that they could not have given notice of the litigation to the Horvaths because NRS
14.010(1), the lis pendens statute, does not apply to this litigation. We need not determine the limits of the lis
pendens statute. The question here is not whether the Gladstones could have given notice to the Horvaths.
Rather, the question is whether the Horvaths had actual or constructive notice of the litigation so as to preclude
the balancing of equities in this injunction proceeding.

4
We express no opinion as to whether the district court should grant the injunction upon remand.
____________
97 Nev. 597, 597 (1981) Taft v. Steinberg
JOHN TAFT and ANN TAFT, Appellants, v. IRVING J.
STEINBERG and SEYMOUR SCHWARTZ, Respondents.
No. 13386
December 17, 1981 637 P.2d 533
Appeal from order of dismissal under NRCP 41(b). Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
The Supreme Court held that: (1) under rule providing for dismissal after completion of
plaintiff's case, district court was not authorized to dismiss action without hearing all of
plaintiffs' evidence, and (2) plaintiffs were not precluded from seeking reversal because no
offer of proof was made as to the remainder of their evidence.
97 Nev. 597, 598 (1981) Taft v. Steinberg
David Goldwater and Gary E. Schnitzer, Las Vegas, for Appellants.
Rogers, Monsey, Woodbury & Berggreen, Las Vegas, for Respondents.
1. Trial.
Under rule providing for dismissal after completion of plaintiff's case, district court was not authorized to
dismiss action without hearing all of plaintiffs' evidence. NRCP 41(b).
Plaintiffs could seek reversal of order of dismissal prior to completion of their case in chief despite
absence of offer of proof as to what the remainder of their evidence was, where the remainder of their case
was not excluded because of objection of defendants to any question, but was foreclosed by district court's
premature ruling on motion to dismiss. NRCP 41(b), 43(c).
OPINION
Per Curiam:
[Headnote 1]
The Tafts appeal from an order of the district court dismissing with prejudice their claim
against respondents. It is undisputed that the district court's decision was made, and the order
of dismissal entered, before the completion of the plaintiffs' case in chief. NRCP 41(b)
provides that dismissal under the rule may be ordered only after the completion of the
plaintiff's case. The district court was not authorized under NRCP 41(b) to dismiss the action
without hearing all of the plaintiffs' evidence.
1

[Headnote 2]
Respondents contend that appellants cannot seek reversal because no offer of proof was
made as to what the remainder of plaintiffs' evidence was. NRCP 43(c). The record
demonstrates that the evidence in the remainder of plaintiffs' case was not excluded because
of the objection of respondents to any question, NRCP 43(c), but was foreclosed by the
district court's premature ruling on respondents' pending motion to dismiss. NRCP 41(b).
Under these circumstances, NRCP 43(c) is not applicable. See United States v. Barash, 365
F.2d 395 (2d Cir. 1966), cert. denied, 396 U.S. 832 (1969). Greatreaks v. United States, 211
F.2d 674 (9th Cir. 1954) (erroneous ruling limiting issues to be tried and excluding evidence
relieves party of duty of making offer of proof).
The order of the district court is reversed and the case is remanded for further proceedings.
____________________

1
There is no suggestion that the plaintiffs' complaint failed to state a claim upon which relief could be
granted. NRCP 12(b)(5).
____________
97 Nev. 599, 599 (1981) Sheriff v. Boyer
KENNETH KAY BOYER, Respondent.
No. 13448
December 17, 1981 637 P.2d 832
The Supreme Court held that statute providing that any person who fails to return rented
vehicle within 72 hours after lease expires is presumed to have embezzled vehicle did not
define crime of embezzlement and violated due process clause of Fourteenth Amendment.
Affirmed.
John C. Wawerna, Deputy District Defender, Clark County, for Respondent.
1. Embezzlement.
Statute providing that any person who fails to return rented vehicle within 72 hours after lease expires is
presumed to have embezzled vehicle did not define crime of embezzlement and merely set forth
evidentiary presumption. NRS 205.300, 205.312.
2. Constitutional Law; Embezzlement.
Statute providing that any person who fails to return rented vehicle within 72 hours after lease expires is
presumed to have embezzled vehicle violated due process clause of Fourteenth Amendment. NRS
205.300, 205.312; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Respondent Kenneth Kay Boyer was charged with embezzlement of a rented vehicle. The
district court granted Boyer's pretrial petition for a writ of habeas corpus. The Sheriff of Clark
County has appealed. We affirm.
On February 11, 1981, Boyer rented an automobile from Compacts Only Rent-A-Car
(Compacts) of Las Vegas. Originally, Boyer was to return the car within 24 hours; however,
on February 12, 1981, he sought and apparently received a 24-hour extension. When Boyer
failed to return the car on February 13, 1981, Compacts attempted to contact him, but was
unable to do so because Boyer had given them a fictitious telephone number and fictitious
references.
unable to do so because Boyer had given them a fictitious telephone number and fictitious
references. Compacts never heard from Boyer again. The car Boyer had rented was returned
to Compacts the first week of April, 1981, by Triple A Auto Drive Away Service of Spokane,
Washington.
1

[Headnote 1]
By an information dated May 5, 1981, Boyer was charged with EMBEZZLEMENT
(Felony-NRS 205.312). The statute under which Boyer was charged, NRS 205.312, provides
as follows:
Whenever any person who has leased or rented a vehicle willfully and intentionally
fails to return the vehicle to its owner within 72 hours after the lease or rental
agreement has expired, such person shall be presumed to have embezzled the vehicle.
2

Following the language of NRS 205.312, the information was based on Boyer's failure to
return the vehicle within 72 hours of the expiration of the rental agreement.
At the preliminary hearing before the justice's court, the state relied on the statutory
presumption of NRS 205.312 in arguing that there was probable cause to believe that Boyer
had committed the crime of embezzlement. Boyer contended that NRS 205.312 was violative
of the Due Process Clause of the Fourteenth Amendment. Without discussing the
constitutional issue, the justice's court bound Boyer over to the district court to answer to the
charge of embezzlement.
3

Thereafter, Boyer petitioned the district court for a writ of habeas corpus. After reviewing
the parties' points and authorities and after hearing argument, the district court granted the
writ, holding that NRS 205.312 impermissibly placed the burden upon the defendant to
negate one of the elements of embezzlement--intent to convert the property.
In the case of In re Winship, 397 U.S. 358 (1970), the Supreme Court stated:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt
standard, we explicitly hold that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.
____________________

1
There is no indication in the record as to how Triple A Auto obtained possession of the car.

2
Boyer should have been charged under NRS 205.300, the statute which sets forth the elements of
embezzlement. NRS 205.312 does not define the crime of embezzlement; it merely sets forth an evidentiary
presumption.

3
The sheriff concedes that the probable cause determination was based, at least in part, on the presumption of
NRS 205.312.
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged. (Emphasis added.)
Id. at 364. Accord, Patterson v. New York, 432 U.S. 197, 210 (1977). Moreover, in Mullaney
v. Wilbur, 421 U.S. 684 (1975), the Supreme Court held that a state must prove every
ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of
proof to the defendant by presuming an ingredient upon proof of the other elements of the
offense. See also Patterson v. New York, supra, at 215.
[Headnote 2]
Applying these constitutional principles to the present case, it is clear that NRS 205.312
has the effect of relieving the state of the burden of proof enunciated in Winship and
Mullaney. Cf. Sandstrom v. Montana, 442 U.S. 510 (1979) (jury instruction had effect of
relieving the state of burden of proof on element of intent). Under this statute the mere failure
to return a rented vehicle within 72 hours after expiration of the rental agreement creates a
presumption of guilt, thus shifting the burden of proof to the defendant to show that he is not
guilty of the offense of embezzlement. Accordingly, we hold that NRS 205.312 violates the
Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The order granting the petition for a writ of habeas corpus is affirmed.
____________
97 Nev. 601, 601 (1981) Round Hill Gen. Imp. Dist. v. Newman
ROUND HILL GENERAL IMPROVEMENT DISTRICT, a Quasi-Municipal Corporation,
Petitioner, and INCLINE VILLAGE GENERAL IMPROVEMENT DISTRICT, Intervening
Petitioner, v. WILLIAM J. NEWMAN, as State Engineer, Division of Water Resources, and
ROLAND D. WESTERGARD, Director, Department of Conservation and Natural
Resources, State of Nevada, or Their Successors in Interest, Respondents.
No. 12449
December 18, 1981 637 P.2d 534
General improvement district and village general improvement district sought writs of
mandamus to compel the State Engineer to act on their applications for permits to appropriate
water from lake. The Supreme Court, Zenoff, Sr. J., held that general improvement district
and village general improvement district were not entitled to writs of mandamus in
Supreme Court to compel State Engineer to act on their applications for permits to
appropriate water from lake where State Engineer had discretion to withhold action on
their applications because of pending court action over water rights to river which
emptied into lake and where factual issues were presented.
district were not entitled to writs of mandamus in Supreme Court to compel State Engineer to
act on their applications for permits to appropriate water from lake where State Engineer had
discretion to withhold action on their applications because of pending court action over water
rights to river which emptied into lake and where factual issues were presented.
Petitions denied.
Rahbeck, McMorris, Susich & Kolvet, Stateline, for Petitioner Round Hill General
Improvement District.
Lester H. Berkson, Zephyr Cove, for Intervening Petitioner Incline Village General
Improvement District.
Richard H. Bryan, Attorney General, and George Campbell, Deputy Attorney General,
Carson City, for Respondents.
Woodburn, Wedge, Blakey & Jeppson, Reno, for Sierra Pacific Power Company, as
Amicus Curiae.
Johnson, Belaustegui & Robison, Reno; and Kronick, Moskovitz, Tiedemann & Girard,
Sacramento, California, for Truckee-Carson Irrigation District, as Amicus Curiae.
1. Mandamus.
Mandamus will not lie to control discretionary action unless discretion is manifestly abused or is
exercised arbitrarily or capriciously. NRS 34.160.
Appellate court is not appropriate forum in which to resolve disputed questions of fact.
3. Mandamus.
When disputed factual issues are critical in demonstrating propriety of writ of mandamus, writ should be
sought in district court, with appeal from adverse judgment to Supreme Court. NRS 34.160, 34.220,
34.310.
4. Mandamus.
Discretion of Supreme Court to entertain petition for writ of mandamus when important public interests
are involved will not be exercised unless legal, rather than factual, issues are presented.
5. Mandamus.
General improvement district and village general improvement district were not entitled to writs of
mandamus in Supreme Court to compel State Engineer to act on their applications for permits to
appropriate water from lake where State Engineer had discretion to withhold action on their applications
because of pending court action over water rights to river which emptied into lake and where factual issues
were presented. NRS 34.160, 34.220, 34.310, 533.370, subd. 3(b).
OPINION
By the Court, Zenoff, Sr. J.
1
:
Petitioner Round Hill General Improvement District (Round Hill), and intervening
petitioner Incline Village General Improvement District (IVGID), seek writs of mandamus to
compel the State Engineer to act on their applications for permits to appropriate water from
Lake Tahoe. NRS 533.325 et seq. The State Engineer has declined to act on the applications
on the ground that a pending court action in the area is not final.
The state engineer shall either approve or reject each application within 1 year from
the final date for filing protest; but:
. . .
(b) In areas where . . . court actions are pending the state engineer may withhold
action until such time as it is determined there is unappropriated water or the court
action becomes final.
The court action to which the State Engineer refers is litigation between the United States, the
Pyramid Lake Paiute Tribe of Indians, and the Truckee-Carson Irrigation District, over water
rights to the Truckee River. It is not subject to dispute that this action is not final within the
meaning of the statute, as a result of the decision of the United States Court of Appeals for
the Ninth Circuit in United States v. Truckee-Carson, etc., 649 F.2d 1286 (9th Cir. 1981). Nor
is it reasonably subject to dispute, see NRS 47.130, that the federal litigation in question
involves the same area as Lake Tahoe: the Truckee River rises out of Lake Tahoe. See United
States v. Nevada, 412 U.S. 534 (1973). Petitioners Round Hill and IVGID were both named
defendants in the federal action. Under the plain meaning of NRS 533.370(3)(b), the State
Engineer therefore has discretion to withhold action on petitioners' applications.
[Headnote 1]
A writ of mandamus will issue when the respondent has a clear, present legal duty to act.
NRS 34.160; Gill v. St. ex rel. Booher, 75 Nev. 448, 345 P.2d 421 (1959). Mandamus will
not lie to control discretionary action, Gragson v. Toco, 90 Nev.
____________________

