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98 Nev.

1, 1 (1982)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 98
____________
98 Nev. 1, 1 (1982) McMichael v. State
JOHN WILLIAM McMICHAEL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12880
January 6, 1982 638 P.2d 402
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted in the district court of sexual assault and he appealed. The
Supreme Court held that: (1) in view of overwhelming physical and oral evidence, trial court
did not err prejudicially in not permitting defense to cross-examine victim regarding sexual
intercourse with her boyfriend just prior to time of alleged rape, and (2) it was error to admit
testimony of another woman who allegedly had been raped by defendant, where defendant
had been tried for the offense and acquitted, but since victim's testimony, medical evidence of
her sexual assault and physical evidence created an overwhelming inference of guilt, the error
in admitting evidence of the prior conduct was harmless.
Affirmed.
98 Nev. 1, 2 (1982) McMichael v. State
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County for Respondent.
1. Criminal Law.
In prosecution for sexual assault, in view of overwhelming physical and oral evidence, trial court did not
err prejudicially in not permitting defense to cross-examine victim regarding sexual intercourse with her
boyfriend just prior to time of alleged rape.
2. Criminal Law.
In prosecution for sexual assault, it was error to admit testimony of another woman who allegedly had
been raped by defendant, where defendant had been tried for the offense and acquitted, but since victim's
testimony, medical evidence of her sexual assault and physical evidence created an overwhelming inference
of guilt, the error in admitting evidence of the prior conduct was harmless.
3. Criminal Law.
Evidence of accused's prior criminal conduct presents great danger of prejudice and is only admissible
where its prejudice is outweighed by its relevance to a material issue other than accused's bad character or
criminal propensities.
4. Criminal Law.
Supreme Court will not reverse judgment unless error has affected substantial rights of accused.
OPINION
Per Curiam:
A jury found John William McMichael guilty of six counts of sexual assault. He seeks
reversal claiming that the district judge erred in not permitting him to cross examine the
victim regarding sexual intercourse with her boy friend and in receiving in evidence the
testimony of another woman who had also been allegedly raped by McMichael.
THE FACTS
On the night of the crime, the victim believing she had missed her bus, accepted a ride
from a stranger who offered to drive her home. His car was a red Mustang with an out of state
license, no rear window, holes in the roof and bore a sign on the dash that read, gas, grass or
ass--nobody rides free. The driver did not take the victim home. Instead, he grabbed her by
the hair, forced her to the floor and ordered her to remove her clothing. He drove to a
secluded area and raped her, including forcible anal and oral intercourse. During the act of
oral sex, the victim vomited in the stranger's lap.
98 Nev. 1, 3 (1982) McMichael v. State
the victim vomited in the stranger's lap. After completion of the assaults, the stranger released
the victim. She immediately called the police and gave them a description of her assailant
who was soon apprehended in the vicinity driving the Mustang which bore all the distinctive
features described above. The victim positively identified the stranger as her assailant,
McMichael the appellant herein. McMichael had what appeared to be vomit on his trousers;
pubic and head hairs similar to the victim's were found on McMichael's body. A medical
examination of the victim revealed a reddening about the entrance to the vagina, multiple
punctuate hemorrhages on her cervix, tears around her rectum, and sperm and acid
phosphatase, a chemical found in semen, in both her vagina and rectum.
McMichael's principal defense was that he had a vasectomy; that his semen contained no
sperm. McMichael's stepfather also testified that on the night of the rape he was staying in
McMichael's apartment; that he met a woman there by the name of Rose, the victim's name,
whom McMichael drove to her home.
The State in rebuttal, urging that the consent of the victim was in issue, offered the
testimony of another woman whom McMichael had allegedly raped under similar
circumstances three years earlier. The district judge admitted the testimony over McMichael's
objection.
THE VICTIM'S PRIOR SEXUAL CONDUCT
[Headnote 1]
McMichael claims the district judge committed reversible error in not permitting him to
question the victim regarding sexual intercourse with her boy friend just prior to the rape.
Since he had a vasectomy, McMichael wished to prove that it was the boy friend's sperm, not
his, that was found in the victim's vagina and rectum. The district court denied McMichael's
request. There was ample evidence, other than that relating to the presence of the sperm, that
sexual assaults had occurred. Under the facts presented in this case, where the evidence both
physical and oral, is so overwhelming, we cannot hold that the court erred prejudicially in its
ruling.
EVIDENCE OF THE PRIOR RAPE
[Headnote 2]
On rebuttal, the State introduced the testimony of another woman who had allegedly been
raped by McMichael under similar circumstances. McMichael had been tried for the offense
and acquitted.
98 Nev. 1, 4 (1982) McMichael v. State
offense and acquitted. It was error to admit the woman's testimony in this case. See State v.
Little, 350 P.2d 756 (Ariz. 1960); State v. Wakefield, 278 N. W. 2d 307 (Minn. 1979); State
v. Kerwin, 340 A.2d 45 (Vt. 1975).
[Headnote 3]
Evidence of an accused's prior criminal conduct presents a great danger of prejudice, and
is only admissible where its prejudice is outweighed by its relevance to a material issue other
than the accused's bad character or criminal propensities. McMichael v. State, 94 Nev. 184,
577 P.2d 398 (1978). The prejudice is compounded when the accused was previously tried
and acquitted of a crime, evidence of which is offered at a later trial for a different crime. It is
unfair for the state, having once presented its evidence and failed to obtain a conviction, to
bring in the same evidence at a later trial. Although we do not hold that the introduction of
such evidence violates the double jeopardy clause of the fifth amendment
1
, we do hold that
the considerations of fair play underlying the double jeopardy principle militate strongly
against the evidence's admissibility.
[Headnote 4]
However, this court will not reverse a judgment unless the error has affected the
substantial rights of the accused. Where the evidence of guilt is great as in the instant case
error will be deemed harmless. Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); State v.
Skaug, 63 Nev. 59, 161 P.2d 708 (1945). Here, the victim's testimony, the medical evidence
of her sexual assault, and the physical evidence, created an overwhelming inference of guilt.
Therefore, we find that the error in admitting the evidence of appellant's prior conduct was
harmless.
Appellant's other assignments of error are without merit.
We affirm the judgment of conviction.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
But see Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); Stuart v. State, 561 S. W. 2d 181
(Tex.Crim.App. 1978).

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19; SCR
10.
____________
98 Nev. 5, 5 (1982) Boren v. City of North Las Vegas
IRVING BOREN and DIVERSIFIED CAPITAL CORPORATION, a Delaware Corporation,
Appellants, v. CITY OF NORTH LAS VEGAS, NEVADA, a
Municipal Corporation, Respondent.
No. 12085
January 6, 1982 638 P.2d 404
Appeal from an order denying a motion to dismiss for want of prosecution, Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court held that period during which parties were prevented from bringing
action to trial by reason of stay order was not to be counted in determining whether five-year
period of rule governing dismissals for failure to prosecute had elapsed.
Affirmed.
Chubb & Silverman, Sparks, for Appellants.
George E. Franklin, City Attorney, North Las Vegas, for Respondent.
Pretrial Procedure.
Period during which parties were prevented from bringing action to trial by reason of stay order was not
to be counted in determining whether five-year period of rule governing dismissals for failure to prosecute
had elapsed. NRCP 41(e).
OPINION
Per Curiam:
The sole issue we consider in this case is whether an action must be dismissed if it was not
brought to trial within five years because of a court order staying proceedings.
The action in the case before us was not brought to trial within the five-year period
specified in Nevada Rule of Civil Procedure 41(e). Appellant moved to dismiss the action for
want of prosecution. The trial court denied the motion. Appellant claims that dismissal is
mandatory notwithstanding the fact that proceedings had been stayed for more than four years
immediately preceding the motion to dismiss.
We agree with the decision of the trial court. For a court to prohibit the parties from going
to trial and then to dismiss their action for failure to bring it to trial is so obviously unfair and
unjust as to be unarguable.
98 Nev. 5, 6 (1982) Boren v. City of North Las Vegas
unjust as to be unarguable. Appellants agree, but contend that the city as plaintiff had some
kind of duty of diligence in seeking vacation of the stay order. The city did move to have the
stay order vacated and this was opposed by appellant. We consider this immaterial, however,
for we would be hard-pressed to formulate a rule describing the degree of diligence required
under such circumstances. Instead we adopt the following rule: Any period during which the
parties are prevented from bringing an action to trial by reason of a stay order shall not be
computed in determining the five-year period of Rule 41(e).
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, 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 Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 6, 6 (1982) Maley v. State Bar of Nevada
MICHAEL F. MALEY, Appellant, v. STATE
BAR OF NEVADA, Respondent.
No. 13612
January 15, 1982 639 P.2d 68
ORDER OF DISBARMENT
Pursuant to SCR 102(1) and 105(3), the recommendation of the State Bar of Nevada
Southern Disciplinary Board is affirmed.
1
Accordingly, it is hereby
ORDERED that Michael F. Maley is disbarred and prohibited from the further practice of
law in Nevada, and that the name of Michael F. Maley be stricken from the rolls of attorneys
licensed to practice in Nevada. We further
ORDER that Michael F. Maley shall pay to the State Bar of Nevada the costs incurred as a
result of the disciplinary proceedings instituted in this matter.
____________________

1
The recommendation of disbarment was automatically appealed to this court pursuant to SCR 105(3)(b). On
December 7, 1981, Maley was ordered to show cause why the appeal should not be dismissed as abandoned. No
response to our order was filed by Maley. Thus, on December 23, 1981, the appeal was dismissed. Nevertheless,
the present order of disbarment follows our independent review of the record of disbarment proceedings below.
____________
98 Nev. 7, 7 (1982) A. P. Ross Enter. v. Hynds Plumbing
A. P. ROSS ENTERPRISES, INC., ILLINI CONSTRUCTION, INC., Joseph T. Moretti,
Renate Caithamer, Keith Maring, Herbert Champagne and Irving Adams, Individually, and as
Limited Partners of Hotspurs Associates, A Limited Partnership, Robert Marsico, Andrew
Anka, Douglas Buffone, Stephen Lombardi, Jr., and Martin Gutilla, Individually and as
General Partners of Hotspurs Associates, HOTSPURS ASSOCIATES, A Limited
Partnership, Charles J. LaCreco, dba SUNSET CONSTRUCTION COMPANY, and
HOTSPURS OF LAS VEGAS, INC., a Corporation, Appellants, v. HYNDS PLUMBING &
HEATING COMPANY, Respondent.
No. 12196
January 28, 1982 639 P.2d 526
Appeal from district court judgment in favor of plaintiff in an action for damages secured
by a mechanic's lien; Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court, held that issue of validity of mechanic's lien was foreclosed, where
plaintiff had been denied significant information and discovery on premise that lien would
not be challenged and was led to believe, on receiving defendants' pretrial statement, that it
would not be required to establish procedures followed in effecting the lien; thus it would
have been unjust to depart from pretrial statements and force major new issue of validity of
the lien upon plaintiff.
Affirmed.
[Rehearing denied May 27, 1982]
Morse-Foley, Las Vegas, for Appellants.
Jones & Holt, Las Vegas, for Respondent.
1. Pretrial Procedure.
Issue of validity of mechanic's lien was foreclosed, where plaintiff had been denied significant
information and discovery on premise that lien would not be challenged and was led to believe, on
receiving defendants' pretrial statement, that it would not be required to establish procedures followed in
effecting the lien; thus it would have been unjust to depart from pretrial statements and force major new
issue of validity of the lien upon plaintiff. NRCP 16.
2. Appeal and Error; Mechanics' Liens.
Award for lost profits secured by mechanic's lien was improper, but error was harmless, where verdict
was presently secured by supersedeas bond and the mechanic's lien was no longer implicated in the award.
NRS 99.040, 108.237.
98 Nev. 7, 8 (1982) A. P. Ross Enter. v. Hynds Plumbing
OPINION
Per Curiam:
Hynds Plumbing & Heating Company, a plumbing subcontractor, recovered judgment
against two general contractors and a number of property owners for certain labor and
materials furnished to the property. Hynds was awarded a total of $33,980.35 for breach of
contract and for the reasonable value of labor and materials furnished. The breach of contract
award included compensation for lost profits and for prejudgment interest. In addition, the
judgment established the existence of a mechanic's lien in favor of Hynds and included an
award of attorneys' fees thereunder. The entire amount of damages was secured by the
mechanic's lien.
THE MECHANIC'S LIEN
Appellants first challenge the validity of the mechanic's lien since they claim that
respondent did not follow appropriate procedure in perfecting the lien. We do not find it
necessary to discuss the propriety of respondent's procedure in perfecting the lien since
consideration of the issue was waived by appellants.
During discovery respondents requested documents and other information concerning the
personal assets of the property owners. Appellants twice refused to produce the information
on the ground that the mechanic's lien was responsible for any liability and that the lien was
not in dispute before this court. Appellants also submitted a pre-trial statement very similar
to that submitted by respondent. Both parties indicated that the legal and factual issues in
dispute concerned breach of contract and monies due respondent. It was not until trial that
appellants attempted to challenge the validity of the lien. Although the court apparently
admitted some evidence in this regard, it indicated that the issue was foreclosed by the
pre-trial statements.
Appellants challenge the court's ruling on the grounds that their behavior did not constitute
waiver and that even if they had waived the issue, justice mandated disregard of the pre-trial
statements. We disagree with both contentions. A major objective of pre-trial procedure is to
eliminate secrets and surprises at trial. . . . Crist v. Goody, 507 P.2d 478 (Colo.App. 1972).
Under the facts of this case, the purpose of adhering to pre-trial procedure would have been
thwarted had the court allowed introduction of a new issue. Respondent had been denied
significant information in discovery on the premise that the lien would not be challenged.
98 Nev. 7, 9 (1982) A. P. Ross Enter. v. Hynds Plumbing
the lien would not be challenged. Moreover, respondent was led to believe, on receiving
appellants' pre-trial statement, that it would not be required to establish the procedures
followed in effecting the lien. It would have been unfair at trial to force respondent to provide
evidence on an entirely unexpected issue.
1

[Headnote 1]
It is true as appellants claim that the trial court may depart from its pre-trial order to
prevent injustice. NRCP 16. Absent a manifest abuse of discretion, however, the court's
refusal to do so should be upheld. Tillotson v. Abbott, 472 P.2d 240, 244 (Kan. 1970). In the
case before us, appellants were in no way prejudiced by an unfair pre-trial order.
2
Appellants
had clearly specified their view of the contested matters and were in essential agreement with
respondent. It would, however, have been unjust to depart from the pre-trial statements and
force a major new issue upon the respondent. The court therefore properly ruled that the issue
of the validity of the lien had been foreclosed.
AWARD FOR ATTORNEYS' FEES AND
PREJUDGMENT INTEREST
Appellants challenge the award for attorneys' fees and the award for prejudgment interest
on the sole premise that the mechanic's lien was invalid. Appellants concede that NRS
108.237 authorizes the payment of attorneys' fees and prejudgment interest in actions on
mechanic's liens. Since we have concluded that the court properly affirmed the existence of a
mechanic's lien, the award for both attorneys' fees and prejudgment interest must
stand.3
____________________

1
Authority from other jurisdictions supports this conclusion. See United Bonding Ins. Co. v. Castle, 444 P.2d
454, 457 (Alas. 1968) (a bonding company's response to an interrogatory that it had furnished a bond precluded
it from challenging the validity of the bond at trial); American Nat. Rent-a-Car, Inc. v. McNally, 445 P.2d 91,
95-96 (Ariz.App. 1968) (in the absence of a formal pre-trial order, parties may be bound by the record of the
pre-trial conference); Batson v. Strehlow, 441 P.2d 101 (Cal. 1968) (pre-trial statement may be binding on the
parties when the statements are adopted by the trial court and made part of the order).

2
Appellants rely on cases which are not on point. See Plastino v. Mills, 236 F.2d 32 (9th Cir. 1956) (pre-trial
order prepared by attorneys was so vague that trial court was not obliged to follow it); Fruehauf Trailer Div. v.
Thronton, 366 N.E.2d 21 (Ind. App. 1977) (parties were released from pre-trial order since there was no record
of a pre-trial conference and the order was not entered until the day of the trial); Pacific Indem. Co. v. Broward
County, 465 F.2d 99 (5th Cir. 1972) (notice of claim issue was properly considered even though it was omitted
from the pre-trial statement since the parties had raised the issue in an earlier pleading and in a motion to
dismiss).
98 Nev. 7, 10 (1982) A. P. Ross Enter. v. Hynds Plumbing
mechanic's lien, the award for both attorneys' fees and prejudgment interest must stand.
3

BREACH OF CONTRACT
Appellants' claim that respondent failed to support its claim for breach of contract is
without merit. There is ample evidence in the record for the court to have found in favor of
the respondent. We therefore will not disturb the finding of the lower court. See In re Gordon,
40 Nev. 300, 161 P. 717 (1916).
AWARD OF DAMAGES FOR LOST PROFITS
[Headnote 2]
Appellants finally assert that the award for lost profits secured by a mechanic's lien is
improper. We agree. The mechanic's lien statute merely contemplates reimbursement for
materials and labor. That interpretation is consistent with the view that the statute was
designed to secure payment to those who perform labor or furnish material to improve the
property of the owner. Vaughn Materials v. Meadowvale Homes, 84 Nev. 227, 232, 438
P.2d 822, 825 (1968) (Batjer, J., dissenting). Authority from other jurisdictions is in accord.
See Lenslite Co. v. Zocher, 388 P.2d 421 (Ariz. 1964); Texas Bank and Trust Co. v.
Campbell Bros., Inc., 569 S.W.2d 35 (Tex.Ct.App. 1978). Respondent cites no authority to
the contrary.
Despite the court's order to secure the award for lost profits under the mechanic's lien, we
find the error to be harmless. Respondent states, and appellants do not deny, that the verdict is
presently secured by a supersedeas bond. Since the mechanic's lien is no longer implicated in
the award, we see no harm to the appellants.
The judgment of the court is affirmed.
Gunderson, C. J., and Manoukian and Springer, JJ., and Griffin, D. J.,
4
and McKibben, D.
J.,
5
concur.
____________________

3
Even if the lien had not been properly established by the court, respondent would have been entitled to
prejudgment interest under its contract action. See NRS 99.040; State Farm Mut. Auto. v. Christensen, 88 Nev.
160, 494 P.2d 552 (1972).

4
The Governor designated Honorable Michael R. Griffin, District Judge of the First Judicial District, to sit in
this case in place of The Honorable John Mowbray, who voluntarily recused himself. Nev. Const., art. 6, 4.

5
The Governor designated Honorable Howard D. McKibben, District Judge of the Ninth Judicial District, to
sit in this case in place of The Honorable Cameron Batjer. Nev. Const., art. 6, 4.
____________
98 Nev. 11, 11 (1982) Long v. Towne
HELEN LONG and RAY LONG, Appellants, v. DOROTHY A. TOWNE and STEAMBOAT
MOBILE HOMEOWNERS ASSOCIATION, Respondents.
No. 12849
January 28, 1982 639 P.2d 528
Appeal from summary judgment, Second Judicial District Court, Washoe County; Grant
L. Bowen, Judge.
Purchasers of mobile home lot brought an action against vendor and mobile home owners
association seeking to set aside a lien foreclosure sale conducted in order to recover the
amount of past-due assessments assessed by association. The district court granted summary
judgment for defendants, and purchasers appealed. The Supreme Court held that: (1)
constructive fraud was not committed in holding a lien foreclosure sale where purchasers
reposed no special confidence in vendor or in homeowners' association; (2) allegation that the
price paid at the sale was inadequate was not sufficient to justify setting aside the sale where
there was no showing of fraud, unfairness or oppression; and (3) the sale of purchasers' lot
was not a forfeiture where it was conducted under authority of association's declaration of
covenants, conditions and restrictions and in compliance with the governing statute, and
where purchasers had actual notice of the sale and received the excess of the sale price over
the amount of association's lien and costs.
Affirmed.
Paul A. Richards, Reno, for Appellants.
Woodburn, Wedge, Blakey & Jeppson, by Suellen E. Fulstone and William E. Peterson,
Reno, for Respondents.
1. Fraud.
Constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the
law declares fraudulent because of its tendency to deceive others or to violate confidence; constructive
fraud is characterized by a breach of duty arising out of a fiduciary or confidential relationship.
2. Fraud.
Vendor of mobile home lot and mobile home owners association did not commit constructive fraud in
holding lien foreclosure sale of purchasers' lot for failure to pay association's monthly assessments where
purchasers reposed no special confidence in vendor or in homeowners association.
3. Landlord and Tenant.
Allegation that price paid at lien foreclosure sale of lot in a mobile home park was inadequate
was not sufficient to justify setting aside the sale where there was no showing of
fraud, unfairness or oppression.
98 Nev. 11, 12 (1982) Long v. Towne
mobile home park was inadequate was not sufficient to justify setting aside the sale where there was no
showing of fraud, unfairness or oppression.
4. Landlord and Tenant.
Lien foreclosure sale of mobile home lot conducted to recover amount of past due assessments assessed
by mobile home owners association was not a forfeiture where sale was conducted under authority of
association's declaration of covenants, conditions and restrictions, and in compliance with statute, and
where purchasers had notice of the sale and received excess of sale price over amount of association's lien
and costs. NRS 107.080.
OPINION
Per Curiam:
Appellants Helen and Ray Long purchased a lot in Steamboat Springs Estates, a mobile
home park, from respondent Dorothy A. Towne.
1
When they signed the contract of sale, the
Longs received a copy of the Declaration of Covenants, Conditions and Restrictions
(CC&Rs). Among other things, the CC&Rs established the Steamboat Mobile Homeowners
Association (the Association), respondent herein, and gave the Association authority to assess
and collect fees. The Association was also given authority to file a lien on a member's
property for failure to pay the assessment and to enforce the lien by a foreclosure sale.
2

Mrs. Long repeatedly refused to pay the monthly assessment of $10.00. In January 1978,
the Association filed a lien against the Longs' property for the amount of the past due
assessments. Because the assessments remained unpaid, on March 8, 1978, the Association
served upon Mrs. Long a notice of default and election to sell. Four months later, on July 17,
1978, the Association served a notice of sale. The sale was conducted on August 17, 1978,
and Towne purchased the property for $3,000.00.
3

On September 15, 1978, the Longs filed this lawsuit seeking to set aside the lien
foreclosure sale. The district court granted summary judgment in respondents' favor. In this
appeal, the Longs do not dispute the fact that all notices to them were properly given and that
the sale was properly conducted. They contend that Mrs. Long was confused and that she
thought that by paying off the deed of trust to Towne, she had also satisfied the Association's
lien.
____________________

1
The Longs are separated and Mr. Long never resided on the property.

2
Nevada law expressly permits enforcement of assessment liens by sale by the organization. NRS 278A.150;
278A.160; 107.030; 107.080.

3
On June 29, 1978, Mrs Long had paid Towne in full for the lot.
98 Nev. 11, 13 (1982) Long v. Towne
[Headnote 1]
1. The Longs first contend that respondents Towne and the Association committed
constructive fraud in holding the lien foreclosure sale. Constructive fraud is the breach of
some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent
because of its tendency to deceive others or to violate confidence. Sec. Nat. Bank v. Peters,
Writer & Christensen, Inc., 569 P.2d 875 (Colo.App. 1977); Loucks v. McCormick, 424 P.2d
555 (Kan. 1967); Braselton v. Nicolas & Morris, 557 S.W.2d 187 (Tex.Civ.App. 1977).
Constructive fraud is characterized by a breach of duty arising out of a fiduciary or
confidential relationship. In re Guardianship of Chandos, 504 P. 2d 524 (Ariz.App. 1972). A
confidential or fiduciary relationship exists when one reposes a special confidence in
another so that the latter, in equity and good conscience, is bound to act in good faith and
with due regard to the interests of the one reposing the confidence. Paskvan v. Mesich, 455
P.2d 229 (Alaska 1969); Stevens v. Marco, 305 P.2d 669 (Cal.App. 1956); Ford v. Guarantee
Abstract and Title Co., Inc., 553 P.2d 254 (Kan. 1976).
[Headnote 2]
In this case, the Longs reposed no special confidence in Towne. In fact, Mrs. Long stated
that she did not trust Towne. Moreover, the relationship between the Longs and Towne was
no more than that of vendor-vendee. Generally, no fiduciary obligations exist between a buyer
and seller of property. See Klinger v. Hummel, 464 P.2d 676 (Ariz.App. 1970); Dugan v.
Jones, 615 P.2d 1239 (Utah 1980). The evidence is equally clear that the Longs reposed no
confidence in the Association. Mrs. Long termed her refusal to pay the Association's
assessments an act of rebellion. Furthermore, neither Towne nor the Association
misrepresented or concealed any material fact. The Longs cannot prevail on their constructive
fraud theory.
[Headnote 3]
2. In conjunction with their claim of constructive fraud, the Longs contend that the price
paid at the foreclosure sale was inadequate. Mere inadequacy of price is not sufficient to
justify setting aside a foreclosure sale, absent a showing of fraud, unfairness or oppression.
Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P.2d 462 (1971); Brunzell v. Woodbury, 85
Nev. 29, 449 P.2d 158 (1969); Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963), cert.
denied, 382 U.S. 844 (1965). The Longs have made no such showing in this case.
[Headnote 4]
3. Finally, citing Slobe v. Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 {196S); Moore v.
Prindle, S0 Nev. 369, 394 P.2d 352 {1964); and Mosso v. Lee Et Al.,
98 Nev. 11, 14 (1982) Long v. Towne
447 P.2d 491 (1968); Moore v. Prindle, 80 Nev. 369, 394 P.2d 352 (1964); and Mosso v. Lee
Et Al., 53 Nev. 176, 295 P. 776 (1931), the Longs contend that the sale of their lot was a
forfeiture. These cases are clearly distinguishable in that each involved a contract with a
forfeiture clause allowing the seller, upon default, to recover the land and retain all previously
made payments. Here, the lien foreclosure sale was conducted under authority of the CC&Rs
and in compliance with NRS 107.080. The Longs had actual notice of the sale and received
the excess of the sale price over the amount of the Association's lien and costs. There simply
was no forfeiture in this case. In fact, in Moore v. Prindle, supra, this court implied that a lien
foreclosure sale conducted in accordance with NRS 107.080 is an equitable alternative to
forfeiture. 80 Nev. at 377, 394 P.2d at 357.
Affirmed.
____________
98 Nev. 14, 14 (1982) Colley v. State
MICHAEL EUGENE COLLEY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12464
January 28, 1982 639 P.2d 530
Appeal from conviction of attempted murder and battery with intent to commit sexual
assault with substantial bodily harm. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
The Supreme Court held that: (1) response by prosecutor to testimony by defendant that he
was with his fiancee on the evening in question, that prosecutor believed that the fiancee was
originally named as one of the alibi witnesses, was not improper; (2) trial court properly
denied defense motion for an order appointing a psychiatrist to examine prosecution witness
who claimed defendant had raped her eight days before the prosecutrix was attacked, even
though her testimony was not substantially corroborated; and (3) trial court properly denied
defense motion to exclude testimony of State's witness that she had been choked and raped by
defendant eight days before the prosecutrix was attacked, because the testimony was relevant
to the issue of defendant's intent and identity, in view of fact that the two attacks occurred a
fraction of a mile away from each other and were only eight days apart.
Affirmed.
William N. Dunseath, Public Defender, Michael B. McDonald, N. Patrick Flanagan, and
Jane McKenna, Deputy Public Defenders, Washoe County, for Appellant.
98 Nev. 14, 15 (1982) Colley v. State
Richard H. Bryan, Attorney General, William A. Maddox, District Attorney, Carson City,
for Respondent.
1. Criminal Law.
Response by prosecutor to testimony by defendant that he was with his fiancee on the evening in
question, that prosecutor believed that the fiancee was originally named as one of the alibi witnesses, was
not improper because it was defendant who injected his fiancee into the testimony as an alibi witness and,
because she was his fiancee, it was far more appropriate that she be called by the defense in corroboration
than by the State.
2. Witnesses.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied motion by defendant to appoint a psychiatrist to examine the
victim, because her testimony was amply corroborated, and her emotional state was not subject to serious
attack.
3. Witnesses.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied defense motion for an order appointing a psychiatrist to
examine prosecution witness who claimed defendant had raped her eight days before the prosecutrix was
attacked, even though her testimony was not substantially corroborated, because the jury was able to
observe and evaluate witness' emotional condition during her testimony and cross-examination, and
because during questioning by defense counsel, she admitted that she had a drug problem, was seeing a
psychiatrist and had been suicidal, so that defendant suffered no prejudice from the denial of his motion.
4. Criminal Law.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied defense motion to exclude testimony of State's witness that she
had been choked and raped by defendant eight days before the prosecutrix was attacked, because the
testimony was relevant to the issue of defendant's intent and identity, in view of fact that the two attacks
occurred a fraction of a mile away from each other and were only eight days apart. NRS 48.045, subd. 2.
5. Homicide; Rape.
Evidence that first, upon stopping car, defendant told victim that he was going to kill her and grabbed her
throat, and that subsequently, after defendant first apologized, he suddenly threw the victim down, followed
her when she ran away and stabbed her several times, during which time victim's pants and underpants
were torn off, supported a verdict of attempted murder for the former and verdict of battery with intent to
commit sexual assault which resulted in substantial injury to the victim with respect to the latter, thereby
supporting conclusion that defendant's motive changed, and justifying a conviction for the two separate
crimes.
6. Criminal Law.
Statute directing jury to choose between a sentence of life with the possibility of parole or life without
such possibility if it finds defendant guilty of a battery with intent to commit sexual assault resulting in
substantial bodily harm did not violate defendant's Sixth Amendment right to counsel on the basis that, in
closing argument, the defense attorney is compelled to argue both innocence and
mitigation, because closing defense argument was based solely on innocence, so that
since jury sentenced defendant to lesser of the two sentence alternatives, no
infirmity could be found from defense counsel's decision not to argue mitigation.
98 Nev. 14, 16 (1982) Colley v. State
the defense attorney is compelled to argue both innocence and mitigation, because closing defense
argument was based solely on innocence, so that since jury sentenced defendant to lesser of the two
sentence alternatives, no infirmity could be found from defense counsel's decision not to argue mitigation.
U.S.C.A.Const. Amend. 6; NRS 200.400, subd. 3.
OPINION
Per Curiam:
Appellant Colley was convicted of attempted murder and battery with intent to commit
sexual assault resulting in substantial bodily harm. On appeal he raises five assignments of
error; none warrants reversal of the conviction.
[Headnote 1]
1. Prosecutorial Comment. Colley gave alibi testimony in his own defense, detailing his
actions on the evening the crime occurred. Colley named several friends whom he claimed
had been with him. One of these was Colley's fiancee, Debra. On cross-examination, the
prosecutor asked Colley where Debra was. Colley responded that he would stand the fifth on
that. Defense counsel objected to the line of questioning as being irrelevant. In response, the
prosecutor stated, I believe that Debra . . . was originally named as one of the alibi
witnesses. The defense moved for a mistrial; the motion was denied.
Colley argues that the district court erred in denying the motion for a mistrial because the
prosecutor's statement impermissibly shifted the burden of persuasion to the defendant to
prove his innocence by forcing him to explain why Debra did not testify at trial.
The argument is without merit. Although it is ordinarily impermissible to comment on a
defendant's failure to call a witness, under the circumstances of this case the statement was
justified. It was Colley who injected Debra into the testimony as an alibi witness; and,
because she was his fiancee, it was far more appropriate that she be called by the defense in
corroboration than by the state. The trial court correctly denied the motion for a mistrial. State
v. Kelly, 306 A.2d 58 (N.H. 1973). Cf. Biederstadt v. State, 92 Nev. 80, 545 P.2d 202 (1976).
[Headnotes 2, 3]
2. Denial of Psychiatric Examination of State's Witness. Before trial the district judge
denied a defense motion for an order appointing a psychiatrist to examine both the victim and
Evelena, another prosecution witness who claimed Colley had raped her eight days before
the prosecutrix was attacked.
98 Nev. 14, 17 (1982) Colley v. State
Colley had raped her eight days before the prosecutrix was attacked. The motion was
correctly denied as to the victim. Her testimony was amply corroborated, and her emotional
state was not subject to serious attack. Washington v. State, 96 Nev. 305, 608 P.2d 1101
(1980). Evelena's testimony, however, was not substantially corroborated. Her testimony at
the preliminary hearing warranted speculation by the defense that she was emotionally
unstable. Still, we cannot hold that the trial court abused its discretion in declining to subject
Evelena to a psychiatric examination. Even though such an examination may have been
helpful to the defense, the jury was able to observe and evaluate Evelena's emotional
condition during her testimony on cross-examination. During questioning by defense counsel,
she admitted that she had a drug problem, was seeing a psychiatrist and had been suicidal.
Under these circumstances we do not believe appellant suffered prejudice from the denial of
his motion. Id. at 308, 608 P.2d at 1103.
[Headnote 4]
3. Evidence of the Prior Sexual Assault. Appellant also challenges the denial of his
motion to exclude the testimony of state's witness Evelena that she had been choked and
raped by Colley eight days before the prosecutrix was attacked.
The trial judge correctly determined that this testimony was relevant to the issues of
Colley's intent and identity. The enhanced battery charge required proof that Colley had
intended to assault the victim sexually. Evelena's testimony was relevant in proving Colley's
state of mind. Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978). The two attacks occurred a
fraction of a mile away from each other and were only eight days apart. Under these
circumstances, we find no error in admitting the testimony. NRS 48.045(2).
[Headnote 5]
4. Double Punishment. Appellant claims that he may not be punished both for attempted
murder and for battery with intent to commit sexual assault resulting in great bodily harm.
Colley asserts that both convictions arose out of the same transaction. The record in this case,
however, establishes that two distinct crimes were committed, each arising out of a separate
transaction. First, upon stopping the car, Colley told the victim that he was going to kill her
and grabbed her throat. This evidence supports a verdict of attempted murder. Following this
episode the victim broke away and got out of the car, and Colley apparently apologized to
her. Thereafter he suddenly threw the victim down, saying You're so pretty. They
struggled; the victim ran away.
98 Nev. 14, 18 (1982) Colley v. State
struggled; the victim ran away. Colley then followed her and stabbed her several times.
During this second attack, the victim's pants and underpants were torn off. The attack
supports a verdict of battery with intent to commit sexual assault which resulted in substantial
injury to the victim. The evidence in the record supports the conclusion that Colley's motive
changed, justifying a conviction for the two separate crimes. See Litteral v. State, 97 Nev.
503, 634 P.2d 1226 (1981); Franko v. State, 94 Nev. 610, 584 P.2d 678 (1978).
[Headnote 6]
5. Sixth Amendment Violation. Colley attacks NRS 200.400(3), which directs the jury to
choose between a sentence of life with the possibility of parole or life without such
possibility, if it finds the defendant guilty of a battery with the intent to commit sexual assault
resulting in substantial bodily harm. It is argued that this statute violates the sixth amendment
right to counsel because, in closing argument, the defense attorney is compelled to argue both
innocence and mitigation. The defect in this argument is that Colley was not prejudiced. His
conviction remains unassailable because the closing defense argument was based solely on
innocence. Since the jury sentenced Colley to the lesser of the two sentence alternatives, no
infirmity can be found from defense counsel's decision not to argue mitigation.
The judgments of conviction are affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, 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 Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 18, 18 (1982) Aguilar v. State
JOSE JAIME AGUILAR, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12661
January 28, 1982 639 P.2d 533
Appeal from a judgment following a jury verdict of first degree murder and a sentence of
life without possibility of parole. Seventh Judicial District Court, Lincoln County; Merlyn H.
Hoyt, Judge.
The Supreme Court held that: (1) the prosecutor's incorrect reference to the defendant's
term in prison did not mandate reversal; {2) reference by a prosecution witness to
polygraph tests which were given to other suspects in the case did not constitute
reversible error; {3) the trial court properly refused to admit evidence of an exculpatory
letter written by the defendant after the crime was committed; {4) scientific evidence and
testimony of a forensic odontologist relating to identification of defendant's bite mark on
victim's body was properly admitted; and {5) the trial court did not abuse its discretion in
admitting photographs of the victim's body.
98 Nev. 18, 19 (1982) Aguilar v. State
reference to the defendant's term in prison did not mandate reversal; (2) reference by a
prosecution witness to polygraph tests which were given to other suspects in the case did not
constitute reversible error; (3) the trial court properly refused to admit evidence of an
exculpatory letter written by the defendant after the crime was committed; (4) scientific
evidence and testimony of a forensic odontologist relating to identification of defendant's bite
mark on victim's body was properly admitted; and (5) the trial court did not abuse its
discretion in admitting photographs of the victim's body.
Affirmed.
J. Gregory Damm, State Public Defender, and Robert Bork, Deputy Public Defender,
Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; John McGimsey, District Attorney,
Lincoln County, for Respondent.
1. Criminal Law.
In murder prosecution, erroneous statement by prosecutor to jury that life in prison amounted to 15 years
did not mandate reversal of conviction where trial court instructed jury to disregard statement and
subsequently instructed jury regarding law applicable to appropriate penalties.
2. Criminal Law.
Evidence of polygraph test is admissible in Nevada only if both parties have signed a written stipulation
to that effect.
3. Criminal Law.
In murder prosecution, reference by prosecution witness to polygraph tests which were given to other
suspects in case was not reversible error where testimony was not intended either to corroborate or impeach
testimony of another witness, but merely to demonstrate investigative methods which were used by sheriff's
department, and defense counsel had opened up subject by suggesting that investigation had incorrectly
focused on defendant instead of other subjects.
4. Criminal Law.
In murder prosecution, trial court properly refused to admit evidence of exculpatory letter written by
defendant after crime was committed in that letter was hearsay, it was not offered to rebut charge of recent
fabrication or improper motive or influence and letter was particularly untrustworthy. NRS 51.035.
5. Criminal Law.
In murder prosecution, defense counsel waived issue of whether trial court incorrectly admitted certain
scientific evidence and testimony of forensic odontologist relating to identification of defendant's bite mark
on victim's body when expert was asked his opinion as to whose bite mark appeared and expert testified
without objection that mark was that of defendant's teeth.
6. Criminal Law.
In murder prosecution, trial court did not abuse its discretion in admitting photographs showing
bullet wounds in various parts of victim's body where evidence of wounds was
relevant to cause of death and premeditation.
98 Nev. 18, 20 (1982) Aguilar v. State
admitting photographs showing bullet wounds in various parts of victim's body where evidence of wounds
was relevant to cause of death and premeditation.
OPINION
Per Curiam:
Aguilar appeals from a conviction of murder in the first degree and a consequent sentence
of life imprisonment without possibility of parole. Five assignments of error are considered
and rejected; we affirm.
I.
[Headnote 1]
The first assignment of error relates to a comment by the prosecutor at the commencement
of the penalty phase. The prosecutor stated to the jury: Life in prison in our state is fifteen
years so, if you impose the penalty of life in prison without the possibility of parole, the
defendant will serve fifteen years in prison.
Defense counsel objected on the ground that the prosecutor had incorrectly stated the law.
The court instructed the jury to ignore the statement and advised that they would later be
properly instructed in the relevant law. The court subsequently instructed the jury regarding
the law applicable to the appropriate penalties. Since the judge corrected the misstatement,
we cannot conclude that the jury was in any way misled. We, therefore, refuse to reverse on
this ground.
II.
The second assignment of error concerns reference by a prosecution witness to polygraph
tests which were given to other suspects in the case. Aguilar's defense rested in part on the
fact that there had initially been suspects other than himself. On cross-examination of the
Lincoln County Sheriff, defense counsel raised the issue of other possible suspects. On
redirect examination, the following exchange occurred between the prosecutor and the
sheriff:
Q. After investigating all these other suspects . . . are you satisfied that they didn't
commit the crime?
A. Yes, I am because of some polygraphs we had run and also. . . .
Defense counsel objected to the answer, and out of the presence of the jury, moved for a
mistrial. The trial court denied the motion and admonished the jury to ignore the witness's
answer.
98 Nev. 18, 21 (1982) Aguilar v. State
Aguilar claims that reversible error was committed by the reference to the polygraphs. He
asserts that the effect of the statement was to exonerate other suspects and to create the
inference either that Aguilar had refused to submit to a polygraph or that he had taken one
and failed it.
[Headnotes 2, 3]
It is true, as appellant states, that evidence of a polygraph test is admissible in Nevada only
if both parties have signed a written stipulation to that effect. Corbett v. State, 94 Nev. 643,
584 P.2d 704 (1978). The issue of admissibility, however, relates to the use of polygraph
evidence to impeach or corroborate the testimony of a witness. Id. at 646, 584 P.2d at 706.
In the immediate situation, the comment did not directly impugn the defendant's testimony or
establish his guilt. The evidence came in through inadvertence. It was not specifically
intended either to corroborate or impeach the testimony of another witness, but merely to
demonstrate investigative methods which were used by the sheriff's department. Defense
counsel had opened up the subject by suggesting that the investigation had incorrectly
focused on the defendant instead of other suspects. The question on redirect examination was
aimed at establishing the thoroughness of the investigation; and the form of the prosecutor's
question does not suggest that he was soliciting an improper answer. We therefore conclude
that the answer does not constitute reversible error.
III.
[Headnote 4]
The third assignment of error, also without merit, is that the court erred in refusing to
admit evidence of an exculpatory letter written by the defendant after the crime was
committed. The letter was hearsay evidence; it was not offered to rebut a charge of recent
fabrication or improper motive or influence. See NRS 51.035. Furthermore, it does not fall
within any recognized exception to the hearsay rule. Finally, the evidence is particularly
untrustworthy since the motive to lie would already have attached at the time the letter was
written.
IV.
[Headnote 5]
The fourth claim of error is that the court incorrectly admitted certain scientific evidence
and testimony of a forensic odontologist relating to identification of Aguilar's bite mark on
the victim's body. We reject this assignment since it was waived by defense counsel at trial.
The expert was asked his opinion as to whose bite mark appeared on the victim's body. He
testified without objection that the mark was that of Aguilar's teeth.
98 Nev. 18, 22 (1982) Aguilar v. State
without objection that the mark was that of Aguilar's teeth. Further support for the expert's
opinion was given in the form of a video tape admitted into evidence by stipulation of
counsel. The defense cannot be heard now to complain that admission of the expert's
experimental technique was reversible error.
V.
[Headnote 6]
The final assignment of error concerns photographic evidence which Aguilar claims was
inflammatory and prejudicial. Photographs show bullet wounds in various parts of the body.
The evidence of the wounds is relevant to at least two issues, the cause of death and also
premeditation. The admission of such evidence resides in the sound discretion of the trial
court. Turpen v. State, 94 Nev. 576, 583 P.2d 1083 (1978), cert. denied, 439 U.S. 968 (1978).
We cannot say that the trial court abused its discretion in admitting the photographs.
The judgment of conviction and the sentence are affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, 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 Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 22, 22 (1982) Constancio v. State
PETER JOSEPH CONSTANCIO, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12396
January 28, 1982 639 P.2d 547
Appeal from judgment of conviction, upon a jury verdict. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of rape and infamous crime against nature,
and he appealed. The Supreme Court held that: (1) rape statute which protected only females
did not violate equal protection clause; (2) testimony of defendant's former wife concerning
defendant's sexual behavior during marriage was admissible in prosecution for rape despite
claim of spousal privilege since privilege was limited to expressions intended by one spouse
to convey meaning or message to other; and (3) trial court did not abuse its discretion in
imposing consecutive rather than concurrent sentences upon defendant.
98 Nev. 22, 23 (1982) Constancio v. State
imposing consecutive rather than concurrent sentences upon defendant.
Affirmed.
[Rehearing denied April 28, 1982]
Michael R. Zervas, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure of police to apprehend and arraign defendant for almost one year after incident upon which
charges of rape and infamous crime against nature were based did not violate defendant's rights where trial
court record failed to reflect prejudice to defendant occasioned by delay. NRS 201.190; 200.363
(Repealed).
2. Constitutional Law; Rape.
Former rape statute which protected only females from forcible rape did not violate equal protection
clause. NRS 200.363 (Repealed); U.S.C.A.Const. Amend. 14.
3. Witnesses.
Testimony of defendant's former wife concerning defendant's sexual behavior during marriage was
admissible in prosecution for rape despite claim of spousal privilege since privilege was limited to
expressions intended by one spouse to convey meaning or message to other. NRS 49.295, subd. 1(b).
4. Criminal Law.
In prosecution for rape, any error in admission of medical journal article would not be considered by
Supreme Court where article was not included in record on appeal.
5. Criminal Law.
Trial court did not abuse its discretion in imposing consecutive rather than concurrent sentences upon
defendant convicted of rape and infamous crime against nature where sentence was within statutory limits
and there was no claim that court relied upon improper evidence.
OPINION
Per Curiam:
Appellant was convicted, upon a jury verdict, of rape (former NRS 200.363) and of two
counts of the infamous crime against nature (NRS 201.190 as it then read; See 1977 Nev.
States. ch. 598, 17, at 1632). He was acquitted of a charge of first degree kidnapping (NRS
200.310).
[Headnote 1]
1. Appellant first contends that his rights were violated by the failure of the police to
apprehend and arraign him for almost a year after the May, 1977 incident upon which the
charges were based.
98 Nev. 22, 24 (1982) Constancio v. State
charges were based. To the extent that this issue has not previously been determined by our
ruling on appellant's appeal of a pretrial petition for habeas corpus in Constancio v. Sheriff,
No. 11091 (Unpublished Order, Sept. 29, 1978), see Theriault v. State, 92 Nev. 185, 547 P.2d
668 (1976), we find that the trial court record fails to reflect prejudice to appellant occasioned
by the delay. See United States v. Lovasco, 431 U.S. 783 (1977). Appellant's claim that the
district court erred by not granting his motion to dismiss for failure to bring him to trial
within sixty days similarly been considered and rejected by this court, Constancio v. Sheriff
No. 11813 (Unpublished Order, July 30, 1979), and will not be reconsidered here. Theriault
v. State, supra.
[Headnote 2]
2. Appellant also contends that the applicable provision of former NRS 200.363 violated
the equal protection clause of the fourteenth amendment because it protected only females,
and not males, from forcible rape.
1
We disagree.
The Supreme Court has recently held that a California statutory rape law punishing sexual
intercourse with a female, but not a male, under 18 and not the wife of the perpetrator, did not
violate the equal protection clause. Michael M. v. Sonoma County Superior Court, 450 U.S.
464 (1981). The Court noted that young men and young women are not similarly situated
with respect to the problems and the risks of sexual intercourse. Only women may become
pregnant, and they suffer disproportionately the profound physical, emotional, and
psychological consequences of sexual activity. Id. at 471. See also Olson v. State, 95 Nev. 1,
3, 588 P.2d 1018, 1019 (1979). While the Court also noted the particular problems associated
with teenage pregnancies, the basic justification for a gender based statute for the protection
of females is equally applicable to a forcible rape statute. In short, the fact that the legislature
could have chosen, as it now does, see NRS 200.364 to 200.375, to protect both male and
female victims of sexual assault, did not preclude it from once protecting females alone. See
450 U.S. at 473-74.
[Headnote 3]
3. A former wife of appellant was permitted to testify, over objection, that during their
marriage appellant had often had difficulty achieving an erection. Appellant objected to the
admission of this testimony, on the theory that sexual behavior during marriage should be
classified as communication protected by the spousal privilege, citing State v. Robbins,
213 P.2d 310 {Wash.
____________________