1
Honorable Cameron Batjer, Justice, Nev. Const. art. 6, 19; SCR 10; 11.
131, 520 P.2d 616 (1974), unless discretion is manifestly abused or is exercised arbitrarily or
capriciously. Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961). Petitioners
contend that the State Engineer has manifestly abused the discretion granted by NRS
533.370(3)(b), because he has granted permits for water appropriation from Lake Tahoe
pursuant to applications which were filed after petitioners' applications. The State Engineer
concedes that some applications junior to petitioners' have been acted upon. There is no
similar concession regarding how much water has been appropriated under such subsequent
permits, or why the State Engineer has chosen to act upon them.
[Headnotes 2-5]
As we have repeatedly noted, an appellate court is not an appropriate forum in which to
resolve disputed questions of fact. E.g., Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265
(1981); Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). When disputed factual
issues are critical in demonstrating the propriety of a writ of mandamus, the writ should be
sought in the district court, with appeal from an adverse judgment to this court. NRS 34.160;
34.220; 34.310. The discretion of this court to entertain a petition for a writ of mandamus
when important public interests are involved, State ex rel. List v. County of Douglas, 90 Nev.
272, 524 P.2d 1271 (1974), will not be exercised unless legal, rather than factual, issues are
presented.
Accordingly, these petitions for writs of mandamus are denied.
Gunderson, C. J., and Springer and Mowbray, JJ., and Gabrielli, D. J.,
2
concur.
____________________

2
The Governor commissioned the Honorable John E. Gabrielli, Judge of the Second Judicial District Court,
to sit in this case in place of The Honorable Noel E. Manoukian, Justice, who voluntarily disqualified himself.
Nev. Const. art. 6, 4.
____________
97 Nev. 605, 605 (1981) Board of Regents v. Oakley
BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA SYSTEM, JAMES L.
BUCHANAN, II, ROBERT A. CASHELL, LILLY FONG, CHRIS KARAMANOS, MOLLY
F. KNUDTSEN, LOUIS E. LOMBARDI, M.D., JOHN R. McBRIDE, JOHN TOM ROSS,
JUNE F. WHITLEY, Dr. DONALD H. BAEPLER, Chancellor, UNIVERSITY OF
NEVADA SYSTEM, V. JAMES EARDLEY, President TRUCKEE MEADOWS
COMMUNITY COLLEGE, and BERT MUNSON, Dean, General and Developmental
Education, TRUCKEE MEADOWS COMMUNITY COLLEGE, Appellants, v.
CHAUNCEY W. OAKLEY, Respondent.
No. 13011
December 21, 1981 637 P.2d 1199
Appeal from summary judgment in favor of respondent, Second Judicial District Court,
Washoe County; William N. Forman, Judge.
University of Nevada professor, upon being advised he would not be retained on faculty
because of his age, filed suit against the Board of Regents, seeking a declaration that the
University's mandatory retirement policy violates state law. The district court granted
summary judgment in favor of plaintiff, and defendants appealed. The Supreme Court,
Springer, J., held that statute requiring all personnel actions taken by state, county or
municipal departments, agencies, boards or appointing officers to be based solely on merit
and fitness reasonably and properly imposed upon the governing board of the University the
same obligation that it imposes on other state, county and municipal boards, namely, the
obligation to make hiring and retention decisions on the basis of merit and fitness and not on
an immaterial factor such as age, sex, race, color, creed or national origin.
Affirmed.
Larry D. Lessly; Walther, Key, Maupin, Oats, Cox, Lee & Klaich; Donald Klasic, General
Counsel, University of Nevada System, Reno, for Appellants.
Raggio, Wooster, Clontz & Lindell, Reno, for Respondent.
Courts have the duty to uphold statutes passed by the legislature unless their unconstitutionality clearly
appears.
2. Civil Rights.
Statute requiring all personnel actions taken by state, county or municipal departments, agencies, boards
or appointing officers to be based solely on merit and fitness reasonably and properly imposes upon the
governing board of the University of Nevada the same obligation that it imposes on other state, county and
municipal boards, namely, the obligation to make hiring and retention decisions on the basis of merit and
fitness and not on an immaterial factor such as age, sex, race, color, creed or national origin. NRS
281.370; Const. Art.11, 7.
3. Colleges and Universities.
Legislature may not invade the constitutional powers of the Board of Regents of the University of Nevada
through legislation which directly interferes with essential functions of the University.
OPINION
This case concerns the validity of a University of Nevada policy of mandatory retirement
of faculty members when they reach a certain age. The policy was enacted in 1979 as part of
the University of Nevada System Code, 3.6.5(e), which provides as follows:
(e) Retirement. Faculty members on a continuing contract (tenured) shall retire from
the University of Nevada System at the end of the contract year in which they reach age
65. Nontenured faculty members shall retire from the University of Nevada System at
the end of the contract year in which they reach age 70.
State law prohibits any state department, agency or board from refusing to hire,
discharging or otherwise discriminating against any person because of age.
1
The members of
the governing board of the University, the Board of Regents, maintain that the law may
not be applied to the university system because it is an unconstitutional infringement
upon their authority.
____________________

1
1. All personnel actions taken by state, county or municipal departments, agencies, board or
appointing officers thereof shall be based solely on merit and fitness.
2. State, county or municipal departments, agencies, board or appointing officers thereof shall not:
(a) Refuse to hire a person because of such person's race, color, creed, national origin, sex or age,
unless based upon a bona fide occupational classification.
(b) Discharge or bar any person from employment because of such person's race, creed, color,
national origin, sex or age.
(c) Discriminate against any person in compensation or in other terms or conditions of employment
because of such person's race, creed, color, national origin, sex or age, except as provided in NRS
284.3781. (Emphasis supplied.)
The members of the governing board of the University, the Board of Regents, maintain
that the law may not be applied to the university system because it is an unconstitutional
infringement upon their authority.
At the time this action arose Chauncey W. Oakley was employed as an instructor by the
Truckee Meadows Community College, a division of the University of Nevada System.
Professor Oakley was advised in October, 1979, that he would not be retained on the faculty
because of his age. Oakley thereafter filed suit against the Board seeking a declaration that he
mandatory retirement policy violated state law.
The trial court agreed with Oakley; the court declared that the policy of mandatory
retirement was a violation of NRS 281.370 and could not, therefore, be enforced by the
Regents. The Board appeals.
The sole issue on appeal is whether NRS 281.370 may be constitutionally applied so as to
prohibit mandatory retirement of faculty members over a certain age.
[Headnotes 1, 2]
It is the duty of courts to uphold statutes passed by the legislature, unless their
unconstitutionality clearly appears. . . . State v. Arrington, 18 Nev. 412, 414, 4 P. 735, 737
(1884). It does not appear clearly or in any fashion that the statute is violative of our state
constitution. We therefore hold that this statute reasonably and properly imposes upon the
governing board of our state university the same obligation that it imposes on other state,
county and municipal boards, namely the obligations to make hiring and retention decisions
on the basis of merit and fitness and not on an immaterial factor such as age, sex, race, color,
creed or national origin.
[Headnote 3]
Appellants contend that the unique constitutional status
2
of the Board gives it virtual
autonomy and thus immunity from the state non-discrimination policy established by our
legislature. Principal authority cited for this position is the case of King v. Board of Regents,
65 Nev. 533, 200 P.2d 221 (1948). In King we struck down special legislation requiring the
creation of an advisory committee to the Board of Regents. Such special legislation is clearly
an encroachment upon the Board of Regent's constitutional power to manage and control the
University, subject to the right of the legislature to prescribe duties and other
well-recognized legislative rights. . . ." Id. at 65 Nev. 565
____________________

2
Art. 11, 7 of the Nevada Constitution calls for a Board of Regents to control and manage the affairs of
the University and the funds of the same under such regulations as may be provided by law. But the Legislature
shall . . . provide for the election of a new Board of Regents and define their duties. (Emphasis supplied.)
duties and other well-recognized legislative rights. . . . Id. at 65 Nev. 565, 200 P.2d 236.
King, therefore, does not stand for the proposition that the Board of Regents is free from all
legislative regulation; rather, it holds that the legislature may not invade the constitutional
powers of the Board through legislation which directly interferes with essential functions of
the University. Since the law in question simply prescribes duties concerning fair treatment of
its personnel, it in no apparent way interferes with the Board's essential management and
control of the University.
In challenging the constitutionality of the statute, the Board intimates that its own
regulations are equal in status and dignity to the legislative enactment. Reliance is placed on
State ex rel. Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515 (1953). In
Richardson this court did indicate that a provision of the University of Nevada System Code
has the force of law. The effect of that conclusion, however, was to bind the Board to
regulations it had previously established. Since Richardson did not concern a conflict
between a Board regulation and a state statute, it is inapplicable to the case before us.
3

The legislature in enacting the law codified in NRS 281.370 sets a sound, just and sensible
employment policy for state and local governing boards. Applying the policy to the
University of Nevada does not interfere with any constitutional rights or prerogatives of the
Board of Regents. The trial court was correct in granting summary judgment to Professor
Oakley, and we affirm its judgment.
Gunderson, C. J., and Manoukian and Mowbray, JJ., and O'Donnell, D. J.,
4
concur.
____________________

3
In harmony with the reasoning and result in this decision is Levi v. University of Hawaii, 628 P.2d 1026
(Hawaii, 1981), in which the Hawaii Supreme Court examined a conflict between a Board of Regents retirement
policy and a state age discrimination policy. Although the Hawaii constitution is arguably distinguishable from
ours by specifically providing that the power given to university regents is not intended to limit the power of the
legislature. Levi is analogous to the immediate case in holding that the state statute is binding and prevails over
contrary board regulations.

4
The Governor designated The Honorable Thomas O'Donnell, District Judge of the Eighth Judicial District,
to sit in this case in place of The Honorable Cameron Batjer, who voluntarily recused himself. Nev. Const. art. 6,
4.
_____________
97 Nev. 609, 609 (1981) State v. Lamb
THE STATE OF NEVADA, Appellant, v.
LARRY LAMB, Respondent.
No. 13340
December 22, 1981 637 P.2d 1201
Appeal from an order granting petition for Writ of Habeas Corpus, Eighth Judicial District
State appealed from order of the district court granting defendant's petition for writ of
habeas corpus and dismissing murder indictment. The Supreme Court held that prosecutorial
failures in original proceeding did not support trial court's determination that State was
consciously indifferent to procedural rules affecting defendant's rights so as to bar it from
recharging defendant by indictment.
Melvyn T. Harmon and Raymond D. Jeffers, Deputy District Attorneys, Clark County, for
Appellant.
Stewart L. Bell, Las Vegas, for Respondent.
Whether prosecution has displayed conscious indifference to procedural rules affecting defendant's rights
so as to bar State from recharging defendant by indictment pursuant to statute is factual determination.
NRS 178.562, subd. 2.
2. Criminal Law.
Showing of conscious indifference to procedural rules does not require intentional acts or calculated bad
faith by prosecution. NRS 178.562, subd. 2.
Although prosecution was arguably remiss in handling preliminary hearing at which police officer who
had arrested defendant failed to testify that defendant had admitted shooting victim and several important
witnesses did not appear because prosecutor had failed to subpoena them, prosecutorial failures did not
support trial court's determination that State was consciously indifferent to procedural rules affecting
defendant's rights so as to bar it from recharging defendant by indictment. NRS 178.562, subd. 2.
OPINION
Per Curiam:
The state appeals from a district court order granting respondent Larry Lamb's petition for
a writ of habeas corpus and dismissing a murder indictment.
97 Nev. 609, 610 (1981) State v. Lamb
On the morning of December 24, 1980, Sergeant Raeder of the Las Vegas Metropolitan
Police Department responded to a dispatch to a Christmas tree lot in Las Vegas. A man, later
identified as Lee McCambridge, was found dead of gunshot wounds inside a trailer on the lot.
Nearby sat respondent, Larry Lamb. Larry's brother, Darwin Lamb, was also present. Sergeant
Raeder advised respondent of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and
engaged him in a brief conversation about the circumstances surrounding McCambridge's
death.
The state filed a criminal complaint charging Larry Lamb with murder and use of a deadly
weapon in the commission of a crime. At the preliminary hearing, the state apparently
expected Sergeant Raeder to testify that Lamb admitted shooting McCambridge, but the
officer did not do so. Despite the seriousness of the charge, the prosecutor had neglected to
discuss with Sergeant Raeder the substance of his testimony prior to the preliminary hearing.
A breakdown in communication between the District Attorney's investigator and the
responsible prosecutor resulted in the failure to subpoena several witnesses, including
respondent's brother, Darwin Lamb. The state did not move for a continuance pursuant to Hill
v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), in order to subpoena these witnesses, but
proceeded with the preliminary hearing.
The justice court dismissed the charges against respondent based upon the state's failure to
link respondent with the corpus delicti. Approximately three weeks later, the state sought and
obtained a murder indictment from the Clark County Grand Jury. Before the grand jury,
testimony was elicited from both Sergeant Raeder and Darwin Lamb, respondent's brother,
that Larry Lamb had admitted shooting McCambridge.
Respondent filed a petition for a writ of habeas corpus. Following an evidentiary hearing,
the trial judge affirmed the magistrate's finding that the evidence at the preliminary hearing
was insufficient to establish probable cause to hold Lamb for trial. In addition, the trial court
concluded that the indictment subsequent to the preliminary hearing was precluded because
the state had displayed conscious indifference' to rules of procedure affecting the rights of
the Defendant in connection with the preliminary hearing. . . . Citing State v. Austin, 87
Nev. 81, 83, 482 P.2d 284, 285 (1971).
We have repeatedly held that if the original proceeding has been dismissed because the
prosecution has wilfully disregarded or displayed a conscious indifference to procedural
rules, the state is barred from re-charging a defendant by indictment pursuant to NRS
17S.562{2).
97 Nev. 609, 611 (1981) State v. Lamb
rules, the state is barred from re-charging a defendant by indictment pursuant to NRS
178.562(2). McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973); Maes v. Sheriff, 86 Nev.
317, 468 P.2d 332 (1970). Our past decisions have been premised on our belief that criminal
accusations should proceed or terminate on principles compatible with judicial economy, fair
play and reason. . . . McNair v. Sheriff, supra, at 438, 514 P.2d at 1177.
[Headnotes 1-3]
Conscious indifference is a factual determination. Johnson v. Sheriff, 89 Nev. 304, 511
P.2d 1051 (1973). A showing of conscious indifference does not require intentional acts or
calculated bad faith by the prosecution. Austin, supra, at 83, 482 P.2d at 285. Nonetheless,
the dereliction must be greater than that shown in the instant case. The prosecution was
arguably remiss in its handling of the Lamb preliminary hearing and perhaps exercised poor
judgment; however, in contrast to Austin and McNair, supra, the prosecutorial failures here
do not support the trial court's determination that the state was consciously indifferent to
procedural rules affecting defendant's rights.
Accordingly, we reverse the trial court's grant of the writ and remand this action to the
district court with instructions that it reinstate the grand jury indictment.
1
concur.
____________________

1
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR
10.
____________
97 Nev. 611, 611 (1981) Demosthenes v. Williams
PETE DEMOSTHENES, Records Officer, CHARLES L. WOLFF, Jr., Director of Prisons,
Appellants, v. W. C. WILLIAMS, Jr., JOE WALSH, JOSEPH KAZALYN, LEROY
COLLINS, KEITH ROBINSON, and GEORGE MILLER, Respondents.
No. 12962
December 22, 1981 637 P.2d 1203
Appeal from order granting Writ of Mandamus, First Judicial District Court, Carson City;
The district court issued writ of mandamus ordering Department of Prisons to apply good
time credit to reduce minimum sentences respondents had to serve before becoming
eligible for parole.
sentences respondents had to serve before becoming eligible for parole. Appeal was taken.
The Supreme Court, Manoukian, J., held that good time credit provisions applied to parole
eligibility of all inmates entitled to eventual parole, regardless of minimum sentence specified
in relevant statute.
Affirmed.
Richard H. Bryan, Attorney General, Ernest E. Adler and Brooke Nielsen, Deputy
Attorneys General, Carson City, for Appellants.
Vargas & Bartlett, Reno, and Powell & Lambrose, Ltd., Carson City, for Respondents.
and Bruce R. Laxalt, Deputy District Attorney, Washoe County, as Amici Curiae.
Pardon and Parole.
Good time credit provisions applied to parole eligibility of all inmates entitled to eventual parole,
regardless of minimum sentence specified in relevant statute. NRS 209.443.
OPINION
The trial court issued a writ of mandamus ordering appellant, Nevada Department of
Prisons, to apply good time credits to reduce the minimum sentences respondents must serve
before becoming eligible for parole. The issue confronting us in this appeal by the State is
whether good time credit provisions of NRS 209.433 apply to the parole eligibility of persons
convicted under NRS 200.030 (Murder), NRS 200.320 (Kidnapping), and NRS 200.366
(Sexual Assault). We find NRS 209.443 applicable, and the minimum term respondents are
to serve before parole eligibility is to be reduced by their good time credits.
Respondents are inmates at the Nevada State Prison. Three of the six inmates are serving
sentences of varying lengths, pursuant to NRS 200.366 (Sexual Assault). One has a sentence
of five years to life, pursuant to NRS 200.030 (Murder). The two remaining respondents have
sentences of life with the possibility of parole, pursuant to NRS 200.030 (Murder) or NRS
200.320 (Kidnapping).
Whether these offenders are entitled to apply good time credits to their parole eligibility is
a matter of statutory interpretation. See Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979).
NRS 213.120, the general parole statute, provides:
Except as otherwise limited by statute for certain specified offenses, a prisoner may
be paroled when he has served:
1. One-third of the definite period of time for which he has been sentenced pursuant
to NRS 176.033, less good time credits; or
2. One year, whichever is longer.
This statute exempts from its provisions certain specified offenses, among them sexual
assault, murder and kidnappingthe crimes attributed to respondents. The three offenses
have unique parole provisions which indicate a minimum time that is to be served prior to
parole eligibility.
1

NRS 209.443 requires that earned good time credits be deducted from an inmate's
sentence. It provides in part:
1. Every offender who is sentenced to an institution . . . shall be allowed for the
period he actually incarcerated under sentence [deductions for good time credits].
2. . . . The total good time made shall be deducted from the maximum term imposed
by the sentence and shall apply to parole eligibility as provided by law.
. . . .
4. Each offender is entitled to the deductions allowed by this section. . . . (Emphasis
added.)
Appellants contend that the phrase as provided by law, in NRS 209.443 precludes those
imprisoned for the specified offenses (i.e., murder, sexual assault, kidnapping, etc.) from
applying good time credits to their parole eligibility. The state argues that for these
offenses, the law prescribes minimum sentences which must be served before an inmate
can be eligible for parole.
____________________

1
NRS 200.030(4) (First Degree Murder) is representative of these special parole requirements:
Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any mitigating
circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the
penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.
See NRS 200.366(2) (Sexual Assault) and NRS 200.320 (Kidnappping) for the other relevant parole
provisions.
argues that for these offenses, the law prescribes minimum sentences which must be served
before an inmate can be eligible for parole. Appellants concede that respondents may apply
good time credits to their maximum sentences.
NRS 209.443 contains no limiting language. The provisions apply to each and every
offender. If we adopted appellants' interpretation and applied the earned credits only to the
parole eligibility of offenders whose crimes are covered by the general parole statute (NRS
213.120), the clear meaning of NRS 209.443 would be obfuscated. The statute is plain and
unambiguous; in such cases the statutory meaning must be deduced solely from the language,
and neither this court nor the trial court has the right to go beyond the face of the statute.
Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979); State ex rel. Hess v.
Washoe County, 6 Nev. 104, 107 (1870). See also Application of Filippini, 66 Nev. 17, 202
P.2d 535 (1949).
Even if we were to assume that there is an ambiguity in NRS 209.443, the ambiguity
should be resolved in favor of the respondents. We have repeatedly held that where there is
ambiguity in the language of a penal statute, that doubt must be resolved in favor of the
individual. Ex parte Davis, 33 Nev. 309, 318, 110 P. 1131, 1135 (1910). Accord, Sheriff v.
Hanks, 91 Nev. 57, 530 P.2d 1191 (1975); Labor Comm'r v. Mapes Hotel Corp., 89 Nev. 21,
505 P.2d 288 (1973). Admittedly, NRS 209.443 is not wholly penalit is not a statute which
imposes a penalty for transgressing its provisions. State v. Wheeler, 23 Nev. 143, 152, 44 P.
430, 432 (1896). Nonetheless, the statute is penal in nature; the same rationale would compel
us to construe it in respondents' favor. Cf. Ward v. State, 93 Nev. 501, 569 P.2d 399 (1977)
(ambiguity in criminal sentence to be resolved in favor of defendant).
Appellants' interpretation would be repugnant to the state's interest in providing reasonable
incentives for law-abiding inmate conduct. Good time credits are intended to encourage
cooperative behavior during incarceration in order to foster an orderly, wholesome and
rehabilitative prison atmosphere. See People v. Doganiere, 150 Cal.Rptr. 61 (Cal.App. 1978).
Cf. Rezin v. State, 95 Nev. 461, 596 P.2d 226 (1979) (habitual criminal statute enacted to
discourage repeat offenses and encourage behavior reform).
There is no language in any of the parole statutes for the three specified offenses which
suggest the legislature intended good time credits not to apply to parole eligibility, nor do
appellants provide us with reliable legislative history suggesting the legislature intended a
contrary result.
We agree with the trial court that the good time credit provisions of NRS 209.443 apply to
the parole eligibility of all inmates entitled to eventual parole, regardless of the minimum
sentence specified in the relevant statute.
The district court's order granting the writ of mandamus is affirmed.
2
concur.
____________________

2
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR
10.
____________
97 Nev. 615, 615 (1981) Resnick v. Valente
MARILYN RESNICK, AL CASTALDO, MVL ENTERPRISES, INTERNATIONAL
PHOTO STUDIO and MARILEE PROPERTIES, INC., Appellants, v. CAMILLO
VALENTE, LEE VALENTE and PAMELA CLIFTON, Respondents.
No. 12502
December 22, 1981 637 P.2d 1205
Appeal from order granting respondents' Motion to Enforce Settlement Agreement and
from the judgment entered in favor of respondents pursuant to such motion. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that an alleged oral settlement agreement made by counsel could
not summarily be reduced to judgment upon the motion of one party without an evidentiary
hearing.
[Rehearing denied March 11, 1982]
Jolley, Urga & Wirth, Las Vegas, for Appellants.
Foley Brothers, Las Vegas, for Respondents.
Compromise and Settlement.
Alleged oral settlement agreement made by counsel could not summarily be reduced to judgment
upon motion of one party without evidentiary hearing. DCR 24 (now Rule 16).
OPINION
Per Curiam:
This is an appeal from an order granting respondents' Motion to Enforce Settlement
Agreement and from the judgment entered in favor of respondents pursuant to such
motion.
judgment entered in favor of respondents pursuant to such motion.
The issue presented is whether an alleged oral settlement made by counsel may summarily
be reduced to judgment upon the motion of one party without an evidentiary hearing. We
hold that it may not.
On August 24, 1979, appellants' counsel accepted a settlement offer orally presented by
respondents' counsel. Early the next day appellants' counsel notified opposing counsel that the
settlement was not acceptable to his clients. Rather than pursue the prosecution of the
pending law suit, respondents' counsel moved the court to enforce the settlement agreement
by entering judgment thereon.
The court's granting of the motion and entry of judgment was done in violation of District
Court Rule 24, then in effect. District Court Rule 24 (now DCR 16) provides as follows:
Stipulations to be in writing or to be entered in the court minutes. No agreement or
stipulation between the parties in a cause or their attorneys, in respect to proceedings
therein, will be regarded unless the same shall, by consent, be entered in the minutes in
the form of an order, or unless the same shall be in writing subscribed by the party
against whom the same shall be alleged, or by his attorney.
By the express terms of this rule any settlement agreement made by attorneys must be in
writing or must be entered by consent in the minutes in the form of an order. Neither of these
requirements was met. Consequently the claimed settlement will not be regarded and will not
support the entry of judgment merely on respondents' motion to enforce settlement
agreement. See Casentini v. Hines, 97 Nev. 186, 625 P.2d 1174 (1981) (order enforcing an
oral stipulation held invalid because the stipulation which appeared in the court transcript had
not been entered in the minutes in the form of an order).
Respondents contend that the cited rule is not intended to apply to all settlement
agreements but merely to those arising during actual court proceedings. They argue further
that any other construction would impede the reliability of out-of-court settlements, thus
putting added burdens on the courts. No citation of authority is presented for this position.
The purpose of adhering to the district court rule is to prevent disputes such as this. By
requiring that all settlements either be reduced to a signed writing or be entered in the court
minutes following a stipulation, the court has an efficient method for determining genuine
settlements and enforcing them. DCR 24, therefore, does not thwart the policy in favor of
settling disputes; instead, it enhances the reliability of actual settlements.
of settling disputes; instead, it enhances the reliability of actual settlements.
We are not saying that enforcement of the supposed agreement by counsel may not be
accomplished in some appropriate fashion.
1
If suit on such an agreement was prosecuted, the
court might consider such issues as the authority of counsel, the nature of communications
between counsel and client and the existence of a meeting of minds by the parties; the court
might then decide to award a judgment based on the contract of the parties. This is not the
same as allowing judgment on a mere motion to enforce a settlement agreement supposedly
reached by counsel during negotiations. Indeed, to allow motions of this kind to lead to
judgment would result in trial by affidavit; and to enter judgment in summary proceedings on
such a motion is a clear violation of District Court Rule 24.
The trial court erred in granting the motion and entering judgment in favor of respondents.
The judgment is reversed and the matter remanded to the trial court for further proceedings.
2
concur.
____________________

1
See, e.g., Kukla v. Nat'l Distillers Prod. Co., 483 F.2d 619 (6th Cir. 1973); Hastings v. Matlock, 166
Cal.Rptr. 229 (Cal. App. 1980).