1
NRS 200.363 then provided that Forcible rape is the carnal knowledge of a female against her will. 1973
Nev. Stats. ch. 798, 7, at 1805, repealed 1977 Nev. Stats. ch. 598, 29, at 1635.
98 Nev. 22, 25 (1982) Constancio v. State
admission of this testimony, on the theory that sexual behavior during marriage should be
classified as communication protected by the spousal privilege, citing State v. Robbins, 213
P.2d 310 (Wash. 1950), in which the court concluded that all facts known to a spouse because
of the marital relation should be within the privilege. We are not inclined to so extend the
meaning of communication.
The applicable statute provides that [n]either a husband nor a wife can be examined,
during the marriage or afterwards, without the consent of the other, as to any communication
made by one to the other during marriage. NRS 49.295(1)(b). We have previously held that
this privilege is intended to protect confidential communications between spouses.
Deutscher v. State, 95 Nev. 669, 683, 601 P.2d 407, 416 (1979). Webster's Third New
International Dictionary, at 460 (1976 ed.), defines communicate as to make known:
inform a person of: convey the knowledge or information of. We agree that under a statute
such as ours, the privilege should be limited to expressions intended by one spouse to
convey a meaning or message to the other. McCormick, Evidence 79, at 163 (2d ed. E.
Cleary 1972). See, e.g. Posner v. New York Life Ins. Co., 106 P.2d 488 (Ariz. 1940); Tanzola
v. De Rita, 285 P.2d 897 (Cal. 1955). We therefore conclude that the trial court was correct in
its decision to overrule appellant's objection.
2

[Headnote 4]
4. Appellant also complains of the admission into evidence of a particular article
published in a medical journal. However, the article has not been included in the record on
appeal. We therefore do not consider this assignment of error. Coffman v. State, 93 Nev. 32,
559 P.2d 828 (1977); see Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235 (1976).
[Headnote 5]
5. Finally, appellant contends that it was an abuse of discretion for the court below to
impose consecutive, rather than concurrent, sentences upon him. Where, as here, the sentence
is within the statutory limits and there is no claim that the court has relied upon improper
evidence, we have consistently refrained from interfering with the trial court's imposition of
sentence. E.g., Renard v. State, 94 Nev. 368, 580 P.2d 470 (1978), cert. denied 440 U.S. 982
(1979); Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978). We perceive no reversible error.
Cf. Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978).
____________________

2
We note that appellant lodged no objection pursuant to NRS 48.035(1).
98 Nev. 22, 26 (1982) Constancio v. State
The judgment of conviction and sentence are accordingly affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
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.
____________
98 Nev. 26, 26 (1982) Wallaker v. Wallaker
DUANE J. WALLAKER, Appellant, v. DOROTHY
WALLAKER, Respondent.
No. 11445
January 28, 1982 639 P.2d 550
Appeal from judgment, Eighth Judicial District Court, Clark County; George E. Marshall,
Judge.
Action was filed by former husband to reform property settlement agreement as to alimony
payments. The district court ruled that court lacked jurisdiction to modify property settlement,
and appeal was taken. The Supreme Court held that even though trial court could not have
modified divorce decree, it was not precluded from granting reformation of the property
settlement agreement which was neither merged nor incorporated into the divorce decree.
Reversed and remanded.
Wiener, Goldwater & Waldman, Las Vegas, for Appellant.
George E. Graziadei, Las Vegas, for Respondent.
Husband and Wife.
Even though district court could not have modified divorce decree, it did have jurisdiction to reform
property settlement agreement as to alimony payments which were neither merged nor incorporated into the
divorce decree.
OPINION
Per Curiam:
Appellant and respondent were divorced in 1969. The decree of divorce confirmed a
property settlement agreement, and stated that the agreement was not incorporated in this
decree, but shall survive the decree herein granted. Eight years later, appellant filed an
action to reform the property settlement agreement as to alimony payments.
98 Nev. 26, 27 (1982) Wallaker v. Wallaker
appellant filed an action to reform the property settlement agreement as to alimony payments.
The complaint acknowledged that the district court could not modify the divorce decree. See
Rush v. Rush, 82 Nev. 59, 410 P.2d 757 (1966). However, the complaint sought reformation
of the property settlement agreement itself, relying on the contractual theories of fraud and
mutual mistake.
At the conclusion of the trial, the district court declined to rule on the merits of the
complaint for reformation. Instead, the district court ruled that the court lacks jurisdiction to
modify the property settlement. Judgment was entered for respondent, and this appeal
followed.
Because the property settlement agreement was neither merged nor incorporated into the
divorce decree, this action should have been decided on principles of general contract law.
See Renshaw v. Renshaw, 96 Nev. 541, 611 P.2d 1070 (1980). Although the district court
could not have modified the divorce decree, respondent has cited no authority for the
proposition that the district court was precluded from granting reformation of the property
settlement agreement. The district court should have ruled on the merits of appellant's
complaint.
Ordinarily, we would remand this matter for findings and conclusions on the merits of the
reformation action. 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). However, we are unable to do so in this case
because the district court judge who heard the case is now deceased. We therefore reverse and
remand for a new trial.
____________
98 Nev. 27, 27 (1982) Lomas v. State
JAMES EDWARD LOMAS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 11939
January 28, 1982 639 P.2d 551
Appeal from judgment of conviction for mayhem; Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon,
battery with use of a deadly weapon, and mayhem, and he appealed from the mayhem
conviction. The Supreme Court held that the trial court committed reversible error in refusing
to give instructions offered by the defense embodying the intent requirement for a mayhem
conviction where no other instruction given informed the jury that malice was required
for a conviction of mayhem, or that an inference of malice required that the disfigurement
was reasonably to be apprehended as the natural and probable consequence of the act,
and the trial court also erred in refusing to give an instruction dealing with the statute
which prohibits conviction of mayhem if the jury finds that the injury inflicted will not
result in any permanent disfiguration of appearance, diminution of vigor or other
permanent injury.
98 Nev. 27, 28 (1982) Lomas v. State
where no other instruction given informed the jury that malice was required for a conviction
of mayhem, or that an inference of malice required that the disfigurement was reasonably to
be apprehended as the natural and probable consequence of the act, and the trial court also
erred in refusing to give an instruction dealing with the statute which prohibits conviction of
mayhem if the jury finds that the injury inflicted will not result in any permanent disfiguration
of appearance, diminution of vigor or other permanent injury.
Reversed and remanded.
William N. Dunseath, Public Defender, and N. Patrick Flanagan, Deputy Public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Calvin R. X. Dunlap, District
Attorney, Washoe County, for Respondent.
Criminal Law; Mayhem.
In prosecution for mayhem, trial court committed reversible error by refusing to give instructions offered
by defense embodying intent requirement for mayhem conviction where no other instruction given
informed jury that malice was required for conviction of mayhem, or that an inference of malice required
that disfigurement was reasonably to be apprehended as the natural and probable consequence of the act,
and trial court also erred in refusing to give an instruction dealing with statute which prohibits conviction
of mayhem if jury finds that injury inflicted will not result in any permanent disfiguration of appearance,
diminution of vigor or other permanent injury. NRS 200.300.
OPINION
Per Curiam:
Lomas was convicted of robbery with use of a deadly weapon, battery with use of a deadly
weapon, and mayhem, for acts arising out of the same robbery. In this appeal he challenges
only the mayhem conviction.
Lomas seized his victim from behind and held a knife to her throat. As she pulled away
from him she was cut in the face. Lomas recaptured the victim, took per purse, and removed
money from it. The victim tried to run away, but after taking the money, Lomas pursued her,
stabbed her in the jaw and kicked her in the face. The state charged Lomas with mayhem on
the basis of the first cut on the victim's face, which occurred prior to his seizure of her purse.
98 Nev. 27, 29 (1982) Lomas v. State
At trial, the district court refused to give instructions offered by the defense embodying the
intent requirement for a mayhem conviction, based upon Ex parte Ralls, 71 Nev. 276, 288
P.2d 450 (1955) and Lamb v. Cree, 86 Nev. 179, 466 P.2d 660 (1970). The state concedes
that the offered instructions were correct statements of the law. The state argues, however,
that the law was adequately covered by other instructions given to the jury. We disagree. No
other instruction given by the trial court informed the jury that malice is required for a
conviction of mayhem, or that an inference of malice required that the disfigurement was
reasonably to be apprehended as the natural and probable consequence of the act. Lamb v.
Cree, 86 Nev. at 182, 466 P.2d at 662, quoting Ex parte Ralls, 71 Nev. at 279, 288 P.2d at
451.
The district court also refused to give an instruction dealing with NRS 200.300, which
prohibits conviction of mayhem if the jury finds that the injury inflicted will not result in any
permanent disfiguration of appearance, diminution of vigor, or other permanent injury.
Whether the victim is disfigured, and whether such disfigurement is permanent, are questions
of fact for the jury. Lamb v. Cree, supra; see Levi v. State, 95 Nev. 746, 602 P.2d 189 (1979).
The record in the present case reveals that the extent of the injury was far from apparent. We
see no justification for the district court's refusal to give an instruction on NRS 200.300.
Appellant's conviction of mayhem is reversed and this case is remanded for a new trial.
1

Reversed and remanded.
____________________

1
This reversal applies only to the mayhem conviction. As mentioned earlier, the convictions for robbery with
use of a deadly weapon, and battery with use of a deadly weapon, have not been challenged.
____________
98 Nev. 30, 30 (1982) McCracken v. Fancy
LARRY O. McCRACKEN, Executive Director STATE OF NEVADA EMPLOYMENT
SECURITY DEPARTMENT, BOARD OF REVIEW OF STATE OF NEVADA
EMPLOYMENT SECURITY DEPARTMENT and STROBECK AND ASSOCIATES, INC.,
Appellants, v. RETA B. FANCY, Respondent.
No. 12678
January 28, 1982 639 P.2d 552
Appeal from order reversing decision of appeals tribunal of Nevada Employment Security
Department, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Executive Director and Board of Review of the State of Nevada Employment Security
Department and employer appealed from order of the district court reversing decision of the
Department appeals tribunal which denied claim for unemployment benefits. The Supreme
Court held that there was substantial evidence supporting appeals referee's decision that
claimant left her employment voluntarily without good cause, rendering her ineligible for
unemployment benefits, and thus district court erred by substituting its judgment for that of
the administrative department.
Reversed.
John A. Flangas, Reno, for Appellants.
Reta B. Fancy, In Proper Person.
1. Administrative Law and Procedure.
In reviewing an administrative board's decision, Supreme Court, like district court, is limited to record
below and to determination of whether the board acted arbitrarily or capriciously; question is whether
board's decision was based on substantial evidence, and neither Supreme Court nor district court may
substitute its judgment for administrator's determination.
2. Social Security and Public Welfare.
There was substantial evidence supporting appeals referee's decision that claimant left her employment
voluntarily without good cause, rendering her ineligible for unemployment benefits, and thus district court
erred by substituting its judgment for that of the administrative department. NRS 612.380.
OPINION
Per Curiam:
This is an appeal from a district court order reversing a decision of the appeals tribunal of
the Nevada Employment Security Department (NESD). Because we find that the district
court improperly substituted its judgment for that of the administrative department, we
reverse.
98 Nev. 30, 31 (1982) McCracken v. Fancy
court improperly substituted its judgment for that of the administrative department, we
reverse.
On October 8, 1979, respondent Reta B. Fancy voluntarily terminated her employment as
secretary/bookkeeper for a Las Vegas company. Thereafter, she applied for unemployment
compensation benefits. After receiving one check for $67.00, Fancy was informed that she
would receive no further benefits and that she had to return the previously issued check for
$67.00. Appellant Larry O. McCracken, Executive Director of the NESD, had determined
that Fancy had terminated her employment voluntarily without good cause and therefore did
not qualify for unemployment benefits. See NRS 612.380.
Fancy appealed to the NESD's appeals tribunal. A hearing was held in Long Beach,
California, where Fancy had moved, and the tape of the hearing was transmitted to the
appeals tribunal for its decision. Fancy was the only witness at the hearing. She also
introduced into evidence certain letters and documents relating to her unsuccessful attempt to
secure unemployment benefits. After reviewing the evidence, the appeals referee denied
Fancy's claim and held her liable for the overpayment of $67.00. See NRS 612.365.
Fancy then appealed to the NESD's board of review. By a letter dated January 31, 1980,
the board of review declined to review her appeal. See NRS 612.515(1). Fancy sought judicial
review of the administrative decision against her. On April 25, 1980, the district court
reversed the appeals tribunal's decision and ordered that Fancy receive unemployment
compensation. The district court's order stated no reason for the reversal. The NESD has
appealed.
[Headnote 1]
The sole issue on issue on appeal is whether the district court erred by reversing the
appeals referee's decision that Fancy had terminated her employment voluntarily without
good cause and therefore was ineligible for unemployment compensation. In reviewing an
administrative board's decision, this court, like the district court, is limited to the record
below and to the determination of whether the board acted arbitrarily or capriciously. Turk v.
Nevada State Prison, 94 Nev. 101, 575 P.2d 599 (1978); Lellis v. Archie, 89 Nev. 550, 516
P.2d 469 (1973); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968). The question is
whether the board's decision was based on substantial evidence; neither this court, nor the
district court, may substitute its judgment for the administrator's determination. Varela v. City
of Reno Civil Serv., 97 Nev. 575, 635 P.2d 577 (1981); No. Las Vegas v. Pub. Serv.
Comm'n, 83 Nev. 278, 429 P.2d 66 (1967).
98 Nev. 30, 32 (1982) McCracken v. Fancy
The relevant statutory provision is former NRS 612.380,
1
which provided:
A person is ineligible for benefits for the week in which he has voluntarily left his
last or next to last employment without good cause, if so found by the executive
director, and until he earns remuneration in covered employment equal to or exceeding
his weekly benefit amount in each of 10 weeks. (Emphasis added.)
Despite the fact that Fancy presented all the evidence at the administrative hearing, the
evidence was conflicting at best. She testified that she had been misled about the nature of the
work; that although hired as a secretary/bookkeeper, 95 percent of her work involved
accounting; and that she was losing her secretarial skills and being underpaid. However, the
record also reveals a signed statement in which Fancy, in referring to leaving her Nevada job,
stated:
I originally went to Las Vegas in Oct, 77 when my daughter was very ill, to help
out. I much prefer Southern Calif so decided to return. The decision had nothing to do
with my job. I gave my employer 3 weeks notice of leaving. (Emphasis added.)
[Headnote 2]
In denying Fancy unemployment compensation, the appeals referee stated:
The evidence of this present case is quite clear that the claimant left her employment
to move to another geographical area and to seek work. At the time of her leaving, she
had no firm promise of work nor any prospects of work. Claimant also wanted to move
for personal reasons, she liked the southern California area better.
. . .
It is the opinion of this tribunal that the claimant left work to seek better work, but
she had no firm promise of work at the time of leaving, thus the tribunal concludes that,
the claimant voluntarily quit the work without good cause.
Fancy contends that the appeals referee imposed an arbitrary standard that she must have a
firm offer of employment before she would be considered leaving with good cause. We
disagree.
____________________

1
NRS 612.380 was amended by the 1981 legislature. See 1981 Nev. Stats. ch. 379, 3, p. 690. Former NRS
612.380 was preserved as NRS 612.380(1), and a new subsection 2 was added. The amendment does not affect
the outcome of this case.
98 Nev. 30, 33 (1982) McCracken v. Fancy
Viewing the decision as a whole, it appears that Fancy's failure to have another job offer was
only one factor in the referee's decision. He was also persuaded by the evidence that she
simply wanted to live in California. There is substantial evidence supporting the appeals
referee's decision that Fancy left her employment voluntarily without good cause. It follows
that the district court erred by substituting its judgment for that of the administrative
department.
The district court's order is reversed and the appeals referee's decision is reinstated.
____________
98 Nev. 33, 33 (1982) Investors of Nev. v. Nevada State Bk.
INVESTORS OF NEVADA REALTY, INC., and VERA McCAULEY, Appellants, v.
NEVADA STATE BANK as Executor of the Estate of BOBBIE SKERCE, Deceased,
Respondent.
No. 13211
January 28, 1982 639 P.2d 554
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Executors of insured under credit life policy sued to recover proceeds, which had been
paid to assuming purchaser of property covered by the insurance. The district court rendered
summary judgment for the estate, and appeal was taken. The Supreme Court held that
payment of the secured indebtedness inured to benefit of the insured's estate in that when
insured sold mobile home she was not relieved of liability and was still liable as surety if
purchasers, who had assumed the obligation failed to pay.
Affirmed.
[Rehearing denied April 9, 1982]
L. Earl Hawley, Las Vegas, for Appellants.
Scotty Gladstone, Las Vegas, for Respondent
Secured Transactions.
Payment of secured indebtedness with proceeds of credit life policy inured to benefit of the insured's
estate rather than to benefit of assuming purchaser of the property in that when the purchaser insured sold
the mobile home she was not relieved of her liability and although purchaser assumed and agreed to pay
creditor the purchaser had not done so, the insured, as surety, was still liable.
98 Nev. 33, 34 (1982) Investors of Nev. v. Nevada State Bk.
OPINION
Per Curiam:
The principal issue presented by this appeal from an order granting summary judgment is
whether payment of a secured indebtedness with the proceeds of a credit life insurance policy
inured to the benefit of the insured's estate or to an assuming purchaser of the property
covered by the insurance. The district court held that payment inured to the benefit of the
estate. We agree.
Bobbie Skerce purchased a mobile home. It was financed by the Nevada State Bank for
approximately $10,000.00. Skerce obtained a fully paid life insurance policy for the amount
of the loan with the Bank as beneficiary. Skerce sold the home for $1,000.00 down to the
appellants, who assumed the $10,000.00 due the Bank. Skerce died. The insurance company
paid the Bank's loan. The Bank, as executor of Skerce's estate, filed this action against
appellants to recover the $10,000.00 for the estate.
When Skerce sold her mobile home, she was not relieved of her liability to the Bank.
Although the purchaser assumed and agreed to pay the Bank, if the purchaser had not done
so, Skerce, as a surety, was still liable. See Twombley v. Wulf, 482 P.2d 166 (Or. 1971).
Whenever a party promises another to pay his debt or perform his obligation to a
third person, as between promisor and promisee, the former becomes the principal
obligor and the latter acquires the privileges of a surety.
Elder, The Law of Suretyship, 2.3, p. 10 (1951).
As the court ruled in Kincaid v. Alderson:
When thus a surety by his death through a valid life insurance policy on his life has
discharged the obligation, this does not discharge the obligation of [those] who are
primarily liable. It would be exactly the same situation as if a surety on an obligation
for any reason decided to pay off the obligation. This would not release the principal
debtor from his obligation, but it would then be transferred to the surety who had
discharged the obligation to release himself as surety. Thus by the death of [surety] and
his life insurance paying this debt it would merely transfer the debt of the principal
obligator to the surety rather than to the creditor. When the debt is thus paid the surety
is subrogated to the rights of the creditor. [Citations omitted.] This payment constitutes
an unjust enrichment of the principal' who must 'reimburse the surety to the extent
of the enrichment.' Restatement of the Law, Security, 104.
98 Nev. 33, 35 (1982) Investors of Nev. v. Nevada State Bk.
of the principal' who must reimburse the surety to the extent of the enrichment.'
Restatement of the Law, Security, 104. Comment on Subsection (2), page 279.
354 S.W.2d 775, 778 (Tenn. 1962). See also Hatley v. Johnston, 143 S.E.2d 260 (N.C. 1965);
Smith v. Castleman, 462 P.2d 135 (N.M. 1969).
The district court properly ruled that the benefit of the insurance proceeds inured to the
estate of Bobbie Skerce. Appellants' remaining assignments of error are meritless. Therefore,
we affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, 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 Cameron M. Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 35, 35 (1982) Crown Controls Corp. v. Corella
CROWN CONTROLS CORPORATION, Appellant, v. STEVEN J. CORELLA and
NEVADA INDUSTRIAL COMMISSION, Respondents.
No. 13007
January 28, 1982 639 P.2d 555
Appeal from judgment, Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Manufacturer appealed from judgment entered by the district court on jury verdict in
products liability action brought by claimant, who suffered injury when power lift stacker
tipped over backwards onto him. The Supreme Court held that: (1) substance of
manufacturer's tendered instruction was stated in instructions given and therefore refusal to
give tendered instruction was not error, and (2) although, under strict liability, manufacturer
is entitled to assume that his product will not be subjected to abnormal and unintended use,
use of product in manner which manufacturer should reasonably anticipate is not misuse or
abuse.
Affirmed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, and J. Michael Herr and
Charles J. Faruki, Dayton, Ohio, for Appellant.
98 Nev. 35, 36 (1982) Crown Controls Corp. v. Corella
Samuel T. Bull, Reno, Harkins & Beckett, Carson City, and The Boccardo Law Firm, San
Jose, California, for Respondents.
1. Trial.
It is not error for a trial court to refuse to give instruction when substance of that instruction is adequately
covered by other instructions.
2. Trial.
Substance of manufacturer's tendered instruction that misuse of product includes failure to use it in
accordance with adequate warnings given by manufacturer was stated in instructions given, and thus refusal
to give tendered instruction was not error, where jury was instructed that in order to find for products
liability claimant it had to find that manufacturer's power lift stacker, which had tipped over backward onto
claimant, was being used in manner and for purpose for which it was intended and was not subject of
misuse at time of accident and jury was further instructed that product which bears suitable and adequate
warnings concerning safe manner in which product is to be used and which is safe to use if warning is
followed is not in defective condition.
3. Products Liability.
Although, under strict liability, a manufacturer is entitled to assume that his product will not be subjected
to abnormal and unintended use, use of product in manner which manufacturer should reasonably
anticipate is not misuse or abuse.
OPINION
Per Curiam:
In October of 1979, during the course of his employment, Steven J. Corella was injured
when a power lift stacker, manufactured by appellant herein, tipped over backwards onto him.
Mr. Corella sued appellant, alleging that the stacker was defectively designed and
manufactured and that it did not bear adequate warnings. The action was tried on a strict
liability theory. The jury returned a verdict in favor of Mr. Corella for $640,000. Appellant
moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The
motions were denied. This appeal followed.
Appellant contends that the district court erred by refusing an instruction on misuse
offered by appellant, and by giving an allegedly erroneous instruction on misuse.
[Headnotes 1, 2]
The instruction offered by appellant and refused by the court read as follows: Misuse of a
product includes failure to use it in accordance with adequate warnings given by the
manufacturer. It is not error for a trial court to refuse to give an instruction when the
substance of that instruction is adequately covered by other instructions.
98 Nev. 35, 37 (1982) Crown Controls Corp. v. Corella
covered by other instructions. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 484 P.2d 1089
(1971); Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967). Despite the
refusal to give the above-quoted instruction, the jury was instructed that in order to find for
respondent, it had to find that the stacker, at the time of the accident, was being used in the
manner and for the purpose for which it was intended and was not the subject of misuse. The
jury was further instructed that a product which bears suitable and adequate warnings
concerning the safe manner in which the product is to be used, and which is safe to use if the
warning is followed, is not in defective condition. The substance of the refused instruction
was, therefore, stated in the instructions given.
1

The instruction given to the jury to which appellant objected read as follows:
Misuse of a product means a use which the designer and manufacturer could not
reasonably foresee. The mere fact that a designer or manufacturer may not intend his
product to be used in a certain way does not mean that using it in that way is a legal
misuse of the product. If a designer and manufacturer should reasonably foresee that the
product may be used in a way other than intended by him, such other use is not a
misuse.
[Headnote 3]
Appellant contends that this instruction states that a manufacturer could be held liable
even if it warned against misuse. Appellant also contends that the instruction ignores the
settled law of this state that a manufacturer cannot be liable for injury resulting from
unintended use. The instruction does not, as appellant contends, instruct as to the
ramifications of misuse despite warnings. Furthermore, although it is true that under strict
liability a manufacturer is entitled to assume that his product will not be subjected to
abnormal and unintended use, it is also true that use of a product in a manner which the
manufacturer should reasonably anticipate is not misuse or abuse. General Electric Co. v.
Bush, 88 Nev. 360, 498 P.2d 366 (1972). The instruction objected to merely repeats this
principle. Error did not, therefore, occur.
We have reviewed appellant's other contentions and have determined that they are without
merit. Accordingly, the judgment below is affirmed.
____________________

1
Because our ruling is based upon the fact that appellant's requested instruction was adequately covered by
other instructions, we express no opinion as to whether the requested instruction alone was a correct and
adequate statement of the law.
____________
98 Nev. 38, 38 (1982) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12795
January 28, 1982 639 P.2d 557
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted before the district court of murder, and he appealed. The
Supreme Court held that admission into evidence of testimony of court-appointed psychiatrist
as to admissions made by defendant during his psychiatric examination was an error of
constitutional proportions requiring reversal and remand in absence of demonstration beyond
a reasonable doubt that such evidence did not contribute to conviction.
Reversed and remanded.
Howard C. Jones, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Admission into evidence of testimony of court-appointed psychiatrist as to admissions made by defendant
during his psychiatric examination was an error of constitutional proportions, and conviction would be
reversed and remanded in absence of State's demonstration beyond a reasonable doubt that evidence did
not contribute to conviction. U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Patrick Charles McKenna appeals from a conviction for murder for which he was
sentenced to death. At issue is whether the trial court erred in permitting a court-appointed
psychiatrist who examined McKenna to testify as to admissions made by McKenna during his
psychiatric examination.
A psychiatrist, Franklin D. Master, M.D., was appointed by the court under NRS 178.415
to inquire into the sanity of McKenna. During the psychiatrist's examination, McKenna
apparently discussed the circumstances surrounding the murder of a cellmate at the Clark
County jail. Over the defendant's objection, the psychiatrist was permitted to testify at trial
that McKenna had admitted he had "exploded and killed J. J. Nobles."
98 Nev. 38, 39 (1982) McKenna v. State
McKenna had admitted he had exploded and killed J. J. Nobles.
We have recently held that statements made by a defendant to a psychiatrist during a court
ordered mental examination may not be used to impeach the defendant's testimony. Esquivel
v. State, 96 Nev. 777, 617 P.2d 587 (1980). In Esquivel we commented, [A] subject being
examined by a court appointed physician should feel free in such a clinical climate to discuss
all the facts relevant to the examination without the guarded fear that statements may be used
against him. Fair play dictates nothing less. 96 Nev. at 778, 617 P.2d at 587.
We think that the same rationale applies to the case before us. Fair play does indeed dictate
that our trial courts not appoint a psychiatrist to examine an accused and then employ the
confidential contents of the interview to obtain a conviction. We agree with the decision in
Collins v. Auger, 428 F.Supp. 1079 (S.D.Iowa 1977), that the introduction of this kind of
evidence violates the defendant's right to due process.
[I]t is fundamentally unfair to use defendant's incriminating admissions to a psychiatrist
during a psychiatric examination as part of the prosecution's case to establish his guilt.
It is immaterial whether the court ordered examination was at the request of defendant
or the prosecution or whether it was to determine his capacity to aid in his own defense
or his mental condition at the time of the crime. Id. at 1082.
1

Furthermore, it would be impossible to meet the objectives of a court appointed examination
if the defendant knew that his statements could be used to convict him. McKenna's right to
due process guaranteed under the fourteenth amendment was therefore violated by the
introduction of evidence concerning admissions made to a court appointed psychiatrist.
Since admission of this testimony amounted to a violation of federal constitutional rights,
we are obliged to apply the test established in Chapman v. California, 386 U.S. 18 (1966).
This court must be able to declare its belief that the constitutional error complained of was
harmless beyond a reasonable doubt. Id. at 24.
____________________

1
This view is also consistent with the recent United States Supreme Court decision in Estelle v. Smith, 101
S.Ct. 1866 (1981). The Supreme Court held that a defendant's fifth amendment privilege against
self-incrimination was violated by the introduction of testimony concerning admissions made during a court
ordered psychiatric examination. The psychiatrist was permitted to testify to these admissions during the penalty
phase of the trial.
98 Nev. 38, 40 (1982) McKenna v. State
The comments made by McKenna were a primary component of the prosecution's case. In
arguing for admission of the doctor's testimony the prosecutor stated that the testimony was
necessary to obtain a conviction since the remaining case was somewhat tenuous.
2
Applying the Chapman standard, it is within the realm of possibility that, absent the
constitutionally forbidden admissions contained in the psychiatrists' testimony, honest,
fair-minded jurors might have brought in a lesser verdict. Under these circumstances, it is
impossible for us to say that the state has demonstrated, beyond a reasonable doubt, that the
evidence did not contribute to McKenna's conviction. We therefore reverse and remand for
new trial.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

2
The prosecutor's view is supported by the record. The eyewitness testimony relied upon was from two
inmates, felons, who received favorable treatment after giving statements to police. Only one witness, Rossi,
actually testified at trial. Jones committed suicide before the trial and a transcript of his testimony at an earlier
proceeding was read into the record. Jones's testimony was that at 1:30 a.m. he saw McKenna strangle his victim
with his hands for about thirty seconds. The other witness, Rossi, saw a different episode occurring at 3:30 a.m.
and in which McKenna strangled his victim with his arm for some five minutes. The pathology report said death
was caused by ligature with the aid of a piece of cloth or other tying device. There were a number of other
discrepancies. When combined with the unreliable nature of the witnesses and the accessibility of the victim to a
number of other prisoners, these factors form what could very well have been described as a tenuous case.