2
____________
97 Nev. 617, 617 (1981) Regent International v. Lear
REGENT INTERNATIONAL, a Nevada Corporation, Appellant, v. MOYA OLSEN LEAR,
EXECUTOR OF THE ESTATE OF WILLIAM POWELL LEAR, aka
WILLIAM LEAR, W. P. LEAR and BILL LEAR, Deceased, Respondent.
No 11808
December 28, 1981 637 P.2d 1207
Appeal from order vacating previous order confirming the sale of land in probate
proceeding and ordering forfeiture of appellant's earnest money deposit. Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
The Supreme Court held that: (1) where vendor had granted extensive and undefined
easements to third party over subject property and location of easements was left to further
determination by vendor and third party, easements were encumbrances which did not come
within easement exception in purchase agreement with purchaser, and {2) trial court erred
in ordering forfeiture of earnest money deposit before resale and determination of
deficiency.
purchase agreement with purchaser, and (2) trial court erred in ordering forfeiture of earnest
money deposit before resale and determination of deficiency.
Affirmed in part, reversed and remanded in part.
[Rehearing denied March 15, 1982]
Morse-Foley, Las Vegas, for Appellant.
Hill, Cassas, deLipkau & Erwin, Reno, for Respondent.
Easements of floating and undefined nature are not covered by easement exceptions in purchase
agreement when location of said easements is left to further determination of parties.
Where vendor had granted extensive and undefined easements to third party over subject property and
location of easements was left to further determination by vendor and third party, easements were
encumbrances which did not come within easement exception in purchase agreement with purchaser.
Where purchaser did not object to encumbrance on title in manner contained in contract for sale,
purchaser's performance was not excused because of presence of encumbrance.
Under sales agreement which specifies manner in which objections to title are to be made, proper
objections must be made within reasonable time in order to afford seller opportunity to cure within time
allowed for full performance of contract.
5. Executors and Administrators.
Forfeiture of earnest money deposit as liquidated damages is inappropriate in a probate proceeding
vacating a confirmed sale. NRS 148.300.
6. Executors and Administrators.
In proceeding for damages for purchaser's failure to perform confirmed contract for sale of probate
property, trial court erred in ordering forfeiture of earnest money deposit before resale and determination of
deficiency. NRS 148.300.
OPINION
Per Curiam:
The lower court entered an order on December 6, 1978, which confirmed the sale of
approximately 1800 (eighteen hundred) acres of real property by the William Lear Estate to
appellant. The sale was made pursuant to a purchase agreement duly executed by the parties
which provided that escrow would close on or before December 29, 1978. The sales
agreement also provided for a preliminary title report and appellant-buyer was given ten days
within which to object to any defects appearing on the report.
appearing on the report. Listed on the preliminary title report was the following: 65. The
effect of an instrument entitled Notice of Agreement of Sale' which was recorded October
27, 1978, executed by Incline Enterprises, Inc., and affected A portion of said land'. Item 65
was an agreement between Lear and Incline Enterprises (henceforth to be referred to as the
Lear-Incline agreement) which created certain undefined easements over the land which is the
subject of this cause of action.
The agreement between Regent and Lear was confirmed by the lower court on December
6, 1978. On February 26, 1979, Lear filed a motion to vacate the order confirming the sale
pursuant to NRS 148.300, alleging that Regent had failed to tender the purchase price
pursuant to the agreement. Regent's answer to the motion to vacate alleged only that there had
been a delay in the financing of the purchase. No allegation of defect in the title was made
until the hearing on the motion on April 6, 1979, more than three months after the agreed
time for closing of escrow.
Regent alleged that the undefined nature of the easements granted to Incline Enterprises,
Inc. in the Lear-Incline agreement, resulted in the inability of Lear to transfer marketable title
and excused Regent from its failure to deposit the purchase price in a timely manner. The
lower court found that the purchase agreement exempted easements from any warranties,
vacated the confirmation order, and found that a liquidated damages provision in the contract
required that in the event of breach, the earnest money deposit of $250,000 was to be
forfeited and granted to the estate. Upon request of Regent, the order was not effective for
thirty (30) days to allow Regent to cure the breach by depositing the purchase price. When
Regent failed to make the required tender, the court's previous order was put into effect on
May 8, 1979.
[Headnote 1]
Easements of a floating and undefined nature are not covered by easement exceptions in
a purchase agreement when the location of said easements is left to further determination of
the parties. Mrs. E. B. Smith Realty Company v. Hubbard, 204 S.E.2d 366 (Ga.App. 1974);
Culligan v. Leider, 149 P.2d 894 (Cal.App. 1944).
[Headnote 2]
The evidence was overwhelming that the easements granted to Incline over the subject
property were extensive and undefined and that the location of the easements was left to
further determination by the Lear-Incline agreement. Therefore, we hold that, as a matter of
law, "easements" of this type are encumbrances which do not come within an easement
exemption such as that contained in the agreement at issue here.1
hold that, as a matter of law, easements of this type are encumbrances which do not come
within an easement exemption such as that contained in the agreement at issue here.
1

[Headnotes 3, 4]
However, the fact that there may have been an encumbrance on the title does not excuse
the appellant's failure to perform, when, as here, the contract specifies precisely the manner in
which objections to alleged defects were to be made. Appellant failed to object, in the agreed
manner, to the encumbrance which appeared as Item 65 in the preliminary title report.
Although the purchase agreement did not require written objection, appellant failed to include
this item in objections (not at issue on appeal) which were made to the report and
significantly failed to mention the alleged defect in its answer to respondent's motion to
vacate the confirmation. In fact, counsel for appellant alleged in his supporting affidavit filed
March 8, 1979, that the reason for non-performance was a delay in the financing of the
project and no mention was made of any failure on respondent's part to tender marketable
title. This agreement contained no conditions as to financing; cash was required. Under a
sales agreement which specifies the manner in which objections to title are to be made, proper
objections must be made within a reasonable time in order to afford the seller an opportunity
to cure within the time allowed for full performance of the contract. John v. Timm, 190 N.W.
890 (Minn. 1922); Lieber v. Nicholson, 206 S.W. 512 (Tex.App. 1918); Sage Land and
Improvement Co. v. McCowen, 157 P. 244 (Cal.App. 1916).
[Headnotes 5, 6]
Finally, appellant contends that forfeiture of the earnest money deposit, as liquidated
damages, is inappropriate in a probate proceeding vacating a confirmed sale. We agree. See In
Re Williamson's Estate, 310 P.2d 77 (Cal.App. 1957). Respondent concedes that NRS
148.300
2
is applicable to the instant proceeding but argues that the estate's losses due to
the failure to consummate the sale exceed the amount of the earnest money deposit.
____________________

1
The purchase agreement provided in part:
Vendors warrant and represent that they hold and will convey to Purchaser by Grant, Bargain and
Sale Deed title to the land, free and clear of all liens and encumbrances, save and except . . .
(c) Rights of way and easements both of record and not of record.

2
If, after the confirmation, the purchaser neglects or refuses to comply with the terms of the sale, the
court, on motion of the executor or administrator, and after notice to the purchaser, may vacate the order
of confirmation and order a resale of the property. If the amount realized on such resale does not cover
the bid and expenses of the previous sale, such purchaser is liable to the estate for the deficiency.
instant proceeding but argues that the estate's losses due to the failure to consummate the sale
exceed the amount of the earnest money deposit. As the trial court did not apply NRS
148.300, there has been no evidence adduced or findings made as to the deficiency to be
assessed under the statute. When the court finds that there has been neglect or refusal to
perform by a purchaser in a sale subject to NRS 148.300, the lower court may properly order
the earnest money deposit held by the executor until resale and determination of the statutory
deficiency. However, forfeiture without the aforementioned determination is error. In Re
Williamson, id.
Therefore, that part of the order vacating the confirmation of sale of the property is
affirmed. That part of the lower court's order which grants to the estate the entire earnest
money deposit is reversed and the case is remanded for further proceedings not inconsistent
with this opinion.
Gunderson, C. J., and Manoukian and Springer, JJ., and Zenoff, Sr. J.,
3
and McDaniel, D.
J.,
4
concur.
____________________

3
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19; SCR
10.

4
The Governor designated The Honorable Joseph McDaniel, Judge of the Fourth Judicial District Court, to
sit in the place of The Honorable John Mowbray. Justice, Nev. Const., art. 6, 4.
____________
97 Nev. 621, 621 (1981) Johnson v. State
KENNETH DAVID JOHNSON, Appellant, v. THE
No. 12262
December 30, 1981 637 P.2d 1209
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted in the district court of burglary and robbery with a deadly
weapon, and he appealed. The Supreme Court, Springer, J., held that: (1) where police
secured house in hot pursuit of suspected robber and inadvertently spotted hat during course
of securing house, hat was properly admitted, and (2) trial court did not commit prejudicial
error in permitting law clerk to testify as to his belief that Church of Christ was opposed to
smoking after defendant's brother, who described himself as minister of Church of Christ,
testified that he had given defendant a cigarette in support of defendant's claim that he
had departed from house on night of robbery in order to purchase some cigarettes and
was unable to purchase any since he later discovered he had left his money at home.
he had given defendant a cigarette in support of defendant's claim that he had departed from
house on night of robbery in order to purchase some cigarettes and was unable to purchase
any since he later discovered he had left his money at home.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Plain view by itself is never sufficient to justify warrantless seizure and, rather, plain-view doctrine
requires that officers be lawfully present at point of observation and that discovery be inadvertent.
Under exigent circumstances, law enforcement officers may enter and search private premises without
warrant and prior to arrest and one exigent circumstance is reasonable belief that there is urgent need to
pursue investigation which involves substantial and imminent threat of death or bodily injury; however,
search must not be a planned warrantless search within the accompanying intent either to arrest or obtain
evidence. U.S.C.A.Const. Amend. 4.
Where police were in hot pursuit of suspected driver who reportedly was armed with a revolver and
proceeded to address registered for getaway vehicle, officers saw car which resembled vehicle described by
witnesses, officers properly secured house and were entitled to seize hat inadvertently spotted during
course of securing the house. U.S.C.A.Const. Amend. 4.
4. Criminal Law.
In prosecution for burglary and robbery with a deadly weapon, trial court did not commit prejudicial error
in permitting law clerk employed by district attorney to testify as to his belief that the Church of Christ was
opposed to smoking after defendant's brother, who described himself as minister of Church of Christ,
testified that he had given defendant a cigarette in support of defendant's claim that he departed from house
on night of robbery in order to purchase some cigarettes and was unable to purchase any since he later
discovered he had left his money at home.
OPINION
Appellant Johnson appeals from convictions of burglary and robbery with a deadly
weapon claiming the trial court erred in admitting evidence obtained in violation of his
fourth amendment rights.
admitting evidence obtained in violation of his fourth amendment rights. Appellant also
assigns as error the admission into evidence of certain extrinsic evidence to impeach an alibi
witness.
The crime was committed at a convenience store. Because the robber's face was covered,
positive identification of the suspect was impossible. Witnesses did, however, obtain the
robber's car license number as he fled and recalled that the robber wore a blue bandana and a
black, western-style hat which had a distinctive turquoise and silver band. The weapon used
was believed to be a small calibre revolver.
Using the vehicle license number, police quickly ascertained the name and address of the
owner and within ten minutes of the robbery arrived at appellant's home. There they found
Johnson leaving from a side door. Johnson was stopped by the police, advised of the nature of
the investigation and given his Miranda rights. Thereafter Johnson agreed that he and the
police officers would go into his house and discuss the situation.
Inside Johnson's home officers found Johnson's brother, Ronald Johnson, who bore a
certain fraternal resemblance to Johnson. The officers immediately made a sweep search to
secure the house to see if there was any subjects there. In the hallway one officer was able to
see on a nightstand in a bedroom off the hall a black western-style hat with a turquoise and
silver band. The hat was later retrieved. The officer then knocked on a closed bedroom door
and discovered therein a third subject, Johnson's father, who had been sleeping.
The police and the three men, Johnson, his brother and his father, discussed the matter
together in the living room. During the discussion Johnson's father admitted owning a gun,
which Johnson then produced. The brothers agreed to join the officers in a visit to the store,
where the clerk positively identified the black hat. The clerk also indicated that the gun was
similar, if not identical, to that used in the robbery.
On returning to appellant's home, the officers obtained the signed permission of all three
occupants to make further search of the home.
The officers found under Johnson's mattress some R.C. Cola caps which had been taken in
the robbery and some currency in the approximate amount and denominations reported to
have been stolen from the store. Police also found a blue bandana which matched the
description given by the store clerk. At this point officers placed Johnson under arrest.
The first issue to be decided is whether under the circumstances of this case a warrantless
seizure of the hat found on the premises was a violation of Johnson's fourth amendment
rights against unlawful search and seizure.
the premises was a violation of Johnson's fourth amendment rights against unlawful search
and seizure. We hold that under the facts of this case there was no such constitutional
violation.
[Headnotes 1, 2]
Respondent claims first that the hat was in plain view and hence subject to seizure. We
note that plain view by itself is never sufficient to justify a warrantless seizure. The plain
view doctrine requires (1) that officers be lawfully present at the point of observation and (2)
that the discovery be inadvertent. Barnato v. State, 88 Nev. 508, 512, 501 P.2d 643, 645-46
(1972); see Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (plurality opinion). Since
the officers were invited inside only to discuss the situation, appellant did not initially
consent to a warrantless search of the premises. The only possible justification for warrantless
search in this case is the so called emergency doctrine. Under exigent circumstances, law
enforcement officers may enter and search private premises without a warrant and prior to
arrest. One exigent circumstance is the reasonable belief that there is an urgent need to pursue
an investigation which involves a substantial and imminent threat of death or bodily injury.
The search, however, must not be a planned warrantless search with an accompanying intent
either to arrest or obtain evidence. Banks v. State, 94 Nev. 90, 575 P.2d 592 (1978); Geary v.
State, 91 Nev. 784, 544 P.2d 417 (1975); State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974).
[Headnote 3]
In the present case the police were in hot pursuit of a suspected robber who reportedly was
armed with a revolver. Proceeding to the address registered for the getaway vehicle, officers
saw a car which resembled the vehicle described by witnesses. They spotted a man leaving
the house. The man had the general physical characteristics of the robber. Subsequently the
officers with the suspect's consent found themselves inside the house.
It would have been shoddy and even hazardous police investigation for the officers not to
have secured the premises in order to determine whether or not fugitives or armed persons
were present. There is nothing in the record to indicate that officers were acting in subterfuge
or that they searched the house with the intention of getting evidence.
Since the hat was inadvertently spotted during the course of securing the house, the police
were entitled to seize it. When an exigency gives rise to a search, it may be carried through
to its completion in whatever area law enforcement officers may reasonably expect to find
the object of their search."
reasonably expect to find the object of their search. Geary v. State, 91 Nev. at 790, 544 P.2d
at 421.
All evidence taken from appellant's home was legally seized. Either the items were seized
under the emergency doctrine or they were taken with the consent of the house occupants. All
items were therefore properly admitted into evidence.
[Headnote 4]
Appellant's second assignment of error is that the trial court erred in permitting a law clerk
employed by the district attorney to testify as to his belief that the Church of Christ was
opposed to smoking. Police officers had testified that Johnson's explanation of his departure
from the house on the night of the robbery was that he was out of cigarettes and had gone out
to purchase some. Johnson had claimed he was unable to purchase any since he later
discovered that he had left his money at home. Doubt about this excuse was amplified when
the officers noticed him smoking during the period after the robbery. Johnson's brother
Ronald claimed that he had given Johnson the cigarettes which he had been smoking.
Ronald Johnson had described himself as a minister of the Church of Christ. The
prosecution sought to challenge Ronald's testimony by showing that smoking is not tolerated
in the Church of Christ and that, therefore, if Ronald was a minister of the church, he
probably did not possess cigarettes to provide to appellant.
Appellant describes this testimony as collateral and complains that the law clerk was not
competent to give his opinion that he guessed that the Church of Christ was against
smoking.
Such evidence is not necessarily collateral. It certainly bears on the defense theory by
tending to show that either the defendant or his brother was lying about the cigarettes.
Although the law clerk was not competent to give evidence of Church of Christ doctrine or
tenet, certainly no such prejudicial harm occurred as would deny Johnson a fair trial
Affirmed.
1
concur.
____________________

1
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
97 Nev. 626, 626 (1981) Flangas v. State
PETER L. FLANGAS, Appellant, v. THE STATE
No. 12559
December 30, 1981 637 P.2d 1212
Appeal from order granting costs; Eighth Judicial District Court, Clark County; Robert G.
Legakes, Judge.
Attorney, who represented a defendant in a criminal prosecution, appealed from an order
of the district court granting motion to award State $86.58 against attorney as costs in
locating witness. The Supreme Court held that there was no statutory basis permitting district
court to impose costs personally against attorney.
Reversed.
Peter L. Flangas, Las Vegas, Pro se.
Robert J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Clark
1. Costs.
Court may only tax costs against party in situations which have been specifically authorized by
legislature.
2. Attorney and Client.
There was no statutory basis permitting district court to impose against defense counsel costs in locating
witness to testify in criminal prosecution. NRS 18.005 et seq., 18.020, 18.050.
OPINION
Per Curiam:
Appellant is an attorney who represented a defendant in a criminal prosecution. Before
trial, the defense unsuccessfully attempted to serve a witness with a subpoena. At trial the
defense sought to introduce the prior testimony of the witness. Instead of allowing
introduction of the prior testimony, the court requested the state to find the witness. The
witness was subsequently located and testified at trial.
The trial of appellant's client resulted in a mistrial.
1
The prosecution subsequently
requested the court to award the state $86.58 against appellant as costs in locating the
witness. The motion was granted and this appeal followed.
____________________

1
The reasons for the mistrial are not relevant to the issues presented for review in this appeal.
97 Nev. 626, 627 (1981) Flangas v. State
[Headnote 1]
It is well settled in this jurisdiction that a court may only tax costs against a party in
situations which have been specifically authorized by the legislature. In Sun Realty v. District
Court, 91 Nev. 774, 776, 542 P.2d 1072, 1074 (1975), we held: It is the established law of
this state that costs, not being recoverable at common law, may be allowed only pursuant to
the express authority of statute or rule. Dearden v. Galli, 71 Nev. 199, 284 P.2d 384 (1955).
See also, Dixon v. District Court, 44 Nev. 98, 101, 190 P. 352, 353 (1920); McKenzie v.
Coslett, 28 Nev. 220, 80 P. 1070 (1905).
[Headnote 2]
NRS 18.005 et seq., establish the statutory scheme by which a party can recoup its
expenses.
2
NRS 18.020 lists several types of cases in which costs must be allowed. A
criminal prosecution is not one of the types of cases specified under the statute.
NRS 18.050 sets forth additional rules by which a litigant may recover some or all of his
expenses. A careful examination of that section as a whole, however, leads to the conclusion
that it refers only to recovery against parties, not their attorneys. In State v. Baker and
Josephs, 35 Nev. 300, 311, 129 P. 452, 455 (1912), we observed that statutes pertaining to
costs must be strictly construed. Because NRS 18.050 does not explicitly authorize a district
court to assess costs against an attorney representing a criminal defendant, we hold that the
section does not apply in this case.
Respondent has failed to establish any statutory basis permitting the district court to
impose costs personally against appellant Flangas. Accordingly, the order directing appellant
to pay $86.58 is reversed.
Gunderson, C. J., and Springer, J., and Zenoff, Sr. J.,
3
concur.
____________________

2
The 1981 Nevada Legislature amended NRS 18.020 and 18.050 after issuance of the order here in question.
However, none of the changes appear to affect the decision of this case.

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice
pursuant to Nev. Const., art 6, 19(c). Justices Noel Manoukian and John Mowbray voluntarily disqualified
themselves from the consideration of this appeal.
____________
97 Nev. 628, 628 (1981) Halama v. Halama
DONALD RICHARD HALAMA, Appellant, v.
NANCY JOY HALAMA, Respondent.
No. 12797
December 30, 1981 637 P.2d 1221
Appeal from order denying motion for change of venue, Eighth Judicial District Court,
Clark County; Stephen L. Huffaker, Judge.
Action was brought for divorce. The district court denied defendant's motion for change of
venue, and defendant appealed. The Supreme Court held that: (1) motion for change of venue
based on defendant's residence does not permit an exercise of discretion; (2) entry of
temporary support order did not warrant denial of venue motion; and (3) filing of an answer
does not interfere with defendant's right to demand a change of venue.
Diehl, Recanzone & Evans, Fallon, for Appellant.
Joseph L. Benson, Las Vegas, for Respondent.
1. Divorce.
Motion for change of venue of a divorce action based on defendant's residence does not permit an
exercise of discretion by the district court. NRS 13.040.
2. Divorce.
Entry of temporary support order on same day that defendant filed motion for change of venue of divorce
action, with neither defendant nor his counsel appearing at the hearing on support matter, furnished no
basis for denial of the venue motion. NRS 13.040.
3. Divorce.
Filing of an answer does not interfere with defendant's right to demand change of venue in a divorce
action. NRS 13.040.
OPINION
Per Curiam:
In this action for divorce, appellant's motion for change of venue, based upon NRS 13.040,
1
was denied by order of the district court on the grounds: (1) that the court had discretion to
deny the motion; (2) that the court had previously entered a temporary order in the case; and
{3) that appellant had submitted to the jurisdiction of the court by filing an answer.
____________________

1
NRS 13.040 provides, in part, that an action shall be tried in the county in which the defendants, or any one
of them, may reside at the commencement of the action. . . .
97 Nev. 628, 629 (1981) Halama v. Halama
temporary order in the case; and (3) that appellant had submitted to the jurisdiction of the
court by filing an answer.
[Headnotes 1, 2]
Appellant correctly contends that a motion for change of venue pursuant to NRS 13.040,
based on the defendant's residence, does not permit an exercise of discretion by the district
court. Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947); Williams v. Keller, 6 Nev. 141
(1870). Furthermore, the order previously entered by the district court was a temporary
support order which was entered on the same day that appellant filed the motion for change of
venue. Neither appellant nor his counsel appeared at the hearing on the support matter. We
know of no authority for the district court's reliance upon such an order as the basis for denial
of a motion for change of venue.
[Headnote 3]
Finally, the district court incorrectly relied on appellant having filed an answer in the
matter. The record reveals that no answer had been filed by appellant. In any event, the filing
of an answer does not interfere with a defendant's right to demand a change of venue. Byers
v. Graton, 82 Nev. 92, 411 P.2d 480 (1966).
Respondent's brief seems to assert that the district court made a factual determination as to
appellant's residence. However, the court's order makes no such determination.
2
Accordingly, we reverse the district court's order denying the motion for change of venue, and
we remand for a determination of appellant's residence and for further proceedings consistent
with this opinion.
____________________