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 40, 40 (1982) Director, Dep't Prisons v. Blum
DIRECTOR, NEVADA DEPARTMENT OF PRISONS, v.
CHESTER LEE BLUM, Respondent.
No. 13103
January 28, 1982 639 P.2d 559
Appeal from order granting writ of habeas corpus. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Director of State Department of Prisons appealed from an order of the district court
granting prisoner's writ of habeas corpus and discharging him from any custody occasioned
by the filing of a detainer against him. The Supreme Court held that the detainer was
invalid, where there was no indication that request for detainer was made by the
executive authority of the demanding state.
98 Nev. 40, 41 (1982) Director, Dep't Prisons v. Blum
that the detainer was invalid, where there was no indication that request for detainer was
made by the executive authority of the demanding state.
Affirmed.
Richard H. Bryan, Attorney General, and Brooke A. Nielsen, Deputy Attorney General,
Carson City, for Appellant.
John L. Conner, Reno, for Respondent.
Extradition and Detainers.
Detainer was invalid, where there was no indication that request for detainer was made by the executive
authority of the demanding state. NRS 179.179, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a writ of habeas corpus and
discharging respondent, a prisoner in the Nevada State Prison, from any custody occasioned
by the filing of a detainer against him by the state of Illinois. The district court ruled that the
Agreement on Detainers, NRS 178.620 art. IV(a), is invalid insofar as it permits a detainer to
be lodged against a prisoner held in Nevada without a request from the executive authority of
the demanding state.
In Cuyler v. Adams, 449 U.S. 433 (1981), the Supreme Court held that the Agreement on
Detainers preserves to a prisoner the procedural safeguards granted by the Uniform Criminal
Extradition Act, NRS 179.177 et seq., except those expressly withheld by the Agreement on
Detainers itself. 449 U.S. at 447.
The Agreement on Detainers expressly dispenses with the requirement of the Extradition
Act that the governor of the sending state affirmatively approve the action requested by the
demanding state. NRS 178.620 art. IV(d); 179.179(1); 179.183. However, the Agreement on
Detainers does not expressly dispense with the requirement of the Extradition Act that the
request for extradition, or the filing of a detainer, be authorized by the executive authority
of the demanding state. NRS 179.179(1); 179.183. Under the holding in Cuyler v. Adams,
supra, the request for a detainer must be made by the executive authority of the demanding
state.
1
There is no indication in the record of this case that the request for a detainer against
respondent Blum complied with this requirement.
____________________

1
The executive authority of a state is the governor or a person performing the functions of the governor.
NRS 179.179(1).
98 Nev. 40, 42 (1982) Director, Dep't Prisons v. Blum
respondent Blum complied with this requirement. The district court was therefore correct in
ruling that the detainer was invalid.
Affirmed.
____________
98 Nev. 42, 42 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
EARL T. LAIRD, DONALD A. WEST, DENNIS O. BARRY, GARTH F. DULL, DONALD
E. QUILICI, CHARLES ELGES, et al., Appellants, v. STATE OF NEVADA PUBLIC
EMPLOYEES RETIREMENT BOARD, Respondent.
No. 13300
January 28, 1982 639 P.2d 1171
Appeal from order granting summary judgment. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
State employees sought free military service credit under the Public Employees Retirement
System. The Public Employees Retirement Board ruled that they were not entitled to credit.
The district court affirmed. Appeal was taken. The Supreme Court held that since new statute
focuses specially on military service credit and is more recently enacted than the previous two
statutes, it governed disposition of the claim and prohibited the giving of credit.
Affirmed.
[Rehearing denied May 17, 1982]
Smith & Gamble, Ltd., Carson City, for Appellants.
Richard H. Bryan, Attorney General, and William E. Isaeff, Deputy Attorney General,
Carson City, for Respondent.
1. Statutes.
Where a general and special statute, each relating to same subject, are in conflict and they cannot be read
together, special statute controls.
2. Statutes.
When statutes are in conflict, one more recent in time controls over provisions of an earlier enactment.
3. Officers and Public Employees.
Since one statute focused specifically on military service credit and was more recently enacted than the
previous two statutes governing military service credit, it governed the disposition of claim for free military
service credit under the Public Employees Retirement System and denied giving of credit. NRS 286.300,
subd. 4, 286.500, 418.010, 418.020; St. 1953, c. 125, 4.
98 Nev. 42, 43 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
4. Officers and Public Employees.
Repeal of statute governing computation of military service credit under the Public Employees
Retirement System and the concurrent enactment of a new statute governing computation of credit
established that the legislature did not intend to revive 1941 enactment as far as Public Employees
Retirement System was concerned. NRS 286.300, subd. 4, 286.500, 418.010, 418.020; 38 U.S.C.A.
2021 et seq.
5. Appeal and Error.
In proceeding to seek free military service credit under the Public Employees Retirement System,
appellants failed to preserve for review claim for relief predicated on Vietnam Era Veterans Readjustment
Assistance Act where issues were raised for first time on appeal. 38 U.S.C.A. 2021 et seq.
OPINION
Per Curiam:
The appellants, employees of the State of Nevada, seek free military service credit under
the Public Employees Retirement System. The Public Employees Retirement Board ruled that
they were not entitled to free credit and the district court affirmed. We agree.
THE FACTS
Appellants are state employees who left public employment in the mid to late 1950's and
early 1960's to serve in the armed forces of the United States. All of them returned to state
employment after their discharge.
Appellants predicate their claims for free credit upon 1941 Nev. Stats. chap. 34, 1-2, at
37-39, codified as NRS 418.0101 and NRS 418.020.
2
Chapter 34 was a general statute
covering the reemployment of returning veterans.
____________________

1
418.010 Reemployment of persons who enlist or are inducted into military service.
1. Any person who enlists in or is inducted into the military service of the United States, and in order
to perform such training and service has left or leaves a position, other than a temporary position, in
which the status of seniority is not recognized by the employer . . . shall be restored to his position as
provided in subsections 2, 3 and 4.
* * * * * *
3. If the position was as an appointive officer or as an employee in any department, commission or
agency of the State of Nevada, or in the employ of any county or political subdivision of the State of
Nevada, or in the employ of any city, town or irrigation district within the State of Nevada, the employer
shall restore the person to the position or to a position of like seniority, status and pay, unless the
employer's circumstances have so changed as to make it impossible or unreasonable so to do.

2
418.020 Rights and privileges of persons restored to positions. Any person who is restored to a position in
accordance with the provisions of subsection 2 or 3 of NRS 418.010 shall:
98 Nev. 42, 44 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
the reemployment of returning veterans. It required Nevada employers, both public and
private, to restore a former employee, who left to enter military service, to his previous
position without loss of seniority.
The Board and the lower court ruled, however, that appellants' claims for free military
service credit are governed by specific statutes found in the Public Employees Retirement
Act, NRS 286.300(4).
3

THE LEGISLATIVE HISTORY
In 1947 the Legislature created the Public Employees Retirement System of Nevada. It
also granted military service credit to members of the created system who left their
employment to serve in the armed forces. From 1947 to 1953 the Act provided for free credit
in the Retirement System where the service accrued after September 15, 1940.
4

Later, effective July 1, 1953, the Legislature limited free military credit in the Public
Employees Retirement System to persons who had served in the armed forces during
designated periods of war or armed conflict, providing the employee had returned to the
employ of a Nevada public employer for five years of contributory membership service. The
wartime service periods were specified as including September 15, 1940 to December 31,
1946 and June 27, 1950 until the end of the then ongoing Korean conflict.
5
The policy was
reviewed by our Legislature four more times between 1953 and 1975.
____________________
1. Be considered as having been on furlough or leave of absence during his period of training and service in
the military service of the United States.
2. Be restored to his position without loss of seniority.
3. Be entitled to participate in insurance or other benefits offered by the employer pursuant to established
rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time
such person was inducted or enlisted in the military service of the United States, or in effect at the time such
person was called from his employment under the provisions of this chapter herein referred to.
4. Not be discharged from such position without cause within 1 year after such restoration.

3
286.300(4).
Any member who has at least 5 years of contributing creditable service may purchase up to 5 years of
military service regardless of when served if that service is no longer credited in the military retirement
system. To validate military service, the member must provide certification of the inclusive dates of
active military service performed, pay the system's actuary for the computation of cost, and pay the full
actuarial cost as determined by the actuary.

4
See 1947 Nev. Stats. chap. 181, 17(2), at 632.

5
See 1953 Nev. Stats. chap. 125, 4, at 131-132.
98 Nev. 42, 45 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
The policy was reviewed by our Legislature four more times between 1953 and 1975. In
each instance (1959, 1961, 1967 and 1969), the Legislature continued its policy of restricting
free military service credit to veterans of wartime service only, merely adding new specific
time periods for World War I, the end of the Korean conflict (January 31, 1955) and the
Vietnam war (August 4, 1964 until the President of the United States declared hostilities
terminated).
6
None of the appellants' military service fell within any of the specified
statutory periods except part of appellant Quilici's service, for which he has been given credit.
The last legislative review occurred in 1975 when the Legislature repealed in its entirety
the existing provisions of NRS 286.500 which contained the free military service credit
provision of the Public Employees Retirement Act. At that time the Legislature adopted the
language now found at NRS 286.300(4) supra, which authorizes any public employee
participating in the Public Employees Retirement System to purchase his or her military
service credit (up to five years) at its actuarial cost.
[Headnote 1]
While both the general veteran statutes (NRS 418.010 and 418.020) and the subsequent
public employee retirement statute (currently NRS 286.300(4)) are related to the same
subject, we hold that NRS 286.300(4) is controlling in the instant case. Where a general and a
special statute, each relating to the same subject, are in conflict and they cannot be read
together, the special statute controls. See Western Realty Co. v. City of Reno, 63 Nev. 330,
172 P.2d 158 (1946); Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937); State
ex rel. Nevada Tax Commission v. Boerlin, 38 Nev. 39, 144 P. 738 (1914).
[Headnote 2]
Additionally, when statutes are in conflict, the one more recent in time controls over the
provisions of an earlier enactment. See Marschall v. City of Carson, 86 Nev. 107, 464 P.2d
494 (1970); State ex rel. Nevada Douglass Gold Mines, Inc. v. District Court, 51 Nev. 330,
275 P. 1 (1929); Thorpe v. Schooling, 7 Nev. 15 (1871).
[Headnote 3]
Since NRS 286.300(4) focuses specifically on military service credit and is more recently
enacted than the previous two statutes, it governs the disposition of appellants' claims
herein.
____________________

6
See 1959 Nev. Stats. chap. 142, 5, at 162; 1961 Nev. Stats. chap. 47, 1, at 54; 1967 Nev. Stats. chap.
138, 1, at 216; 1969 Nev. Stats. chap. 482, 4, at 856.
98 Nev. 42, 46 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
credit and is more recently enacted than the previous two statutes, it governs the disposition
of appellants' claims herein.
Appellants argue that since the 1975 Legislature repealed NRS 286.500, the previously
enacted general statutes (NRS 418.010 and 418.020) prevail. We do not agree. With the
repeal of NRS 286.500, the Legislature in the same bill amended NRS 286.300 by providing
in paragraph 3 (now paragraph 4) that any member of the Public Employees Retirement
System who has at least five years of contributory creditable service may purchase up to five
years of military service credit regardless of when served, so long as such service is no longer
still credited in a military retirement system.
7

Under the common law rules of interpretation, the repeal of a repealing statute operates
to revive the original enactment where the repeal of the repealing statute is accomplished
by express provision without additional legislation upon the subject matter. However,
where the repeal of the repealing statute is achieved by specific provision or by
implication with new additional legislation on the subject matter, the original legislation
is revived only to the extent to which it is consistent with the new legislation.'
Sutherland, Statutory Construction (Sands Ed.) 23.31, at 276. (Citations omitted;
emphasis added.)
[Headnote 4]
We hold that the repeal of NRS 286.500 and the concurrent enactment of NRS 286.300(3)
(now 286.300(4)), establishes that the Legislature did not intend to revive the 1941 enactment
as far as the Public Employees Retirement System is concerned.
[Headnote 5]
Finally, and for the first time on appeal, appellants assert a new claim for relief predicated
on the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. 2021, et seq. (1976).
We shall not entertain issues raised for the first time on appeal. See Cooke v. American Sav.
& Loan Assn., 97 Nev. 294, 630 P.2d 253 (1981); International Industries, Inc. v. United
Mortgage Co., 96 Nev. 150, 153-54, 606 P.2d 163, 165 (1980); Central Bank v. Baldwin, 94
Nev. 581, 583 P.2d 1087 (1978); Penrose v. O'Hara, 92 Nev. 685, 557 P.2d 276 (1976);
Young Electric Sign Co. v. Erwin Electric Co., 86 Nev. 822, 828, 477 P.2d 864, 868 (1970);
Clark County v. State, 65 Nev. 490, 506, 199 P.2d 137, 144 (1948).
____________________

7
See 1975 Nev. Stats. chap. 575, 30, 88, at 1035-37, 1067.
98 Nev. 42, 47 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
We conclude therefore that the appellants' reliance on the provision of NRS 418.010 and
NRS 418.020 has been misplaced; that the governing statute in the instant case is NRS
286.300(4).
We affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
8
concur.
____________________

8
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.
____________
98 Nev. 47, 47 (1982) Hyler v. State
ARNOLD HYLER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12858
January 28, 1982 639 P.2d 560
Appeal from order of revocation of probation and imposition of sentence. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that where probationer could not confront his probation officer
because officer was not called as witness, but information supplied by officer in probation
violation report was used as substantial basis for finding probable cause of probation
violations, minimal procedural safeguards for revocation proceedings were violated.
Reversed.
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry, Las Vegas, for
Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland and Vince Consul, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Full panoply of constitutional protections afforded defendants in criminal proceedings does not apply to
probation revocation proceedings.
2. Criminal Law.
Trial courts are vested with broad discretion in probation revocation proceedings.
98 Nev. 47, 48 (1982) Hyler v. State
3. Criminal Law.
Where probationer could not confront his probation officer because officer was not called as witness, but
information supplied by officer in probation violation report was used as substantial basis for finding
probable cause of probation violations, minimal procedural safeguards for revocation proceedings were
violated.
OPINION
Per Curiam:
Appellant Arnold Hyler seeks reversal of the district court's order revoking his probation.
In August of 1978 Hyler was found guilty of the sale of a controlled substance (NRS
453.321) and was given a 20-year suspended sentence with a probation period of five years.
His probation was subject to the standard rules and conditions of the Department of Parole
and Probation (hereinafter Department). Among other provisions, Hyler was required to
notify the Department of any contemplated change in residence, refrain from associating with
persons of bad reputation, cooperate with the Department and comply with all laws while
conducting himself as a good citizen. Hyler was arrested by the Las Vegas Metropolitan
Police in February, 1980, on charges of pandering, living with a prostitute and living from the
earnings of a prostitute; charges never formally filed. The Department charged Hyler with
violations of each of the probation conditions noted above. After a preliminary inquiry, the
hearing officer used a probation violation report to augment the testimony obtained at the
hearing. The report was used without appellant's knowledge. Hyler's probation officer, the
author of the report, did not testify at the preliminary inquiry. The report was also submitted
to the district court to supplement the hearing officer's findings.
Following the preliminary inquiry, Hyler was bound over to the district court for a
revocation hearing for violation of the residency, association and cooperation terms of his
probation. The trial court found violations of the laws and conduct, residency and cooperation
terms.
Among his numerous claims, Hyler alleges that the use of the probation violation report at
the preliminary inquiry departs from the procedural due process precepts of Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972); and Anaya v.
State, 96 Nev. 119, 606 P.2d 156 (1980).
[Headnotes 1, 2]
We recognize that the full panoply of constitutional protections afforded defendants in
criminal proceedings does not apply to probation revocation proceedings.
98 Nev. 47, 49 (1982) Hyler v. State
apply to probation revocation proceedings. Morrissey, 408 U.S. at 480; Anaya, 96 Nev. at
122, 606 P.2d at 157. And we acknowledge that trial courts are vested with broad discretion
in probation revocation proceedings. See Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974).
[Headnote 3]
However, minimal procedural safeguards for revocation proceedings were mandated in
Morrissey and Scarpelli and codified, in part, in NRS 176.216-218. NRS 176.217(2)(d)
demands that a probationer be permitted to [c]onfront and question any person who has
given adverse information on which a revocation of his probation may be based. . . . Hyler's
probation officer did not testify at the preliminary inquiry, nor was the violation report
introduced as evidence in that proceeding. We will not presume that Hyler was aware that the
violation report would serve as a basis of the hearing officer's findings. Hyler could not
confront his probation officer because the officer was not called as a witness, yet the
information supplied by the officer in the violation report was used as a substantial basis for
finding probable cause of probation violations. We conclude that such a procedure is contrary
to the pronouncements in Morrissey, Scarpelli, and Anaya, supra, as well as NRS 176.217.
In the context of this case, we find appellant's other contentions are without merit.
We reverse the trial court's order revoking probation.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 50, 50 (1982) General Scientific Lab. v. Brimer
GENERAL SCIENTIFIC LABORATORIES, INC., Appellant, v. C. M. BRIMER and JOHN
QUIRK, Co-Executors of the Estate of J. W. Von Brimer and the ESTATE OF J. W. VON
BRIMER, Respondents.
No. 12809
January 28, 1982 639 P.2d 1174
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
Creditor appealed from an order of the district court dismissing its action on a claim
against an estate. The Supreme Court held that where creditor's claim was filed with estate in
1971 after notice to creditors was filed and posted but not published and estate rejected claim
in 1979, creditor's action against estate was not barred by statute of limitations.
Reversed in part and remanded.
Johnson, Pilkington & Reynolds, Las Vegas, for Appellant.
Foley Brothers, Las Vegas, for Respondent.
Executors and Administrators.
Where creditor's claim was filed with estate in 1971 after notice to creditors was filed and posted but not
published and estate rejected claim in 1979, creditor's action against estate was not barred by statute of
limitations. NRS 147.040, subd. 1, 147.090.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of respondents. The district court
determined that an action by General Scientific Laboratories, Inc., (GSL) against the Von
Brimer estate was barred by the statute of limitations.
The following chronology is helpful in understanding this case: On March 26, 1971, J. W.
Von Brimer died. On July 30, 1971, the deceased's will was admitted to probate. On
November 18, 1971, a notice to creditors was filed and posted, but not published. On
December 15, 1971, GSL filed a creditor's claim. The claim filed on this date was, as such,
never rejected; and nothing further which was material to this case occurred until January 28,
1979, when an amended notice to creditors was published. On April 5, 1979, GSL filed
eleven creditor's claims. Ten of the claims were new, and one was a restatement of the claim
filed December 15, 1971.
98 Nev. 50, 51 (1982) General Scientific Lab. v. Brimer
claim filed December 15, 1971. Shortly thereafter the estate's executors rejected all GSL
claims, and GSL filed suit on the eleven creditor's claims. The trial court ruled that all claims
were barred by the statute of limitations.
We cannot agree with the trial court's determination. The question concerning the 1971
claim was answered in Brown v. Eiguren, 97 Nev. 251, 628 P.2d 299 (1981). We there held
that filing a creditor's claim with the estate tolls the running of the statute of limitations until
the claim has been rejected so long as the claim was filed within the 90 days required by NRS
147.040(1) and prior to the running of the general limitation period.
1
Since GSL complied
with these prerequisites for the estate claim of December 15, 1971, the action on that claim is
not barred by the statute of limitations. The trial court therefore erred in dismissing this
portion of the law suit. We are, however, unable to determine from the record when the other
ten claims for relief accrued; we thus do not decide whether they are barred by the statute of
limitations.
2

The judgment dismissing the action based on the 1971 claim is reversed and remanded for
further proceedings. The matter of the other ten claims is remanded to the trial court to
determine when each accrued for purposes of the statute of limitations.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

1
NRS 147.090 provides as follows:
NRS 147.090 Effect of statute of limitations. No claim which is barred by the statute of limitations
shall be allowed or approved by the executor or administrator, or by the judge. When a claim is presented
to a judge for his allowance or approval, he may, in his discretion, examine the claimant and others on
oath and hear any legal evidence touching the validity of the claim. No claim, which has been allowed, is
affected by the statute of limitations, pending the administration of the estate.

2
Notice to creditors was first published on January 28, 1979. The eleven claims filed on April 5, 1979, were,
then, properly filed within 90 days after the first publication as required by NRS 147.040.

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 52, 52 (1982) Slobodian v. State
ROBERT ALLAN SLOBODIAN, aka BOBBY BRAZIL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13224
January 28, 1982 639 P.2d 561
Appeal from judgment of conviction of statutory sexual seduction, NRS 200.364(3). First
Judicial District Court, Carson City, Michael E. Fondi, Judge.
The Supreme Court, Mowbray, J., held that instruction that statutory sexual seduction was
a necessarily included offense of sexual assault, with which defendant had been charged, was
reversibly erroneous.
Reversed.
John C. DeGraff, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; William A. Maddox, District Attorney,
Carson City; Robert B. Walker, Deputy District Attorney, Carson City, for Respondent.
Criminal Law; Rape.
In prosecution for sexual assault, instruction that statutory sexual seduction was a necessarily included
offense of sexual assault was reversibly erroneous in that crime of statutory sexual seduction requires a
victim under the age of 16 while age of victim is irrelevant to crime of sexual assault, and thus statutory
sexual seduction would not necessarily be committed each time a sexual assault was committed. NRS
200.364, subd. 3, 200.366, subd. 1.
OPINION
By the Court, Mowbray, J.:
Appellant challenges his conviction for statutory sexual seduction, claiming that the jury
was improperly instructed that statutory sexual seduction is a necessarily included offense of
sexual assault. We agree and reverse.
THE FACTS
Appellant was tried on a two-count information. The first count charged kidnapping (NRS
200.310), and the second count charged sexual assault (NRS 200.366). The information did
not charge appellant with statutory sexual seduction (NRS 200.364(3)), and the prosecutor
told appellant before trial that he would not seek a conviction for statutory sexual assault.
98 Nev. 52, 53 (1982) Slobodian v. State
At the close of testimony, the district judge, sua sponte, instructed the jury over appellant's
objection that statutory sexual seduction is a lesser included offense of sexual assault. The
jury found appellant not guilty of the charged offenses: sexual assault and kidnapping, but
convicted him of statutory sexual seduction.
THE PROPRIETY OF THE INSTRUCTION
NRS 175.501 permits a defendant to be convicted of an offense necessarily included in
the offense charged. . . . In Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966), this
court stated that, to determine whether an offense is necessarily included in the offense
charged, the test is whether the offense charged cannot be committed without committing the
lesser offense. The instant case does not meet the test: the crime of statutory sexual
seduction requires a victim under the age of sixteen,
1
while the age of the victim is irrelevant
to the crime of sexual assault.
2
Therefore, the giving of the instruction was error, and the
conviction must be reversed. See McKinnon v. State, 96 Nev. 821, 618 P.2d 1222 (1980);
State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963).
The state relies on decisions of this court which stated that whether one crime is a lesser
included offense of another depends on the circumstances of each case. Dicus v. District
Court, 97 Nev. 273, 625 P.2d 1175 (1981) (battery with the use of a deadly weapon may be a
lesser included offense of attempted murder); Graves v. Young, 82 Nev. 433, 420 P.2d 618
(1966) (assault with intent to kill may be a lesser included offense of attempted murder).
However, those decisions are not applicable in the instant case. Dicus and Graves each
involved a lesser crime that was so closely related to the charged offense that it was necessary
for the prosecutor to prove the lesser offense in order to prove the greater. In contrast, in the
instant case, the prosecutor was not required to show the victim's age in order to show that a
sexual assault occurred.
____________________

1
NRS 200.364(3) states:
Statutory sexual seduction' means ordinary sexual intercourse, anal intercourse, cunnilingus or
fellatio committed by a person 18 years of age or older with a consenting person under the age of 16
years.

2
NRS 200.366(1) defines sexual assault:
A person who subjects another person to sexual penetration, or who forces another person to make a
sexual penetration on himself or another, or on a beast, against the victim's will or under conditions in
which the perpetrator knows or should know that the victim is mentally or physically incapable of
resisting or understanding the nature of his conduct, is guilty of sexual assault. . . .
98 Nev. 52, 54 (1982) Slobodian v. State
occurred. Moreover, Dicus and Graves arose in procedural contexts that did not present the
problems of notice to the defendant that the instant case poses.
When the issue of lesser included offenses arises because a defendant claims that the lesser
offense was not properly charged, serious problems of notice and fairness arise. This court
has stated that an indictment or information must be definite enough to prevent the
prosecutor from changing the theory of the case, and it must inform the accused of the charge
he is required to meet. Husney v. O'Donnell, 95 Nev. 467, 469, 596 P.2d 230, 231 (1979).
In the instant case the information did not charge statutory sexual seduction, but sexual
assault. Although the information did mention the victim's age, it did not give notice to the
defendant that he would face the charge of statutory sexual seduction; indeed, the defendant
was specifically assured he would not be held to answer such charges. The defendant met the
charge of sexual assault by claiming consent, and testified to consensual sexual intercourse
with the victim. Only after giving this testimony was the defendant informed that he faced a
conviction for statutory sexual seduction.
We hold that the giving of the contested instruction was error in this case. The judgment of
conviction is accordingly reversed.
Gunderson, C. J., and Manoukian and Springer, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
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.
____________
98 Nev. 54, 54 (1982) Gidney v. Merrian
JOHN A. GIDNEY, Receiver of NEVADA VENTURES LEASING COMPANY, a Nevada
Limited Partnership, Appellant, v. HERBERT A. MERRIAN, Respondent.
No. 12004
January 28, 1982 639 P.2d 536
Appeal from judgment, Eighth Judicial District Court, Clark County; George E. Marshall,
Judge.
Appeal was taken from a judgment of the district court awarding compensatory and
punitive damages for the wrongful repossession of a vehicle. The Supreme Court, Zenoff, Sr.
J., held that award of punitive damages would not be sustained against corporation in
receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage
award in light of such circumstances.
98 Nev. 54, 55 (1982) Gidney v. Merrian
Sr. J., held that award of punitive damages would not be sustained against corporation in
receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage award in
light of such circumstances.
Affirmed in part; reversed in part and remanded for further proceedings.
Paul J. Williams, Reno, for Appellant.
Rickdall & Shulman, Las Vegas, for Respondent.
1. Appeal and Error.
Supreme Court will not disturb determination by lower court when it is supported by substantial
evidence.
2. Appeal and Error; Corporations.
In action for wrongful repossession of vehicle, award of punitive damages would not be sustained against
corporation in receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage award in light of such
circumstances.
OPINION
By the Court, Zenoff, Sr. J.:
1

This is an appeal from a judgment awarding respondent $1,140.00 in general and special
damages, and $22,500.00 in punitive damages, for the wrongful repossession of respondent's
vehicle.
Appellant raises numerous contentions, including: (1) that the court erred in determining
that appellant wrongfully repossessed the car; (2) that the court erred in determining that
appellant made fraudulent demands upon respondent; (3) that the court erred in finding no
evidence that appellant ever acquired the rights of an assignee to the car; (4) that the award of
punitive damages was excessive and without support; and (5) that punitive damages cannot
be awarded against a corporation in receivership.
[Headnote 1]
The record clearly supports the finding of wrongful repossession and of fraudulent
behavior on the part of appellant. It is well established that we will not disturb a
determination by the lower court when it is supported, as here, by substantial evidence.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
98 Nev. 54, 56 (1982) Gidney v. Merrian
lower court when it is supported, as here, by substantial evidence. Clark Co. Sports v. City of
Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980); Sievers v. Diversified Mtg. Investors, 95 Nev.
811, 603 P.2d 270 (1979). Furthermore, appellant's contention that the court erred in finding
no evidence of proper assignment is without merit.
[Headnote 2]
On the issue of punitive damages, however, we are concerned that the award of
$22,500.00, almost twenty times the amount of the compensatory damages, may work an
injustice under the particular circumstances of this case. From the record, it appears that the
responsible entity, a limited partnership, is in the hands of a receiver. The record does not
reflect the reason for, or the circumstances of, that receivership.
In Lane v. Schilling, 279 P. 267 (Or. 1929), the supreme court of Oregon refused to uphold
an award of punitive damages against a bank in receivership. The court noted, id. at 269:
The effect of allowing the plaintiff to recover punitive damages in this case would be
to compel bona fide creditors and innocent depositors to pay not only the claim of
plaintiff, not only his reasonable proportion of the assets of the bank, but, in addition to
that, a sum of money as exemplary damages to which he is not entitled as a matter of
right and compensation, and thereby fine and punish other creditors, and make plaintiff
a preferred creditor beyond the extent of his actual damages.
The Oregon court noted that the situation of the receiver was analogous to that of the
administrator of an estate, and suggested that to award punitive damages against either would
be to impose vicarious punishment. Id. at 270.
We have similarly emphasized that a plaintiff is never entitled to punitive damages as a
matter of right. Nevada Cement Co. v. Lemler, 89 Nev. 447, 451, 514 P.2d 1180, 1182
(1973). And in Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977), we refused to read
Nevada's survival statute so as to authorize an award of punitive damages against the estate of
a deceased tort-feasor, reasoning that since the deceased tort-feasor can in no way be
punished by the award of punitive damages, there is no reason for allowing such damages to
be assessed. Id. at 208, 562 P.2d at 489-90.
While we recognize that there are no objective standards by which the monetary amount
[of a punitive damage award] can be calculated, Caple v. Raynel Campers, Inc., 90 Nev.
341, 344, 526 P.2d 334, 336-37 (1974), we have also pointed out that equitable factors
should be taken into account. See, e.g., Nevada Cement v. Lemler, supra {remand for
reevaluation).
98 Nev. 54, 57 (1982) Gidney v. Merrian
equitable factors should be taken into account. See, e.g., Nevada Cement v. Lemler, supra
(remand for reevaluation). We are of the view that the case must be remanded for such further
proceedings as the trial court may find necessary to inform itself of the reason for and the
circumstances surrounding the receivership, and for a subsequent reevaluation of the punitive
damage award in light of such circumstances.
The judgment insofar as it awards compensatory damages to respondent is affirmed.
Insofar as it awards punitive damages to respondent, it is reversed and remanded for further
proceedings consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 57, 57 (1982) Board of Co. Comm'rs v. Cirac
BOARD OF COUNTY COMMISSIONERS OF LANDER COUNTY, BERT T.
GANDOLFO, LOUIS LEMAIRE and NYLE LESHIKAR, Members of the Board, and
EMMA F. GANDOLFO, The Duly-Elected and Acting County Clerk of Lander County and
Clerk of the Board, Appellants, v. DON L. CIRAC, Individually and on Behalf of the Citizens
and Taxpayers of Lander County, Respondents. ANDREA BURTON, Intervenor.
No. 12248
January 28, 1982 639 P.2d 538
Appeal from partial summary judgment. Third Judicial District Court, Lander County;
Frank B. Gregory, Senior District Judge.
Appeal was taken from a judgment of the district court which imposed liability on county
commissioners for damages in the form of attorney fees incurred by taxpayer in an injunction
proceeding which successfully challenged the official action of the commissioners in granting
a removal petition. The Supreme Court, Zenoff, Sr. J., held that county commissioners, who
complied with statute requiring that they inquire into and determine sufficiency of removal
petition and validity of signatures, could not be held liable for damages in form of attorney
fees where they erroneously granted the petition and ordered the matter placed on the general
election ballot.
Reversed and remanded.
98 Nev. 57, 58 (1982) Board of Co. Comm'rs v. Cirac
George G. Holden, District Attorney, and Hy T. Forgeron, Deputy District Attorney,
Lander County, for Appellants.
Woodburn, Wedge, Blakey & Jeppson, and Suellen Fulstone, Reno, for Respondents.
Johnson, Belaustegui & Robison, Reno, for Intervenor.
1. Injunction.
Attorney fees may be awarded as damages in a suit for injunctive relief when properly pleaded and
proved.
2. Officers and Public Employees.
Where an officer is invested with discretion and is empowered to exercise his judgment in matters
brought before him he is sometimes called a quasi-judicial officer, and where so acting he is usually given
immunity from liability to persons who may be injured as result of an erroneous decision, provided the acts
complained of are done within scope of officer's authority, and without wilfulness, malice, or corruption.
3. Counties.
County commissioners, who complied with statute requiring that they inquire into and determine
sufficiency of removal petition and validity of signatures, could not be held liable for damages in form of
attorney fees where they erroneously granted the petition and ordered the matter placed on the general
election ballot.
OPINION
By the Court, Zenoff, Sr. J.:
1

On August 17, 1978, a petition was presented to the clerk of the board of county
commissioners of Lander County with the signatures of 931 persons, seeking an election on
the question of the removal of the county seat from Austin to Battle Mountain.
2
The board of
county commissioners, pursuant to a statutory mandate that it meet and inquire into and
determine the sufficiency of the petition and the validity of the signatures thereto, NRS
243.470(1),
3
found that sufficient valid signatures appeared to grant the petition, and ordered
the matter placed on the November 7, 197S, general election ballot.
____________________

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.

2
A later petition was allowed by the board and found valid in a separate district court proceeding, upheld by
this Court in Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979), and the county seat has now been so
removed.

3
NRS 243.470(1) provides:
1. At the time specified in the notice, the board of county commissioners shall meet and inquire into
and determine the sufficiency
98 Nev. 57, 59 (1982) Board of Co. Comm'rs v. Cirac
placed on the November 7, 1978, general election ballot. Respondent Cirac filed a taxpayer's
suit for injunctive relief and damages. After an evidentiary hearing, the court below granted
the injunction, on the ground that under the applicable statute there were not in fact sufficient
valid signatures on the petition.
4
Appeal of that issue was dismissed, on the ground that the
matter had become moot. Thereafter, Cirac sought, as damages, attorneys' fees incurred in the
injunction proceedings. The court below determined that despite the fact that Cirac's
challenge was to the official action of the commissioners, they were liable for such damages.
Under the circumstances presented here, we must disagree.
[Headnote 1]
We have previously held that attorneys' fees may be awarded as damages in a suit for
injunctive relief when properly pleaded and proved. American Fed. Musicians v. Reno's
Riverside, 86 Nev. 695, 475 P.2d 221 (1970); McIntosh v. Knox, 40 Nev. 403, 165 P. 337
(1917). Cf City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970) (not
sought or awarded as damages). The question presented here, however, is whether these
county officials should be subject to such liability for their official action in approving the
removal petition and ordering the question set for election.
[Headnote 2]
The question of the liability of county officials is usually considered by the courts in terms
of whether the acts in question are regarded as discretionary,' or quasi-judicial,' in
character, requiring personal deliberation, decision and judgment, [or] merely ministerial,'
amounting only to an obedience to orders, or the performance of a duty in which the officer is
left no choice of his own. W. Prosser, Law of Torts 132, at 988-89 (4th ed. 1971). As the
matter has been articulated: Where an officer is invested with discretion and is empowered
to exercise his judgment in matters brought before him he is sometimes called a
quasi-judicial officer, and where so acting he is usually given immunity from liability to
persons who may be injured as the result of an erroneous decision, provided the acts
complained of are done within the scope of the officer's authority, and without wilfulness,
malice, or corruption.
____________________
of the petition [for removal of a county seat] and the validity of the signatures thereto, and if sufficient
and signed by the required number the board shall make an order directing that the proposition to remove
the county seat to the place named in the petition be submitted to a vote of the qualified electors of the
county at the next general election, if the same is to occur within 6 months of the time of filing the
petition; otherwise at a special election to be called for that purpose at any time not less than 4 months
nor more than 6 months from the date of filing the petition with the clerk of the board.

4
NRS 243.465 provides, in pertinent part, that a removal petition must be signed by qualified electors of the
county, who are also taxpayers of the county as appears by the last real or personal property assessment roll,
equal in number to at least 60 percent of the legal votes cast at the last preceding general election in the county.
98 Nev. 57, 60 (1982) Board of Co. Comm'rs v. Cirac
Where an officer is invested with discretion and is empowered to exercise his
judgment in matters brought before him he is sometimes called a quasi-judicial officer,
and where so acting he is usually given immunity from liability to persons who may be
injured as the result of an erroneous decision, provided the acts complained of are done
within the scope of the officer's authority, and without wilfulness, malice, or corruption.
Allen v. Miller, 6 N. W.2d 594, 598 (Neb. 1942).
[Headnote 3]
In this case, the county commissioners were instructed by statute to inquire into and
determine the sufficiency of the petition and validity of the signatures. They were called
upon to apply provisions of the relevant statutes to the petitions before them. Courts which
have considered the liability of county commissioners for similar decisions, such as whether
to allow particular claims against the county under applicable laws, have concluded that there
should be no personal liability because of mere errors of judgment, Beadle v. Harmon, 265
N. W. 18, 21 (Neb. 1936), so long as the commissioners act in good faith. See also Welch v.
Kent,153 S.W.2d 284 (Tex.Civ.App. 1941).
In Garden City, G. & N. R. Co. v. Nation, 109 P.772 (Kan. 1910), the court refused to
award costs and attorneys' fees to a successful petitioner for a writ of mandate directed to the
state auditor. The court explained that [t]he duty of the state auditor in passing upon the
question presented in the original case, as to whether the municipal bonds in question should
be registered in his office, involves the decision of a judicial question. His action in deciding
the same is quasi-judicial. The performance of his duty involves the exercise of judgment,
and in the absence of any suggestion of malice, oppression in office, or willful misconduct, he
is not individually responsible. Id. at 773. See also Allen v. Miller, supra.
In this case, respondent Cirac has not alleged, nor does he now claim that there was
evidence of, any bad faith, or corrupt motivation, or any conduct more reprehensible than an
erroneous determination that certain signatures should be allowed. We agree with the
commentator who has suggested that it would be manifestly unfair [t]o ask a man to give his
honest opinion and then impose liability on him for error. R. Gray, Private Wrongs of Public
Servants, 47 Cal.L.Rev. 303, 323 (1959).
The judgment imposing liability upon the county commissioners for damages in the form
of attorneys' fees is reversed, and the case is remanded for the entry of judgment
consistent with this opinion.
98 Nev. 57, 61 (1982) Board of Co. Comm'rs v. Cirac
and the case is remanded for the entry of judgment consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 61, 61 (1982) Shupe v. Ham
LEWIS H. SHUPE, Executor of the Estate of Doris Ham
Shupe, Appellant, v. A. W. HAM, Jr., Respondent.
No. 12324
January 28, 1982 639 P.2d 540
Appeal from judgments; Eighth Judicial District Court, Clark County; Llewellyn A.
Young, Judge.
In a suit for breach of fiduciary duty by purchasing real property held in trust for plaintiff,
plaintiff appealed from adverse judgments of the district court. The Supreme Court, Howard
D. McKibben, D. J., held that: (1) where a fiduciary acquired title to trust property from
beneficiary with her knowledge and consent and for consideration, commencement of
three-year limitation of actions for breach of fiduciary duty was not delayed until express and
unequivocal termination of the trust by trustee nor until beneficiary learned of any breach of
trust, but, rather, limitation period began to run when beneficiary knew or reasonably should
have known facts giving rise to alleged breach of fiduciary duty; and (2) alleged beneficiary
was not, on alleged trustee's exercise of option to purchase from beneficiary, entitled to
receive rent between time that alleged trustee as tenant tendered $1,000,000 to exercise
option and time that alleged beneficiary executed deed to the property to him; but (3) it is
inequitable to allow purchaser of realty beneficial enjoyment of property and use of purchase
money to detriment of vendor, absent compelling equity, and where alleged trustee who as
tenant exercised option to purchase enjoyed possession of property during period in question
and paid no rent and had full use of option money during such period, alleged trust
beneficiary as vendor was entitled to interest on purchase money.
Affirmed in part; reversed in part and remanded.
[Rehearing denied May 28, 1982]
Lionel Sawyer & Collins, and Charles McCrea, Las Vegas, for Appellant.
Dickerson, Miles, Pico, Mitchell & Wagner, Las Vegas, for Respondent.
98 Nev. 61, 62 (1982) Shupe v. Ham
1. Limitation of Actions.
Breach of fiduciary duty is fraud to which three-year statute of limitations is applicable. NRS 11.190,
11.190, subd. 3(d).
2. Limitation of Actions.
Where fiduciary acquired title to trust property from beneficiary with her knowledge and consent and for
consideration, commencement of three-year limitation of actions for breach of fiduciary duty was not
delayed until express and unequivocal termination of the trust by trustee nor until beneficiary learned of
any breach of trust, but, rather, limitation period began to run when beneficiary knew or reasonably should
have known facts giving rise to alleged breach of fiduciary duty. NRS 11.190, 11.190, subd. 3(d).
3. Landlord and Tenant.
Owner of realty was not entitled to receive rent between time that her alleged trustee as tenant tendered
$1,000,000 to her to exercise option to purchase and time that she executed deed to the property to him.
4. Landlord and Tenant.
It is inequitable to allow purchaser of realty beneficial enjoyment of property and use of purchase money
to detriment of vendor, absent compelling equity, and where tenant who exercised option to purchase
enjoyed possession of property during period in question and paid no rent and had full use of option money
during such period, vendor was entitled to interest on purchase money.
OPINION
By the Court, McKibben, D. J.:
1

Appellant Doris Ham Shupe brought suit against the respondent, her former husband, A.
W. Ham, Jr., contending that Ham breached his fiduciary duty to Shupe by purchasing real
property which he held in trust for her. After a trial before an advisory jury, the district court
entered judgment for respondent, which judgment was consistent with the advisory verdicts.
This appeal followed.
The parties' twenty year marriage ended in divorce on August 9, 1962. Under a property
settlement agreement, appellant received an interest in the following property which is
relevant to this action:
A. One-third of the net profits from the sale or lease of Lots 1-5, Block 19, Clark's
Las Vegas Town Site in the City of Las Vegas (hereafter the Four Queens property);
B.
____________________

1
The Governor designated the Honorable Howard D. McKibben, Judge of the Ninth Judicial District Court,
to sit in the place of The Honorable Cameron M. Batjer. Nev. Const., art, 6, 4.
98 Nev. 61, 63 (1982) Shupe v. Ham
B. An undivided one-half interest in Lots 1 and 2, Block 14, Clark's Las Vegas
Town Site (hereafter the California Club property); and
C. An undivided one-half interest in thirty percent of the proceeds from
approximately 70 acres of property located on the corner of Maryland Parkway and
Sahara Avenue (hereafter the Maryland-Sahara property).
Under the settlement agreement, Ham retained legal title to the above properties.
On December 4, 1962, appellant executed a general power of attorney appointing
respondent as her attorney-in-fact and granting him broad powers over her properties. This
power of attorney was revoked June 14, 1973. On January 1, 1963, appellant executed a
private trust agreement into which the above described properties and others were placed.
Respondent was named as sole trustee of the trust. The present dispute involves two
transactions between Shupe and Ham. The first occurred on December 4, 1962, when Ham
purchased Shupe's interest in the Four Queens property for $5,000.00, and an agreement to
serve as trustee under the January 1, 1963, trust without compensation. The second
transaction occurred on August 12, 1969, when Shupe entered into a lease option agreement
with Ham on the California Club and Maryland-Sahara properties. The lease was for a term
of 99 years with rental of $7,500.00 per month and an option to purchase Shupe's interest for
$1,000,000.00. In June 1973, Ham executed a trust for the benefit of his children into which
he conveyed his interest in the California Club and Maryland-Sahara properties. During July
1973, appellant filed her complaint against respondent to set aside the conveyance of the Four
Queens property. Appellant amended her complaint on July 12, 1974, and sought to set aside
the lease option agreement on the California Club and Maryland-Sahara properties. That
portion of the complaint relating to the lease option agreement was dismissed in November
1975 for failure to join indispensable parties (the parties' children, who were beneficiaries
under the Ham trust). Thereafter, on March 16, 1976, in a separate action, appellant filed a
cross-claim against Ham seeking money damages arising from the lease option agreement.
On November 22, 1976, appellant's amended complaint and cross-claim were consolidated
for trial. On February 16, 1977, the district court granted summary judgment in favor of Ham
on his counter-motion for partial summary judgment and against Shupe on her claim that she
was entitled to receive either rental or interest on the California Club and Maryland-Sahara
properties under the terms of the lease option agreement between the time Ham exercised
his right to purchase the property and the time Shupe tendered the deed to the property
to Ham.
98 Nev. 61, 64 (1982) Shupe v. Ham
lease option agreement between the time Ham exercised his right to purchase the property
and the time Shupe tendered the deed to the property to Ham.
The district court found that appellant's complaint and cross-claim were barred by the
statute of limitations. That finding is supported by substantial evidence and is dispositive of
the principal issues on appeal.
[Headnote 1]
A breach of fiduciary duty is a fraud giving rise to the application of the three year statute
of limitations. NRS 11.190(3)(d).
2

[Headnote 2]
Respondent cites Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951), and Levy v.
Ryland, 32 Nev. 460, 109 P. 905 (1910) for the proposition that the statute of limitations does
not commence running until the trust is expressly and unequivocally terminated by the
trustee. Both Davidson and Levy are inapposite as they involved resulting trusts. In those
cases, the trustee held the property at all times for the benefit of the beneficiary, consistent
with the trust and the intendments of the parties. Here, as distinguished from Davidson and
Levy, the fiduciary (Ham) acquired title to the trust property from his beneficiary (Shupe)
with her knowledge and consent and for consideration.
3

In 1962 and in 1969, Ham acquired his interest in the properties under documents which
were signed by Shupe. The conveyance of the Four Queens property and the execution of the
lease option agreement on the California Club and Maryland-Sahara properties by Shupe
were inconsistent with the continuation of any trust and terminated any trust as to the property
conveyed. Nevertheless, appellant argues that the statute of limitations does not commence
running until appellant learned of any breach of trust by Ham.
____________________

2
NRS 11.190 provides in pertinent part:
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or by
or pursuant to the Uniform Commercial Code, can only be commenced as follows:
. . .
3. Within 3 years:
. .
d) An action for relief on the ground of fraud or mistake; the cause of action in such case not to be
deemed to have accrued until the discovery by the aggrieved party of facts constituting the fraud or
mistake.