2
The clerk's minutes make only a vague reference to some question as to where the defendant was at the
time.
____________
97 Nev. 630, 630 (1981) Garden Park Townhouse v. Homewood Bldrs.
GARDEN PARK TOWNHOUSE ASSOCIATION, Appellant, v. HOMEWOOD
BUILDERS, INC., HOWARD FORKER, POTTER ELECTRIC CO., INC., FRANKLIN &
McINNIS MASONRY, INC., DEAN ROOFING CO., DUPLISSEY, CERTIFIED AIR
CONDITIONING CORP., VOORHEIS-TRINDLE OF NEVADA, SOUTHERN NEVADA
PAVING, INC., CLOUD LANDSCAPING AND SPRINKLER SERVICE, APEX
CONSTRUCTION COMPANY, INC., ALFRED E. LEE, AND CAUSEY
CONSTRUCTION COMPANY, Respondents.
No. 12803
December 30, 1981 637 P.2d 1214
Appeal from an order involuntarily dismissing a complaint, Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Townhouse association brought suit alleging numerous construction defects in
condominium development. The district court dismissed suit for want of prosecution, and
association appealed. The Supreme Court held that matter was not brought to trial within
five-year period specified in governing rule of civil procedure by virtue of informal
proceedings held before special master.
Affirmed.
Rogers, Monsey, Woodbury & Berggreen, Las Vegas, for Appellant.
Gubler & Gubler; Mills, Galliher, Lukens, Gibson, Schwartzer & Shinehouse; Gang &
Berkley; Leavitt, Graves & Leavitt; Marquis & Haney; Bell & Young; Lorin D. Parraguirre;
Las Vegas for Respondents.
Pretrial Procedure.
Special master's actions, including meeting with attorneys, inspecting portion of construction site and
listening to what several persons had to say about construction of a wall, writing letter to three of nine
counsel of record and attaching some photographs and documents to letter and making certain findings
and conclusions, were not such that townhouse association could be said to have brought the action to
trial within five-year period specified in rule of civil procedure, and therefore, action was properly
dismissed for want of prosecution. NRCP 41(e).
OPINION
Per Curiam:
Appellant Garden Park Townhouse Association claims error in the district court's
dismissal of its suit for want of prosecution. Garden Park claims that the matter was brought
to trial within the five-year period specified in Nevada Rule of Civil Procedure 41(e)
1
by
virtue of informal proceedings held before a special master. We reject this contention and
affirm the order of the trial court.
The facts presented by appellant establish that no trial was ever commenced. On March 14,
1975, Garden Park filed suit alleging numerous construction defects in a condominium
development located in Las Vegas. On December 7, 1976, the district court appointed a
special master and directed him to make certain findings of fact and to prepare a report setting
forth those findings. At an unspecified date some of the attorneys in this matter met at the
construction site with the special master. The master inspected a portion of the site and
listened to what several persons had to say about construction of a wall. No formal or sworn
testimony was taken. On November 6, 1979, the special master wrote a letter to three of nine
counsel of record. He attached some photographs and documents to the letter and made
certain findings and conclusions. The letter was not filed with the court nor was it served on
all counsel of record. In fact, no report as such was ever presented to the court. Appellant
cites no relevant authority for the proposition that the master's action in this case constituted
commencement of a trial.
2
It is clear that the master's actions in this case were not such
that Garden Park may be said to have "brought the action to trial" pursuant to NRCP
41{e).
____________________

1
NRCP 41(e) provides in pertinent part:
Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall
have been commenced or to which it may be transferred on motion of the defendant, after due notice to
plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after
the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be
extended.

2
Garden Park cites two cases which purportedly hold that action taken by a master necessarily saves a suit
from involuntary dismissal under the five-year deadline. Neither case is on point. In Deigan v. Deigan, 232 A.2d
227 (Pa.Super. 1967), a Pennsylvania superior court held that divorce proceedings before a master constituted
sufficient action to deny a plaintiff's motion for discontinuance. The court emphasized the quasi-judicial nature
of the master's proceedings, which included taking the sworn testimony of witnesses, preparation of an official
transcript and filing with the court a report containing the master's conclusions. By contrast, in the case
It is clear that the master's actions in this case were not such that Garden Park may be said
to have brought the action to trial pursuant to NRCP 41(e). We therefore affirm the order of
dismissal.
3
concur.
____________________
before us no witnesses were called nor were all parties notified. The master's findings were never even part of
the court record.
The second case appellant relies on is equally inapplicable. In City of Pasadena v. City of Alhambra, 207 P.2d
17 (Cal. 1949), the California Supreme Court held that based on the peculiar circumstances of that case the time
consumed by a master should not be included in computing the five-year period for bringing a suit to trial.
Despite the diligence of all parties, the master had taken four and one-half years to conclude his investigation.
Since the master's findings were crucial to any further proceedings, the parties were powerless to act until the
master made his determination. The court did not hold that the master's proceedings actually constituted
commencement of trial, and the distinction is important to the case at hand. Appellant concedes that under
Nevada Rule of Civil Procedure 53(d)(1) any party could have moved to speed up the master's report, but no one
took such action. It appears from the record that delays in bringing this action to trial were not occasioned by
inaction on the part of the master.

3
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
97 Nev. 632, 632 (1981) Frye v. Clark County
NEVADA SMITH FRYE, Appellant, v. CLARK COUNTY,
NEVADA, and CITY OF LAS VEGAS, Respondents.
No. 12867
December 30, 1981 637 P.2d 1215
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
Owner of home which was destroyed by fire brought negligence action in city and county
fire department. The district court granted defendant's motions for summary judgment and
homeowner appealed. The Supreme Court held that no private liability may attach to the fire
department's failure to respond to a call or asserted negligence in responding to the wrong
address.
Affirmed.
Richdall & Shulman, Las Vegas, for Appellant.
Harding & Dawson, Las Vegas, for Respondent City of Las Vegas.
Vargas & Bartlett, Thomas F. Kummer and Harry E. Hinderliter III, Las Vegas, for
Respondent Clark County.
Duty to fight fires runs to all citizens and is to protect the safety and well-being of the public at large and
no private liability may attach to the fire department's failure to respond to a call or its asserted negligence
in responding to the wrong address.
Public agency may be held to have assumed a special duty to individual, in addition to its duty to the
public, where official conduct has created specific reliance on the part of the individual or where the
official's negligence affirmatively causes the individual harm.
OPINION
Per Curiam:
Appellant's house was destroyed by fire. Neighbors notified the fire department through a
telephone number maintained jointly by the Clark County and Las Vegas fire departments.
They gave the correct address, including cross streets, but the fire department went first to the
wrong address on El Camino Avenue, before arriving at the correct address on El Camino
Road. The fire department was delayed in arriving at the scene of the fire and the appellant's
house was destroyed.
Appellant brought this action for damages, alleging negligence, for loss of the home. The
trial court granted respondents' motion for summary judgment, ruling that no actionable
breach of duty had been alleged. We agree and affirm.
This court has previously held that no private liability exists for failure to provide police
protection, Bruttomesso v. Las Vegas Metropolitan Police, 95 Nev. 151, 591 P.2d 254
(1979), or for failure to prosecute criminals, Whalen v. County of Clark, 96 Nev. 559, 613
P.2d 407 (1980). These cases rest on the principle that the duty of providing these services is
one owed to the public, but not to individuals. Cf. Massengill v. Yuma County, 456 P.2d 376
(Ariz. 1969); Doe v. Hendricks, 590 P.2d 647 (N.M. 1979).
[Headnote 1]
Similar to the duty to provide police protection and to prosecute criminals, the duty to
fight fires runs to all citizens and is to protect the safety and well-being of the public at
large. Bruttomesso, supra, 95 Nev. at 153. Therefore, no private liability may attach to the
fire department's failure to respond to a call.
call. That result has been reached in other jurisdictions that have considered the question.
Frankfort Variety, Inc. v. City of Frankfort, 552 S.W.2d 653 (Ky. 1977); LaDuca v. Town of
Amherst, 386 N.Y.S.2d 269 (App.Div. 1976); Valevais v. City of New Bern, 178 S.E.2d 109
(S.C.App. 1970), where the same result was reached predicated upon the governmental
function rule; Bagwell v. City of Gainesville, 126 S.E.2d 906 (Ga.App. 1962).
[Headnote 2]
This decision does not preclude liability for a negligent act by a fire department in all
instances. Under certain circumstances, a public agency may be held to have assumed a
special duty to individuals. Such a duty may exist where, official conduct has created specific
reliance on the part of individuals, Florence v. Goldbert, 404 N.Y.S.2d 583 (N.Y. 1978), or
where the official negligence affirmatively causes the individual harm. However, merely by
responding to the fire call, as in the instant case, respondent did not assume a special duty
towards appellant. Therefore, the judgment of the district court is affirmed.
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in the place of
The Honorable Carmeron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
97 Nev. 634, 634 (1981) Baker v. State
BOBBY MITCHELL BAKER, Appellant, v. THE
No. 12114
December 30, 1981 637 P.2d 1217
An appeal from judgment of conviction of burglary and sentencing as an habitual criminal,
Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The Supreme Court held that defendant was deprived of his constitutional right to conduct
his own defense where request immediately prior to voir dire of jury on first day of trial was
denied as untimely, absent showing that the motion was made merely to obstruct or delay.
97 Nev. 634, 635 (1981) Baker v. State
James Tufteland, and Raymond D. Jeffers, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Defendant in a criminal case has unqualified right to represent himself when he voluntarily and
intelligently elects to do so. Const. Art. 1, 8; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Request for self-representation before jeopardy has attached is not untimely, and denial of such a request
on the ground of timeliness alone deprives defendant of his Sixth Amendment right to conduct his own
defense. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Defendant was deprived of his constitutional right to conduct his own defense where request immediately
prior to voir dire of jury on first day of trial was denied as untimely, absent showing that the motion was
made merely to obstruct or delay. Const. Art. 1, 8; U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Denial of defendant's motion for substitute counsel is a matter within the discretion of the trial court.
OPINION
Per Curiam:
This is an appeal from a conviction of burglary upon a jury verdict.
Immediately prior to voir dire of the jury on the first day of trial, appellant filed a written
motion in pro per, requesting that his counsel be dismissed or, in the alternative, that he be
allowed to represent himself at trial. Baker listed several grounds in the motion, based
primarily on his dissatisfaction with the public defender. The state objected, asserting that the
motion was untimely. The court denied the motion. No inquiry was made as to the reason for
the lateness of the request and no canvass of Baker was performed to ascertain whether Baker
was voluntarily and intelligently electing to proceed without counsel.
1
The record reveals
that Baker made an unequivocal request to proceed without counsel, both in writing and
orally.
____________________

1
The following interchange occurred in chamber:
DEFENDANT BAKER: Then I would move to defend myself before this court and I would
appreciate it very much if the Court granted my motion.
THE COURT: These motions are eleventh hour motions, Mr. Baker, and I don't appreciate them.
DEFENDANT BAKER: I don't appreciate this gentleman
97 Nev. 634, 636 (1981) Baker v. State
[Headnotes 1, 2]
Faretta v. California, 422 U.S. 806 (1975), established that a defendant in a criminal case
has an unqualified right to represent himself when he voluntarily and intelligently elects to
do so. See also Nev. Const. Art. 1, 8. In Schnepp v. State, 92 Nev. 557, 554 P.2d 1122
(1976), we rejected a claim of denial of the right to self-representation as untimely when
invoked after jeopardy had attached. In Schnepp we cited, with approval, United States ex rel.
Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965), which arose from facts nearly identical to
those in the case at hand. Maldonado held that a motion to proceed in pro per is timely if
made prior to the swearing of the jury. This position is consistent with the stance of the
federal appellate courts in Chapman v. U.S., 553 F.2d 886 (5th Cir. 1977) and United States
v. Price, 474 F.2d 1223 (9th Cir. 1973) (applying the federal statutory right to
self-representation, 28 U.S.C.A. 1654). A request for self-representation made before
jeopardy has attached is thus not untimely, and a denial of such a request on the ground of
timeliness alone deprives the defendant of his Sixth Amendment right to conduct his own
defense.
[Headnote 3]
We note that a defendant may not be permitted to employ a delaying tactic by abuse of this
rule. State v. Fritz, 585 P.2d 173 (Wash. 1978). However, absent a showing that the motion
was made merely to obstruct or delay the orderly process of the criminal justice system,
courts have found that denial of a timely motion for self-representation deprives a defendant
of a constitutional right, and this court is constrained to find that the defendant has been
deprived of his constitutional right to conduct his own defense. See State v. Fritz, 585 P.2d
173 (Wash. 1978); compare People v. Windham, 560 P.2d 1187, cert. denied sub nom.
Windham v. California, 434 U.S. 848, (1977) (request made after start of trial). In the instant
case, such a showing has not been made.
[Headnote 4]
The denial of Baker's motion for substitute counsel is a matter within the discretion of the
court. Junior v. State, 91 Nev. 439, 537 P.2d 1204 (1975). The finding by the court that an
inadequate showing had been made by Baker on this part of his motion was not error.
____________________
defending me, either. I don't want him to defend me and I want to defend myself or have another lawyer.
THE COURT: You have not articulated any facts, Mr. Baker, why I should remove [the public
defender] from your case, so, your motion has been denied and there will be a hearing with [the public
defender] as your counsel and the trial will proceed.
Now, I am not going to take up anymore time on that.
97 Nev. 634, 637 (1981) Baker v. State
inadequate showing had been made by Baker on this part of his motion was not error. The
denial of Baker's motion to proceed in propria persona on the basis that it was untimely was
error and we must, therefore, reverse and remand for a new trial.
In view of our disposition as to this issue, other issues raised by appellant need not be
addressed.
2
concur.
____________________

2
Honorable Cameron Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.
____________
97 Nev. 637, 637 (1981) Luciano v. Diercks
A. P. LUCIANO, aka TONY LUCIANO, ANTHONY P. LUCIANO, Appellant, v.
WILLIAM C. DIERCKS, aka WM. C. DIERCKS and VIRGINIA DIERCKS and IAMA
CORPORATION, Respondents.
No. 12063
December 30, 1981 637 P.2d 1219
Appeal from money judgment, Eighth Judicial District Court, Clark County; George E.
Marshall, Senior Judge.
Sublessees sued lessees of restaurant for specific performance of the sublease, or in the
alternative, for reformation of the agreement and the lessees counterclaimed for restitution of
the premises. The district court issued writ of restitution and entered money damages in
lessees' favor and sublessee appealed. The Supreme Court, Zenoff, Sr. J., held that, since
district court had issued writ restoring restaurant to lessors, Supreme Court was unable to
determine upon what basis district court had required lessee to quit the premises and also
make the down payment, and judge who had entered the judgment had died, precluding
remanding case for entry of findings of fact and conclusions of law, case would be reversed
and remanded for trial.
Clark & Zubel, Las Vegas, for Appellant.
John Peter Lee and Richard McKnight, Las Vegas, for Respondents.
Supreme Court will imply findings of fact and conclusions of law so long as record is clear and will
support the judgment. NRCP 52(a).
Since district court issued writ restoring restaurant to lessors, Supreme Court was unable to determine
upon what basis district court had required lessee to quit the premises and also make the down payment,
and judge who had entered the judgment had died, precluding remanding case for entry of findings of fact
and conclusions of law, case would be reversed and remanded for trial.
OPINION
By the Court, Zenoff, Sr. J.:
1

This appeal arises from an agreement by appellant Anthony P. Luciano to purchase
respondents' interest in the lease of a restaurant. The district court issued a writ of restitution
restoring the premises to respondents, the Diercks and IAMA Corp., and entered a money
judgment of $20,500 in respondents' favor.
2
Because we are unable to determine the factual
basis for the money judgment, we reverse and remand.
Respondents leased a restaurant from College Park Realty Company. On October 14,
1977, appellant entered into an agreement to purchase respondents' interest in the lease. In
addition to making payments under the master lease, appellant was to pay respondents
$110,000 for the remaining 15-year term of the lease. This price included purchase of the
restaurant's furniture and equipment. The $110,000 was payable as follows: $5,000 upon
execution of the sublease agreement; $15,000 upon respondents' obtaining the consent of
College Park to the sublease and the necessary business and liquor licenses; and $5,000 three
months after obtaining the necessary licenses. The remaining $85,000 was to be paid in
monthly installments of $1,500.
Appellant made the initial $5,000 down payment and took possession of the premises in
late October 1977. In addition, he made the monthly payment of $1,500 for each of the six
months he was actually in possession. However, appellant withheld the remaining down
payments of $15,000 and $5,000 because of a dispute between respondents and College Park
regarding the remaining period of their lease.
____________________

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

2
Appellant has not appealed from the order granting the writ of restitution.
regarding the remaining period of their lease. Apparently, College Park was claiming that the
lease terminated in 1983 rather than in 1993. If true, this would have reduced the sublease
from 15 to five years.
On December 12, 1977, appellant commenced an action against respondents for specific
performance of the sublease or, in the alternative, for reformation of the agreement. Appellant
claimed that respondents had failed to secure College Park's consent to the 15-year term
contemplated by the sublease.
3
Respondents counterclaimed for restitution of the premises.
On May 2, 1978, the case came on for trial. No evidence was taken, however, because
respondents produced College Park's written stipulation to extend the lease to 15 years, the
relief appellant had sought in his complaint. Claiming surprise, trial counsel for appellant
moved for a continuance. Half an hour later a conference was held between court and counsel
in which appellant moved to amend his complaint to seek rescission. The record does not
reflect the reason for appellant's sudden change of position.
By an order dated May 5, 1978, the district court granted appellant leave to amend his
complaint, but also ordered him to pay the $20,000 due under the agreement. Appellant failed
to make the $20,000 payment, and on May 26, 1978, the district court issued a writ of
restitution restoring the premises to respondents and entered judgment against appellant in the
amount of $20,500.
4
Appellant has appealed from the money judgment.
5

[Headnote 1]
Appellant contends that the district court commited reversible error by failing to make
specific findings of fact and conclusions of law. In all actions tried without a jury, the district
court must make such findings. NRCP 52(a). However, this court will imply findings of fact
and conclusions of law so long as the record is clear and will support the judgment. Griffin v.
Westergard, 96 Nev. 627
____________________

3
The complaint also alleged that respondents had committed fraud by representing that they owned the
restaurant's furniture and equipment.

4
The additional $500 was for common area charges relating to the leased premises.

5
Appellant previously petitioned this court for a writ of mandamus vacating the money judgment and
directing the sheriff to return certain of his personal property which had been seized under a search order. In
Luciano v. Marshall, 95 Nev. 276, 593 P.2d 751 (1979), this court granted the writ in part, ordering the sheriff to
return appellant's personal property. We held that the district court had jurisdiction to enter the money judgment,
without purporting to address its correctness, which is at issue here.
Westergard, 96 Nev. 627, 615 P.2d 235 (1980); Gorden v. Gorden, 93 Nev. 494, 569 P.2d
397 (1977).
[Headnote 2]
The money judgment in question reflects the down payment of $20,000 which, if made
prior to restitution, would have entitled appellant to remain in possession of the leased
premises. As the record exists, we are unable to determine upon what basis the district court
could require appellant to quit the premises and also make the $20,000 down payment.
6

Where, as here, the record does not clearly support the judgment, our usual practice is to
remand the case for entry of findings of fact and conclusions of law. See, e.g., Noble v.
Noble, 86 Nev. 459, 470 P.2d 430 (1970); Pease v. Taylor, 86 Nev. 195, 467 P.2d 109
(1970). In this case the intervening death of the district judge who entered the judgment
precludes the use of this approach. Accordingly, we reverse and remand for a trial.
7

____________________

6
At oral argument, counsel for respondents stated that trial counsel for appellant had stipulated, in open
court, to pay the $20,000 as a prerequisite to being allowed to amend the complaint. Counsel for respondents
then referred this court to pages 262-273 of the record on appeal. Our review of the record reveals no such
stipulation.

7
Present counsel did not represent respondents in proceedings below.
____________
97 Nev. 640, 640 (1981) Prigge v. South Seventh Realty
LANNY PRIGGE, Appellant, v. SOUTH SEVENTH
REALTY, Respondent.
No. 12384
December 30, 1981 637 P.2d 1222
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
In action by purchaser against vendors and listing realty company, the district court entered
summary judgment in favor of realty company. Purchaser appealed. The Supreme Court held
that where realty listing agent relied upon allegedly false representations of vendors, which it
neither knew, nor had reason to know, were false, purchaser was required to seek his remedy
against allegedly fraudulent vendors rather than against agent.
Affirmed.
Lehman & Nelson, and Harold M. Hecht, Las Vegas, for Appellant.
Bilbray, Carelli & Miller, Las Vegas, for Respondent.
Brokers.
Where realty listing agent relied upon allegedly false representations of vendors, which it neither
knew, nor had reason to know, were false, purchaser was required to seek his remedy against allegedly
fraudulent vendors rather than against agent.
OPINION
Per Curiam:
Appellant, purchaser of certain real property in Las Vegas, sued the sellers and the listing
realty company. This is an appeal from summary judgment in favor of the realty company.
Viewed in the light most favorable to appellant buyer, the facts are that the realty company, in
listing certain property for the sellers, falsely represented that the dwelling on the property
was a frame and stucco house, when in fact it was not. This representation was relied upon by
appellant, who would not have purchased the property had he known the true facts.
Respondent contends that it simply relied upon the representations of the sellers, which it
neither knew, nor had reason to know, were false. Appellant does not claim that respondent
realty company knew or should have known the true facts through the exercise of reasonable
care. Instead, he relies exclusively upon the contention that a listing agent should be liable,
upon a theory of innocent misrepresentation, for all facts contained in a listing. We are not
persuaded.
We agree rather with respondents' contention that the applicable rule is found in 2
Restatement (Second), Agency 348, Comment b, at 113 (1958): An agent who makes
untrue statements based upon the information given to him by the principal is not liable
because of the fact that the principal knew the information to be untrue. An agent can
properly rely upon statements of the principal to the same extent as upon statements from any
other reputable source.
Such a rule has been followed by a number of courts in other jurisdictions which have
refused, in similar circumstances, to hold an agent for a disclosed seller responsible for an
independent search for concealed facts, in the absence of any information which would have
put the agent on notice. E.g., Seckel v. Allen, 153 P.2d 394 (Cal.App. 1944); Graham v.
Ellmore, 26 P.2d 696 (Cal.App. 1933); Lyons v. Christ Episcopal Church, 3S9 N.E.2d 623
{Ill.App.
389 N.E.2d 623 (Ill.App. 1979); Vendt v. Duenke, 210 S.W.2d 692 (Mo.App. 1948). Smith v.
Badlam, 22 A.2d 161 (Vt. 1941). See Aldrich v. Scribner, 117 N.W. 581 (Mich. 1908).
Under the circumstances presented here, we find that appellant must seek his remedy
against the allegedly fraudulent sellers, and affirm the judgment of the court below.
1
concur.
____________________

1
The Chief Justice has designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19 (1)(c); SCR 10.
____________
97 Nev. 642, 642 (1981) Hansen Plumbing v. Gilbert Dev. Corp.
HANSEN PLUMBING AND HEATING OF NEVADA, INC., Appellant,
v. GILBERT DEVELOPMENT CORPORATION, Respondent.
No. 13413
December 31, 1981 638 P.2d 76
Appeal from order granting petition to perpetuate testimony, Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that respondent's failure to file answering brief and its failure to
reply to order to show cause why failure to file answering brief should not be treated as
confession of error constituted confession of error.
Reversed.
Vargas & Bartlett, and Christopher L. Kaempfer, Las Vegas, for Appellant.
James E. Barfield, Las Vegas, for Respondent.
Appeal and Error.
Respondent's failure to file answering brief and failure to reply to order to show cause why failure to
file answering brief should not be treated as confession of error constituted confession of error. NRAP
31(c).
OPINION
Per Curiam:
An affidavit submitted by appellant indicates that its opening brief was mailed to
respondent on August 31, 1981. No answering brief has been filed, nor has respondent replied
to an order to show cause why his failure to file an answering brief should not be treated
as a confession of error.
97 Nev. 642, 643 (1981) Hansen Plumbing v. Gilbert Dev. Corp.
to show cause why his failure to file an answering brief should not be treated as a confession
of error. Respondent's brief is now two months late. We consequently assume that respondent
concedes the validity of appellant's contentions, and we elect to treat his failure to respond as
a confession of error. NRAP 31(c); State of Rhode Island v. Prins, 96 Nev. 565, 613 P.2d 408
(1980); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975); Toiyabe Supply
Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958). The district court's order granting
respondent's petition to perpetuate testimony is reversed.
____________
97 Nev. 643, 643 (1981) Branda v. Sanford
CHARLES A. BRANDA, as Guardian ad Litem for CHERYL A. BRANDA, a Minor,
Appellant, v. JOHN ELROY SANFORD, aka REDD FOXX, Respondent.
No. 12627
December 31, 1981 637 P.2d 1223
Appeal from denial of appellant's Motion to Amend Judgment, Motion for New Trial or
Motion to Amend the Complaint; Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Action was brought on behalf of 15-year-old hotel bus girl against celebrity for slander and
intentional infliciton of emotional distress. After dismissing the complaint, the district court
denied plaintiff's motion to amend judgment, motion for new trial, or motion to amend the
complaint, and plaintiff appealed. The Supreme Court, Manoukian, J., held that: (1) words
allegedly spoken were ambiguous and susceptible of a defamatory construction, and thus trial
court erred in not submitting issue to jury to determine if time, place, manner and
circumstances surrounding the statements imputed unchastity and if those hearing understood
the words in their defamatory sense, and (2) a cause of action for intentional infliction of
emotional distress was pled and prima facie proof given at trial, and thus jury was entitled to
determine, considering prevailing circumstances, contemporary attitudes and the bus girl's
own susceptibility, whether conduct in question constituted extreme outrage.
Marquis & Haney, Las Vegas, for Appellant.
Wiener, Waldman & Gordon, Las Vegas, for Respondent.
Generally, a slanderous statement, no matter how insulting or defamatory, is not actionable unless actual
or special damages are proven.
A statement is considered slander per se, i.e., actionable without a showing of special damages, only if it
falls into one of usually four categories: imputations that plaintiff has committed a crime; imputations that
would injure plaintiff's trade, business or office; imputations that plaintiff has contracted a loathsome
disease; and imputations of unchastity in a woman.
Generally, for both libel and slander it is a question of law and, therefore, within province of court, to
determine if a statement is capable of a defamatory construction; if susceptible of different constructions,
one of which is defamatory, resolution of the ambiguity is a question of fact for jury.
Trial court in libel and slander action is not free to ignore remaining language in determining whether the
words were defamatory.
Although words were not as a matter of law, slanderous per se, trial court erred in not submitting issue to
jury to determine if time, place, manner and circumstances surrounding the statement imputed unchastity
and if those hearing understood the words in their defamatory sense.
6. New Trial.
Although plaintiff first expressly labeled tort for infliction of emotional distress in motion to amend
judgment or motion for new trial, record indicated that the tort was pled and sufficiently proven at trial and
formed a legitimate basis for the motion for new trial.
7. Damages.
Cause of action for intentional infliction of emotional distress was pled and prima facie proof given at
trial, and thus jury was entitled to determine, considering prevailing circumstances, contemporary attitudes
and victim's own susceptibility, whether conduct in question constituted extreme outrage.
OPINION
Appellant appeals from the trial court's denial of several motions following dismissal of a
complaint for slander and intentional infliction of emotional distress against
defendant-respondent, Sanford (aka Redd Foxx). NRCP 41(b).
1
The suit arose out of an
incident which occurred at the Silverbird Hotel in Las Vegas on August 20, 197S.
____________________