3
Appellant was represented by independent counsel different from her present counsel during all of the
transactions in question.
98 Nev. 61, 65 (1982) Shupe v. Ham
of any breach of trust by Ham. However, the district court correctly held that the statute of
limitations began to run when the appellant knew or reasonably should have known facts
giving rise to respondent's alleged breach of fiduciary duty. This is consistent with this court's
holdings in Millspaugh v. Millspaugh, 96 Nev. 446, 611 P.2d 201 (1980), and Allen v. Webb,
87 Nev. 261, 485 P.2d 677 (1971); see also Hobart v. Hobart Estate Co., 159 P.2d 958 (Cal.
1945).
On the issue of knowledge, the trial court, with an advisory jury, heard the conflicting
evidence and made its findings and determination that the appellant had knowledge or that a
reasonable person should have had knowledge of any alleged fraud of respondent in
connection with respondent Ham's interest in and the value of the Four Queens property no
later than January 1, 1966, and on August 12, 1969, as to the California Club and
Maryland-Sahara properties. 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. Alrich v. Bailey, 97 Nev. 342, 630 P.2d 262 (1981); 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). Here, the record reflects that during or prior to
1965, Shupe told one of her children that Ham was the landlord of the Four Queens property.
At that time, she had sufficient knowledge to know that Ham was collecting rent on the
property and that she would have been entitled to one-third of that rent if she had not
conveyed the Four Queens property to Ham on December 4, 1962. However, she waited for
almost eight years, until July 17, 1973, to file her lawsuit. The evidence also shows that
Shupe did not enter into the lease option agreement on the California Club and
Maryland-Sahara properties until after she had been advised by Ham that even though the
California Club property was in bankruptcy she should retain her interest in the property and
until after she had received independent legal advice from the attorney who represented her at
that time and independent business advice from a banker. Therefore, the evidence supports
the conclusion of the trial court that Shupe, on August 12, 1969, had sufficient facts to cause
a reasonable person to inquire, and, in fact, she did inquire, as to the fairness of the lease
option agreement and was satisfied that it was in her best interest to enter into the lease option
agreement at that time.
The trial record contains substantial evidence to support the findings of the trier of fact
that the three year statute of limitations had run as to both properties prior to commencement
of suit and those findings will not be disturbed on appeal.
98 Nev. 61, 66 (1982) Shupe v. Ham
[Headnotes 3, 4]
The final issue raised in this appeal to be considered is whether the appellant is entitled to
receive either rental or interest on the California Club and Maryland-Sahara properties under
the terms of the lease option agreement between the time Ham attempted to exercise the
option to purchase the property and the date Shupe tendered the deed to the property to him.
On April 1, 1974, Ham notified Shupe of his intention to exercise the option on the California
Club and Maryland-Sahara properties. Shupe refused the tender because her suit to rescind
the contract on the subject property was pending. On February 24, 1975, Shupe quit-claimed
her interest in the properties to Ham and accepted the tender of $1,000,000.00. Shupe first
contends that she is entitled to the rental payments on the property under the terms of the
lease agreement for that period of time. While the courts are not in harmony on this issue, a
majority of the courts hold that upon exercise of the option, the landlord-tenant relationship is
terminated and the tenant is in possession as vendee. These courts do not allow the lessor to
recover rent after the option to purchase is exercised absent an express provision therefor.
United States v. Bethlehem Steel Company, 215 F.Supp. 62 (D.Md. 1962); Cities Service Oil
Co. v. Viering, 89 N.E.2d 392 (Ill. 1949); Moore v. Maes, 52 S.E.2d 204 (S.C. 1949).
Further, in Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977), this court stated:
Upon the exercise of the option, the landlord-tenant relationship of the parties was
converted to that of vendor-vendee. 1 American Law property, 3.84 at 363 (1952).
After exercise, respondents can not avail themselves of breaches of covenants in the
lease to work a forfeiture of the option. (Citations omitted.) Id. at 235, 564 P.2d at 185.
Therefore, we conclude that Shupe was not entitled to receive rent between the time Ham
tendered the $1,000,000.00 to exercise the option to purchase (April 1, 1974) and the time
Shupe executed the deed to the property (February 24, 1975).
Alternatively, Shupe asserts that she is entitled to interest payments on the purchase
money. The authorities are also divided on this issue. One view is that the purchaser in
possession is liable for interest on the purchase price from the date it is due even though the
contract is not completed at the time fixed for completion and even though the delay is caused
by the seller. See Tri State Mall Associates v. A.A.R. Realty Corp., 298 A.2d 368 (Del.Ch.
1972); Wilcox v. Commonwealth Realty & Trust Co.,
98 Nev. 61, 67 (1982) Shupe v. Ham
& Trust Co., 227 N.W. 678 (Mich. 1929); Sladkin v. Greene, 59 A.2d 105 (Pa. 1948);
Kubnick v. Bohne, 202 N.W.2d 400 (Wis. 1972). Other courts disallow interest if a purchaser
made a tender sufficient to entitle him to specific performance, Brewster Cooperative Grow.
v. Brewster Orch. Corp., 150 P.2d 847 (Wash. 1944), or where the seller was able to perform
but wilfully refused to do so. Wood v. Howland, 101 N.W. 756 (Iowa 1904).
Respondent was in possession of the property during the period in question. Respondent
paid no rent on the property and had the full use of the option money during that period. It is
inequitable to allow the purchaser the beneficial enjoyment of the property and the use of the
purchase money to the detriment of the vendor absent a more compelling equity than exists in
this case.
Accordingly, the judgment of the district court is affirmed except that the order of the
district court granting summary judgment to respondent on the issue of interest on the
purchase money is reversed.
Therefore, this matter is remanded to the district court with instructions to enter an order
setting aside the summary judgment on respondent's counter-motion for partial summary
judgment on the issue of interest payments and for further proceedings in the district court to
conclude the matter relative to the payment of interest consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 67, 67 (1982) D & C Builders v. Cullinane
D & C BUILDERS and the NEVADA INDUSTRIAL COMMISSION, Appellants, v. KORY
CULLINANE, Respondent.
No. 12871
January 28, 1982 639 P.2d 544
Appeal from judgment granting respondent's claim to industrial insurance benefits, Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Employer and the Nevada Industrial Commission appealed from decision of the district
court which reversed decision of appeals officer and granted employee's claim for industrial
insurance benefits. The Supreme Court, Manoukian, J., held that employee, who left
employer's construction site for extended lunch break during which he planned to purchase
special staples needed for the construction project and visit a friend, was on a bona fide
business errand when he was seriously injured when his motorcycle collided with an
automobile before he reached the store and thus was entitled to industrial benefits.
98 Nev. 67, 68 (1982) D & C Builders v. Cullinane
extended lunch break during which he planned to purchase special staples needed for the
construction project and visit a friend, was on a bona fide business errand when he was
seriously injured when his motorcycle collided with an automobile before he reached the
store and thus was entitled to industrial benefits.
Affirmed.
Reid & Alverson, Las Vegas, Claude Zobell, Las Vegas, for Appellant D & C Builders.
Frank A. King, Las Vegas, for Appellant Nevada Industrial Commission.
Bernstein & Piazza, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
Administrative Procedure Act limits on scope of review of an appeals officer's decision by district court
also binds the Supreme Court when reviewing district court action taken on an administrative decision.
NRS 233B.140, subd. 5.
2. Workers' Compensation.
Proper test for determining compensability of injury sustained by an employee who has embarked on a
trip off employer's premises for both business and personal reasons requires only that business nature of the
excursion be bona fide.
3. Workers' Compensation.
Employee, who left employer's construction site for extended lunch break during which he planned to
purchase special staples needed for the construction project and visit a friend, was on a bona fide business
errand when he was seriously injured when his motorcycle collided with an automobile before he reached
the store and thus was entitled to industrial benefits.
OPINION
By the Court, Manoukian, J.:
Appellants appeal from the decision of the district court which granted respondent's
claim for industrial insurance benefits and reversed the decision of the appeals officer.
Appellants contend that the district court exceeded its proper scope of review. We disagree
and affirm the lower court's decision.
Respondent Kory Cullinane was an employee of appellant, D & C Builders. On May 25,
1979, he left his employer's construction site in North Las Vegas with his brother. According
to respondent, he planned to purchase special staples needed for the construction project and
visit a friend during an extended lunch break. Respondent testified that after picking up his
motorcycle at his house, he traveled enroute to K-Mart, where he intended to pick up the
staples for work.
98 Nev. 67, 69 (1982) D & C Builders v. Cullinane
up his motorcycle at his house, he traveled enroute to K-Mart, where he intended to pick up
the staples for work. Before he reached the store, he was seriously injured in a collision with
an automobile.
The Nevada Industrial Commission initially denied respondent's claim. A hearing officer
reversed the NIC's decision, and appellant D & C Builders appealed that decision to an
appeals officer. The appeals officer reversed the hearing officer's decision and denied
respondent's claim, finding that respondent was not within the scope and course of his
employment when injured because his primary purpose in taking the motorcycle trip was to
visit his friend. The business errand--to obtain the staples--was determined to be incidental to
the dominant, personal purpose of the excursion.
Respondent petitioned the district court for review. The district court reversed the appeals
officer's decision and granted respondent's claim to industrial benefits. This appeal ensued.
[Headnote 1]
The relevant portion of the Administrative Procedure Act (APA), NRS 233B.140(5),
1
imposes limits on the scope of review of an appeals officer's decision by the district court. We
are bound by the same limitations when reviewing district court action taken on an
administrative decision. No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
(1967). We turn to determine the propriety of the trial court's action in light of these
standards.
Marks v. Gray, 167 N.E. 181 (N.Y. 1920), is the seminal case involving compensability of
injury sustained by an employee who has embarked on a trip off the employer's premises for
both business and personal reasons--the so-called dual purpose doctrine. Judge Cardozo
applied a formula in the Marks case, referred to in contemporary case law and
commentary as the "concurrent purpose" test:
____________________

1
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 because the administrative findings, inferences, conclusions or decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
98 Nev. 67, 70 (1982) D & C Builders v. Cullinane
case, referred to in contemporary case law and commentary as the concurrent purpose test:
We do not say that service to the employer must be the sole cause of the journey, but at
least it must be a concurrent cause. To establish liability, the inference must be
permissible that the trip would have been made though the private errand had been
canceled . . . . The test in brief is this: If the work of the employee creates the necessity
for travel, he is in the course of his employment, though he is serving at the same time
some purpose of his own . . . . If, however, the work has had no part in creating the
necessity for travel, if the journey would have gone forward though the business errand
had been dropped, and would have been canceled upon failure of the private purpose,
though the business errand was undone, the travel is then personal, and personal the
risk.
Id. at 182-83.
2

The dual purpose doctrine has been interpreted by many jurisdictions to invoke a weighing
of the business and personal motivations for the trip to determine the primary or
dominant purpose of the excursion. Courts and commentators have cautioned against this
approach. See Cook v. Highway Casualty Co., 82 So.2d 679 (Fla. 1955); Downs v. Durbin
Corp., 416 S.W.2d 242 (Mo.App. 1967); 1 A. Larson, Workmen's Compensation Law,
18.13 (1978). We believe that such weighing of purposes imposes a rigidity not contemplated
by the Marks decision. Moreover, we find such weighing to be contrary to the remedial nature
of workmen's compensation law. See Cook, supra, at 682.
[Headnote 2]
We have not previously addressed the conflict between the dominant purpose or
concurrent purpose tests derived from Marks, supra, nor have we made a choice between
them. However, we believe that the proper test should require only that the business nature of
an excursion be bona fide. This approach is more consistent with the remedial purposes of
our workmen's compensation act than either the concurrent purpose or the primary
purpose tests. This rule will nonetheless leave the broad discretion of the administrative
tribunals and officers relatively unfettered.
____________________

2
Professor Larson notes the following caveat:[I]t is not necessary, under this formula, that, on failure of the
personal motive, the business trip would have been taken by this particular employee at this particular time. It is
enough that someone sometime would have had to take the trip to carry out the business mission. 1 A. Larson,
Workmen's Compensation Law, 18.13 (1978) (Citing Gingell v. Walters Contracting Corp., 303 S.W.2d 683
(Mo.App. 1957)). (Emphasis in original.)
98 Nev. 67, 71 (1982) D & C Builders v. Cullinane
and officers relatively unfettered. To determine the business legitimacy or bona fides of a trip,
we must review the evidence before the trial court when it made its determination to overturn
the appeals officer's decision.
Although appellants contend that the trial court substituted its judgment for that of the
appeals officer, our review of the record demonstrates that the appeals officer's decision was
based largely on inference as to respondent's intent and was grounded on the misapprehension
that a dominant personal motive for the trip would bar recovery. There was no testimony to
controvert respondent's claims that he undertook the trip with a dual purpose--to obtain
staples and see a girlfriend; that he would not have gone to see the friend if the business
errand was unnecessary; and that he was enroute to the K-Mart to purchase staples when the
accident occurred. The need for staples was corroborated by the respondent's father, who
supervised the work at the job site. It was also clear from the employer's testimony that
respondent and his co-workers were responsible for procuring supplies for the job, and often
did so at various stores in the Las Vegas area.
[Headnote 3]
Administrative or adjudicative tribunals are permitted to make findings of fact based on
reasonable inferences supported by the evidence, Heidtman v. Nevada Industrial
Commission, 78 Nev. 25, 368 P.2d 763 (1962). Here, however, the inference that respondent
was outside the scope of his employment was not justified by the evidence. Even if we chose
to subscribe to the restrictive dominant purpose rule, the fact that respondent chose the
particular K-Mart because it was closest to his own and his friend's home does not support an
inference that he intended the trip to be primarily personal: combining personal with business
purposes, in our view, does not necessarily alter the business character of the trip. Marks,
supra. The record is devoid of any evidence suggesting that respondent was not at the time of
the collision intent on accomplishing a task within the scope of his employment and of
benefit to his employer. Compare, National Convenience Stores v. Fantauzzi, 94 Nev. 655,
659, 584 P.2d 689, 692 (1978) (vicarious liability imposed under special errand exception to
going and coming rule).
We believe that the facts of this case would support an award under either the concurrent
purpose or primary purpose tests derived from Marks, supra, as well as under the bona fide
business purpose test we adopt today. We hold that recovery will be allowed where, as here,
the employee was on a bona fide business errand when the incident giving rise to the claim
occurred. See e.g., Kaplan v. Alpha Epsilon Phi Sorority, 42 N.W.2d 342 {Minn.
98 Nev. 67, 72 (1982) D & C Builders v. Cullinane
N.W.2d 342 (Minn. 1950). This is so, even though the record is clear that respondent was
simultaneously pursuing his own interest. See Blesy v. United States, 443 F. Supp. 358 (W.D.
N.Y. 1978).
The district court did not exceed the proper scope of review. The appeals officer's decision
was clearly erroneous in view of the reliable, probative and substantial evidence on the whole
record. NRS 233B.140(5).
We affirm the judgment of the trial court.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19; SCR
10.
____________
98 Nev. 72, 72 (1982) McKinnon v. Cantarutti-Althuizen
DAVID G. McKINNON, dba BLUE STARR AUTO PAINT & REPAIR, Appellant, v.
CANTARUTTI-ALTHUIZEN, A Joint Venture, Respondent.
No. 12478
January 29, 1982 639 P.2d 563
Appeal from an order for remittitur or, alternatively, a new trial following a jury verdict in
favor of defendant-counterclaimant. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Landlord brought action for unlawful detainer and tenant counterclaimed for damages for
landlord's unlawfully changing locks on premises. The district court entered judgment for
tenant but later entered an order for remittitur or, alternatively, a new trial. Tenant appealed.
The Supreme Court, Springer, J., held that where tenant brought counterclaim against
landlord, who had commenced action for unlawful detainer, for damages for unlawfully
changing locks on premises but did not bring claim for forcible entry or forcible or unlawful
detainer, tenant was not entitled to treble damages.
Affirmed.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, Reno, for Appellant.
Manoukian, Scarpello & Alling, and W. F. Bill Huss, Carson City, for Respondent.
98 Nev. 72, 73 (1982) McKinnon v. Cantarutti-Althuizen
Landlord and Tenant.
Where tenant brought counterclaim against landlord, who had commenced action for unlawful detainer,
for damages for unlawfully changing locks on premises but did not bring claim for forcible entry or
forcible or unlawful detainer, tenant was not entitled to treble damages. NRS 40.360.
OPINION
By the Court, Springer, J.:
This matter comes before us on the appeal of McKinnon and the cross-appeal of
Cantarutti-Althuizen.
Cantarutti commenced the action by suing its tenant McKinnon for unlawful detainer.
McKinnon counterclaimed on the basis that Cantarutti had unlawfully changed the locks on
the premises. McKinnon claimed that this act constituted unlawful eviction, and that he
was therefore entitled to actual damages and treble damages pursuant to NRS 40.360.
A jury rendered a verdict against Cantarutti on Cantarutti's complaint and in favor of
McKinnon on McKinnon's counterclaim. Damages were assessed in the amount of $15,000.
The jury also found on a special interrogatory that Cantarutti had committed acts constituting
forcible detainer. The trial court entered judgment on the verdict in favor of McKinnon for
$15,000 and trebled that amount on the basis of NRS 40.360.
Cantarutti moved for judgment notwithstanding the verdict or, in the alternative, for a new
trial. In ruling on these motions the trial court concluded that it had erred in giving its
instruction on forcible detainer and the related special interrogatory. The court therefore
determined it was error to have entered judgment for treble damages. The court concluded,
however, that it would not disturb the general verdict for $15,000. McKinnon was ordered
either to accept the $15,000 general verdict or to agree to a new trial.
We affirm the trial court's findings and conclusions. NRS 40.360 requires assessment of
treble damages only in cases of forcible entry or forcible or unlawful detainer.
1
These causes
of action are all possessory in nature.
____________________

1
NRS 40.360 provides in pertinent part:
2. Damages. The jury or the court, if the proceeding be tried without a jury, shall also assess the
damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, and
any amount found due the plaintiff by reason of waste of the premises by the defendant during the
tenancy, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the
alleged unlawful detainer be after default in the payment
98 Nev. 72, 74 (1982) McKinnon v. Cantarutti-Althuizen
action are all possessory in nature. Their objective is to reinstitute possession of property
where one has wrongfully been excluded.
2
McKinnon did not allege any of these actions in
his counterclaim. He merely sued for damages on the claim that he had unlawfully been
denied access to the premises. Moreover, it was conceded that, at the time McKinnon filed
the counterclaim, he no longer wished to resume possession of the former leasehold.
McKinnon simply wanted damages. The action was therefore not a detainer action.
McKinnon suggests, and we find, no other basis for trebling the damages award. In
accordance with our firmly established principle not to extend by implication penalties or
forfeitures, we decline McKinnon's request to reinstate the treble damages order. See Hoopes
v. Meyer, 1 Nev. 433 (1865).
The order for remittitur or, alternatively, a new trial is accordingly affirmed.
Gunderson, C. J., and Mowbray, J., and McDaniel, D. J.,
3
and Zenoff, Sr. J.,
4
concur.
____________________
of rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible
or unlawful detainer, for the rent and for three times the amount of the damages thus assessed. (Emphasis
supplied.)

2
NRS 40.360 provides that the judgment in favor of a plaintiff in a forcible entry or detainer action shall be
for restitution of the premises:
1. Judgment. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the
finding of the court, be in favor of the plaintiff and against the defendant, judgment shall be entered for
the restitution of the premises; and, if the proceeding be for unlawful detainer after neglect or failure to
perform any condition or covenant of the lease or agreement under which the property is held, or after
default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement.
(Emphasis supplied.)

3
The Governor designated Honorable Joseph O. McDaniel, District Judge of the Fourth Judicial District, to
sit in this case in place of The Honorable Noel Manoukian who voluntarily recused himself. Nev. Const., art. 6,
4.

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 75, 75 (1982) State v. Phillips
STATE BAR OF NEVADA, Petitioner, v. IRVING
RUSSELL PHILLIPS, Respondent.
No. 13782
February 1, 1982 639 P.2d 565
ORDER GRANTING PETITION
The State Bar of Nevada petitions this court to impose the stated form of discipline
contained in the conditional plea of guilty tendered by Irving Russell Phillips, Attorney at
Law. The conditional plea has been approved by five members of the Southern Disciplinary
Board. SCR 113(1).
Good cause appearing, the conditional plea is approved and the petition is granted.
Accordingly, we
ORDER that Irving Russell Phillips, Attorney at Law, be suspended from the practice of
law for a period of five years, and that at the conclusion of the five year period Irving Russell
Phillips may petition this court for reinstatement. It is further
ORDERED that Irving Russell Phillips make restitution to the State Bar of Nevada, for
distribution to the individuals named in the conditional plea of guilty, in the amount of
$5,139.25.
____________
98 Nev. 75, 75 (1982) Doane v. State
JOHN EUGENE DOANE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12331
February 3, 1982 639 P.2d 1175
Appeal from judgment of conviction and sentences following guilty pleas, Eighth Judicial
District Court, Clark County; Howard D. McKibben, Judge.
Defendant was convicted in the district court of kidnapping, mayhem, attempted murder,
robbery, multiple counts of sexual assault with substantial bodily harm, and employing use of
a deadly weapon, and he appealed. The Supreme Court, Gunderson, C. J., held that where
prosecutor breached negotiated plea bargain requiring state to stand silent at time of
sentencing, district court erred when it denied defendant's motion to withdraw his guilty
pleas and, instead, vacated judgment and assigned case for resentencing, but withdrawal
of defendant's guilty pleas was not warranted; rather, imposition of sentence consistent
with district judge's original pronouncement, made prior to breach of plea bargain
agreement, restored defendant to position he would have enjoyed but for the breach.
98 Nev. 75, 76 (1982) Doane v. State
withdraw his guilty pleas and, instead, vacated judgment and assigned case for resentencing,
but withdrawal of defendant's guilty pleas was not warranted; rather, imposition of sentence
consistent with district judge's original pronouncement, made prior to breach of plea bargain
agreement, restored defendant to position he would have enjoyed but for the breach.
Reversed and remanded.
Morgan D. Harris, Public Defender, and William P. Henry, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland and Booker T. Evans, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Where state has agreed to stand mute at time of sentencing, it may not be allowed to violate plea bargain
agreement to detriment of defendant.
2. Criminal Law.
When state breaches agreement to stand mute at time of sentencing, defendant's rights can be protected
either by permitting withdrawal of negotiated plea or by resentencing before judge untainted by violation.
3. Criminal Law.
Where prosecutor breached negotiated plea bargain requiring state to stand silent at time of sentencing,
district court erred when it denied defendant's motion to withdraw his guilty pleas and, instead, vacated
judgment and assigned case for resentencing; however, withdrawal of defendant's guilty pleas was not
warranted; rather, imposition of sentence consistent with district judge's original pronouncement, made
prior to breach of plea bargain agreement, restored defendant to position he would have enjoyed but for the
breach.
OPINION
By the Court, Gunderson, C. J.:
In addition to counts of kidnapping, mayhem, attempted murder and robbery, the State
charged appellant with multiple counts of sexual assault with substantial bodily harm,
employing use of a deadly weapon. In return for negotiated pleas of guilty to all counts, the
State agreed to limit its remarks about sentencing to an agreed-upon statement made at the
entry of the pleas. The State was to stand silent at the time of sentencing.
98 Nev. 75, 77 (1982) Doane v. State
NRS 176.035(1) provides that multiple sentences shall run concurrently unless otherwise
specified. Without specifying that the sentences were to run consecutively, the district court
judge pronounced the maximum sentence permissible by law on each and every count.
Immediately after the court articulated these sentences, the prosecutor inquired whether the
sentences should run consecutively. The court then replied that consecutive sentences would
be appropriate, and so ordered.
1

The parties have stipulated that the prosecutor's comment constituted a breach of the
negotiated plea bargain. Based on such breach, appellant moved to set aside his guilty pleas,
but the district court denied appellant's motion. Instead, the district court vacated its original
sentence, sealed the record relevant to the sentencing, and assigned the case to another judge
who rendered sentence. As a result, appellant would receive a term of punishment more than
double the concurrent sentences originally imposed. On appeal, the sole issue is whether the
district court erred when it denied appellant's motion to withdraw his guilty pleas and,
instead, vacated the judgment and assigned the case for resentencing.
[Headnotes 1-3]
Where the State has agreed to stand mute at the time of sentencing, it may not be allowed
to violate the plea bargain agreement to the detriment of defendant. Commonly, when a
breach occurs, a defendant's rights can be protected either by permitting withdrawal of the
negotiated plea or by resentencing before a judge untainted by the violation. Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495 (1971). However, in the peculiar facts of this case, the
remedy fashioned by the district court gave the State more than the bargain to which it is
entitled. Not satisfied with sentences already pronounced, the State was allowed to interfere
with the sentence, and thereby to gain another opportunity for increased sentences. This, we
believe, cannot be permitted.
On the other hand, we think withdrawal of appellant's guilty pleas would not be the
warranted remedy. In the instant case, the primary witness is now dead by the device of
another, and it is probable that the State could no longer prosecute. To allow appellant to
withdraw his guilty pleas would place the prosecution in an untenable position.
____________________

1
The prosecutor asked, Your honor, are all the sentences on all the counts consecutive? The court
answered, I think that would be appropriate in this case.
98 Nev. 75, 78 (1982) Doane v. State
Withdrawal of guilty pleas typically is allowed to restore the accused to a position he
enjoyed prior to the breached agreement, because breach has denied him the benefit for which
he bargained. See Cook v. Warden, 91 Nev. 636, 541 P.2d 642 (1975). Such a result is not
required where the accused can be assured the full benefit of the bargain. Here, the sentencing
judge had articulated an operable sentence before any interference by the State. Thus, in this
factual situation, imposition of the original sentence will restore appellant to the position he
would have enjoyed but for the breach.
Accordingly, we reverse and remand for the formal imposition of sentence consistent with
the Honorable Michael Wendell's original pronouncement, made prior to breach of the plea
bargain agreement.
Manoukian, Springer, and Mowbray, JJ., and O'Donnell, D. J.,
2
concur.
____________________

2
The Governor designated the Honorable Thomas J. O'Donnell, District judge of the Eighth Judicial District,
to sit in this case in place of The Honorable Cameron Batjer. Nev. Const., art. 6, 4.
____________
98 Nev. 78, 78 (1982) Hickson v. State
THOMAS FRANCIS HICKSON, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12637
February 25, 1982 640 P.2d 921
Appeal from judgment of conviction of robbery and attempted robbery, Second Judicial
District Court, Washoe County, John E. Gabrielli, Judge.
The Supreme Court held that evidence was sufficient to support finding that defendant was
guilty of general intent crime of robbery.
Affirmed.
William N. Dunseath, Public Defender; N. Patrick Flanagan, Deputy public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
Robbery.
Evidence was sufficient to support finding that defendant was guilty of general intent crime of robbery.
98 Nev. 78, 79 (1982) Hickson v. State
OPINION
Per Curiam:
Appellant was tried and convicted by a jury on an information alleging two separate
incidents of criminal conduct involving two victims. Evidence was adduced at the trial that
would indicate that appellant was drinking prior to the incidents. The degree of intoxication
was a disputed issue at the trial.
Appellant's trial occurred several weeks before our decision in Turner v. State, 96 Nev.
164, 605 P.2d 1140 (1980) but after the early decision of State v. Sala, 63 Nev. 270, 169 P.2d
524 (1946). Both Sala and Turner construed NRS 200.380
1
and held that the specific intent
to permanently deprive the victim of his property is an element of the crime of robbery. We
held in Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981) that the holdings of Sala and
Turner were misconstructions of the robbery statute.
In the instant case, Hickson requested an instruction on specific intent as defined in Sala.
The court instructed the jury, over appellant's objection, on the elements of robbery as defined
by NRS 200.380 and as approved in Litteral. The issue presented on appeal is whether the
overruling decision of Litteral applies to appellant's case.
Litteral was not a determination of whether tainted evidence is admissible (e.g., Stovall
v. Denno, 388 U.S. 293 (1967)) or a procedural reform which had an impact on the integrity
of the fact-finding process (e.g., Witherspoon v. Illinois, 391 U.S. 510 (1968)). We merely
concluded in Litteral that NRS 200.380 had defined robbery as a general intent crime from
the time of its passage in 1911. Thus, retroactivity of Litteral is not at issue here. We must
simply determine whether the acts for which Hickson was convicted were proscribed by the
statute as originally defined by the legislature. See People v. Mutch, 4S2 P.2d 633 {Cal.
____________________

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.
98 Nev. 78, 80 (1982) Hickson v. State
Mutch, 482 P.2d 633 (Cal. 1971).
2
Because Sala and Turner erroneously added an element
to be proved by the state, the conviction will be affirmed if sufficient evidence has been
adduced to support a finding that appellant was guilty of the general intent crime of robbery
as defined by NRS 200.380.
Here, we conclude, for the foregoing reasons, that the jury was properly instructed as to the
elements of the crime and that sufficient evidence was presented to show that the acts for
which Hickson was convicted were proscribed by NRS 200.380.
Other issues raised by appellant are without merit.
Affirmed.
____________________

2
Mutch analyzed the effect of an overruling decision which reversed a series of decisions which the
California Supreme Court found to be misconstructions of the California kidnapping statute. The court held that
the overruling decision . . . did not overturn a judge-made rule of common law; rather, we recognized a
statutory rule which the legislature adopted in 1951 but to which courts had not previously given appropriate
effect. People v. Mutch, 482 P.2d at 636.
____________
98 Nev. 80, 80 (1982) Rockwell v. Rockwell
BRIGITT ROCKWELL, Appellant, v. NORMAN
M. ROCKWELL, Respondent.
No. 13334
February 25, 1982 640 P.2d 1318
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Appeal was taken from a judgment of the district court dissolving parties' marriage. The
Supreme Court held that failure of respondent to file an answering brief was treated as a
confession of error.
Reversed and remanded.
A. Grant Gerber, Elko, for Appellant.
Norman M. Rockwell, in proper person.
Divorce.
Failure of husband to file an answering brief entitled wife to granting of her motion to treat such failure as
a confession of error. NRAP 31(c).
OPINION
Per Curiam:
On November 5, 1981, this court issued an order giving respondent thirty days in which to
engage counsel and sixty days in which to submit his answering brief.
98 Nev. 80, 81 (1982) Rockwell v. Rockwell
days in which to submit his answering brief. We informed respondent that failure to submit
such a brief might result in our finding a confession of error under NRAP 31(c).
No response to the order followed, and no answering brief has been filed. On January 18,
1982, appellant filed a second motion requesting us to treat respondent's failure to file a brief
as a confession of error. The motion is unopposed.
Cause appearing, we grant appellant's motion for a finding of confession of error under
NRAP 31(c). See Knapp v. Lemieux, 97 Nev. 450, 634 P.2d 454 (1981). The judgment is
reversed insofar as it is based upon findings of fact and conclusions of law concerning
appellant's alleged fraudulent intent in entering into the marriage. This case is remanded for a
redistribution of the parties' property.
1

Reversed and remanded.
____________________

1
That portion of the judgment which dissolves the marriage of the parties has not been challenged in this
appeal, and shall not be affected by this opinion.
____________
98 Nev. 81, 81 (1982) Ewing v. State
TERRI LYNN EWING, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12835
February 25, 1982 640 P.2d 922
Appeal from a judgment of commitment, Ninth Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
In delinquency proceedings based upon violation of defendant's probation, the district
court entered judgment of commitment to State Girls Training Center, and defendant
appealed. The Supreme Court held that juvenile court's commitment of defendant and its
exercise of jurisdiction over her were not authorized under Juvenile Court Act.
Reversed.
J. Gregory Damm, State Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Michael S. Rowe, District Attorney,
Douglas County, for Respondent.
1. Infants.
Commitment to State Girls Training Center could be reversed solely because defendant was 1S
at time she was sent to Center and thus was too old to be sent there.
98 Nev. 81, 82 (1982) Ewing v. State
solely because defendant was 18 at time she was sent to Center and thus was too old to be sent there. NRS
210.580.
2. Infants.
Adjudication that defendant was child in need of supervision was invalid where apparently based on
isolated incident of disobedience, where no allegation was made that she was in need of care or
rehabilitation and where she was adjudicated to be both child in need of supervision and delinquent. NRS
62.040, subd. 1(b).
3. Infants.
Where defendant was invalidly adjudicated a child in need of supervision, district court had no authority
to put her on probation for nondelinquent act.
4. Infants.
Where petition did not state that juvenile defendant was being charged with delinquency under statute,
reversal of adjudication of delinquency was required. NRS 62.040, subd. 1(c)(2).
5. Infants.
Where defendant never committed delinquent act, she was not child under Juvenile Court Act after her
18th birthday when proceedings adjudging her delinquent based on admitted violation of probation
occurred. NRS 62.020, subd. 2, 62.070.
OPINION
Per Curiam:
This is an appeal from a judgment of commitment to the Nevada Girls Training Center
(NGTC). Appellant contends that the confinement of status offenders with juveniles
convicted of criminal acts is unconstitutional. State ex rel. Harris v. Calendine, 233 S.E.2d
318 (W.Va. 1977). Because we hold that appellant's commitment was unlawful under the
laws of this state, we need not reach the constitutional issue.
[Headnote 1]
The juvenile court's commitment of appellant, and its exercise of jurisdiction over her
were not authorized under the Juvenile Court Act, NRS Chapter 62.
1

[Headnote 2]
Appellant was adjudicated a child in need of supervision (CHINS) three months before her
eighteenth birthday. This adjudication was invalid on several grounds. It was based on a
petition that did not allege appellant habitually disobeyed reasonable parental demands;
but was apparently based on an isolated incident of disobedience.2 Neither was an
allegation made that appellant was in need of care or rehabilitation.
____________________

1
Although we are compelled to analyze this case in some depth to resolve what we perceive to be a
substantial jurisdictional issue, the commitment could be reversed solely because appellant was eighteen at the
time she was sent to NGTC, and thus was too old to be sent there. NRS 210.580.
98 Nev. 81, 83 (1982) Ewing v. State
petition that did not allege appellant habitually disobeyed reasonable parental demands; but
was apparently based on an isolated incident of disobedience.
2
Neither was an allegation
made that appellant was in need of care or rehabilitation. See A Minor v. Juvenile Division,
97 Nev. 281, 630 P.2d 245 (1981).
Most importantly, appellant was adjudicated to be both a CHINS and a delinquent in
contravention of NRS 62.040(1)(b).
3
The order admitting appellant to probation stated that
she is charged with the offense of beyond parental control a felony, gross misdemeanor, or a
misdemeanor . . . .
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.
A Minor v. Juvenile Division, 97 Nev. 291, 630 P.2d at 251.
[Headnotes 3, 4]
Because appellant was invalidly adjudicated a CHINS, the court had no authority to put
her on probation for a nondelinquent act. The order of commitment on appeal before us stems
from a subsequent adjudication of delinquency based upon an admitted violation of
appellant's probation.
4
In the absence of a justification for imposing probation in the first
instance, the court had no basis for bootstrapping appellant into delinquent status.
[Headnote 5]
The record indicates that the judge believed that he had jurisdiction over appellant until
she reaches 21 years.
5
Because we hold that the appellant never committed a delinquent act,
she
____________________

2
The petition alleged that appellant was beyond parental control because on or about the 3rd day of
December, 1979 . . . she refuses to obey the reasonable and proper demands of her parents.

3
At the time appellant was found to be a CHINS, this statute provided that CHINS shall not be considered a
delinquent. It was amended during the 1981 Session to read must not be considered a delinquent. 1981 Nev.
Stats. ch. 774 1, p. 2019. (Emphasis added.)

4
The petition did not state that appellant was being charged with delinquency under NRS 62.040(1)(c)(2).
That defect alone requires a reversal of the adjudication of delinquency. A Minor, supra.

5
The disposition will range from sending her to Caliente, which I can still do unless she's 21 and which I
may do that . . . .
98 Nev. 81, 84 (1982) Ewing v. State
was not a child under the Juvenile Court Act after her 18th birthday when the proceedings
below occurred. NRS 62.020(2). Thus, the provisions of NRS 62.070, allowing the extension
of juvenile court jurisdiction over any child until the child reaches 21, do not apply.
Accordingly, we reverse the commitment and order the adjudication of delinquency
vacated.
____________
98 Nev. 84, 84 (1982) Director, Dep't Prisons v. Arndt
DIRECTOR, NEVADA DEPARTMENT OF PRISONS,
Appellant, v. DWAYNE ARNDT, Respondent.
No. 13009
February 26, 1982 640 P.2d 1318
Appeal from order granting petition for Writ of Habeas Corpus. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Director of Department of Prisons appealed from an order of the district court granting
prisoner's petition for a writ of habeas corpus challenging prison disciplinary hearing on basis
that he was denied due process at the hearing since he was not provided with counsel. The
Supreme Court held that prisoner's habeas corpus petition was premature and should have
been denied where prisoner was under no additional restraint or custody as a result of the
disciplinary hearing at time his petition was heard.
Reversed.
Richard H. Bryan, Attorney General, and Ernest Adler, Deputy Attorney General, Carson
City, for Appellant.
J. Gregory Damm, State Public Defender, and Michael K. Powell, Special Deputy State
Public Defender, Carson City, for Respondent.
Habeas Corpus.
Prisoner's habeas corpus petition challenging prison disciplinary hearing by alleging that he was denied
due process since he was not provided with counsel was premature where prisoner was under no additional
restraint or custody as result of disciplinary hearing at time petition was heard. NRS 34.360.
OPINION
Per Curiam:
Respondent-Inmate Dwayne Arndt was charged with violating the Prison Code of Penal
Discipline for stabbing another inmate while incarcerated at Northern Nevada Correctional
Center {Medium Security).
98 Nev. 84, 85 (1982) Director, Dep't Prisons v. Arndt
inmate while incarcerated at Northern Nevada Correctional Center (Medium Security).
At the prison disciplinary hearing, Arndt requested but was not provided an attorney.
Inmate-substitute counsel was provided. Respondent was found guilty of the violation,
transferred from the medium security facility to maximum security at the Nevada State
Prison, sentenced to 15 days punitive segregation and referred to the Parole Board for
possible revocation of statutory good time credits.
Respondent challenged the disciplinary proceeding by filing a petition for writ of habeas
corpus in district court, alleging that he was not given adequate notice of the charges and that
he was denied due process at the hearing because he was not provided with counsel.
Respondent sought a return from maximum to medium security facility and expungement of
the hearing results from his record.
The district court found that although notice was adequate, the failure to provide Arndt
with counsel at the hearing deprived respondent of due process. The court ordered the hearing
results expunged from Arndt's record. On appeal, the state contends that respondent's claim
was not cognizable under the habeas corpus relief statute (NRS. 34.360) and that the hearing
procedures comported with due process requirements.
The instant record indicates that Arndt is currently under no additional restraint or custody
as a result of the disciplinary hearing. By the time his petition was heard by the district court,
he had already been returned to the medium security prison. There is no evidence that any of
his good time credits have been revoked in consequence of the proceeding.
1
Arguably, Arndt
faces a threatened loss of good time credits, but at best this loss is speculative.
We have noted that habeas corpus relief is available to allow the presentation of questions
of law that cannot otherwise be reviewed, or that are so important as to render ordinary
procedure inadequate and justify the extraordinary remedy.State ex rel. Orsborn v. Fogliani,
82 Nev. 300, 417 P.2d 148 (1966). Specifically, the writ has been deemed appropriate for
petitioners testing the constitutionality of an ordinance while on bail (Ex parte Philipie, 82
Nev. 215, 414 P.2d 949 (1966)), challenging sufficiency of probable cause for trial while on
bail (Jacobson v. State, 89 Nev. 197, 510 P.2d 856 (1973)) and testing the legality of a parole
board's order to hold for extradition {Roberts v. Hocker, S5 Nev. 390
____________________

1
We express no opinion on our disposition of this case if Arndt were still confined to maximum security
prison as a result of the discipline proceeding, or if good time credits had actually been forfeited.
98 Nev. 84, 86 (1982) Director, Dep't Prisons v. Arndt
(Roberts v. Hocker, 85 Nev. 390, 456 P.2d 425 (1969)). Nonetheless, we have consistently
held that use of the extraordinary writ is warranted only to challenge present custody or
restraint and the legality of that confinement. Rogers v. Warden, 84 Nev. 539, 445 P.2d 28
(1968); Rainsberger v. Leypoldt, 77 Nev. 399, 365 P.2d 489 (1961), cert. denied, 368 U.S.
516 (1962); Ex parte Sheply, 66 Nev. 33, 202 P.2d 882 (1949).
The threat of future restraint will not provide a basis for habeas corpus remedy; the
detention must be presently unlawful. Sheply, supra at 41, 202 P.2d at 886. See also Ex parte
Current, 76 Nev. 41, 348 P.2d 470 (1960). Arndt's petition, then, was premature, and should
have been denied by the trial court.
2

Our conclusion that habeas relief was unavailable to Arndt makes unnecessary any
consideration of his attack on the constitutionality of the disciplinary hearing procedures, in
particular, the state's failure to grant him the assistance of counsel. It is well settled that this
court will not address constitutional issues unless these are requisite to the disposition of a
case. See Spears v. Spears, 95 Nev. 416, 596 P.2d 210 (1979); Union Pacific Railroad v.
Adams, 77 Nev. 282, 362 P.2d 450 (1961).
We reverse the order of the district court granting the writ and expunging the results of the
disciplinary hearing from respondent's record.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

2
We recognize that the federal position is contrary to that taken by this court in Sheply and similar cases. See
e. g., Preiser v. Rodriquez, 411 U.S. 475 (1973), in which the Supreme Court acknowledged the appropriateness
of the federal habeas corpus remedy to challenge future confinement. We find no compelling reason, here,
however, to apply the federal approach. Note also that in Preiser, the petitioner had suffered actual forfeiture of
good time credits--his loss, therefore, was not speculative.

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.
____________
98 Nev. 87, 87 (1982) Howard v. District Court
GEORGE T. HOWARD; ART DRAPERY STUDIOS, INC., and MARTIN STERN, Jr.,
A.I.A. ARCHITECT, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, Respondent.
No. 13322
February 26, 1982 640 P.2d 1320
Original proceeding in prohibition was brought challenging the district court's refusal to
grant summary judgment in a stagehand's suit for personal injuries sustained in a fall down
the shaft of a revolving stage lift against the stage design consultant, the project architect, and
the contractor. The Supreme Court held that complaint of stagehand, who was injured when
he fell down shaft of revolving stage lift, against stage design consultant, project architect,
and stage lift contractor was barred by Industrial Insurance Act where, even though stagehand
was not employed in same capacity nor in same line of work as others and even though work
on stage lift was completed before stagehand was injured, parties were coemployees.
Writ granted.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Dickerson, Miles, Pico & Mitchell,
Las Vegas, for Petitioners.
Galatz, Earl & Biggar, Las Vegas, for Respondent.
Workers' Compensation.
Complaint of stagehand, who was injured when he fell down shaft of revolving stage lift, against stage
design consultant, project architect, and stage lift contractor was barred by Industrial Insurance Act where,
even though stagehand was not employed in same capacity nor in same line of work as others and even
though work on stage lift was completed before stagehand was injured, parties were coemployees. NRS
616.085, 616.560.
OPINION
Per Curiam:
This original proceeding in prohibition challenges the district court's refusal to grant
summary judgment on the ground that respondent court lacks jurisdiction to proceed with
plaintiff's common law action. Petitioners contend that the Nevada Industrial Insurance Act
(NIIA) provides plaintiff's full and exclusive remedy, and that, therefore, respondent court is
without jurisdiction.
98 Nev. 87, 88 (1982) Howard v. District Court
The parties stipulated to the following facts: On April 9, 1979, Henry C. Post (the plaintiff
below and real party in interest herein) was employed by the MGM Grand Hotel as a
stagehand and was injured during the course and scope of his employment when he fell down
the shaft of a revolving stagelift at the MGM. Post was awarded compensation by the Nevada
Industrial Commission, but thereafter commenced the present action for recovery of damages
for personal injuries from petitioners. At the time of the accident all petitioners were
employed by MGM pursuant to separate contracts, MGM being the principal contractor.
Petitioner Howard was employed as the lighting and stage design consultant; petitioner Stern
was employed as project architect for the construction of the entire MGM Grand Hotel; and
petitioner Art Drapery Studios was retained for the construction of the stagelift.
Petitioners moved for summary judgment in the district court contending: (1) that the
action was barred by the NIIA; (2) that petitioner Art Drapery could not be held liable to
plaintiff because the stagelift was constructed according to MGM's designs and
specifications; and (3) that petitioner Stern did not have any responsibility with respect to the
design, construction or installation of the stagelift. The motions were denied and this petition
for a writ of prohibition followed.
1
Prohibition is an appropriate remedy. See Stolte, Inc. v.
District Court, 89 Nev. 257, 510 P.2d 870 (1973).
The sole issue presented by this petition is whether Post's common law action is barred by
the NIIA, NRS ch. 616.
2
Under NRS 616.560, employers and those "in the same employ"
are relieved from liability for recovery of damages for personal injuries.
____________________

1
Post has filed an answer on behalf of the respondent court.

2
NRS 616.370 provides in pertinent part:
1. The rights and remedies provided in this chapter for an employee on account of an injury by
accident sustained arising out of and in the course of the employment shall be exclusive, except as
otherwise provided in this chapter, of all other rights and remedies of the employee, his personal or legal
representatives, dependents or next of kin, at common law or otherwise, on account of such injury.
(Emphasis added.)
NRS 616.560 provides in pertinent part:
1. When an employee coming under the provisions of this chapter receives an injury for which
compensation is payable under this chapter and which injury was caused under circumstances creating a
legal liability in some person, other than the employer or a person in the same employ, to pay damages in
respect thereof:
(a) the injured employee, . . ., may take proceedings against that person to recover damages. . . .
(Emphasis added.)
NRS 616.055 provides in pertinent part:
Employee and workman are used interchangeably in this
98 Nev. 87, 89 (1982) Howard v. District Court
Under NRS 616.560, employers and those in the same employ are relieved from liability
for recovery of damages for personal injuries. Aragonez v. Taylor Steel Co., 85 Nev. 718, 462
P.2d 754 (1969). Thus, it is necessary to determine whether petitioners and Post were in the
same employ within the meaning of NRS 616.560.
Petitioners contend that they were in the same employ as Post because they were employed
directly by the same employer. Furthermore, they argue that because MGM directly, and
through its agent, retained sufficient supervisory control over its construction project, see
Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957), MGM was the principal
contractor or employer of petitioners and Post. Under NRS 616.085, subcontractors and their
employees are deemed to be employees of the principal contractor. As such, petitioners
contend they were in the same employ as Post under NRS 616.560 and Post is barred from
bringing suit against petitioners.
Post does not dispute the fact that MGM was the principal contractor or employer. Rather,
he contends that on the facts of this case, where workmen and stagehands are not working
together at the same time on the same jobsite when the accident occurs, the statutory
immunity for coemployees granted by NRS 616.560 should not apply. Additionally, Post
argues that the past Nevada cases in this area are factually distinct,
3
and we should therefore
construe the phrase in the same employ to mean in the same line of work. However, this
interpretation is too narrow in light of our recent holding in Noland v. Westinghouse Elec.
Corp., 97 Nev. 268, 628 P.2d 1123 (1981).
In Noland, the plaintiff had brought suit in district court 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. A subcontractor had employed
____________________
chapter and mean every person in the service of an employer under any appointment or contract of
hire. . . .
NRS 616.085 provides:
Subcontractors and their employees shall be deemed to be employees of the principal contractor.
NRS 616.115 provides:
Subcontractors shall include independent contractors.

3
See, e.g., Hosvepian v. Hilton Hotels Corp., 94 Nev. 768, 587 P.2d 1313 (1978); Antonini v. Hanna
Industries, 94 Nev. 12, 573 P.2d 1184 (1978); Stolte, Inc. v. District Court, 89 Nev. 257, 510 P.2d 870 (1973);
Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969); Simon Service v. Mitchell, 73 Nev. 9, 307
P.2d 110 (1957).
98 Nev. 87, 90 (1982) Howard v. District Court
the plaintiff. Westinghouse, the defendant, had manufactured and installed the elevator
pursuant to a subcontract with the general contractor. The district court granted summary
judgment in favor of Westinghouse. On appeal, Noland contended: (1) that a question of fact
remained as to whether Westinghouse was a fellow servant under NRS 616.085; and (2) that
the dual capacity doctrine should be adopted which would allow 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. This court found that Noland and Westinghouse were coemployees under
NRS 616.085, and rejected the dual capacity doctrine. This court stated:
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 the appellant who was injured.
Id. at 269, 628 P.2d at 1124.
Applying Noland to the present case, the fact that Post and petitioners were not employed
by MGM in the same capacity, nor in the same line of work, is no reason to deny
petitioners immunity under NRS 616.560 as coemployees. Furthermore, the petitioners' status
as coemployees with Post is not affected by the fact that the work on the stagelift was
completed before Post was injured. At the time of Post's accident, petitioners were still in the
process of completing their work under their respective contracts with MGM.
We hold that as a matter of law, petitioners and Post were in the same employ within the
meaning of NRS 616.560. Post's recovery is therefore limited to the compensation provided
by the NIIA, and the respondent court is without jurisdiction to proceed with his common law
suit. A writ of prohibition shall issue in accordance with this opinion.
____________
98 Nev. 91, 91 (1982) Morrell v. Edwards
EVALYN MORRELL dba MORRELL REALTY, FRED L. ZAJAC, Jr. and MARILYN R.
ZAJAC, Appellants, v. GENE V. EDWARDS and MAXINE EDWARDS, Respondents.
No. 13384
February 26, 1982 640 P.2d 1322
Appeal from judgment. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Appeal was taken from an amended judgment of the district court which denied specific
performance of a contract for the sale of residential real property. The Supreme Court held
that: (1) appeal from amended judgment was untimely even though filed within 30 days of
date of amended judgment where amended judgment was directed solely at striking out award
of costs and did not affect legal rights and obligations of parties as they related to substance
of original judgment and subject matter of appeal, and (2) where motion to alter or amend
judgment by striking award of costs was not filed until 27 days after service of notice of entry
of judgment, service of motion did not toll time for appeal.
Appeal dismissed.
Harding & Dawson, Las Vegas, for Appellants.
Skupa & Mainor, Las Vegas, for Respondents.
1. Appeal and Error.
Test for determining whether appeal is properly taken from amended judgment rather than judgment
originally entered depends upon whether amendment disturbed or revised legal rights and obligation which
prior judgment had plainly and properly settled with finality.
2. Appeal and Error.
Appeal from amended judgment was untimely even though filed within 30 days of date of amended
judgment where amended judgment was directed solely at striking out award of costs and did not affect
legal rights and obligations of parties as they related to substance of original judgment and subject matter
of appeal. NRAP 4(a).
3. Appeal and Error.
If motion to alter or amend judgment is not served within ten days after service of written notice of entry
of judgment, time for appeal is not tolled. NRAP 4(a); NRCP 59(e).
4. Appeal and Error.
Where motion to alter or amend judgment by striking award of costs was not filed until 27 days after
service of notice of entry of judgment, service of motion did not toll time for appeal. NRAP 4(a); NRCP
59(e).
98 Nev. 91, 92 (1982) Morrell v. Edwards
5. Appeal and Error; Judgment.
Motion to amend judgment by striking award of costs was untimely when served 27 days after service of
notice of entry of judgment even though memorandum of costs had not been served within five days after
entry of judgment where, when memorandum of costs was not filed, motion to amend judgment could have
been made within time limits, and thus notice of appeal filed after entry of amended judgment which did
not affect merits of judgment was untimely. NRAP 4(a); NRCP 59(e).
OPINION
Per Curiam:
Appellants filed a suit seeking specific performance of a contract to sell residential real
property or in the alternative for damages. The district court determined that appellants had
not complied with conditions precedent to respondents' obligations to perform under the
contract. Judgment for respondents denying specific performance or damages, and awarding
to respondents three hundred ninety-one dollars and fifteen cents ($391.15) for costs, was
entered on February 4, 1981. Notice of entry of judgment was served upon appellants on
February 6, 1981. Twenty-eight days after the judgment was entered, on March 4, 1981,
respondents filed their memorandum of costs. On March 5, 1981, appellants moved to amend
the judgment by striking the award of costs because the memorandum was not filed within
five days after the judgment was entered as required by NRS 18.110. On March 25, 1981, the
district court issued an order amending the judgment by striking the award of costs. On April
23, 1981, appellants filed their notice of appeal, appealing from the judgment of February 2,
1981, as amended by the order of March 25, 1981. On appeal, appellants challenge the
finding of the district court that they were required to comply with the conditions precedent.
We are of the opinion that jurisdiction over the appeal has not vested in this court because
the notice of appeal was not filed within the time limits of NRAP 4(a).
[Headnotes 1, 2]
The test for determining whether an appeal is properly taken from an amended judgment
rather than the judgment originally entered depends upon whether the amendment disturbed
or revised legal rights and obligations which the prior judgment had plainly and properly
settled with finality. F.T.C. v. Minneapolis-Honeywell Co., 344 U.S. 206 (1952); Cornist v.
Richland Parish School Board, 479 F.2d 37 (5th Cir. 1973). Here the amendment was
directed solely at striking out the award of costs. It did not affect the legal rights and
obligations of the parties as they related to the contract, which is the substance of the original
judgment and the subject matter of this appeal.
98 Nev. 91, 93 (1982) Morrell v. Edwards
the original judgment and the subject matter of this appeal. Consequently, the amendment has
no significance in determining the timeliness of the appeal. Radich v. Fairbanks Builders,
Inc., 399 P.2d 215 (Alaska 1965); Southeastern Fid. Ins. Co. v. Stevens, 240 So.2d 933
(Fla.App. 1976); National Bond & Investment Co. v. Nash Sales Co., 205 N.W. 910 (Wis.
1925).
[Headnotes 3, 4]
Appellants alternatively argue that the motion to strike the award of costs should be treated
as a motion to alter or amend judgment under NRCP 59(e). Such a motion will toll the time
for appeal; however, it must be timely made. NRAP 4(a). If it is not served within ten days
after service of written notice of entry of the judgment, the time for appeal is not tolled.
Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113 (1960); see Browder v. Director, Ill.
Dept. of Corrections, 434 U.S. 257 (1978); Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d
858 (3rd Cir. 1970); cf. Oelsner v. Charles C. Meek Lumber Co., 92 Nev. 576, 555 P.2d 217
(1976) (district court without jurisdiction to consider untimely NRCP 59(e) motion). Here the
motion was not filed until twenty-seven days after the service of notice of entry of the
judgment. Consequently it was not served within the time limits required by NRCP 59(e).
[Headnote 5]
Appellants argue that they could not have determined the propriety of the judgment, or the
procedures to be followed, until the memorandum of costs was served. In such circumstances,
they argue that the motion should not be considered untimely. Appellants' argument is not
persuasive. When the memorandum of costs had not been served within five days after the
entry of judgment, the grounds for appellants' motion existed. If appellants had moved at that
time to alter or amend the judgment, the motion would have been within the time limits of
NRCP 59(e). Furthermore, the motion, as previously noted, did not affect the merits of the
judgment from which appellants now seek to appeal. As such, appellants could have
immediately appealed the merits of the original judgment, and during the pendency of the
appeal, could have moved to retax and settle costs once the memorandum of costs was
served. See Bongiovi v. Bongiovi, 94 Nev. 321, 579 P.2d 1246 (1978) (district court retains
jurisdiction over matters collateral to and independent from that part of case taken up on
appeal).
Other arguments being without merit, and finding no jurisdiction vested in this court, we
ORDER this appeal dismissed.
____________
98 Nev. 94, 94 (1982) Local Gov't Emp. v. General Sales
LOCAL GOVERNMENT EMPLOYEE-MANAGEMENT RELATIONS BOARD, CITY OF
LAS VEGAS, and LAS VEGAS CITY EMPLOYEES PROTECTIVE AND BENEFIT
ASSOCIATION, INC., Appellants, v. GENERAL SALES DRIVERS, DELIVERY
DRIVERS AND HELPERS, TEAMSTERS LOCAL UNION NO. 14 of the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, Respondents.
No. 12537
March 3, 1982 641 P.2d 478
Appeal from order of the district court reversing decision and order of Local Government
Employee-Management Relations Board. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
The Supreme Court held that: (1) provisions of the Local Government
Employee-Management Relations Act did not require the local board to carve out a majority
of the members of the existing bargaining unit into a separate unit with different
organizational representation whenever a community of interest in such a proposed unit could
be shown, and (2) decision of Local Government Employee-Management Relations Board
that, given history of successful representation and negotiations on behalf of city's employees,
including a recently concluded three-year agreement on behalf of blue-collar and white-collar
workers, it was not necessary to carve out a majority of the members of the existing unit into
a separate blue-collar unit with different organizational representation was within the
statutory discretion of the local board and was neither erroneous, arbitrary, nor capricious.
Reversed; decision and order of Board reinstated.
Galane & Jimmerson, Las Vegas; Richard H. Bryan, Attorney General, Carson City,
Robert N. Peccole, Deputy Attorney General; and George F. Ogilvie, City Attorney, Las
Vegas, for Appellants.
Gang & Berkley, Las Vegas, for Respondents.
1. Labor Relations.
Provisions of the Local Government Employee-Management Relations Act did not require the local
board to carve out a majority of the members of the existing bargaining unit into a separate unit with
different organizational representation whenever a community of interest in such a
proposed unit could be shown.
98 Nev. 94, 95 (1982) Local Gov't Emp. v. General Sales
with different organizational representation whenever a community of interest in such a proposed unit
could be shown. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2, 288.160, subd. 4, 288.170.
2. Labor Relations.
Decision of the Local Government Employee-Management Relations Board that, given history of
successful representation and negotiations on behalf of city's employees, including a recently concluded
three-year agreement on behalf of blue-collar and white-collar workers, it was not necessary to carve out a
majority of the members of the existing unit into a separate blue-collar unit with different organizational
representation was within the statutory discretion of the local board and was neither erroneous, arbitrary,
nor capricious. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2, 288.160, subd. 4, 288.170.
3. Labor Relations.
Great deference should be given to the interpretation of the local board when it is within the language of
the Local Government Employee-Management Relations Act. NRS 233B.140, subds. 5, 5(a), (b),
288.110, subd. 2, 288.160, subd. 4, 288.170.
4. Labor Relations.
It is not the function of the reviewing court to substitute its judgment for that of the local board when
acting within its statutory authority, pass on the credibility of witnesses, nor weigh the evidence presented
to the local board; the function of the reviewing court is merely to ascertain whether the findings of the
local board are supported by substantial evidence or whether its decisions are, on the contrary, clearly
erroneous, arbitrary or capricious. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing a decision and order of the
Local Government Employee-Management Relations Board (EMRB). The EMRB concluded,
after conducting hearings and taking evidence, that a request to carve out a bargaining unit
from an existing unit of employees of the City of Las Vegas was not warranted. The district
court overruled the board, concluding that the board was required by the Local Government
Employee-Management Relations Act, NRS Ch. 288, to carve out a bargaining unit whenever
a sufficient showing was made of a community of interest in such a proposed unit. We
disagree, and reinstate the decision and order of the board.
In January, 1977, a local union affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Las Vegas (Teamsters) sought recognition from
the City of Las Vegas {City) as the collective bargaining representative for certain of its
employees in designated "blue collar" job classifications.
98 Nev. 94, 96 (1982) Local Gov't Emp. v. General Sales
from the City of Las Vegas (City) as the collective bargaining representative for certain of its
employees in designated blue collar job classifications. The Teamsters based their request
upon signed authorization cards, which they claimed represented a majority of the workers in
a proposed blue collar bargaining unit. At the time of the Teamsters' request, there was in
effect a collective bargaining agreement between the City and the Las Vegas City Employees'
Protective and Benefit Association (CEA), recognizing the CEA as the exclusive
representative of all City employees except department heads, administrative and confidential
employees, and firemen.
The City denied the Teamsters' request for recognition, relying primarily upon their
previous contractual recognition of CEA as exclusive bargaining agent of the employees
whom the Teamsters sought to represent. The Teamsters appealed the City's determination to
the EMRB. The board decided that the City had properly denied the Teamsters' request for
recognition. The EMRB found [a]lthough there may or may not be a community of interest
among blue collar workers there is a greater and overriding community of interest among all
the non-uniformed employees of the City. The board therefore declined to designate the
blue collar workers as a separate bargaining unit and accordingly denied the Teamsters'
request to hold a representation election in such a unit.
The Teamsters petitioned the district court for review, arguing that the board's ruling
should be reversed because it had violated statutory provisions, or was in excess of the
board's statutory authority, NRS 233B.140(5)(a) and (b),
1
by refusing to make a unit
determination based solely upon a showing of a community of interest among the blue collar
workers. The district court agreed, reversing the order of the board and further ordering that a
representative election be held among the blue collar workers. In our view, the position taken
by the district court ignored the appropriate role taken by the EMRB in the interpretation and
administration of the act.
When the legislature adopted a statutory scheme for public employee collective
bargaining in 1969, it provided that "[t]he board may hear and determine any complaint
arising out of the interpretation of, or performance under, the provisions of this chapter
by any local government employer, local government employee or employee
organization."
____________________

1
NRS 233B.140(5) provides, in pertinent part, that:
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 reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) In violation of . . . statutory provisions;
(b) In excess of the statutory authority of the agency . . . .
98 Nev. 94, 97 (1982) Local Gov't Emp. v. General Sales
employee collective bargaining in 1969, it provided that [t]he board may hear and determine
any complaint arising out of the interpretation of, or performance under, the provisions of this
chapter by any local government employer, local government employee or employee
organization. NRS 288.110(2). As this court held in Clark County School District v. Local
Government Employee-Management Relations Board, 90 Nev. 442, 446, 530 P.2d 114, 117
(1974): Unless the board should act arbitrarily, unreasonably or capriciously beyond
administrative boundaries the courts must give credence to the findings of the board. 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.
[Headnote 1]
In this case, the board's jurisdiction to determine the appropriate bargaining unit, invoked
by the Teamsters by virtue of their appeal, is contained in the language of NRS 288.160(4).
This statute provides: If an employee organization is aggrieved by the refusal or withdrawal
of recognition [by the local government employer] . . . the aggrieved employee organization
may appeal to the board. If the board in good faith doubts whether any employee organization
is supported by a majority of the local government employees in a particular bargaining unit,
it may conduct an election by secret ballot upon the question. (Emphasis added.) Contrary to
the position urged by the Teamsters, nothing in the statute specifies that the particular unit
must be defined as any unit for which a community of interest can be shown.
The Teamsters point to NRS 288.170, which provides for an initial determination of
appropriate bargaining units by a local government employer, after consultation with
recognized employee organizations, and further provides that for such an employer, and for
the board on appeal, [t]he primary criterion for such determination shall be community of
interest among the employees concerned. (Emphasis added.) The board's decision clearly
reflects its conclusion that the employees concerned were not only the members of the
bargaining unit which the Teamsters sought to carve out, but all of the employees who would
be affected by such a split in bargaining representation.
[Headnote 2]
We are unable to conclude that such an interpretation was beyond the statutory authority of
the EMRB. The board had before it a request for severance of a unit which would "carve
out" a majority of the members of the existing unit, into a separate unit with different
organizational representation.
98 Nev. 94, 98 (1982) Local Gov't Emp. v. General Sales
before it a request for severance of a unit which would carve out a majority of the members
of the existing unit, into a separate unit with different organizational representation. It also
had before it evidence of a history of successful representation and negotiation on behalf of
the City's employees, including a recently concluded three-year agreement on behalf of blue
collar and white collar workers; testimony that the same civil service rules applied to all
members of the existing unit and provided for interchange of blue collar and white collar
employees upon merit qualification; and testimony from blue collar workers who had
participated on the CEA negotiating team or were executive officers in the association,
indicating their perceived community of interest with City employees generally. Further
testimony indicated that the Teamsters' organizational effort coincided with a temporary
period of concern among workers occasioned by a City job study.
[Headnote 3]
We are loathe to commit the board, which has been charged by the legislature with the
duty to administer the act regulating public employee collective bargaining in this state, to
any particular policy course not clearly dictated by the terms of the statute itself.
2
As we
have previously held with regard to the EMRB, great deference should be given to the
agency's interpretation when it is within the language of the statute. Clark Co. Sch. Dist. v.
Local Gov't, supra, 90 Nev. at 446, 530 P.2d at 117.
[Headnote 4]
As we have often held, neither the trial court, nor this court, may substitute its judgment
for that of an administrative agency acting within its statutory authority. E.g., North Las
Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). It is not our function to pass
on the credibility of witnesses, or to weigh the evidence presented to the agency, but merely
to ascertain whether the board's findings are supported by substantial evidence, or whether its
decisions are, on the contrary, clearly erroneous, arbitrary or capricious. See, Gandy v. State
ex rel. Div. Investigation, 96 Nev. 281, 607 P.2d 581 (1980); PSC v. Continental Tel. Co., 94
Nev. 344, 580 P.2d. 467 (1978); Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 379 P.2d.
466 (1963).
____________________

2
For the importance of unit determination in the public sector, see, e.g., E. Rock, The Appropriate Unit
Question in the Public Service: The Problem of Proliferation, 67 Mich. L. Rev. 1001, 1001 (1969).
98 Nev. 94, 99 (1982) Local Gov't Emp. v. General Sales
The board in this case acted within it statutory discretion, upon findings supported by
substantial evidence. We therefore uphold the decision of the Local Government
Employee-Management Relations Board and reverse the order of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
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), SCR 10.
____________
98 Nev. 99, 99 (1982) Spencer v. Harrah's Inc.
ANNA K. SPENCER, Appellant, v. HARRAH'S INCORPORATED; NEVADA
INDUSTRIAL COMMISSION, Respondent.
No. 12710
March 3, 1982 641 P.2d 481
Appeal from judgment of the district court, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Employer appealed from a decision of the appeals officer awarding employee's widow
workers' compensation benefits. The district court reversed, and widow appealed. The
Supreme Court held that where employee's death did not result substantially from his
employment, but instead from other infirmities in combination with his preexisting heart
disorder, and employee's debilitated state was not occasioned by his employment, but was of
a type likely to occur at any time, anywhere, employee's widow was not entitled to workers'
compensation death benefits.
Affirmed.
Goedert & Van Walraven, Reno, For Appellant.
Vargas & Bartlett, Reno, for Respondent Harrah's Incorporated.
Robert Gibb, Carson City, for Respondent Nevada Industrial Commission.
1. Workers' Compensation.
Preexisting illness normally will not bar a workers' compensation claim if the employment
aggravates, accelerates or combines with the disease process to trigger disability or
death.
98 Nev. 99, 100 (1982) Spencer v. Harrah's Inc.
claim if the employment aggravates, accelerates or combines with the disease process to trigger disability
or death.
2. Worker's Compensation.
Where employee's death did not result substantially from his employment, but instead from other
infirmities in combination with his preexisting heart disorder, and employee's debilitated state was not
occasioned by his employment, but was of a type likely to occur at any time, anywhere, employee's widow
was not entitled to workers' compensation death benefits.
OPINION
Per Curiam:
Appellant, Anna K. Spencer, appeals from judgment of the district court, denying her
claim for worker's compensation death benefits. Anna's husband, John A. Spencer, was
employed as a parts runner by Harrah's Incorporated from 1972 until his death in 1977. He
had been a victim of severe heart disease for several years prior to his employment with
Harrah's. In June, 1977, while selling car parts at a Harrah's sponsored swap meet, Mr.
Spencer suffered a heart attack and died. His wife sought recovery of worker's compensation
death benefits pursuant to NRS 616.615.
The Hearings Examiner for the Nevada Industrial Commission (NIC) denied appellant's
claim, finding that because Mr. Spencer's death was caused by myocardial infraction and
coronary arteriosclerosis, his death was not a compensable injury. NRS 616.110(2).
1
This
decision was affirmed on review by the Commissioners. An Appeals Officer reversed the
decision of the NIC, finding that the hot and windy weather and Mr. Spencer's activities at the
swap meet aggravated his heart condition and thereby rendered his death compensable under
the worker's compensation scheme. Harrah's filed a petition for review in the district court
pursuant to NRS 233B.140. Although the district court judge also found a causal relationship
between John Spencer's work at the swap meet and his heart attack, he determined that
NRS 616.110{2) precluded recovery under the facts of this case.
____________________

1
NRS 616.110 provides:
1. Injury and personal injury means a sudden and tangible happening of a traumatic nature,
producing an immediate or prompt result, and resulting from external force, including injuries to artificial
members . . . .
2. For the purposes of this chapter, coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom, shall not be deemed to be an injury
by accident sustained arising out of and in the course of the employment.
98 Nev. 99, 101 (1982) Spencer v. Harrah's Inc.
heart attack, he determined that NRS 616.110(2) precluded recovery under the facts of this
case. We agree with the trial court's determination and affirm.
[Headnote 1]
Appellant contends that heat exhaustion and dehydration which Mr. Spencer evidently
suffered at the swap meet precipitated his heart attack. According to appellant, these events
constitute an injury
2
by accident
3
sustained in the course of Mr. Spencer's employment,
4
and thus render his death compensable despite the fact that the actual cause of death was
Mr. Spencer's long-standing heart condition. See NRS 616.270. We recognize that preexisting
illness normally will not bar a claim if the employment aggravates, accelerates or combines
with the disease process to trigger disability or death. Nevada Industrial Commission v.
O'Hare, 76 Nev. 107, 349 P.2d 1058 (1960), 1 Larson Workmen's Compensation Law,
12.20 (1978). We also recognize the humanitarian motive behind the enactment of the
worker's compensation scheme, which compels a liberal construction in favor of claimants.
Nevada Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1952); Nevada Industrial
Commission v. Adair, 67 Nev. 259, 217 P.2d 348 (1950). And indeed, as appellant indicates,
courts in other jurisdictions have granted worker's compensation claims under like
circumstances. See e.g., Johns-Manville Corp. v. Industrial Commission, 326 N.E.2d 389 (Ill.
1975); Eslinger v. Miller Bros. Co., 315 S. W.2d 261 (Tenn. 1958).
The courts in these jurisdictions, however, were not faced with a statute akin to NRS
616.110(2). We find the provisions of NRS 616.110(2) clear and unambiguous. We are not
empowered, therefore, to go beyond the face of the statute to lend it a construction contrary to
its clear meaning. Cirac v. Lander Co., 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979); State
ex rel.
____________________

2
See Note 1, supra, for the statutory definition of injury.

3
NRS 616.020 defines accident:
Accident means an unexpected or unforeseen event happening suddenly and violently, with or
without human fault, and producing at the time objective symptoms of an injury.

4
NRS 616.270(1) provides:
Every employer within the provisions of this chapter, and those employers who shall accept the terms
of this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure
compensation according to the terms, conditions and provisions of this chapter for any and all personal
injuries by accident sustained by an employee arising out of and in the course of the employment.
98 Nev. 99, 102 (1982) Spencer v. Harrah's Inc.
Hess v. Washoe County, 6 Nev. 104, 107 (1870). Nor is it within our province to question the
wisdom of this statute, although we may be sympathetic to appellant's claim. State v.
Corinblit, 72 Nev. 202, 298 P.2d 470 (1956).
[Headnote 2]
Certainly, there is evidence that the conditions of heat exhaustion and dehydration, which
Mr. Spencer allowed to develop while participating in his employer's swap meet, aggravated
his preexisting heart condition on that day. It is clear, however, that where, as here, death
does not result substantially from employment, but instead from other infirmities in
combination with a preexisting heart disorder, NRS 616.110(2) precludes recovery. Mr.
Spencer's debilitated state was not occasioned by his employment. Rather, the debilitated
state which developed on the day of Mr. Spencer's death was of a type likely to occur at any
time, anywhere.
This conclusion makes it unnecessary for us to determine whether heat exhaustion and
dehydration are injuries or accidents within the meaning of NRS 616.110(1) and
616.020, and whether we should modify our holding in Smith v. Garside, 76 Nev. 377, 355
P.2d 849 (1960).
5

The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Guy, D. J.,
6
concur.
____________________

5
In Garside we determined that exposure to cold temperature in the workplace, which resulted in employee's
serious illness, was neither an injury nor accident within the statutory definitions.