1
NRCP 41(b), in relevant part, provides:
After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury.
The suit arose out of an incident which occurred at the Silverbird Hotel in Las Vegas on
August 20, 1978. Cheryl Branda, then 15 years old, worked as a bus girl at the hotel. That
morning, as she performed her duties, she was confronted by Foxx, who verbally accosted her
with sexual innuendoes and became verbally abusive when she ignored his remarks. Foxx
allegedly began the confrontation by asking Cheryl if her name was like in cherry.
According to Cheryl and the testimony of two other witnesses, Foxx subsequently said or
yelled at Cheryl, among other things, that she was a f--k--g bitch, f--k--g c--t: and no
lady. He is alleged to have also said that This is the one I want. This is her. He allegedly
screamed at Cheryl causing a number of hotel patrons and employees to watch and listen to
the altercation.
During trial, Foxx admitted asking Cheryl if her name was like in cherry, but denied
making the other statements.
Cheryl testified that she suffered severe emotional upset by the incident and suffered
physical symptoms of nervous upset, testimony corroborated by her parents. Cheryl and her
parents stated that her distress over the incident with Foxx and repercussions with fellow
employees caused her to quit her job at the hotel approximately two weeks after the incident.
After plaintiff's case in chief, defendant successfully moved to dismiss pursuant to NRCP
41(b) contending that the statements by Foxx did not constitute slander per se. The trial court
ruled that the words cherry and bitch did not imply unchastity and that since the
statements were not slanderous per se, the absence of a plea, with subsequent proof of special
damages, was fatal to appellant's case. Appellant thereafter moved for a new trial or to amend
the judgment (to recognize the slander per se action and an action for intentional infliction of
emotional distress), or in the alternative, for leave to amend the complaint to include a plea of
special damages. Appellant's motions were denied. This appeal followed.
Appellant asserts that: the trial court erred in concluding that the complaint failed to show
that Foxx's alleged statements were slanderous per se; assuming the alleged statements were
not slanderous per se on their face, the words conveyed an ambiguous meaning, and the trial
court therefore erred in its failure to allow the jury to resolve the ambiguity; even if the words
do not constitute slander per se, the trial court erred in finding that appellant failed to plead
and prove special damages; and, the trial court erred in dismissing the case because it failed
to recognize that appellant had pled and proved a cause of action for intentional infliction of
emotional distress. Finding error in the trial court's dismissal of the complaint, we reverse.
1. Slander Per Se.
Appellant asserts that the trial court erred in not finding that respondent's words were
slanderous per se and that, if the meaning was ambiguous, the court erred in not submitting
the issue to the jury. Although we cannot say that as a matter of law, the words were
slanderous per se, we agree that the language was susceptible of a defamatory construction
and the jury should have been permitted to resolve the ambiguity.
[Headnotes 1, 2]
As a general rule, a slanderous statement, no matter how insulting or defamatory, is not
actionable unless actual or special damages are proven. Modla v. Parker, 495 P.2d 494
(Ariz.App.), cert. denied 409 U.S. 1038 (1972); Kirk v. Village of Hillcrest, 335 N.E.2d 535
(Ill.App. 1975); W. Prosser, Law of Torts, 112 (4th ed. 1971). A statement is considered
slander per se, i.e., actionable without a showing of such special damages, only if it falls into
one of usually four categories: (1) imputations that plaintiff has committed a crime; (2)
imputations that would injure plaintiff's trade, business or office; (3) imputations that the
plaintiff has contracted a loathsome disease; and, the category relevant for our purposes, (4)
imputations of unchastity in a woman. See Atkinson v. Equitable Life Assur. Soc'y, 519 F.2d
1112 (5th Cir. 1975) (Florida law); Gulf Constr. Co. v. Mott, 442 S.W.2d 778 (Tex.Civ.App.
1969); Restatement (Second) of Torts 570 (1977).
This court has not squarely addressed the question of imputation of unchastity and slander
per se. In dicta, however, we have noted that imputing unchastity to a woman is actionable
per se, consistent with the general rule above. Talbot v. Mack, 41 Nev. 245, 169 P. 25 (1917).
[Headnote 3]
It is generally accepted that for both libel and slander it is a question of law and, therefore,
within the province of the court, to determine if a statement is capable of a defamatory
construction. Thompson v. Powning, 15 Nev. 195 (1880); R. Sack, Libel, Slander and
Related Problems, 72 (P.L.I. 1980). If susceptible of different constructions, one of which is
defamatory, resolution of the ambiguity is a question of fact for the jury. Thompson, supra.
The trial court found that the statements were not slanderous per se on the basis of two
words; bitch and cherry. Although bitch alone is generally not regarded as actionable
per se, Halliday v. Cienkowski, 3 A.2d 372 (Penn. 1939), 13 A.L.R.3d 1286, in the instant
case, the words do not exist in isolation.
isolation. Cases where bitch has been modified by low-lived and whoring have been
held to be at least susceptible of a defamatory construction. Craver v. Norton, 86 N.W. 54
(Iowa 1901); Cameron v. Cameron, 144 S.W. 171 (Mo.App. 1912). There was ample
testimony that additional language was used by respondent Foxx, language which could be
construed in a defamatory sense.
[Headnote 4]
The trial court was clearly not free to ignore the remaining language in determining
whether the words were defamatory. See Thomson v. Cash, 402 A.2d 651 (N.H. 1979);
Prosser, supra, 111. That language was favorable to appellant's position, and a trial judge
ruling on a motion to dismiss must accord every favorable factual intendment to plaintiff.
City Bank & Trust Co. v. Warthen Serv. Co., 91 Nev. 293, 298, 535 P.2d 162, 165 (1975).
Reviewing the words and statements in their entirety, we believe that they are susceptible of a
defamatory meaning which would impute unchastity, particularly, you're no lady,
[profanity] shouldn't bother you, and f--k--ing bitch. Of course, the words are equally
susceptible to the nondefamatory construction indicated by the trial courtas insults and
epithets, rhetoric which is not generally actionable. Raible v. Newsweek, Inc., 341 F.Supp.
804 (W.D.Pa. 1972); Cinquanta v. Burdette, 388 P.2d 779 (Colo. 1964).
[Headnote 5]
Finding the words ambiguous and susceptible of a defamatory construction, we conclude
that the trial court erred in not submitting the issue to the jury to determine if the time, place,
manner and circumstances surrounding the statement imputed unchastity and if those hearing
understood the words in their defamatory sense. See Craver v. Norton, supra.
2
2.
____________________

2
Appellant contends that assuming the language did not amount to slander per se, special damages were
proved, if not pled at trial.
Appellant fails to address the requirement that special damages be precisely pleaded. NRCP 9(g). Talbot v.
Mack, 41 Nev. 245, 169 P. 25 (1917). Nor would Cheryl's damages testified to at trial (leaving her job, visiting a
physician) qualify as special damages in the context of a defamation suit, even if sufficiently pled. Special
damages in a defamation action are those which flow directly from the injury to reputation caused by the
defamation; not from the effects of the defamation. Sack, supra, at 345. Our review of the complaint and
testimony indicates that Cheryl's visit to the doctor and leaving her job were the result of distress at the words
spoken, not her loss of reputation. Thus, they were not special damages.
Respondent objected at trial to appellant's (apparently unintentional) introduction of matters thought to be
evidence of special damages. The court sustained the objection on the basis that special damages had not
2. Infliction of Emotional Distress.
[Headnote 6]
Appellant contends that the trial judge should not have dismissed the complaint in its
entirety because an additional cause of actionintentional infliction of emotional
distresswas pled and pursued at trial. Respondent counters that the tort was only first noted
in appellant's motions following dismissal and, therefore, is inappropriately raised for the first
time on appeal. While it is true that appellant first expressly labeled the tort in the motion to
amend the judgment or motion for a new trial, the record indicates that the second tort was
pled and sufficiently proven at trial, and formed a legitimate basis for appellant's motion for a
new trial.
We recently explicitly recognized that liability can flow from intentional infliction of
emotional distress. Star v. Rabello, 97 Nev. 124, 625 P.2d 90 (1981). There, we stated the
elements of a prima facie case to be: (1) extreme and outrageous conduct by the defendant;
(2) intent to cause emotional distress or reckless disregard as to the probability; (3) severe
emotional distress; and (4) actual and proximate causation of the emotional distress. Id.,
citing Cervantes v. J. C. Penney, Inc., 595 P.2d 975 (Cal. 1979).
Clearly, the emphasis in appellant's complaint is on the action for slander. Nonetheless,
because we are a notice pleading jurisdiction (NRCP 8), under which pleadings are to be
construed liberally so as to do substantial justice (C. Wright, Law of Federal Courts, 68
(3rd ed. 1976); see also Taylor v. State, 73 Nev. 151, 311 P.2d 733 (1957)), we believe that
appellant has set forth sufficient allegations to give respondent adequate notice of the nature
of the claim and relief soughtthe purpose of a complaint under notice pleading statutes. See
Chavez v. Robberson Steel Co., 94 Nev. 597, 584 P.2d 159 (1978); Wright, supra. Extreme
and outrageous conduct is alleged, the acts of respondent are described with sufficient
clarity, causation is at least obliquely referred to, malicious intent is averred, and severe
emotional distress is alleged (hysterical and nervous . . . nightmares, great nervousness and
bodily illness and injury).
____________________
been pled. Thus, appellant's motion to amend the complaint subsequently to dismissal (NRCP 15(b)), was
precluded since that rule only allows amendments to conform to proof if the issues have been tried with the
consent of all parties.
We express no opinion as to whether appellant could properly amend her complaint to include a plea of
special damages on remand.
[Headnote 7]
Thus, respondent's argument that appellant has raised this tort for the first time on appeal
is without merit; marginally adequate notice was given respondent of the basis of the claim
for relief. A cause of action for intentional infliction of emotional distress was pled and prima
facie proof given at trial. The jury was entitled to determine, considering prevailing
circumstances, contemporary attitudes and Cheryl's own susceptibility, whether the conduct
in question constituted extreme outrage. See Contreras v. Crown Zellerbach Corp., 565 P.2d
1173 (Wash. 1977). The district court also erred in dismissing this cause of action.
We reverse the trial court's order denying plaintiff's motion for a new trial after dismissing
appellant's complaint for slander and intentional infliction of emotional distress. The cause is
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c).
____________

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