6
The Governor designated the Honorable Addeliar D. Guy, Judge of the Eighth Judicial District, to sit in the
place of The Honorable Cameron M. Batjer, Justice. Nev. Const., art 6 4.
____________
98 Nev. 103, 103 (1982) Turner v. State
ROBERT TURNER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 12986
March 11, 1982 641 P.2d 1062
Appeal from conviction of first degree murder, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
After conviction by jury of first degree murder, the Supreme Court, 96 Nev. 164, 605 P.2d
1140 (1980), reversed. On retrial, the district court entered judgment on jury verdict finding
defendant guilty of first degree murder, and he appealed. The Supreme Court, Manoukian, J.,
held that: (1) testimony by defendant at his first trial in which defendant described his flight
from scene of shooting and his efforts to destroy or sell guns used in incident had probative
value in demonstrating consciousness of guilt or wrongful conduct and was therefore
admissible at second trial, even though balance of the prior testimony was largely supportive
of defendant's self-defense theory, and (2) defendant, who failed to object at trial to error by
trial court in instructing jury that the burden of proving circumstances which justify the use
of force upon another is upon the defendant, demonstrated neither cause nor prejudice from
the error, therefore, failure to object to trial precluded reversal on that ground.
Affirmed.
Richard C. Maurer, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Ronald C. Bloxham and James N. Tufteland, Deputy District Attorneys, Las Vegas, for
Respondent.
1. Criminal Law.
A defendant's Fifth Amendment privilege is not per se violated by the introduction of testimony from a
trial or hearing on the same offense. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
If otherwise admissible, a defendant's prior testimony may be introduced at a second trial as part of the
state's case-in-chief. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
A defendant's conduct, such as flight from a scene of the crime, generally is considered a party admission,
and will be admitted if the actions have probative value.
4. Criminal Law.
Testimony by defendant at his first trial for first degree murder, in which defendant described his
flight from the scene of the shooting and his efforts to destroy or sell the guns used in
the incident had probative value in demonstrating consciousness of guilt or wrongful
conduct, and was therefore admissible at second trial, even though balance of the
prior testimony was largely supportive of defendant's self-defense theory at trial.
98 Nev. 103, 104 (1982) Turner v. State
in which defendant described his flight from the scene of the shooting and his efforts to destroy or sell the
guns used in the incident had probative value in demonstrating consciousness of guilt or wrongful conduct,
and was therefore admissible at second trial, even though balance of the prior testimony was largely
supportive of defendant's self-defense theory at trial.
5. Criminal Law.
Instruction in prosecution for first degree murder that the burden of proving circumstances which justify
the use of force upon another is upon the defendant, was improper because it could have misled the jury
into believing that the defendant had burden of proving self-defense.
6. Criminal Law.
Failure to object to an instruction at trial precludes appellate review unless appellant sufficiently
demonstrates cause for failure to object and prejudice to substantial rights of the defendant.
7. Criminal Law.
Defendant, who failed to object at trial to error of trial court in instructing jury that the burden of
proving circumstances which justify the use of force upon another is upon the defendant, demonstrated
neither cause nor prejudice from the error, therefore, failure to object to trial precluded reversal on that
ground.
8. Criminal Law.
Supreme Court will abstain from addressing moot issues and issues in the abstract.
9. Criminal Law.
Trial court's refusal to consent to waiver by defendant of a jury trial defeated his claim that he should
have been allowed to waive a jury trial. NRS 175.011.
OPINION
By the Court, Manoukian, J.:
In 1977, appellant, Robert Turner, was charged with and convicted by jury of the first
degree murder of Joe Hicks. He was sentenced to life imprisonment without the possibility of
parole. Turner appealed that conviction and we reversed on a ground not relevant to the
instant appeal. Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980).
1

In 1980, Turner was retried by another jury. During that trial, the prosecution introduced a
statement which Turner made to the police shortly after his arrest, in which he admitted
shooting Hicks, but claimed he acted in self-defense. Turner did not testify during the second
trial and, over objection, his testimony in the first trial was also admitted as part of the state's
case-in-chief.
____________________

1
Turner was subsequently overruled by our decision in Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981).
98 Nev. 103, 105 (1982) Turner v. State
Turner's prior testimony was exculpatory in nature. Part of the testimony concerned
Turner's flight to Los Angeles immediately after the shooting and his destruction and sale of
the guns used in the incident. That testimony also described the altercation with Hicks over a
cocaine transaction which resulted in the shooting. Although there were some internal
inconsistencies in the prior testimony, appellant's claim was clearly that Hicks had either
drawn a gun first or was in the process of drawing it when Turner shot him. However, an
eyewitness to the events leading up to the shooting (but not to the shooting itself) was
emphatic that appellant, and not the victim, Hicks, had initially pulled a gun.
The second jury found appellant guilty of first degree murder and after a penalty hearing,
again imposed life imprisonment without possibility of parole.
Appellant contends that the trial court committed reversible error by admitting into
evidence his former trial testimony and giving an impermissible instruction on self-defense.
We find no error warranting reversal and affirm the lower court's decision.
1. Former Testimony.
Appellant contends that the use of testimony from his former trial in which he waived his
Fifth Amendment privilege, violated that constitutional privilege in the second trial because
there was no basis on which to admit the evidence in the prosecution's case-in-chief.
2

[Headnote 1]
A defendant's Fifth Amendment privilege is not per se violated by the introduction of
testimony from a trial or hearing on the same offense. In Edmonds v. United States, 273 F.2d
108 (D.C.Cir. 1959), cert. denied, 362 U.S. 977 (1960), the court concluded that a defendant's
refusal to take the stand at a second trial does not preclude the use of his testimony given at
the first trial, if the evidence is otherwise admissible. Id. at 113.
In Ledford v. State, 84 Nev. 342, 440 P.2d 902 (1968), we adopted the Edmonds rule. We
concluded that the prior testimony challenged in that case was otherwise admissible as
proper rebuttal evidence. We expressly reserved an opinion as to whether the evidence could
have been offered as part of the prosecution's case-in-chief. Id. at 344, n. 1, 440 P.2d at 903.
____________________

2
Appellant has incidentally claimed that error occurred in the state's use of the victim's sister to read
appellant's prior testimony and to demonstrate physical acts of role playing that Turner performed at the first
trial. Although we do not condone such use, appellant has failed to cite any relevant authority for his position or
to demonstrate prejudice. In the posture of the instant case, we, therefore, consider the claim meritless.
98 Nev. 103, 106 (1982) Turner v. State
[Headnote 2]
In Edmonds, supra, the court determined that it was proper to admit, as part of the
prosecution's case-in-chief, prior testimony given by the defendant which constituted an
admission.
[H]aving voluntarily gone on the witness stand in her own behalf on the former trial,
and there made statements against her interest, it was entirely competent for the state,
on the second trial, to prove those statements as admissions voluntarily made.
Admissions made under such circumstances may be proven in the same manner and for
the same reasons that admissions made out of court may be proven.
Id. at 113 (quoting Rafferty v. State, 16 S.W. 728, 730 (Tenn. 1891)). We find no reason to
depart from this Edmonds pronouncement and conclude that, if otherwise admissible, a
defendant's prior testimony may be introduced at a second trial as part of the state's
case-in-chief.
Appellant contends, however, that the prior testimony was neither an admission nor a prior
inconsistent exculpatory statement, the bases on which it was offered at the second trial.
NRS 51.035(3)(a) defines an admission as a party's own statement offered against him at
trial and provides that admissions are non-hearsay. Turner's prior testimony was clearly
offered against him at the second trial; it was an admission. But all evidence, including
admissions, must be relevant to be admissible. NRS 48.025. It appears to us that appellant's
essential argument is that the prior testimony was irrelevant, because it was not inconsistent
with Turner's claim of self-defense.
[Headnotes 3, 4]
In Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965), we determined that a party's
admission is relevant, and admissible, if at trial, it is inconsistent with the contention of the
party who made the statement. Id. at 450, 404 P.2d at 922. The prior testimony in the instant
case included appellant's description of his flight from the scene of the shooting to Los
Angeles and his efforts to destroy or sell the guns used in the incident. A defendant's conduct,
such as flight from a scene of the crime, generally is considered a party admission, and will
be admitted if the actions have probative value. See e.g., State v. Townsend, 439 P.2d 70
(Kan. 1968); McCormick's Law of Evidence, 271 (E. Cleary, 2d ed. 1972). We must view
such evidence with caution. See e.g., Wong Sun v. United States, 371 U.S. 471, 483, n. 10
(1963); Bailey v. United States, 416 F.2d 1110, 1115 (D.C.Cir. 1969). Nonetheless, we
believe that appellant's description of his actions in this case had probative value in
demonstrating consciousness of guilt or wrongful conduct. Cf. Matthews v. State, 94 Nev.
179, 576 P.2d 1125 {197S); Theriault v. State, 92 Nev. 1S5
98 Nev. 103, 107 (1982) Turner v. State
description of his actions in this case had probative value in demonstrating consciousness of
guilt or wrongful conduct. Cf. Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978);
Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976) (jury instruction on flight proper when
evidence supports inference of intent to avoid arrest). Such conduct is inconsistent with
appellant's plea of not guilty and claim of self-defense. See Beasley, supra. This part of
Turner's prior testimony was clearly a relevant admission and was properly admitted as part
of the state's case-in-chief.
The balance of the prior testimony concerned the alleged altercation between the victim,
Hicks, and Turner, preceding the shooting of Hicks. Although this testimony was largely
supportive of Turner's theory of self-defense at trial, we have stated that it is proper to admit
an exculpatory statement as an admission if it tends to establish guilt. Geer v. State, 92 Nev.
221, 548 P.2d 946 (1976). Here, as in Geer, the exculpatory testimony placed the defendant at
the scene, established that an altercation occurred and that the defendant inflicted harm to the
victim, facts which, we conclude, tend to establish guilt.
Thus, we determine that the entire text of Turner's prior testimony was properly admitted
on retrial.
2. The Self-Defense Instruction.
Appellant argues that the giving of jury instruction No. 25 was error, and that counsel's
failure to object at trial should not preclude reversal on this ground. The instruction reads:
Upon a trial of a charge of murder, it is a defense that the homicide was justifiable.
The burden of proving circumstances which justify the use of force upon another is
upon the defendant, but the defendant need not prove such circumstances beyond a
reasonable doubt, but such circumstances must be sufficient to raise a reasonable doubt.
[Headnote 5]
Appellant is correct in his assertion that the instruction was improper. See St. Pierre v.
State, 96 Nev. 887, 620 P.2d 1240 (1980); Kelso v. State, 95 Nev. 37, 588 P.2d. 1035, cert.
denied, 442 U.S. 921 (1979). Both Kelso and St. Pierre established that virtually identical
instructions were impermissible because they could mislead the jury into believing that a
defendant claiming self-defense has the burden of proving that defense by a preponderance of
evidence. See also Mullaney v. Wilbur, 421 U.S. 684 (1975).
[Headnotes 6, 7]
Failure to object to an instruction at trial precludes appellate review unless appellant
sufficiently demonstrates "cause" for failure to object and "prejudice" to substantial
rights of the defendant.
98 Nev. 103, 108 (1982) Turner v. State
review unless appellant sufficiently demonstrates cause for failure to object and prejudice
to substantial rights of the defendant. St Pierre, supra at 891, 620 P.2d at 1243. See also
Wainwright v. Sykes, 433 U.S. 72 (1977), and Francis v. Henderson, 425 U.S. 536 (1976).
3
Our review of the record and appellate briefs indicates that appellant has demonstrated
neither cause nor prejudice from the error; thus, we will not reverse on this ground.
[Headnotes 8, 9]
Appellant's remaining claims are without merit.
4

The judgment of conviction is affirmed.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

3
In Hankerson v. North Carolina, 432 U.S. 233, 244, n. 8 (1977), the Supreme Court indicated that failure to
object to a jury instruction that requires a defendant to prove an element of the crime may be held as a waiver of
any claim of error.

4
Appellant claims that it is untenable to permit a defendant whose original conviction and sentence have
been overturned to be given an enhanced punishment on retrial for the same offense. Turner's argument is both
moot and in the abstract--he received the identical sentence on retrial. We will abstain from addressing issues so
postured. See Miller v. West, 88 Nev. 105, 493 P.2d 1332, cert. denied, 409 U.S. 966 (1972). Appellant's
contention that he should have been allowed to waive a jury trial also fails for mootness. Although the state
consented to the waiver, appellant has failed to address the fact that the trial court declined to grant its consent to
appellant's waiver of a jury trial. Even if we determined that appellant could waive a jury trial, the trial court's
refusal to consent to the waiver defeats appellant's claim. See NRS 175.011.

5
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art 6, 19.
____________
98 Nev. 109, 109 (1982) Bell v. Alpha Tau Omega
WILLIAM RODNEY BELL, WILLIAM BELL and ARLENE BELL, Appellants, v. ALPHA
TAU OMEGA FRATERNITY, ETA EPSILSON CHAPTER, A Non-Profit Corporation;
NEVADA DELTA IOTA BUILDING ASSOCIATION, A Non-Profit Corporation;
UNIVERSITY OF NEVADA, RENO; INTERFRATERNITY
COUNCIL, Respondents.
No. 11500
March 17, 1982 642 P.2d 161
Appeal from judgment for defendants upon a jury verdict. Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
Minor and his parents sued fraternity, its building association, another building
association, and the interfraternity council of a university to recover damages for injuries
minor allegedly sustained when he fell off roof of fraternity house after becoming drunk. The
district court entered judgment in favor of defendants. Appeal was taken. The Supreme Court,
Springer, J., held that: (1) violation of statute making it criminal offense knowingly to furnish
liquor or intentionally to make liquor available to persons under 21 is not negligence per se;
(2) it was not error to refuse to give willful misconduct instructions; and (3) plaintiffs waived
on appeal issue that it was error to give instruction regarding legality of parents' providing
alcohol to child.
Affirmed.
Bergmann & Mollath, Reno, for Appellants.
Johnson, Belaustegui & Robison; Wait, Shamberger, Georgeson, McQuaid & Thompson;
Hibbs & Newton; Reno, for Respondents.
1. Intoxicating Liquors.
Absent evidence of legislative intent to impose civil liability, violation of statute making it criminal
offense to knowingly furnish liquor or intentionally to make liquor available to persons under 21 is not
negligence per se. NRS 202.055.
2. Negligence.
In action against fraternity, its building association, and university interfraternity council to recover
damages for injuries allegedly sustained by plaintiff when he fell off roof of fraternity house, it was proper
to refuse to give willful misconduct instructions in light of circumstances in which the plaintiff, 19 years
old, went with his fraternity brothers to buy a keg of beer in which he shared generously, got drunk and
then fell of the fraternity house roof.
98 Nev. 109, 110 (1982) Bell v. Alpha Tau Omega
3. Appeal and Error.
In action to recover damages for injuries which plaintiff allegedly sustained when he fell off roof of
fraternity house after becoming drunk at fraternity party, plaintiffs waived issue on appeal of alleged error
in refusal to give instruction regarding legality of parents' providing alcohol to child where there was no
indication of any objection in the trial record; nevertheless, even assuming that the plaintiff parents were
entitled to an instruction on the exemption of parents from criminal liability, the omission of the instruction
did not affect their substantial rights. NRS 178.598, 202.055.
OPINION
By the Court, Springer, J.:
1

Appellants, William Rodney Bell and his parents William and Arlene Bell, sued Alpha
Tau Omega fraternity (ATO), its building association, Delta Iota Building Association, and
the Interfraternity Council of the University of Nevada, Reno. Suit arose out of injuries
sustained by Rodney Bell when he fell off the roof of the ATO house.
The facts surrounding the fall are as follows: March 21, 1976 was initiation day at the
ATO house. Rodney was an initiate; he was nineteen at the time. The formal initiation took
place between 4:00 p.m. and 6:00 p.m. After the initiation Rodney joined other fraternity
members in picking up a keg of beer. While doing this Rodney drank four or five beers. After
dinner Rodney joined in drinking from the keg and imbibed a little wine on his own. By
11:00 p.m. he was drunk. In this condition he proceeded to up-end beds, throw books, clothes
and papers about the fraternity house and otherwise act up. This all led to Rodney's disastrous
attempt to enter one of his brother's rooms via the steeply-pitched ATO roof.
Rodney and a friend started up one side of the roof. He started to slip on his initial ascent
and advised a companion in the venture that he was removing his shoes in order to get a
better traction. Rodney proceeded up and over the top ridge and started his descent to the
gabled window of the room which he intended to enter. His companion warned him not to get
too close to the edge of the roof as he might slip and fall. Thereafter the companion saw
Rodney fall from the roof.
This appeal follows a jury verdict in favor of defendants below. Appellants allege that the
trial court erroneously instructed the jury in several respects.
____________________

1
By assignment of the Chief Justice, Justice Charles E. Springer is participating in the decision of this appeal
in the place and stead of Justice Noel E. Manoukian, who voluntarily disqualified himself subsequent to oral
argument.
98 Nev. 109, 111 (1982) Bell v. Alpha Tau Omega
ASSIGNMENTS OF ERROR
[Headnote 1]
1. Refusal to Give Instruction that Furnishing Alcohol was Negligence Per Se. The Bells
requested an instruction that violation of NRS 202.055,
2
if the proximate cause of Rodney's
injuries, constitutes negligence as a matter of law. The statute makes it a criminal offense
knowingly to furnish liquor or intentionally to make liquor available to persons under
twenty-one.
This court held in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969),
that a related statute, NRS 202.100,
3
prohibiting service of intoxicants to a person who is
drunk, did not impose civil liability and that violation of the statute was not negligence per se.
The rationale behind the Hamm decision is that the purpose of the statute was to regulate the
selling of intoxicants and not to enlarge civil remedies.
NRS 202.055 is likewise part of the statutory scheme regulating the sale of tobacco and
intoxicating liquor to minors and drunkards. It would be inconsistent with our previous
decision and legally unsound for us to hold that violation of this statute by furnishing beer to
an adult under twenty-one years of age constituted negligence as a matter of law. We adhere
to our view that absent evidence of legislative intent to impose civil liability we shall not
conclude that a violation of a statute is negligence per se.
____________________

2
NRS 202.055 provides as follows:
NRS 202.055 Sales, furnishing of intoxicating liquor to minors; aiding minor to purchase, procure
intoxicating liquor; intoxicating liquor defined.
1. Every person who knowingly:
(a) Sells, gives or otherwise furnishes intoxicating liquors to any person under the age of 21 years; or
(b) Leaves or deposits any intoxicating liquors in any place with the intent that the same shall be
procured by any person under the age of 21 years; or
(c) Furnishes, gives, or causes to be given any money or thing of value to any person under the age of
21 years with the knowledge that the money or thing of value is to be used by the person under the age of
21 years to purchase or procure any intoxicating liquor, is guilty of a misdemeanor.
2. Paragraph (a) of subsection 1 does not apply to a parent, guardian or physician of the person under
the age of 21 years.
3. As used in this section, intoxicating liquor means beer, wine, gin, whiskey, cordials, ethyl
alcohol or rum, and every liquid or solid, patented or not, containing one-half of 1 percent or more of
alcohol by volume and which is used for beverage purposes.

3
NRS 202.100 has since been repealed by the legislature. 1973 Nev. Stats. ch. 604, 8, at 1062.
98 Nev. 109, 112 (1982) Bell v. Alpha Tau Omega
[Headnote 2]
2. Refusal to Give Willful Misconduct Instructions. Willful misconduct requires a
consciousness that one's conduct will very probably result in injury. We have here an adult,
nineteen years old; he went with his fraternity brothers to buy a keg of beer in which he
shared generously. He got drunk and fell off the fraternity house roof. It is hard to find that
any defendant acted in a manner that naturally or probably would cause Rodney to get drunk
and fall off the roof. Cf. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220
(1981) (knowing sale of alcoholic beverages to minors in violation of the law did not amount
to willful or wanton misconduct). The trial judge was correct in refusing this instruction.
[Headnote 3]
3. Refusal to Give Instruction Regarding Legality of Parents' Providing Alcohol to Child.
During trial, defense counsel emphasized that Rodney's parents had served him alcohol and
had otherwise condoned his drinking. NRS 202.055 exempts parents from criminal liability
for furnishing alcohol. The Bells claim they were prejudiced by the court's refusal to instruct
the jury that they were not acting illegally in serving alcohol to their son. We think the
evidence is wholly immaterial since parental misconduct was not in issue. Rodney was not a
child and his parents owed no duty to protect him from his decision to drink. It, therefore,
may have been error for counsel to comment on irrelevant information concerning the Bells'
attitude toward drinking. Appellants' counsel should have objected both to the line of
questioning and to the comments in closing argument. There is no indication of any objection
in the record. It therefore appears that appellants have waived their right to object.
Nevertheless, even assuming that the Bells were entitled to an instruction on the exemption of
parents from criminal liability, we cannot see that the omission of the instruction affected
their substantial rights. See NRS 178.598.
Appellants' remaining contentions are also without merit. This case is affirmed.
Gunderson, C. J., and Mowbray and Batjer, JJ.,
4
and Mendoza, D. J.,
5
concur.
____________________

4
The Chief Justice has designated The Honorable Cameron Batjer as justice pro tempore. SCR 11.

5
The Governor designated the Honorable John F. Mendoza, Judge of the Eighth Judicial District Court, to sit
in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art 6 4.
____________
98 Nev. 113, 113 (1982) Daniel v. Hilton Hotels Corp.
DANIEL, MANN, JOHNSON & MENDENHALL, Appellant, v. HILTON HOTELS
CORPORATION, dba LAS VEGAS HILTON, Respondent.
No. 12190
March 29, 1982 642 P.2d 1086
Appeal from a judgment entered upon a jury verdict for breach of contract, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
Surveyor brought action against owner seeking to collect damages for breach of contract
whereunder surveyor promised to perform all survey work and reports pertaining to
construction of addition to owner's existing hotel and casino. The district court entered
judgment for owner, and surveyor appealed. The Supreme Court held that: (1) court properly
instructed jury that surveyor's liability was founded upon implied duty to perform in
workmanlike manner; (2) expert testimony was not required to prove breach of duty; (3) trial
court did err by not submitting to jury issue of whether loss of profits was reasonably
foreseeable; and (4) there was no error in award of interest on damages for remedial work.
Affirmed in part; reversed in part and remanded for further proceedings.
Dickerson, Miles & Pico, Las Vegas; Morris, Polich & Purdy, and Jeffrey S. Barron, Los
Angeles, for Appellant.
Lionel Sawyer & Collins, and Steve Morris, Las Vegas, for Respondent.
1. Contracts.
In surveyor's breach of contract action against owner, it was sufficient to instruct jury that surveyor who
promised to perform survey work and reports pertaining to construction of 600-room addition to hotel and
casino had an implied duty to perform in workmanlike manner.
2. Negligence.
Standard of care must be determined by expert testimony unless conduct involved is within common
knowledge of lay persons.
3. Contracts.
Where service rendered does not involve esoteric knowledge or uncertainty that calls for professional's
judgment, it is not beyond knowledge of jury to determine adequacy of performance.
4. Contracts.
In surveyor's action against owner for breach of contract under which surveyor agreed to perform survey
work and reports pertaining to construction of addition to hotel and casino, expert testimony was not
required to prove breach of owner's duty.
98 Nev. 113, 114 (1982) Daniel v. Hilton Hotels Corp.
5. Damages.
In surveyor's action against owner for breach of contract whereunder surveyor agreed to perform survey
work and reports pertaining to construction of addition to existing hotel and casino, trial court erred by not
submitting to jury issue of whether loss of profits was reasonably foreseeable.
6. Interest.
In surveyor's action against owner for breach of contract for survey work, there was no error in award of
interest on damages for remedial work. NRS 99.040, subd. 1.
OPINION
Per Curiam:
Appellant and respondent entered into a written contract whereby appellant promised to
perform all survey work and reports pertaining to the construction of a six hundred room
addition to respondent's existing hotel and casino. Respondent agreed to compensate
appellant for these services on a time-and-materials basis. It was the responsibility of
appellant to pinpoint the location of caissons which were to constitute the major foundational
support for the structure and elevator shaft. After the caissons were drilled, it was discovered
that several had been misplaced. Remedial work resulted in several days' delay in the final
completion of the addition. Respondent brought suit for breach of contact and obtained a
judgment in its favor with an award of damages of approximately one million dollars.
Appellant cites numerous errors at trial, including: (1) the court's instruction of the jury on
implied warranty to perform in a workmanlike manner; (2) the court's failure to instruct the
jury regarding expert testimony and regarding the foreseeability of damages for lost profits;
and (3) the court's award of prejudgment interest.
[Headnote 1]
It is appellant's main contention that the district court erred when it instructed the jury that
appellant's liability was founded upon an implied duty to perform in a workmanlike manner.
It is urged by appellant that the proper standard by which the jury should have measured
appellant's conduct is the duty to perform as an ordinarily skillful surveyor under similar
circumstances. In our view, it is sufficient to instruct the jury that appellant had an implied
duty to perform in a workmanlike manner. It is clear from the nature of the work that, had the
work been done in a workmanlike manner, the caissons would not have been misplaced.
98 Nev. 113, 115 (1982) Daniel v. Hilton Hotels Corp.
would not have been misplaced. See Broyles v. Brown Engineering Co., 151 So.2d 767 (Ala.
1963). Appellant was provided plans and specifications that reflected the location and
dimensions of the caissons. The survey emanated from existing, fixed monuments, the
accuracy of which is not in doubt. There is nothing in the record to indicate that the survey
required complex calculations or necessitated the reliance upon untrustworthy data such that
accuracy could not be expected from performance done in a workmanlike manner.
[Headnotes 2-4]
We also disagree with appellant's contention that expert testimony is required to prove the
breach of duty. It is well settled that the standard of care must be determined by expert
testimony unless the conduct involved is within the common knowledge of laypersons. Bialer
v. St. Mary's Hospital, 83 Nev. 241 (1967). Where, as in the instant case, the service rendered
does not involve esoteric knowledge or uncertainty that calls for the professional's judgment,
it is not beyond the knowledge of the jury to determine the adequacy of the performance. See
Aetna Insurance Co. v. Hellmuth, Obata Kassabaum, Inc., 392 F.2d 472, 478 (8th Cir. 1968).
[Headnote 5]
It is appellant's third claim that the trial court erred by not submitting to the jury the issue
of whether the loss of profits was reasonably foreseeable.
1
We must agree. There can be no
recovery for damages that are not reasonably foreseeable at the time of the contract. General
Elec. Supply v. Mt. Wheeler Power, 94 Nev. 766, 587 P.2d 1312 (1978); MacKay v. Western
U. Tel. Co., 16 Nev. 222 (1881). Ordinarily, this presents a factual issue to be determined by
the trier of fact. Traylor v. Henkels & McCoy, Inc., 585 P.2d 970 (Idaho 1978). Only if it can
be said that the damages are the direct or natural result of the breach can they be presumed
foreseeable as a matter of law.
____________________

1
The jury was read the following instruction:
If you find that the plaintiff is entitled to damages for the delay in the opening of the Hilton 600-room
addition, then you may award the Hilton the lost profits which are attributable to such delay. Lost profits
are an appropriate measure of damages so long as the evidence provides a basis for determining, with
reasonable certainty, what the profits would have been had the contract not been breached.
Although a degree of uncertainty may be present in fixing damages for lost profits, this does not
destroy the right to recover them. The rule against the recovery of uncertain damages is directed against
uncertainty as to the existence of damage as opposed to the amount of them.
98 Nev. 113, 116 (1982) Daniel v. Hilton Hotels Corp.
the breach can they be presumed foreseeable as a matter of law. See Hoag v. Jenan, 195 P.2d
451 (Cal.Ct.App. 1948); Johnson v. Utile, 86 Nev. 593, 472 P.2d 335 (1970). See also
Restatement (Second) of Contracts, section 351, comment b (1981).
Respondent contends the loss of profits caused by the delayed opening of the addition was
a direct or natural result of appellant's breach because the contract involved work essential to
the construction of an addition to an operating hotel and casino. Respondent misplaces its
reliance upon Hoag v. Jenan, supra. In Hoag, the plaintiff contracted for the construction of
needed additional space for his existing repair shop. Damages for the loss of profits from
delay in completion of the addition were recoverable as the direct result of the breach because
a completion date was specified in the contract for the purpose of preventing such loss. Id. at
456. Respondent concedes that neither appellant's contract to perform the survey work, nor
the general conditions and specifications of the construction project as a whole, contain a
completion date for the addition. In our view, it cannot be said as a matter of law that the loss
of profits flow foreseeably from the breach of a construction contract where, as here, there is
no evidence of a contemplated completion date at the time of the contract. Therefore, failure
to submit to the jury the issue of foreseeability of lost profits is reversible error.
The final issue to be considered is whether the district court erred in awarding
prejudgment interest. The district court awarded prejudgment interest on damages claimed for
the remedial work and for the loss of profits occasioned by the delay. NRS 99.040(1)
provides that interest shall be allowed upon all money from the time it becomes due, upon
contracts, express or implied, other than book accounts.
2
The interest awarded upon the
damages for remedial work fits within our construction of the statute in Paradise Homes v.
Central Surety, 84 Nev. 109, 437 P.2d 78 (1968). Therefore, there is no error in the award of
interest on damages for the remedial work.
____________________

2
NRS 99.040(1) provides as follows:
99.040 Interest rate when no express written contract. 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.
The statute was amended effective July 1, 1981 to increase the statutory rate to 12 percent per annum and
change shall be allowed to must be allowed. The amended statute does not affect the instant case. See ch.
739, 1981 Nev. Stat. 1858.
98 Nev. 113, 117 (1982) Daniel v. Hilton Hotels Corp.
work. In view of our decision that the issue regarding lost profits must be submitted to the
jury, we need not consider the appropriateness of prejudgment interest on the damages for
lost profits. Accordingly, the judgment of the district court is affirmed insofar as it awards
damages to respondent for costs, remedial work and the interest thereupon. Insofar as it
awards damages for lost profits, including interest, judgment is reversed and remanded to the
district court for further proceedings consistent with this opinion. Other issues raised by
appellant are without merit and need not be considered.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff. Sr. J.,
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.
____________
98 Nev. 117, 117 (1982) School of Theology v. Faith Communications
SCHOOL OF THEOLOGY AT CLAREMONT; REX HUMBARD FOUNDATION;
AMERICAN BIBLE SOCIETY and THE PACIFIC AND SOUTHWEST ANNUAL
CONFERENCE OF THE UNITED METHODIST CHURCH, Appellants, and
UNIVERSITY UNITED METHODIST CHURCH, Co-Appellant, v. FAITH
COMMUNICATIONS CORPORATION, and GORDON MICHALSON, Executor of the
ESTATE OF LESTER M. BALKINS, Deceased, Respondents.
No. 13088
March 29, 1982 642 P.2d 590
Appeal from trial court order awarding bequest to Faith Communications, Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
The Supreme Court held that bequest in will to nonprofit corporation in which testator and
his attorney were both interested in amount equal to amount that would be awarded as full
and customary compensation for legal services in probate of testator's estate was not gift
conditional upon attorney's representing estate without charging it since commentary in
bequest appeared merely to state testator's inducement for making the bequest.
Affirmed.
98 Nev. 117, 118 (1982) School of Theology v. Faith Communications
Foley Brothers, Las Vegas, for Appellants.
Hilbrecht, Jones, Schreck & Bernhard, Las Vegas, for Co-Appellant.
Allen & Bigelow, Las Vegas, for Respondent Faith Communications Corp.
Lionel Sawyer & Collins, Las Vegas, for Respondent Gordon Michalson, Executor of the
Estate of Lester M. Balkins.
Wills.
Bequest in will to nonprofit corporation in which testator and his attorney were both interested in amount
equal to amount that would be awarded as full and customary compensation for legal services in probate of
testator's estate was not gift conditional upon attorney's representing estate without charging it since
commentary in bequest appeared merely to state testator's inducement for making the bequest.
OPINION
Per Curiam:
This is an appeal from the trial court's award of a testamentary bequest to respondent,
Faith Communications, in an amount equal to five percent of the gross amount of the Lester
M. Balkins' estate, or approximately $133,000. The value of the estate is estimated to be in
excess of $2,500,000. Faith Communications, and appellants and co-appellant, are religious
entities specified in the will as residual beneficiaries and beneficiaries of principal and
income from charitable remainder annuity trusts upon the death of the life beneficiaries.
Paragraph 8 of the will, and the one prompting this litigation provides:
My good friend and attorney, JOHN A. TAYLOR, has told me that he will act,
without charge, as the attorney for my estate in the probate of this Will, and I encourage
my Executors to retain him in that capacity. Because of his long friendship and
generosity, I have determined that I will make a gift to an organization in which we are
both interested, FAITH COMMUNICATIONS CORPORATION. Therefore, I hereby
give FAITH COMMUNICATIONS CORPORATION, a Nevada non-profit
corporation, also known as KILA-FM, Henderson, Nevada, an amount equal to the
amount that would be awarded by the Court as full, ordinary and customary
compensation for legal services in the probate of an estate equal in size to this
estate at the time of my death.
98 Nev. 117, 119 (1982) School of Theology v. Faith Communications
legal services in the probate of an estate equal in size to this estate at the time of my
death.
John Taylor, now deceased, did gratuitously provide legal services in initial probate
proceedings, but, anticipating his participation as a witness in estate litigation, he engaged,
with district court approval, the law firm of Lionel Sawyer & Collins to serve as co-counsel.
Appellants appeal from the district court determination that Balkins made an absolute
bequest to Faith Communications. They contend that the language in Paragraph 8 establishes
a conditional gift; no gift would be made if John Taylor did not serve without charging the
estate. According to appellants, the gift in question should reflect only an amount equal to the
reasonable value of fees for legal services actually donated by John Taylor to the estate. We
disagree.
Paragraph 8 clearly provides that John Taylor's services were not a condition to the
gift--Balkins only encouraged his executors to use Taylor as counsel. To establish a
condition, the will must employ language which clearly indicates a purpose to limit its
operation. In re Moulton's Estate, 1 Cal.Rptr. 407 (Cal.App. 1960). See also, Soady v. First
National Bank, 82 Nev. 97, 411 P.2d 482 (1966); In re Desmond's Estate, 35 Cal.Rptr. 737
(Cal.App. 1963).
In the case of In re Trybom's Will, 13 N.E.2d 596 (N.Y.App. 1938), a bequest was made
in consideration of services to be rendered. Such language is far more indicative of a
conditional gift than that found in Paragraph 8 Balkins' will, yet the Trybom court declined to
find that the provision established a condition precedent to the gift. The cases just cited
clearly underscore a preference for construing ambiguity in favor of finding a gift to be
absolute, rather than conditional. The commentary in Paragraph 8 appears merely to state
Balkins' inducement for making the bequest, which will not render a gift conditional. See In
re Moulton's Estate, supra.
Appellants' other issues are without merit. We affirm the order of the trial court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 120, 120 (1982) Tracy v. Capozzi
JEROME A. TRACY and VELMA D. TRACY, Husband and Wife, Appellants and
Cross-Respondents, v. RALPH CAPOZZI and PAULA CAPOZZI, Husband and Wife,
Respondents and Cross-Appellants.
No. 12825
March 29, 1982 642 P.2d 591
Appeal and cross-appeal from judgment dissolving preliminary injunction and awarding
damages to respondents/cross-appellants, Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Property owners filed a complaint seeking injunctive relief, alleging that defendants were
about to build a home in violation of subdivision's restrictive covenant. The district court
entered a judgment dissolving the preliminary injunction granted plaintiffs and awarding
damages to defendants, and an appeal and cross-appeal were taken. The Supreme Court,
Manoukian, J., held that; (1) where respective violations of plaintiffs and defendants, relating
to the procedure for obtaining building plan approval, were identical, no justification existed
for applying an exception to the unclean hands doctrine; plaintiffs could not seek to enjoin
the house construction of defendants, based on a violation of the self-same covenant that
plaintiffs themselves had previously violated, and (2) in respect to the wrongful issuance of a
restraining order or preliminary injunction, an award of damages in excess of the bond will
not be sanctioned where the restraint was obtained in good faith and the restrained or
enjoined parties failed to protect themselves from an inadequate bond with the means
available to them.
Affirmed.
Vargas & Bartlett and Phillip W. Bartlett, Reno, For Appellants and Cross-Respondents.
Hoy, Miller & Murphy, Chartered, Reno, for Respondents and Cross-Appellants.
1. Equity.
Litigant seeking equity must come with clean hands.
2. Injunction.
Courts will usually deny injunctive relief if the complainant has violated the same restrictive covenant he
seeks to enforce against defendant, but an exception to this rule is recognized if the complainant's violation
is insignificant, whereas defendant's infraction is substantial.
98 Nev. 120, 121 (1982) Tracy v. Capozzi
3. Equity.
Where the respective violations of plaintiffs and defendants, relating to the procedure for obtaining
building plan approval, were identical, no justification existed for applying an exception to unclean
hands doctrine; plaintiffs could not seek to enjoin the house construction of defendants, based on a
violation of the self-same covenant that plaintiffs themselves had previously violated.
4. Injunction.
Injunctive restraints are wrongful and recovery on the bond permissible, if such restraints are later
dissolved, regardless of the good or bad faith of complainant in seeking the restraint.
5. Injunction.
In respect to the wrongful issuance of a restraining order or preliminary injunction, an award of damages
in excess of the bond will not be sanctioned where the restraint was obtained in good faith and the
restrained or enjoined parties failed to protect themselves from an inadequate bond with the means
available to them. NRCP 65(c).
OPINION
By the Court, Manoukian, J.:
This case is an appeal and cross-appeal from the trial court's judgment dissolving a
preliminary injunction and awarding damages to respondents and cross-appellants. Appellants
and cross-respondents, the Tracys (hereinafter appellants), contend that the trial court erred
in its determination that appellants' own violation of the relevant restrictive covenant
precluded their obtaining equitable relief for a like breach by respondents and
cross-appellants, the Capozzis (hereinafter respondents). Respondents, in their
cross-appeal, assert that the trial court erred in limiting the award of damages to respondents
to the amount of the security bond posted by appellants. Finding no error, we affirm the lower
court's decision in its entirety.
In October 1977, appellants filed a complaint seeking injunctive relief, alleging that
respondents were about to build a home in the Frost Ranches Subdivision, in violation of the
applicable Declaration of Covenants, Restrictions, Easements and Reservations. Appellants
alleged, inter alia, that respondents had not obtained written approval of two of the three
members of the subdivision's Architectural Committee as required by the Declaration of
Covenants, Paragraph 12(a).
The trial court, without notice, issued a temporary restraining order based on appellants'
verified complaint, restraining respondents from further excavation and construction and
imposing a $1,000 security bond to be furnished by appellants.
98 Nev. 120, 122 (1982) Tracy v. Capozzi
Following a contested hearing in November 1977, a preliminary injunction was issued, and
the court increased the security bond to $5,000. Respondents filed a Motion to Dissolve the
Preliminary Injunction in December 1977, which was denied, after a hearing, in March 1978.
At no time did respondents move for an additional increase in the security bond.
Following a trial on the merits, in June 1978, the trial judge entered an order dissolving the
preliminary injunction. The court found that although only one Architectural Committee
member signed the respondents' building plans, the general practice was to construct with
only that one member's written approval. In addition, the court found that another Committee
member had orally approved the plan. The court noted that appellants had never received
written approval for their house which had been moved, already constructed, to the
subdivision, in violation of both Paragraph 12 and 15
1
of the Declaration of Covenants. The
trial court concluded that such violations precluded the injunctive relief requested by
appellants.
Respondents substantially completed construction in March of 1979 and in April filed a
motion for damages of $128,632 resulting from increased construction and loan interest costs.
The district court granted respondents' motion only to the extent of the $5,000 security posted
by appellants with the court, to apply to respondents' court costs and attorney's fees. This
award was predicated on Paragraph 32 of the Declaration of Covenants, which provides that
the prevailing party in an action to enforce the restrictions shall be entitled to recover
attorney's fees. Although the court recognized that respondents' damages exceeded the bond,
it refused an additional award because it determined that the preliminary injunction was
obtained in good faith.
1. Breach of Covenants.
2

Paragraph 12(a) of the Declaration of Covenants, in relevant part, provides:
No . . . structure shall be commenced, erected, placed or altered on any lot . . . until
. . . the building plans and specifications . . . have been submitted to and approved in
writing . . . by an Architectural Committee composed of KARL S.
____________________

1
Paragraph 15 prohibits moving a previously constructed house onto a subdivision lot.

2
At oral argument, it was disclosed that the Tracys have sold their Frost Ranch home. Although this
occurrence arguably renders moot the issue concerning the dissolution of the preliminary injunction, we find that
issue inextricably tied to the remaining issue concerning damages. The latter issue (the cross-appeal) being
clearly justiciable, we deem it necessary to address both the appeal and cross-appeal in this opinion.
98 Nev. 120, 123 (1982) Tracy v. Capozzi
writing . . . by an Architectural Committee composed of KARL S. BAKER, O. FRANK
STOCK, and A REPRESENTATIVE OF MURRAY-McCORMICK
ENVIRONMENTAL GROUP OF NEVADA, or any two of them or a committee of at
least two persons appointed by them . . . .
[Headnotes 1, 2]
It is uncontroverted that only one member of the Committee (Frank Stock) actually signed
respondents' plans. Appellants contend that the single signature was a clear violation of the
covenant and an appropriate basis for granting injunctive relief. They claim that their own
failure to procure signatures of two committee members before construction on their lot did
not constitute a waiver of their right to enjoin respondents' construction.
3
Several factors
militate against appellants' contentions. The decision below was not based on a theory of
waiver, but on the well-established defense to equitable claims that litigants seeking equity
must come with clean hands. Courts will usually deny injunctive relief if the complainant
has violated the same restrictive covenant he seeks to enforce against a defendant. See
Houston Petroleum Co. v. Automotive Products Credit, 87 A.2d 319 (N.J. 1952);
Vandershoot v. Kocher, 72 N.Y.S.2d 121 (Supr.Ct. 1947); Reading v. Keller, 406 P.2d 634
(Wash. 1965); 5 R. Powell, The Law of Real Property, 679 (1981); cf. Gladstone v.
Gregory, 95 Nev. 474, 596 P.2d 491 (1979) (right to enforce one restrictive covenant not lost
by acquiescence in the violation of another).
[Headnote 3]
An exception to this rule is recognized if the complainant's violation is insignificant, but
defendant's infraction is substantial. See Reading v. Keller, supra at 636, and Powell, supra.
In the instant case, the violations of plaintiffs and defendants, relating to the procedure of
obtaining building plan approval, were identical. We find no justification for applying the
exception to the unclean hands doctrine under the circumstances of this case. Appellants
cannot seek to enjoin respondents, based on a violation of the self-same covenant they
previously violated. The trial court properly dissolved the preliminary injunction.
4
2.
____________________

3
Paragraph 30 of the Declaration of Covenants provides that delay or failure to exercise any right shall not
constitute a waiver nor shall waiver be predicated on any course of conduct.

4
We find that the alternative argument of respondentsthat the general practice was to obtain the signature
of only one Committee member and oral approval of anotherto have considerable merit, but in light of our
98 Nev. 120, 124 (1982) Tracy v. Capozzi
2. Limitation of Damages.
The district court refused to award damages (other than attorney's fees) to respondents
because it found the preliminary injunction was obtained in good faith, and thus was not
wrongful under NRCP 65(c).
5
Attorney's fees to the extent of the bond were awarded, as
required under the Declaration of Covenants. Appellants' good faith in pursuing injunctive
relief is not disputed by respondents, nor do appellants contest on appeal the propriety of the
award below, assuming the dissolution of the injunction was proper.
[Headnote 4]
Preliminarily, we note that our position has been and remains that injunctive restraints are
wrongful and recovery on the bond permissible, if such restraints are later
dissolved--regardless of the good or bad faith of the complainant in seeking the restraint. See,
e.g., Aetna Casualty and Surety Co. v. Bell, 95 Nev. 822, 603 P.2d 692 (1979); Artistic
Hairdressers, Inc. v. Levy, 87 Nev. 313, 486 P.2d 482 (1971); Glens Falls Insurance Co. v.
First National Bank, 83 Nev. 196, 427 P.2d 1 (1967). Thus, we would dispute the trial court's
initial determination that the injunction was not wrongfully granted.
Nonetheless, since an award for attorney's fees was made in the amount of the bond, the
crucial issue confronting us is not whether recovery for damages against the bond is
permissible, but whether such recovery may exceed the limits of the bond, as respondents
would have us rule.
The rationale underlying respondents' view is that the application for a temporary
restraining order is usually made ex parte; the amount of security for the defendant's
protection often is arbitrarily set, and may be, at best, an estimate by the court based upon
opinion or ex parte representations by the complainant or his counsel. This minority view
holds that when the bond proves inadequate, the complainant is the logical party to respond to
damages because he caused the injury by initiating the restraint. See Smith v. Coronado
Foothills Estates Homeowner's Association, 571 P.2d 66S {Ariz.
____________________
disposition above, we need not determine if the alternative argument provided a sufficient basis for the trial
court's decision.

5
NRCP 65(c) provides, in part:
No restraining order or preliminary injunction shall issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.
(Emphasis added.)
98 Nev. 120, 125 (1982) Tracy v. Capozzi
Estates Homeowner's Association, 571 P.2d 668 (Ariz. 1977). See also Howard D. Johnson
Co. v. Parkside Development Corp., 348 N.E.2d 656 (Ind.App. 1976); Johnson v. McMahan,
40 S.W.2d 920 (Tex.Civ.App. 1931).
The majority rule, however, limits recovery to the amount of the bond, absent a showing
that the complainant obtained the temporary restraining order or preliminary injunction
maliciously or in bad faith. See, e.g., Egge v. Lane County, 556 P.2d 1372 (Or. 1976);
Venegas v. United Farm Workers Union, 552 P.2d 210 (Wash.App. 1976); Weber v.
Johnston Fuel Lines, Inc., 540 P.2d 535 (Wyo. 1975). A similar position is adopted by the
federal courts. See, e.g., Buddy Systems, Inc. v. Exer-Genie, Inc., 545 F.2d 1164 (9th Cir.
1976), cert. denied, 431 U.S. 903 (1977); United Motor Service v. Tropic-Aire, Inc., 57 F.2d
479 (8th Cir. 1932); J. Moore Federal Practice, 65.10[1] (2d ed. 1980).
The minority view, espoused by respondents, undeniably has common sense appeal: it
insures an adequate award of damages resulting from wrongful restraint assessed against the
one who made the mistake, albeit in good faith. However, we find the majority view more
compatible with public policy encouraging ready access to our courts. On balance, we find
this public policy principle outweighs our concern for defendants facing inadequate bonds at
the termination of a wrongful restraint. We must zealously protect the good faith pursuit of
legal and equitable remedies from the deterrent certain to be posed by unknown liability for
mistake. See United Construction Workers v. H. O. Canfield Co., 116 A.2d 914
(Conn.Super.Ct. 1955).
[Headnote 5]
Under the rule we adopt today, the defendant is not without recourse in the event the bond
proves to be inadequate during the restraint and continuing litigation; he may move for an
increase in the bond. Respondents in the instant case failed to so protect themselves. There is
substantial evidence that, at all relevant times, respondents were aware of the rapidly
escalating construction and mortgage costs and had ample opportunity in which to move for
an increase in the bond. Appellants would then have had the opportunity to assess the risks of
pursuing their equitable claim. See Venegas, supra, at 211-213. We will not sanction an
award of damages in excess of the bond where, as here, appellants obtained the restraint in
good faith and the respondents failed to protect themselves from an inadequate bond with the
means available to them.
98 Nev. 120, 126 (1982) Tracy v. Capozzi
The parties' remaining claims are either without merit or need not be reached. We affirm
the trial court's determinations concerning both the appeal and the cross-appeal.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
6
concur.
____________________

6
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 126, 126 (1982) Morgan v. State
CLARENCE EDWARD MORGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13005
CLARENCE EDWARD MORGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13006
March 29, 1982 642 P.2d 595
Appeals from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County, Joseph S. Pavlikowski, Judge.
The Supreme Court held that despite defendant's allegation of indigency, district court
failed to appoint counsel to represent him and made no finding as to his indigency, requiring
reversal of the order.
Reversed and remanded.
J. Gregory Damm, State Public Defender, and Michael K. Powell, Special Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where, despite defendant's allegation of indigency made in conjunction with his petition for
post-conviction relief, district court failed to appoint counsel to represent him and made no finding as to his
indigency, reversal of order denying the petition was required. NRS 177.345, subd. 1.
98 Nev. 126, 127 (1982) Morgan v. State
OPINION
Per Curiam:
On January 16, 1979, Clarence Edward Morgan pleaded guilty to two counts of selling a
controlled substance for which he received a twelve-year sentence and a ten-year sentence, to
run consecutively in the Nevada State Prison. Morgan has filed two appeals, one for each
conviction, challenging the denial of his petition for post-conviction relief. Cause appearing,
these appeals are hereby consolidated for review by this court. NRAP 3(b).
On July 2, 1980, Morgan filed, in proper person, a petition for post-conviction relief. In
conjunction with his petition, Morgan alleged that he was an indigent person, financially
unable to pay or provide security for the payment of official fees and the costs of retaining
counsel. . . . Morgan requested that he be granted leave to proceed in forma pauperis and
that counsel be appointed to assist and represent [him] in the prosecution of the petition.
The matter came before the district court on July 29, 1980, and the court summarily denied
Morgan's petition. No counsel was appointed to represent him at this proceeding, and no one
appeared on his behalf. Morgan was not present because he was in prison at the time.
Morgan contends on appeal, inter alia, that the district court erred in summarily denying
his petition without appointing counsel to represent him.
1
NRS 177.345(1) provides:
(1) The petition may allege that petitioner is unable to pay the costs of the
proceeding or to employ counsel. If the court is satisfied that the allegation is true, it
shall appoint counsel for him within 10 days of the filing of the petition. (Emphasis
added.)
Despite Morgan's allegation of indigency, the district court failed to appoint counsel to
represent him. Further, the district court made no finding as to Morgan's indigency.
2

Accordingly, we reverse the district court's order denying Morgan's petition for
post-conviction relief.
____________________

1
The state, in its answering brief, did not respond to this contention.

2
We note that after the district court denied Morgan's petition for post-conviction relief, Morgan moved for
appointment of counsel to pursue this appeal. He again alleged that he was indigent and financially unable to
retain private counsel. The district court apparently was satisfied that Morgan was indigent, as it granted his
motion and appointed counsel to prepare this appeal.
98 Nev. 126, 128 (1982) Morgan v. State
Morgan's petition for post-conviction relief. We remand for further proceedings, including the
appointment of counsel in accordance with NRS 177.345(1).
____________
98 Nev. 128, 128 (1982) Carlisle v. State
KENNETH WAYNE CARLISLE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12753
March 29, 1982 642 P.2d 596
Appeal from convictions of sexual assault with the use of a deadly weapon, possession of
a short-barreled shotgun, possession of a controlled substance, and coercion. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that: (1) physical evidence recovered from defendant's van was
admissible even if warrantless search of the van was illegal; (2) coercion statute was not
unconstitutionally vague; and (3) defendant's conduct fell squarely within prohibition of
coercion statute.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Even if warrantless search of defendant's van was illegal, physical evidence recovered would still have
been admissible since police had arranged to tow the van and would have been justified in conducting an
inventory which inevitably would have revealed the evidence.
2. Constitutional Law.
Due process clause of the Fourteenth Amendment does not require impossible standards of specificity in
penal statutes; the test of granting sufficient warning as to proscribed conduct will be met if there are
well-settled and ordinarily understood meanings for the words employed when viewed in context of the
entire statutory provision. U.S.C.A.Const. Amend. 14.
3. Disorderly Conduct.
Words used in coercion statute adequately defined a proscribed course of conduct for which a perpetrator
may be punished and thus was not unconstitutionally vague. NRS 207.190, subd. 1(c); U.S.C.A.Const.
Amend. 14.
98 Nev. 128, 129 (1982) Carlisle v. State
4. Constitutional Law.
Constitutionality of a statute will not be decided upon a supposed or hypothetical case which might arise
thereunder.
5. Disorderly Conduct.
Defendant's conduct in forcing one rape victim to aid him by holding leg of another victim while he raped
the other victim fell squarely within prohibition of coercion statute. NRS 207.190, subd. 1(c).
OPINION
Per Curiam:
A jury convicted appellant of sexual assault with the use of a deadly weapon (three
counts), possession of a short-barreled shotgun, possession of a controlled substance, and
coercion. On appeal, appellant makes numerous assignments of error, only two of which we
deem worthy of discussion.
Appellant's conviction was based primarily upon the testimony of the victims, three
teenage girls, who had been hitchhiking from Pennsylvania to Los Angeles. On September 8,
1979, appellant picked up the girls near Denver, Colorado, and offered them a ride to Los
Angeles. The next day, near Jean, Nevada, appellant drove his van off the highway and into
the desert. Thereafter, he pointed a shotgun at the girls and ordered them to undress. Being
frightened, the girls complied. Appellant then proceeded to sexually assault all three girls. At
one point, appellant ordered one of the girls to hold her friend's leg down to enable him to
secure penetration. Following the assault, appellant left the girls in the desert.
Sometime later, an ambulance driver, returning from an accident, observed the girls
walking along the roadside. He stopped and offered to help them. The girls told him of their
experience, described appellant and his van, and stated that the van contained a shotgun and
some explosives. The driver relayed this information to the police. Soon thereafter, the police
stopped the van and arrested appellant. An officer searched the van, discovering a sawed-off
shotgun, some firecrackers, and a bag containing marijuana.
[Headnote 1]
Appellant first contends that the district court erred by denying his motion to suppress the
sawed-off shotgun and marijuana which the police had removed from appellant's van. Even
assuming, arguendo, that the warrantless search of appellant's van was illegal, the physical
evidence recovered would still be admissible. We have held that evidence obtained as a result
of information derived from an unlawful search or other illegal police conduct is not
inadmissible where the normal course of police investigation would, in any case, even
absent the illicit conduct, have inevitably led to such evidence.
98 Nev. 128, 130 (1982) Carlisle v. State
result of information derived from an unlawful search or other illegal police conduct is not
inadmissible where the normal course of police investigation would, in any case, even absent
the illicit conduct, have inevitably led to such evidence. Clough v. State, 92 Nev. 603, 555
P.2d 840 (1976); Yeoman v. State, 92 Nev. 368, 550 P.2d 1273 (1976); see also Shum v.
State, 97 Nev. 15, 621 P.2d 1114 (1981). Here, the police had arranged to tow appellant's
vehicle and would have been justified in conducting an inventory. During this inventory, the
police inevitably would have found the shotgun and marijuana. The district court did not err
in denying the motion to suppress.
1

Appellant next contends that the coercion statute under which he was convicted is vague
and overbroad. NRS 207.190 provides in pertinent part:
1. It is unlawful for any person, with intent to compel another to do or abstain from
doing an act which such other person has a right to do or abstain from doing, to:
. . .
(c) Attempt to intimidate such person by threats or force.
Appellant's conviction of coercion was based on the fact that he forced one victim to aid him
by holding the leg of another victim while he raped the other victim.
[Headnotes 2, 3]
In Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), this court outlined the test
for vagueness as follows:
The doctrine that a statute is void for vagueness is predicated upon its repugnancy to the
due process clause of the Fourteenth Amendment to the United States Constitution. The
Constitution does not require impossible standards of specificity in penal statutes. The
test of granting sufficient warning as to proscribed conduct will be met if there are well
settled and ordinarily understood meanings for the words employed when viewed in the
context of the entire statutory provision. [Citations omitted.]
Id. at 762, 542 P.2d at 1400. See also Wilmeth v. State, 96 Nev. 403, 610 P.2d 735 (1980);
Fields v. Sheriff, 93 Nev. 640, 572 P.2d 213 (1977). Under this test, we are satisfied that the
words used in NRS 207.190{1){c) adequately define a proscribed course of conduct for
which a perpetrator may be punished.
____________________

1
In addition to the doctrine of inevitable discovery, the district court also relied on protection of public
safety, see Cady v. Dombrowski, 413 U.S. 433 (1973), and search incident to lawful arrest, see Chimel v.
California, 395 U.S. 752 (1969), as grounds for denying the motion. Because we conclude that the ruling was
justifiable on the basis of inevitable discovery, we need not rule on the other grounds.
98 Nev. 128, 131 (1982) Carlisle v. State
used in NRS 207.190(1)(c) adequately define a proscribed course of conduct for which a
perpetrator may be punished. See Rose v. Locke, 423 U.S. 48 (1975).
[Headnotes 4, 5]
Appellant's overbreadth argument is equally without merit. In challenging the statute as
overbroad, appellant invents four hypothetical situations in which he contends the statute
could be applied to proscribe constitutionally protected behavior. However, this court will not
decide the constitutionality of a statute based upon a supposed or hypothetical case which
might arise thereunder. Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969). Appellant's conduct
falls squarely within the prohibition of NRS 207.190(1)(c).
We have considered the other contentions raised by appellant and find them to be
without merit.
Affirmed.
____________
98 Nev. 131, 131 (1982) Nevada Indus. Comm'n v. Taylor
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
STEPHEN L. TAYLOR, Respondent.
No. 12757
March 29, 1982 642 P.2d 598
This is an appeal from an order reversing and remanding a decision of the Industrial
Commission's Appeals Officer, First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
In proceeding in review of Industrial Commission's appeals officer's order requiring that
claimant's temporary total disability benefits cease on date on which he was released to return
to employment by his treating physician, the district court set aside appeals officer's decision
and ordered payment of such benefits for period commencing when claimant voluntarily
ceased work on basis of his assertion that his prior injury prevented adequate job
performance, and Commission appealed. The Supreme Court held that claimant's right to
temporary total disability benefits ceased in June when he was released to return to
employment by treating physician, and ordering payment of such benefits for period
commencing in September when claimant voluntarily ceased working was error, absent any
determination by competent medical authority contrary to the treating physician's
determination.
Reversed.
98 Nev. 131, 132 (1982) Nevada Indus. Comm'n v. Taylor
Raymond Badger, General Counsel, Nevada Industrial Commission, Carson City, for
Appellant.
Smith & Gamble, Carson City, for Respondent.
Workers' Compensation.
Claimant's right to temporary total disability benefits ceased in June when he was released to return to
employment by his treating physician; ordering payment of such benefits for period commencing in
September when claimant voluntarily ceased work on basis of his assertion that his prior injury prevented
adequate job performance was error, absent any determination by competent medical authority contrary to
that of the treating physician. NRS 616.585, subd. 3.
OPINION
Per Curiam:
The Nevada Industrial Commission appeals from a district court order setting aside a
decision of its appeals officer. The appeals officer ordered that temporary total disability
compensation for respondent Taylor should cease as of June 12, 1978, the date at which he
was released to return to employment by his treating physician. Taylor had returned to work
on June 12, 1978, but voluntarily ceased to work on September 10, 1978. He claimed that his
prior injury prevented adequate job performance.
NRS 616.585(3) provides: For purposes of temporary total disability benefits under this
section, the period of temporary total disability shall cease when any competent medical
authority determines such employee is capable of any gainful employment. On June 12,
1978, Taylor was released for work by his physician. It cannot be doubted that this
constituted a determination by competent medical authority that Taylor was capable of
gainful employment. Accordingly, temporary total disability for Taylor must cease as of that
date.
The appeals officer properly disallowed temporary disability compensation for the period
of time following September 10, 1978. The trial court nonetheless held that in view of the
evidence the administrative decision was in some respects clearly erroneous; it therefore
ordered temporary total disability benefits to be paid for the period from September 10, 1978
through January 9, 1979. We are at a loss to discover in what respects the decision was
clearly erroneous. There was no competent medical authority contrary to that of Taylor's
doctor. Under such circumstances the commission was mandated by NRS 616.585 to cease
temporary total disability payments after June 12, 197S until competent medical
authority determined to the contrary.
98 Nev. 131, 133 (1982) Nevada Indus. Comm'n v. Taylor
616.585 to cease temporary total disability payments after June 12, 1978 until competent
medical authority determined to the contrary. The court erred in setting aside the order of the
appeals officer and in awarding attorney's fees.
1
This matter is reversed and remanded to the
district court for appropriate action consistent with this opinion.
____________________

1
Appellant does not challenge that part of the district court order requiring re-evaluation of Taylor's
permanent disability rating.
____________
98 Nev. 133, 133 (1982) Kellen v. District Court
MARVELL LEE KELLEN, SIERRA PAINTING, INC., Petitioners, v. SECOND JUDICIAL
DISTRICT COURT of the STATE OF NEVADA, in and for the
County of Washoe, Department No. 6, Respondent. WILLIAM B. MOORE,
Real Party in Interest.
No. 13701
March 29, 1982 642 P.2d 600
In mandamus proceeding, employer and co-employee of plaintiff, who brought action to
recover for injuries allegedly sustained in automobile accident, sought to have district court
required to grant employer's and co-employee's motion for summary judgment on defendant's
third-party complaint seeking contribution from employer and co-employee. The Supreme
Court held that provisions of Industrial Insurance Act insulated employer and co-employee
from liability by way of contribution or equitable indemnity, despite the asserted existence of
independent duty consisting of duty to the public to exercise ordinary care to avoid injury to
other drivers.
Petition granted.
Sala, McAuliffe, Hill & White, and William E. Bernard, Reno, for Petitioners.
Wait, Shamberger, Georgeson, McQuaid & Thompson, Fray & Benson, Reno, and Prince,
Yeates & Geldzahler, Salt Lake City, for Respondent.
1. Workers' Compensation.
Absent independent duty owed to a third party, provisions of the Industrial Insurance Act insulate
employers and co-employees, not only from liability to employees, but also from liability by way of
indemnity to a third party. NRS 616.010 et seq.
98 Nev. 133, 134 (1982) Kellen v. District Court
2. Workers' Compensation.
Provisions of Industrial Insurance Act insulated employer and co-employee of plaintiff, who brought
action to recover for injuries allegedly sustained in automobile accident, from liability to defendant by way
of contribution or equitable indemnity, despite the asserted existence of independent duty consisting of
duty to the public to exercise ordinary care to avoid injury to other drivers. NRS 616.010 et seq.
3. Contribution.
Defendant, against whom recovery was sought for injuries allegedly sustained by plaintiff in automobile
accident, could not recover contribution from plaintiff's employer and co-employee on theory that their
negligence contributed to plaintiff's injuries and that it would be unjust for defendant to bear full
responsibility to plaintiff. NRS 616.010 et seq.
OPINION
Per Curiam:
In this mandamus proceeding petitioners contend that the district court should be required
to grant petitioners' motion for summary judgment. See NRAP 3A(b)(5).
Petitioners are named as defendants in a third-party complaint filed by William B. Moore,
the real party in interest. Moore is the defendant in an action in the district court in which the
plaintiff is seeking recovery for injuries allegedly sustained in an automobile accident. The
third-party complaint seeks contribution from petitioners for whatever recovery the plaintiff
may be awarded. Contending that they are the employer and the co-employee of the plaintiff,
petitioners moved for summary judgment on the ground that they could not be held liable for
contribution or equitable indemnity. The motion was denied and this petition followed.
[Headnote 1]
Absent an independent duty owed to a third party, employers and co-employees are
insulated by the provisions of the Nevada Industrial Insurance Act (NRS 616.010 et seq.), not
only from liability to employees, but also from liability by way of indemnity to a third party.
Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977).
[Headnotes 2, 3]
Moore argues that an independent duty exists here, namely, the duty to the public to
exercise ordinary care to avoid injury to other drivers. We disagree. The independent duty
referred to in Outboard Marine is not such an abstract duty as Moore argues. Furthermore, if
that duty results, in reality, from a duty and resultant liability of the employer to the
employee, then that liability is exactly the type which the Act extinguishes.
98 Nev. 133, 135 (1982) Kellen v. District Court
then that liability is exactly the type which the Act extinguishes. See Santisteven v. Dow
Chemical Company, 506 F.2d 1216 (9th Cir. 1974).
1

Accordingly, we order issuance of a writ of mandamus compelling the district court to
vacate its order denying the motion for summary judgment, and to enter an order granting
said motion.
Petition granted.
2

____________________

1
Moore argues that petitioners' negligence contributed to plaintiff's injuries, and that it is therefore unjust for
Moore to bear full responsibility to the plaintiff. The argument is without merit for the reasons stated in
Santisteven v. Dow Chemical Company, 362 F.Supp. 646 (D.Nev. 1973).

2
Justice Noel Manoukian voluntarily disqualified himself from the consideration of this case.
____________
98 Nev. 135, 135 (1982) LaPena v. State
FRANK RALPH LaPENA, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 10009
April 13, 1982 643 P.2d 244
Appeal from judgment of conviction of robbery with the use of a deadly weapon and
murder of the first degree after a jury trial. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
The Supreme Court, Springer, J., held that convictions would be reversed where
prosecution's case depended substantially upon out-of-court statements and preliminary
examination testimony obtained from purported accomplice who testified pursuant to
executory conditional plea bargain.
Reversed and remanded.
Manoukian, J., dissented.
Wiener, Goldwater, Waldman & Gordon, Ltd.; Richard A. Wright, Las Vegas, for
Appellant.
Richard Bryan, Attorney General; Robert J. Miller, District Attorney, Las Vegas, for
Respondent.
Criminal Law.
Convictions of robbery and first degree murder would be reversed where prosecution's case depended
substantially upon out-of-court statements and preliminary examination testimony obtained from
purported accomplice who testified pursuant to executory conditional plea bargain.
98 Nev. 135, 136 (1982) LaPena v. State
from purported accomplice who testified pursuant to executory conditional plea bargain.
OPINION
By the Court, Springer, J.:
Frank LaPena has appealed from convictions of robbery and first degree murder. The
convictions are reversed because the prosecution's case depended substantially upon
out-of-court statements and preliminary examination testimony obtained from a purported
accomplice, Jerry Weakland, who testified pursuant to an executory conditional plea bargain.
Weakland was apprehended for the robbery and murder of Hilda Kraus. He ultimately
admitted that he had robbed the woman and killed her. At the time of Weakland's preliminary
examination, he agreed to cooperate with the prosecution by implicating appellant LaPena. In
exchange for his testimony that LaPena had contracted with him for the murder, Weakland
was to be allowed to plead guilty to second degree murder and receive a sentence of five
years to life imprisonment. Under the agreement, robbery and all other charges were to be
dropped, including charges unrelated to the subject incident.
Weakland testified at LaPena's preliminary examination, incriminating LaPena in
accordance with his previous statements to prosecuting officials. Thereafter the state kept its
bargain. Weakland pleaded guilty to second degree murder and received the promised
sentence. All other charges were dismissed.
Weakland was subsequently called to testify at LaPena's trial. He stated under oath that his
testimony at LaPena's preliminary examination and his prior statements to the prosecution
were untrue; he said that he had incriminated LaPena under pressure from the police to do so.
Weakland refused to testify any further concerning LaPena's alleged involvement in the
robbery and murder. The trial court later admitted into evidence Weakland's prior testimony
and his previous written and videotaped statements to police officials.
The trial court committed reversible error by admitting into evidence Weakland's
statements incriminating LaPena. The admission into evidence violated the rule established in
Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978) and reaffirmed in Burns v. State, 96 Nev.
802, 618 P.2d 881 (1980). In those decisions we disapproved the practice of withholding the
benefits of a plea bargain or promise of leniency until after a purported accomplice had
testified in a particular manner.
98 Nev. 135, 137 (1982) LaPena v. State
a plea bargain or promise of leniency until after a purported accomplice had testified in a
particular manner. We see no meaningful distinction between the facts of this case and
Franklin. The prosecution did not permit Weakland to reap the benefit of his bargain until
after he had incriminated LaPena at the preliminary examination. The plea bargain was
thereby used to induce cooperation. At trial Weakland said as much, claiming to have been
coerced into making the incriminating statements. Since the prosecution relied substantially
on Weakland's incriminating statements in developing its case against LaPena, we cannot find
the improper admission of evidence harmless beyond a reasonable doubt. See Burns, supra.
Accordingly, the judgment of conviction is reversed.
Gunderson, C. J., Mowbray, J., and Zenoff, Sr. J.,
1
concur.
Manoukian, J., dissenting:
I cannot agree with the majority that the trial court committed reversible error by
admitting into evidence Weakland's statements incriminating LaPena. My bases for
disagreement are clearly set forth in my separate opinions in Franklin v. State, 94 Nev. 220,
227, 577 P.2d 860, 864 (1978) (Manoukian, J., dissenting, with Mowbray, J.) and Burns v.
State, 96 Nev. 802, 806, 618 P.2d 881, 884 (1980) (Manoukian, J., concurring).
I would affirm the judgment of conviction.
____________________

1
The Chief Justice designated Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6 19; SCR 10.
____________
98 Nev. 138, 138 (1982) Shockey v. Harden Insurance Agency
H. CARL SHOCKEY and HELEN SHOCKEY, Appellants, v. HARDEN INSURANCE
AGENCY, INC., Respondent.
No. 12372
April 20, 1982 643 P.2d 849
Appeal from an order granting respondent's motion for summary judgment, Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
Corporation brought action to require return of stock certificate. The district court granted
corporation's motion for summary judgment and purchasers appealed. The Supreme Court
held that factual issues existed as to the agreed-upon method of payment for the stock and as
to the means by which the purchaser acquired the stock certificate.
Reversed and remanded.
John Peter Lee, Vincent Ochoa, Richard McKnight and James C. Mahan, Las Vegas, for
Appellants.
Rogers, Monsey, Woodbury and Berggreen, and Douglas G. Crosby, Las Vegas, for
Respondent.
Judgment.
Dispute as to the agreed-upon method of payment for stock purchase and dispute as to whether stock
certificate was delivered to purchaser or whether he illegally removed it from the corporate books created
issues of fact rendering summary judgment inappropriate in action brought to require return of stock
certificate.
OPINION
Per Curiam:
The district court granted respondent, Harden Insurance Agency's, motion for summary
judgment, and ordered appellants Carl and Helen Shockey to return a stock certificate for 720
shares of Harden Insurance Agency stock. The Shockeys contend there are genuine issues of
material fact which render the district court's order of summary judgment inappropriate.
In April of 1972, Carl Shockey began his employment as vice-president of Harden
Insurance Agency. In negotiations leading to Shockey's employment, Max Harden, president
of Harden Insurance Agency, sent the following letter, dated March 29, 1972: .
98 Nev. 138, 139 (1982) Shockey v. Harden Insurance Agency
. . . We will allow you the option of purchasing 30% of the stock in Harden Insurance
Agency, Inc., at a figure of approximately $40,000 to be paid in any manner you may
work out with me, at no interest if you so desire. You may sign a note to the Corporation
for same designating the length of time and amounts same is to be paid.
You will be requested to sign an agreement that in the event of your wishing to sell
your stock you will sell it back to the Corporation and the price will be based on the past
three year averaging of sale.
In December of 1972, Max Harden issued 720 shares of corporate stock to Carl Shockey,
without executing a written agreement reflecting the financial terms of the sale. The record
reflects that from April 1, 1972 until August of 1976, no written agreement regarding the
method of payment for the stock purchase was perfected. The only document exchanged by
the parties was the letter of March 29, 1972, which stated the method of payment for the
stock purchase would be worked out between the parties.
On June 11, 1976, Shockey informed Harden that he wanted to resign from the Board of
Directors and sell his shares of stock back to the corporation. Upon realizing the parties had
not executed an agreement, Harden presented Shockey with a written agreement, pre-dated
April 1, 1972. The agreement provided that the corporation would issue 30% of the unissued
outstanding capital stock to Shockey in exchange for a promissory note for the purchase price
of the stock. Shockey signed the written agreement in August of 1976.
Next, Harden requested Shockey to sign a promissory note to secure payment of the 720
shares of stock. Shockey refused to sign the note, claiming it did not reflect the terms of an
alleged oral agreement between the parties. On August 28, 1976, Harden terminated
Shockey's employment with Harden Insurance Agency.
Shockey contends that parties entered into an oral agreement whereby the purchase price
of the stock would be paid for out of the dividends flowing from the ownership of said stock.
Harden, on the other hand, avers that Shockey was obligated to pay for the stock pursuant to
an unexecuted promissory note.
It is well-established that the presence of genuine issues of material fact will preclude
summary judgment. In determining the propriety of a summary judgment, the evidence is to
be viewed in a light most favorable to the party against whom such summary judgment was
rendered.
98 Nev. 138, 140 (1982) Shockey v. Harden Insurance Agency
such summary judgment was rendered. Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492
(1954); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).
Here, the parties ultimately entered into a written agreement which called for the
simultaneous execution of a promissory note.
1
Because the parties were in dispute as to the
method of payment for the stock purchase, the promissory note was never executed.
Consequently, there exists a genuine issue of material fact regarding the method of payment
the parties intended to place upon the stock purchase.
Finally, the parties are in dispute as to how Shockey obtained possession of the Harden
Insurance Agency stock certificate. Shockey claims the stock certificate was delivered to him
by Harden. In contrast, Harden contends the stock certificate was illegally removed from the
corporate books by Shockey. Again, a material issue of fact remains which renders summary
judgment inappropriate.
Accordingly, we reverse the district court's order granting respondent's motion for
summary judgment. We remand for further proceedings not inconsistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Paragraph 2 of the parties' agreement states:
The purchase price for said stock shall be determined as follows: the value of the agency as reflected in
its financial statement of December 31, 1971 and said promissory note shall be as set forth in Exhibit A
attached hereto and shall be signed simultaneously with this agreement.

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.,
art. 6 19; SCR 10.
____________
98 Nev. 140, 140 (1982) Burleigh v. State Bar of Nevada
PETER H. BURLEIGH, Appellant, v. STATE BAR
OF NEVADA, Respondent.
No. 12989
April 28, 1982 643 P.2d 1201
Appeal from decision of hearing panel, Southern Disciplinary Board of the State Bar of
Nevada.
In disciplinary proceedings, the Supreme Court, Zenoff, Senior Justice, held that: (1)
disciplinary proceedings conducted by hearing panel were not inconsistent with due process
because of potential for recovery by state bar of fines and costs; {2) rule which allowed
Supreme Court to temporarily suspend license to practice law without presuspension
hearing is not unconstitutional; {3) hearing prior to temporary suspension of license to
practice law is properly dispensed with, in view of charges of conspiracy to commit
murder; and {4) charges of conspiracy to commit murder, failure to disclose such
involvement and violation of terms of temporary suspension involve misconduct
warranting disbarment, public reprimand, fine and assessment of costs.
98 Nev. 140, 141 (1982) Burleigh v. State Bar of Nevada
(2) rule which allowed Supreme Court to temporarily suspend license to practice law without
presuspension hearing is not unconstitutional; (3) hearing prior to temporary suspension of
license to practice law is properly dispensed with, in view of charges of conspiracy to commit
murder; and (4) charges of conspiracy to commit murder, failure to disclose such involvement
and violation of terms of temporary suspension involve misconduct warranting disbarment,
public reprimand, fine and assessment of costs.
Disbarment, public reprimand, fine and assessment of costs ordered in accordance
with recommendations.
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry and Martin J.
Kravitz, Las Vegas, for Appellant.
Ralph B. Peterson, Reno, for Respondent.
1. Constitutional Law.
Individual members of disciplinary board had no personal financial stake in outcome of their
deliberations and no executive responsibilities for finances of state bar which would be inconsistent with
due process requirements for disciplinary proceedings, despite potential for recovery by bar of fines and
costs. SCR 86, 103(1), (3); U.S.C.A.Const.Amend. 14.
2. Constitutional Law.
To determine appropriate procedure under due process standards, court must consider: private interest
affected; risk of erroneous deprivation by procedures used; and government interest to be protected in light
of fiscal and administrative burdens imposed by additional procedural safeguards. U.S.C.A.Const.Amend.
14.
3. Constitutional Law.
Practice of a profession is valuable property right, of which one cannot be arbitrarily deprived.
U.S.C.A.Const.Amend. 14.
4. Constitutional Law.
State cannot exclude person from practice of law without due process of law. U.S.C.A.Const.Amend. 14.
5. Attorney and Client.
Rule allowing Supreme Court to temporarily suspend license to practice law without presuspension
hearing is not unconstitutional, since risk of erroneous deprivation is minimized by rules entitling
temporarily suspended attorney to continue his existing practice for circumscribed time and allowing him
to obtain immediate hearing and prompt resolution of the matter, and rule permits court to order only
temporary suspension if there are affidavits to support allegation that attorney is causing great harm by
his actions. SCR 102(4), (4)(c), (d); U.S.C.A.Const.Amend. 14.
6. Attorney and Client.
Hearing prior to temporary suspension of license to practice law is properly dispensed with, in view of
charges of conspiracy to commit murder; criminal conviction is not necessary prerequisite to temporary
suspension. SCR 102(4).
98 Nev. 140, 142 (1982) Burleigh v. State Bar of Nevada
7. Attorney and Client.
Charges of conspiracy to commit murder, failure to disclose such involvement and violation of terms of
temporary suspension involve misconduct warranting disbarment, public reprimand, fine and assessment of
costs. Code of Prof. Resp., DR1-102(A)(3, 4, 6); SCR 102(4).
OPINION
By the Court, Zenoff, Sr. J.:
1

This case is an automatic appeal, pursuant to SCR 105(3)(b), of a decision by a hearing
panel of the State Bar of Nevada, Southern Nevada Disciplinary Board, recommending that
Peter H. Burleigh be disbarred, publicly reprimanded, fined and assessed the costs of the
disciplinary proceedings against him.
Burleigh contends that his due process rights were violated because respondent had a
pecuniary interest in finding grounds for discipline, and that SCR 102(4) impermissibly
allowed this court to suspend his license temporarily without a presuspension hearing. We
disagree, and adopt the hearing panel's findings and recommendations.
Burleigh is an attorney licensed to practice law in Nevada. In 1978 he was indicted by the
Clark County Grand Jury for conspiracy to commit murder and conspiracy to commit arson.
In June, 1979, the Southern Nevada Disciplinary Board of the State Bar of Nevada, through
its chairman, petitioned this court for a temporary suspension of appellant's license to
practice, pursuant to SCR 102(4).
2
We granted the petition. The criminal charges were
subsequently dismissed, and the temporary suspension was dissolved by order of this court in
July, 1980.
3
On August 5, 19S0, Bar counsel, acting as prosecutor pursuant to SCR
104{1){c), filed an amended complaint accusing appellant of unethical conduct in three
causes of action: conspiracy to murder his former wife, conspiracy to burn an attorney's
office, and violation of the terms of the temporary suspension.
____________________

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

2
SCR 102(4)(a) provides in pertinent part:
On the petition of a disciplinary board, signed by its chairman or vice chairman, supported by an
affidavit alleging facts personally known to the affiant which shows that an attorney appears to be causing
great harm by misappropriating funds to his own use, or by other clearly identified acts, the supreme
court may issue an order, with notice as the court may prescribe, imposing temporary conditions of
probation on the attorney, temporarily suspend him, or both. . . .

3
No question is raised in this appeal regarding the propriety of State Bar proceedings after dismissal of the
criminal charges.
98 Nev. 140, 143 (1982) Burleigh v. State Bar of Nevada
On August 5, 1980, Bar counsel, acting as prosecutor pursuant to SCR 104(1)(c), filed an
amended complaint accusing appellant of unethical conduct in three causes of action:
conspiracy to murder his former wife, conspiracy to burn an attorney's office, and violation of
the terms of the temporary suspension.
Appellant denied the charges, and hearings were held before a hearing panel of the
Southern Nevada Disciplinary Board to determine whether discipline was justified. On
November 14, 1980, the panel rendered its formal decision, finding that Burleigh had violated
Disciplinary Rules DR 1-102(A) (3), (4) and (6) of the American Bar Association Code of
Professional Responsibility,
4
by participation and involvement in a plot to kill his former
wife, and his failure to disclose such involvement. The panel recommended disbarment and
assessment of costs of the proceedings. Burleigh was also found to have violated the terms of
his temporary suspension, and the panel recommended that he be fined $500 and publicly
reprimanded. The panel found that the State Bar had failed to prove by clear and convincing
evidence that appellant had conspired to commit arson, and exonerated Burleigh of this
charge.
Appellant's first contention is that he was denied the opportunity to have a fair and
impartial hearing because the State Bar is authorized to impose and collect fines and costs
from an attorney only if he is found by a hearing panel to have engaged in misconduct. See
SCR 102(6), SCR 120(1). We find appellant's reliance upon Tumey v. Ohio, 273 U.S. 510
(1927), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Gibson v. Berryhill, 411
U.S. 564 (1973), to be misplaced. None of these cases dealt with the situation presented here,
in which the members of the adjudicating body have neither an individual financial interest in
the outcome of the disciplinary proceedings before them, nor any direct responsibility for the
financial condition of the State Bar, which is the recipient of any fines and costs which may
be levied as a result of such proceedings.
In Tumey, the Court found statutes allowing a conviction by a mayor whose salary was
paid in part out of fees and costs levied by him in adjudicatory proceedings, and who as
chief executive officer was responsible for the financial welfare of the village to which the
fines were paid, violated constitutional standards.
____________________

4
DR 1-102 provides, in pertinent part:
(A) A lawyer shall not:
. . .
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
. . .
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
98 Nev. 140, 144 (1982) Burleigh v. State Bar of Nevada
levied by him in adjudicatory proceedings, and who as chief executive officer was responsible
for the financial welfare of the village to which the fines were paid, violated constitutional
standards. The Court concluded:
Every procedure which would offer a possible temptation to the average man as a judge
to forget the burden of proof required to convict the defendant, or which might lead him
not to hold the balance nice, clear and true between the state and the accused, denies the
latter due process of law.
273 U.S. at 532. The Court in Ward v. City of Monroeville, supra, found that even in the
absence of any individual financial interest in levying fees and costs, a mayor's executive
responsibilities for village finances may make him partisan to maintain the high level of
contribution from the mayor's court, 409 U.S. at 60, and thus render adjudication by him
inconsistent with due process standards. These principles were held applicable to an
administrative license revocation in Gibson v. Berryhill, supra. The Court upheld the trial
court's determination that, on the facts presented, individual members of the Alabama Board
of Optometry had a personal financial stake in the outcome of their deliberations with regard
to the licensing of corporation employees with whom they were in competition.
[Headnote 1]
In this case, the adjudication was conducted by seven members of a hearing panel, chosen
from among twenty-one members of the Southern Nevada Disciplinary Board. SCR 103(1).
The rules provide that disciplinary board members are to receive no compensation for their
services. SCR 103(3). The rules further specifically provide, SCR 103(1), that no member of
the disciplinary board may be a member of the board of governors of the State Bar of Nevada,
the group responsible for the financial condition of the Bar. SCR 86. There is therefore no
basis for a conclusion that the individual panel members had a personal financial stake in the
outcome of their deliberations, or that the members had executive responsibilities for the
finances of the Bar which would be inconsistent with the due process requirements of Tumey
and Ward.
Here, the disciplinary board has no function except to adjudicate and make
recommendations regarding matters of bar discipline. The situation in this case is, therefore,
comparable to that in Dugan v. Ohio, 277 U.S. 61 (1928), in which the Court refused to
invalidate mayor's court proceedings when the mayor's salary was not dependent on fines,
and where the mayor, as such, had only adjudicative, and not executive, responsibilities.
98 Nev. 140, 145 (1982) Burleigh v. State Bar of Nevada
the mayor's salary was not dependent on fines, and where the mayor, as such, had only
adjudicative, and not executive, responsibilities. Here the only connection between members
of the board and the State Bar is the requirement that the eighteen attorney members be
members of the Bar. SCR 103(1). We note that courts have often held that mere membership
in a professional organization which has responsibility for prosecution, under peer
disciplinary procedures, does not disqualify a judge or other adjudicator from hearing a
disciplinary or licensing matter. E.g., Ex Parte Alabama State Bar Ass'n, 8 So. 768 (Ala.
1891); State Board of Dental Examiners v. Miller, 8 P.2d 699 (Colo. 1932); State v.
Churchwell, 195 So.2d 599 (Fla.App. 1967); State v. Rhodes, 131 N.W.2d 118 (Neb. 1964).
We therefore conclude that the disciplinary proceedings conducted by the hearing panel
were not inconsistent with due process because of the potential for recovery by the State Bar
of fines and costs.
Appellant also contends that SCR 102(4) is unconstitutional on its face and as applied to
him because his temporary suspension was imposed without a prior hearing. He argues that
the resultant infringement of due process should negate any technical violations of the
suspension order.
[Headnote 2]
The Supreme Court has emphasized that due process is flexible and calls for such
procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S.
471, 481 (1972). To determine appropriate procedure, we must consider: (1) the private
interest affected; (2) the risk of erroneous deprivation by the procedures used; and (3) the
government interest to be protected in light of the fiscal and administrative burdens imposed
by additional procedural safeguards. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
[Headnotes 3-5]
The practice of a profession is, without question, a valuable property right, of which one
cannot be arbitrarily deprived. State v. Medical Examiners, 68 Nev. 455, 235 P.2d 327
(1951). A state cannot exclude a person from the practice of law without due process of law,
as respondent readily concedes. Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). In
this instance, however, the risk of erroneous deprivation is minimized by the provisions of
SCR 102(4)(c) and (d). Under these rules, a temporarily suspended attorney is entitled to
continue his existing practice for a circumscribed time and may obtain an immediate
hearing and prompt resolution of the matter.
98 Nev. 140, 146 (1982) Burleigh v. State Bar of Nevada
matter. The government public interest element is evident. The rule on its face only permits
this court to order temporary suspension if there are affidavits to support allegations that an
attorney is causing great harm by his actions; i.e., temporary suspension prior to a hearing
is only warranted if exigent circumstances exist. Cf. State ex rel. Sweikert v. Briare, 94
Nev. 752, 588 P.2d 542 (1978).
[Headnote 6]
We therefore conclude that the rule is not unconstitutional on its face. We also are
persuaded that sufficient exigent circumstances existed in this case to justify dispensing with
a presuspension hearing.
[Headnote 7]
Appellant stood charged, by grand jury indictment, with conspiracy to commit murder and
arson. Conviction of similar charges has been held to warrant summary suspension or
disbarment, prior to appellate review. E.g., In re Stoner, 507 F.Supp. 490 (N.D.Ga. 1980);
Mitchell v. Association of Bar of City of N.Y., 351 N.E.2d 743 (N.Y. 1976). We do not
believe, however, that a criminal conviction is a necessary prerequisite to the temporary
suspension imposed here. In Stoner and Mitchell the courts emphatically addressed the
importance of protecting the public through bar discipline and the resulting detrimental effect
on public confidence in the legal profession if the court failed summarily to suspend the
attorneys. Murder and arson are serious charges involving moral turpitude. We have held that
an attempt or conspiracy to commit a crime demonstrates moral turpitude to a like degree as
the commission of the crime itself. In re Wright, 69 Nev. 259, 265, 248 P.2d 1080, 1083
(1952). Discipline is appropriately imposed for acts involving moral turpitude, whether or not
they relate to conduct by an attorney in his professional capacity. In re Bogart, 511 P.2d 1167
(Cal. 1973). We believe that appellant's continued practice with serious charges leveled
against him would erode public confidence in the legal profession and that the facts presented
sufficient exigent circumstances to warrant summary suspension.
Accordingly, we order that Peter H. Burleigh be, and he hereby is, disbarred from the
practice of law in the State of Nevada.
It is further ordered that he be publicly reprimanded for his conduct in violating the
attorney disciplinary rules.
It is further ordered that he pay to the State Bar of Nevada a $500 fine for his violation of
our temporary suspension order, together with the costs incurred in connection with his
proceedings before the disciplinary committee.
98 Nev. 140, 147 (1982) Burleigh v. State Bar of Nevada
together with the costs incurred in connection with his proceedings before the disciplinary
committee.
Gunderson, C. J., and Springer and Mowbray, JJ., concur.
Manoukian, J., concurring:
The majority opinion, in which I concur, is a modification of a draft which I previously
distributed and which reached the identical result. The only difference I perceive is that the
majority seems now to be unnecessarily preoccupied with a discussion of executive
responsibility for State Bar finances.
The disciplinary panel's purported pecuniary interest in the proceedings, if existent, is
remote and insubstantial. I believe that the majority opinion inappropriately suggests that any
executive function or responsibility for the State Bar finances would automatically preclude
participation in bar disciplinary matters.
1
For example, the majority states that executive
responsibility for the finances of the Bar. . . would be inconsistent with the due process
requirements of Tumey and Ward. Not only is that conclusion unnecessary for the resolution
of this case, in which the hearing panel has no executive functions, it overlooks and
improperly circumvents the Supreme Court's careful analysis of the directness and
substantiality of the financial interest in those cases in which executive responsibility and
institutional gain are at issue. See Ward v. Village of Monroeville, 409 U.S. 57 (1972).
Of course, active participation in bar disciplinary matters by one with executive
responsibility for bar finances would necessarily require close scrutiny of the temptation to
partiality. However, [t]he mere union of executive power and the judicial power in [an
adjudicator] cannot be said to violate due process of law. Tumey v. Ohio, 273 U.S. 510, 534
(1927). The Supreme Court has looked to many factors, including the substantiality of the
adjudicator's purported interest in the outcome of the proceeding and the institutional
arrangements for distributing any remuneration obtained. See Marshall v. Jerrico, 446 U.S.
238 (1980); Ward v. Village of Monroeville, supra. See also, Tumey v. Ohio, supra. I do not
read the pertinent Supreme Court cases as precedent for finding, as the majority opinion
implies, that the prospect of institutional gain from adjudicative proceedings per se bars the
participation of one who may have some responsibility for the financial integrity of the
institution.
____________________

1
Contrary to the majority's statement, SCR 103(10) expressly provides that members of the State Bar's board
of governors are also ex-officio members of the disciplinary panels, albeit without the right to vote or to receive
remuneration for costs incurred by their participation.
98 Nev. 140, 148 (1982) Burleigh v. State Bar of Nevada
from adjudicative proceedings per se bars the participation of one who may have some
responsibility for the financial integrity of the institution.
____________
98 Nev. 148, 148 (1982) Duke v. Duke
FORREST A. DUKE, Appellant, v. DICKSIE
L. DUKE, Respondent.
No. 13685
April 28, 1982 643 P.2d 1205
Appeal from order denying motion to modify divorce decree, Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Former wife brought action seeking to recover previously awarded share of former
husband's military retirement pay. The district court entered judgment denying former
husband's motion to modify the decree, and former husband appealed. The Supreme Court
held that the United States Supreme Court decision holding that military retirement benefits
are not divisible as community property in state court divorce decrees did not apply
retroactively to invalidate, or otherwise render unenforceable, prior valid unappealed state
court divorce decree awarding, as community property, 35 percent of military retirement pay
to former wife; the Supreme Court decision did not alter res judicata consequences of the
divorce decree, which was final before the Supreme Court decision was filed.
Affirmed.
Greenman, Goldberg & Raby, Las Vegas, for Appellant.
Rogers, Monsey, Woodbury, Brown & Berggreen, and Bruce M. Judd, Las Vegas, for
Respondent.
Courts.
The United States Supreme Court decision holding that military retirement benefits are not divisible as
community property in state court divorce decrees did not apply retroactively to invalidate, or otherwise
render unenforceable, prior valid unappealed state court divorce decree awarding, as community property,
35 percent of military retirement pay to former wife; the Supreme Court decision did not alter res judicata
consequences of the divorce decree, which was final before the Supreme Court decision was filed.
OPINION
Per Curiam:
The issue presented by this appeal is whether McCarty v. McCarty, 453 U.S. 210, 101
S.Ct.
98 Nev. 148, 149 (1982) Duke v. Duke
McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), should be given retroactive
effect so as to disrupt a final, unappealed divorce decree.
The relevant facts are undisputed. On July 18, 1980, the district court entered a decree of
divorce which awarded 35 percent of appellant Forrest Duke's military retirement pay to
respondent Dicksie Duke as community property.
1
The court ordered Forrest to execute a
permanent allotment with the United States Air Force, specifying that Dicksie's 35 percent
share be sent directly to her. Forrest failed to execute a permanent allotment as ordered.
On June 5, 1981, Dicksie filed a motion for judgment of arrearages, seeking to recover
her share of Forrest's military retirement benefits which he had failed to pay her. Forrest
opposed Dicksie's motion and filed a counter-motion to modify the divorce decree
contending, inter alia, that, in view of McCarty, the district court lacked power to enforce the
portion of the decree which awarded Dicksie a share of his retirement pay. The district court
denied Forrest's motion to modify, and Forrest has appealed.
In McCarty, the United States Supreme Court held that military retirement benefits are not
divisible as community property in state court divorce decrees. Nothing in McCarty, however,
suggests that the Supreme Court intended its decision to apply retroactively to invalidate, or
otherwise render unenforceable, prior valid and unappealed state court decrees. A clear
majority of courts have held that McCarty does not alter the res judicata consequences of a
divorce decree which was final before McCarty was filed. E.g., Erspan v. Badgett, 659 F.2d
26 (5th Cir. 1981); In re Marriage of Fellers, 178 Cal.Rptr. 35 (Ct.App. 1981); In re Marriage
of Sheldon, 177 Cal.Rptr. 380 (Ct.App. 1981). We are persuaded by the rationale of these
cases. Accordingly, we hold that the district court did not err by denying Forrest's motion to
modify.
Other contentions have been considered and found to be without merit.
Affirmed.
____________________

1
Forrest did not appeal from the divorce decree.
____________
98 Nev. 150, 150 (1982) City of Las Vegas v. Sunward Sales, Inc.
CITY OF LAS VEGAS, A Municipal Corporation; and JERRY CAHILL in His Official
Capacity as Director of the Department of Business Activity for the City of Las Vegas,
Appellants, v. SUNWARD SALES, INC., Respondent.
No. 13664
April 28, 1982 643 P.2d 1207
Appeal from order granting a writ of mandamus, Eighth Judicial District Court, Clark
County, Paul S. Goldman, Judge.
The district court obtained an order granting a writ of mandamus to applicant for a
business license, and city and its director of business activity appealed. The Supreme Court
held that where a new ordinance governing licensing of timeshare businesses was adopted
subsequent to application to obtain a license, but prior to order granting applicant a writ of
mandamus to compel city and its director of business activity to grant a license, and all parties
agreed that applicant was not entitled to a business license and was required to comply with
new ordinance if he wished to obtain a license, it was necessary for the Supreme Court to
dispose of the entire proceeding, not merely the appeal, and to reverse the order granting the
writ and remand with instructions to dismiss the proceedings below.
Reversed and remanded with instructions.
George F. Ogilvie, City Attorney; Janson F. Stewart, Chief Deputy City Attorney, Las
Vegas, for Appellants.
Bilbray & Gibbons, Las Vegas, for Respondent.
Mandamus.
Where a new ordinance governing licensing of timeshare businesses was adopted subsequent to
application to obtain a license, but prior to order granting applicant a writ of mandamus to compel city and
its director of business activity to grant a license, and all parties agreed that applicant was not entitled to a
business license and was required to comply with new ordinance if he wished to obtain a license, it was
necessary for the Supreme Court to dispose of the entire proceeding, not merely the appeal, and to reverse
the order granting the writ and remand with instructions to dismiss the proceedings below.
OPINION
Per Curiam:
Respondent has moved this court to dismiss this appeal on the ground that the issues
presented are moot.
98 Nev. 150, 151 (1982) City of Las Vegas v. Sunward Sales, Inc.
the ground that the issues presented are moot. On August 6, 1981, respondent Sunward Sales
filed an application with the Las Vegas Department of Business Activity seeking to obtain a
license to engage in the business of selling timeshares in vacation dwelling units. Shortly
after respondent filed its application, a new ordinance governing the licensing of timeshare
businesses was introduced to the Las Vegas Board of Commissioners. Respondent's
application for a business license was held in abeyance by the Department of Business
Activity pending the adoption of this new ordinance.
Thereafter, on October 6, 1981, respondent filed a petition for a writ of mandamus in
district court seeking to compel appellants to grant a license. On October 12, 1981, the
director of the Department of Business Activity notified respondent that the application for a
license was denied because the new ordinance was due for adoption on October 21, 1981, and
because the ordinance contained a comprehensive set of regulations for this type of business.
The hearing in district court on the petition was held on October 20, 1981; the new
ordinance was adopted on October 21, 1981; and the district court's order granting
respondent's writ, and compelling the city to issue a license to respondent under the former
ordinance, was entered October 22, 1981.
Thereafter, this court issued an order staying the writ of mandamus below pending the
disposition of this appeal.
Respondent contends in its motion to dismiss this appeal that the issues presented are moot
because of the adoption of the new timeshare ordinance, Las Vegas Municipal Code ch. 47,
Title V (October 21, 1981). Appellants agree that this matter is now moot. The parties
disagree, however, as to the appropriate remedy. Respondent contends that this court should
simply dismiss this appeal, while appellants contend that the district court's writ must be
summarily reversed.
A dismissal of this appeal would leave the district court's writ of mandamus in full force.
All parties agree that respondent is not presently entitled to a business license. Indeed,
respondent specifically concedes that it must comply with the new ordinance if it wishes to
obtain a business license.
1
Under these circumstances, we must dispose for the entire
proceeding, not merely the appeal. See La Salle Nat. Bank v. City of Chicago, 121 N.E.2d
486 (Ill. 1954); see also Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972). Accordingly, we
reverse the order of the district court granting a writ of mandamus and awarding attorney
fees, and we remand with instructions to dismiss the proceedings below.
____________________

1
The new ordinance requires all persons, whether or not formerly licensed, to comply with the new scheme of
regulations. Respondent has not challenged this requirement.
98 Nev. 150, 152 (1982) City of Las Vegas v. Sunward Sales, Inc.
order of the district court granting a writ of mandamus and awarding attorney fees, and we
remand with instructions to dismiss the proceedings below.
Reversed and remanded.
____________
98 Nev. 152, 152 (1982) Bell v. Machado
EULA M. BELL, Appellant, v. JOSE MACHADO and DOLORES MACHADO, dba
SANDMAN MOTEL, Respondents.
No. 13206
April 28, 1982 643 P.2d 1208
Appeal from order dismissing complaint under NRCP 41(b), Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Motel guest appealed from an order of the district court dismissing her complaint for
personal injuries against motel owner. The Supreme Court held that trial court erred in
dismissing complaint where trial court weighed evidence.
Reversed and remanded.
[Rehearing denied October 5, 1982]
David Hamilton, Reno, for Appellant.
Vargas & Bartlett, by Phillip W. Bartlett, Reno, for Respondents.
Innkeepers.
In action by motel guest against motel owners for injuries sustained when guest fell over portable heater
and cut her leg, trial court erred in granting motion for involuntary dismissal since trial court weighed
evidence to conclude that heater did not have sharp edge. NRCP 41(b).
OPINION
Per Curiam:
Eula M. Bell has appealed from an order dismissing her complaint after the close of her
case pursuant to NRCP 41(b). The complaint alleged that respondents were negligent in
placing a portable heater in Bell's motel room which injured her when she attempted
unsuccessfully to step over the heater and instead fell against it, cutting her leg on a sharp
corner.
98 Nev. 152, 153 (1982) Bell v. Machado
Although there was conflicting testimony presented during the case in chief as to whether
the corner of the heater was unduly sharp, the judge stated in granting the motion that he
seriously doubted that the heater had a sharp edge and that the edge of the heater was the
cause of Bell's injury. In reaching that conclusion the judge weighed the evidence, which is
inappropriate when considering a motion under NRCP 41(b).
We have repeatedly stated that 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. Baley & Selover v. All
Amer. Van, 97 Nev. 370, 373, 632 P.2d 723, 724 (1981).
This case is reversed and remanded for a new trial.
____________
98 Nev. 153, 153 (1982) Board Clark Co. Comm'rs v. Excite Corp.
THE BOARD OF CLARK COUNTY COMMISSIONERS OF CLARK COUNTY,
NEVADA, SAM BOWLER, THALIA DONDERO, MANUEL CORTEZ, DAVID
CANTER, RICHARD RONZONE, JACK PETTITI and ROBERT BROADBENT, as
Members of
the Board of Clark County Commissioners, JOHN McCARTHY, Sheriff, JERE VANEK,
Assistant Sheriff and JOHN VORNSAND, Zoning Administrator of the Clark County Zoning
Division, Appellants, v. EXCITE CORPORATION dba
THE PARADISE CENTER, Respondent.
No. 12915
April 28, 1982 643 P.2d 1209
Appeal from judgment granting injunctive relief from enforcement of certain licensing and
zoning ordinances, and granting a writ of mandamus, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Appeal was taken from a judgment of the district court which granted injunctive relief
from enforcement of certain licensing and zoning ordinances, and granted a writ of
mandamus. The Supreme Court, Zenoff, Senior Justice, assigned, held that where applicant,
which obtained temporary restraining order prohibiting enforcement of previous licensing and
zoning scheme which was subsequently found unconstitutional, did not begin operation of its
bookstore until after effective date of new zoning ordinance establishing special permit
requirements for certain defined "adult uses," its bookstore did not constitute a valid
nonconforming use so as to be exempt from new ordinance's requirements.
98 Nev. 153, 154 (1982) Board Clark Co. Comm'rs v. Excite Corp.
effective date of new zoning ordinance establishing special permit requirements for certain
defined adult uses, its bookstore did not constitute a valid nonconforming use so as to be
exempt from new ordinance's requirements.
Affirmed in part; reversed and remanded in part.
[Rehearing denied July 30, 1982]
Robert J. Miller, District Attorney, S. Mahlon Edwards, Deputy District Attorney, Las
Vegas, for Appellants.
Alan B. Andrews, Las Vegas, for Respondent.
1. Zoning and Planning.
Where applicant, which obtained temporary restraining order prohibiting enforcement of previous
licensing and zoning scheme which was subsequently found unconstitutional, did not begin operation of its
bookstore until after effective date of new zoning ordinance establishing special permit requirements for
certain defined adult uses, its bookstore did not constitute a valid nonconforming use so as to be exempt
from new ordinance's requirements.
2. Zoning and Planning.
Unequivocal intent to use the property in a particular way cannot substitute for actual use at the time the
zoning ordinance is enacted so as to establish a valid nonconforming use.
OPINION
By the Court, Zenoff, Sr. J.:
1

On September 20, 1979, Excite Corporation, plaintiff below, sought a permit to operate a
bookstore at 4034 Paradise Road, in Clark County, pursuant to the general business license
provisions of Clark County Code Chapter 6.04. The Clark County Licensing Bureau informed
plaintiff that it must first obtain zoning approval, including a conditional use permit as
required of bookstores by Clark County Code 29.66.020(N),
2
through procedures set forth
in Code 29.66.010(A).
Plaintiff refused to submit its application for a conditional use permit, and instead filed
suit in district court on September 24, 1979, seeking declaratory and injunctive relief, on
constitutional grounds, from the enforcement of the licensing and zoning provisions
mentioned above. Plaintiff also alleged in its complaint that it desired to operate an adult
film "arcade" at the same address, noting that Clark County Code Chapter 6.95 purported
to regulate the licensing of theaters, including "Adult Picture Arcades," and sought similar
injunctive relief on constitutional grounds from the enforcement of this portion of the
code.
____________________

1
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), SCR 10.

2
Subsection (N) is the applicable subsection designation in effect in 1979. See, Clark County, Nev. Ord. 609
2 (1979).
98 Nev. 153, 155 (1982) Board Clark Co. Comm'rs v. Excite Corp.
complaint that it desired to operate an adult film arcade at the same address, noting that
Clark County Code Chapter 6.95 purported to regulate the licensing of theaters, including
Adult Picture Arcades, and sought similar injunctive relief on constitutional grounds from
the enforcement of this portion of the code.
On October 2, 1979, plaintiff successfully sought a temporary restraining order prohibiting
enforcement of the licensing and zoning ordinances mentioned above. On the same date, the
Board of County Commissioners of Clark County enacted a zoning ordinance regulating the
location of, and establishing special permit requirements for, certain defined adult uses.
Clark County Code 29.49.010 et seq. became effective October 16, 1979. On November 6,
plaintiff opened for business pursuant to the temporary restraining order.
Thereafter, plaintiff sought leave to amend its complaint to seek a writ of mandamus,
based upon its discovery that a conditional use permit had been issued in 1963 to the Paradise
Shopping Center for a market and retail store shopping area. Plaintiff contended that it was
entitled, on the basis of this permit, to a summary sign-off of all zoning requirements by the
zoning administrator, since it was operating a retail store in the Paradise Shopping Center.
The district court granted leave to amend, but specified that the amendment was not to relate
back to the date the complaint was filed.
On June 26, 1980, the court handed down its decision and order, granting plaintiff the
relief it had sought. The court concluded that the licensing scheme in effect at the time of
plaintiff's license application in September, 1979, and from which it had sought injunctive
relief, was invalid for failure to specify precise and objective standards, failure to provide for
a prompt hearing, and failure to require a set time period for a ruling on a license request. The
court accordingly granted plaintiff injunctive relief from enforcement of Code 6.04.010 et
seq., 29.66.020(N), 29.66.010(A), and 6.95.010 et seq. The court then held that Clark County
Code Chapter 29.49 did not apply to plaintiff. While acknowledging that plaintiff had not
directly sought relief from the operation of Chapter 29.49, the court specifically granted the
writ of mandamus to compel the zoning administrator to sign-off' the zoning requirements
of 29.49 and 29.66.020(N).
Counsel for appellants has wisely conceded the unconstitutionality of the licensing and
zoning scheme challenged by respondent. See North Nevada Co. v. Menicucci, 96 Nev. 533,
611 P.2d 1068 (1980); Talk of the Town v. City of Las Vegas, 92 Nev. 466, 553 P.2d 959
(1976). We note that respondent has not challenged the constitutionality of the licensing
and zoning scheme reflected in Clark County Code Chapter 29.49.
98 Nev. 153, 156 (1982) Board Clark Co. Comm'rs v. Excite Corp.
not challenged the constitutionality of the licensing and zoning scheme reflected in Clark
County Code Chapter 29.49. See Young v. American Mini Theatres, 427 U.S. 50 (1976).
Therefore, as the court below correctly perceived, the central and dispositive issue is whether
respondent is entitled to be licensed, or to operate without a license, because it first submitted
an application, and then filed its complaint for injunctive relief, when the licensing scheme
concluded to be unconstitutional was in effect, or whether, as the appellants contend, Chapter
29.49 is applicable. The district court ruled that Chapter 29.49 did not apply to petitioner,
primarily on the authority of our decision in North Nevada Co. v. Menicucci, 96 Nev. 533,
611 P.2d 1068 (1980). This reliance was misplaced.
In North Nevada a new zoning ordinance related to location of regulated uses, including
adult book stores, became effective July 1, 1977. It was applicable only to regulated uses
established thereafter. 96 Nev. at 536, 611 P.2d at 1070. We held that because the applicant
was operating and had fully complied with the applicable fire and building codes by June 17,
1977, it was entitled to open and therefore was operating legally, albeit without a license
prior to July 1, and the new ordinance could not be applied retroactively to close the
bookstore. Id.
[Headnote 1]
In this case, Clark County Code 29.49.070 similarly provided that the chapter would not
apply to nonconforming uses if they had fully complied with applicable building fire and
licensing codes, as well as effective zoning codes, when said use commenced. Unlike the
bookstore in North Nevada, the applicant in this case did not begin operation until three
weeks after the effective date of the new zoning ordinance. At oral argument counsel for
respondent informed the court that the delay was occasioned by the need to obtain building
and fire code approval. Thus it appears that respondent was neither actually open, nor entitled
to open, before that date.
[Headnote 2]
As we have previously held, unequivocal intent to use the property in a particular way
cannot substitute for actual use at the time a zoning ordinance is enacted, so as to establish a
valid nonconforming use. Pederson v. County of Ormsby, 86 Nev. 895, 478 P.2d 152 (1970).
Respondent's contention that the conditional use permit issued to the Paradise Shopping
Center in 1963 runs with the land cannot establish more than compliance with prior zoning
regulations. It cannot convert intended use into actual use or establish compliance with the
remaining requirements for qualification as a nonconforming use.
98 Nev. 153, 157 (1982) Board Clark Co. Comm'rs v. Excite Corp.
intended use into actual use or establish compliance with the remaining requirements for
qualification as a nonconforming use.
Finally, Williams v. Griffin, 91 Nev. 743, 542 P.2d 732 (1975), cited by the court below,
does not apply to the facts of the instant case. In Williams we upheld the decision of an
administrative agency to deny a permit when the proposed use would conflict with a pending,
but not yet enacted, zoning ordinance. See also Kings Castle v. Washoe Co. Bd. Comm'rs, 88
Nev. 557, 502 P.2d 103 (1972). The acceleration of the effective date of the zoning ordinance
was upheld on the ground of the property owner's actual or constructive knowledge of the
pending change. In this case, of course, there was no question of acceleration, because the
zoning ordinance had already gone into effect. Moreover, it affirmatively appears that
respondent had actual knowledge of the pending ordinance at the time it filed its complaint on
September 24, 1979.
Insofar as the judgment of the district court granted an injunction against enforcement
against respondent of the previous licensing and zoning scheme embodied in former Clark
County Code Chapter 6.04, 29.66.020(N) and 29.66.010(A), and Chapter 6.95, the
judgment is affirmed. Insofar as it granted a writ of mandamus to compel the Clark County
zoning administrator to certify respondent's compliance with the applicable provisions of
Clark County Code Chapter 29.49, however, the judgment is reversed and remanded.
Respondent is entitled to no more than the opportunity to show that it was in compliance with
the valid and applicable codes at the time it commenced operations.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 158, 158 (1982) Emerson v. State
JANET LEE EMERSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12562
April 28, 1982 643 P.2d 1212
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted before the district court of forgery, and she appealed. The
Supreme Court, Zenoff, Senior Justice, held that: (1) trial court's failure to give any
instructions on proper weight to be accorded testimony regarding defendant's reputation for
honesty constituted prejudicial error in view of fact that defendant admitted committing acts
with which she was charged, but defended herself on ground that she lacked specific intent to
damage or defraud, an element of crime of forgery, thus placing defendant's character into
issue, and in view of fact that State's evidence in this regard was not strong; (2) prosecutor's
comments, during final presentation to jury, upon defendant's failure to call her husband as a
witness were improper; (3) prosecutor's comment in closing argument suggesting that it was
defendant's burden to produce proof by explaining absence of witnesses or come up with
something was clearly inaccurate and improper; and (4) prosecutor's comments, which came
very close to suggesting his personal belief in defendant's guilt, rather than arguing evidence
and inferences, were clearly inappropriate.
Reversed and remanded.
Morgan D. Harris, Public Defender and Terrence M. Jackson, Deputy Public Defender,
Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for forgery, trial court's failure to give any instructions on proper weight to be accorded
testimony regarding defendant's reputation for honesty constituted prejudicial error in view of fact that
defendant admitted committing acts with which she was charged, but defended herself on ground that she
lacked specific intent to damage or defraud, an element of crime of forgery, thus placing defendant's
character into issue, and in view of fact that State's evidence in this regard was not strong. NRS 48.045,
subd. 1(a), 205.090.
2. Criminal Law.
In prosecution for forgery, prosecutor's comments, during final presentation to jury, upon
defendant's failure to call her husband as a witness were improper.
98 Nev. 158, 159 (1982) Emerson v. State
presentation to jury, upon defendant's failure to call her husband as a witness were improper. NRS
49.295, 49.405, subd. 1, 205.090.
3. Criminal Law.
Prosecutor's comment in closing argument in prosecution for forgery suggesting that it was defendant's
burden to produce proof by explaining absence of witnesses or come up with something was clearly
inaccurate and improper. NRS 205.090.
4. Criminal Law.
Prosecutor's comments, which came very close to suggesting his personal belief in defendant's guilt rather
than arguing evidence and inferences, were clearly inappropriate. NRS 205.090.
5. Criminal Law.
A prosecutor does not appropriately offer his personal opinion as to guilt of accused.
OPINION
By the Court, Zenoff, Sr. J.:
1

Appellant Janet Emerson was convicted of forgery (NRS 205.090), upon a jury verdict.
She contends that the judgment of conviction should be reversed on the basis of (1) the
failure of the trial court to give the jury any instruction regarding evidence of her good
character, and (2) prosecutorial misconduct. We agree.
At trial, the state presented the testimony of Mr. Clay Sims, an elderly resident of Clark
County, to the effect that in October, 1977, he had been called by his bank with an inquiry
about one of his checks. At that point, he testified, he noticed that his check book was
missing. The last time he remembered seeing it was at a grocery store near his home in Las
Vegas. At the bank, he confirmed that the signature and writing on the check were not his. He
testified that they were not made on his authorization or behalf. A bank teller identified the
same check as one she cashed at a drive-in window without seeing the presenter. A
handwriting expert identified the writing on the check, other than the signature, as that of the
person writing an exemplar under the name Janet Emerson.
The state's final witness was Officer Dunlop of the police forgery detail. He testified that
the defendant came in, was informed of and waived her rights, and admitted filling in her
name as payee, $375 as the amount of the check, for stereo on the purpose line, and her
endorsement. According to his testimony, she said that she had received the check in
payment for a TV from a subject. She gave a vague description of the subject, stated she
knew him but not by full name; that he frequented bars on the Boulder Highway and that
he had signed the maker's signature on the check and gave the check to her to fill in and
take [sic] the TV and left."
____________________

1
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), SCR 10.
98 Nev. 158, 160 (1982) Emerson v. State
the subject, stated she knew him but not by full name; that he frequented bars on the Boulder
Highway and that he had signed the maker's signature on the check and gave the check to her
to fill in and take [sic] the TV and left.
Officer Dunlop gave contradictory testimony regarding whether the defendant had
identified the payer as Mr. Sims, by no name, or by first name only. At one point, the
officer testified that she did indicate that the maker's signature of Clay Sims was made out in
her presence by another person whom she knew not to be Clay Sims. On
cross-examination, he testified that the conversation had taken place about one year earlier,
and that he did not take any notes. The officer was also permitted to testify, over objection,
that after he told her to try to find this other individual, the defendant never contacted him
again.
The defense was that Janet Emerson had no intent to defraud. She testified that in October,
1977, she and her husband had driven to Las Vegas from Pahrump, and had run into an
acquaintance they knew as Wayne in a shopping center parking lot. She testified that he had
asked them for help in cashing a check because he did not have proper identification. Janet
further testified that her husband had called his mother, who had worked in a bank, to ask
about cashing the check, which had no named payee, and that her mother-in-law had said to
fill in her own name and endorse the check. Janet testified that the check was already signed,
but that she had filled in the rest from Wayne's instructions, including the amount of $375 and
stereo. She then testified she went to the bank and cashed the check. She testified that after
her conversation with Officer Dunlop, she went to the apartment complex where they had
known Wayne, but that their mutual acquaintance had moved.
The defense called appellant's mother-in-law who substantially corroborated Janet's
testimony regarding the phone call. According to the witness, her son said a friend had a
check and he couldn't get it cashed because he didn't have I.D. I asked him the amount. It was
quite sizeable, around 350, 400 dollars, and I told him, well, Janet has I.D. Have him endorse
it over to her and take it over to the bank. She also testified that I asked him who the check
was made out to, and he said it was blank. I said, Well, just have him write Janet's name in'.
Finally, Janet's mother-in-law, a fellow worker, and her supervisor testified positively
regarding Janet's reputation for honesty.
98 Nev. 158, 161 (1982) Emerson v. State
On rebuttal, the state recalled Janet's mother-in-law and asked one question: Where is
your son James today? Officer Dunlop was also recalled, who testified that Janet did not
mention meeting Wayne in a parking lot, and that the only story I was told by her was he
had purchased a TV from her. He also testified that the defendant told him the check was
given to her in blank with the marker's signature only on the check. The defense recalled
Janet Emerson, who denied saying anything about a TV set to Officer Dunlop, and further
testified that she had not given him all the details of the incident because she felt insecure
with him.
1. Defense counsel submitted to the trial court four alternative instructions dealing with
the proper weight to be accorded evidence of a defendant's good character. All four were
refused by the trial court, which did not offer any instruction regarding the evaluation of good
character evidence.
NRS 48.045(1)(a) provides that although the basic rule is that [e]vidence of a person's
character or trait of his character is not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, a specific exception is made for [e]vidence
of his character or a trait of his character offered by an accused, and similar evidence offered
by the prosecution to rebut such evidence.
This Court has recently quoted with approval:
It has long been the rule that it is the duty of the trial judge to instruct the jury in
substance that reputation of the defendant's good character, when put in evidence, is a
fact which they should consider with the other facts in the case and which, when so
considered, may, like other facts, generate a reasonable doubt which would justify
acquittal.
Beddow v. State, 93 Nev. 619, 625, 572 P.2d 526, 529 (1977), quoting United States v.
Frischling, 160 F.2d 370, 370 (3d Cir. 1947). The Court in Frischling held that it was
reversible error to refuse to instruct the jury: Good character, when considered in connection
with other evidence in the case, may generate a reasonable doubt sufficient to justify you in
acquitting the defendant. 160 F.2d at 370.
The state argues on appeal that the instructions were properly refused because they
incorrectly stated the law because they would have required the jury to acquit the defendant
if they found she had good character. It is difficult to read this in any of the offered
instructions, each of which simply states either that such evidence may be sufficient by itself
to raise a reasonable doubt, or that the jury may draw an inference, or think it improbable
that a defendant of such character would commit the crime.
98 Nev. 158, 162 (1982) Emerson v. State
or think it improbable that a defendant of such character would commit the crime.
In any case, it has been held that in the absence of any acceptable instruction regarding
good character, it is incumbent upon [the state] to suggest a revision. State v. Allen, 574
P.2d 1182, 1187 (Wash. 1978). The court in United States v. Frischling, supra, 160 F.2d at
370, 371, stressed that the error was in the trial judge's failure although specifically required
to do so, to give [the jury] any guidance as to what part that fact [of good character] could
play in their consideration of the defendant's guilt. (Emphasis added.) The court noted, A
jury who were not told that the defendant's reputation for good character when considered in
light of the other evidence might be permitted to raise the sort of doubt in their minds which
would justify acquittal, might well regard evidence of such reputation as wholly irrelevant to
the specific issue of guilt committed to them and consequently give it no consideration
whatsoever. Id. at 371.
[Headnote 1]
The prejudice resulting from failure to give such an instruction is apparent in the particular
circumstances of this case. An element of the crime of forgery is the specific intent to
damage or defraud. NRS 205.090. As noted by defense counsel to the jury, appellant
admitted committing the acts with which she was charged; her defense was that she lacked
this specific intent. The state's evidence in this regard was not strong. In these circumstances,
clarification of the proper weight to be accorded testimony regarding defendant's reputation
for honesty may well have affected the verdict, and we cannot regard the error as harmless.
2. Appellant has also raised a number of issues regarding the prosecutor's conduct of the
trial. First, appellant contends that it was improper and highly prejudicial for the prosecutor to
comment upon the defendant's failure to call her husband as a witness.
The marital privilege is defined in NRS 49.295, which provides that a husband cannot be
examined as a witness for or against his wife without her consent. Our statutes further
explicitly provide that the claim of a privilege is not a proper subject of comment by judge
or counsel, and that [n]o inference may be drawn therefrom. NRS 49.405(1).
In this case, the prosecutor, on rebuttal, called the defendant's mother-in-law for the sole
purpose of asking her: Where is your son James today? The inference was clear. In his final
presentation to the jury, the prosecutor argued: Ladies and gentlemen of the jury, if this
were a case in which you were charged with this crime and this was your defense, your
defense was that your husband James duped you or your defense was that there was
some mistake made by your husband James, what would you do?
98 Nev. 158, 163 (1982) Emerson v. State
Ladies and gentlemen of the jury, if this were a case in which you were charged with
this crime and this was your defense, your defense was that your husband James duped
you or your defense was that there was some mistake made by your husband James, what
would you do? Would you subpoena James? Would you exercise your power as an
officer of the Court which is what Mr. Jackson is and bring James into Court, put him on
that witness stand and have him tell you where he is, what happened on that day, and
how he did or did not dupe this young lady?
[Headnote 2]
Defense counsel objected on several grounds, though without raising the privilege issue in
front of the jury. The court stated that it was permissible for an attorney to argue that the
other attorney has the right to subpoena witnesses and didn't. The court then instructed the
prosecutor to go on to another subject, after which the prosecutor stated to the jury: it
should be obvious that James should have been here or his absence should have been
explained. The court did orally instruct the jury at that point that there is no burden upon
the defendant to explain the absence of a witness. At the conclusion of the prosecutor's
rebuttal, defense counsel requested a mistrial.
Although the defense counsel's objections were not couched in the language of privilege, it
has been held improper for the prosecutor to force invocation of the privilege in front of the
jury. See State v. Levy, 160 N.W.2d 460 (Iowa 1968); see also NRS 49.405(2). The
comments of the prosecutor were clearly improper. See State v. Levy, supra; Commonwealth
v. Moore, 309 A.2d 569 (Pa. 1973); State v. Torres, 554 P.2d 1069 (Wash.App. 1976).
Compare People v. Coleman, 459 P.2d 248 (Cal. 1969) (proper to comment after evidence
code changed to abolish defendant's privilege).
[Headnote 3]
Appellant also complains that although admonished a number of times, the prosecutor
continued in closing argument to suggest that it was the defendant's burden to produce proof
by explaining the absence of witnesses or come up with something. This implication is, of
course, clearly inaccurate. See Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Winship, 397
U.S. 358 (1970).
[Headnotes 4, 5]
Finally we note that the prosecutor did make several comments which came very close to
suggesting his personal belief in defendant's guilt, rather than arguing evidence and
inferences.
98 Nev. 158, 164 (1982) Emerson v. State
defendant's guilt, rather than arguing evidence and inferences. A prosecutor does not
appropriately offer his personal opinion as to the guilt or the character of the accused.
Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966).
We believe it is apt to recall the expression of the United States Supreme Court in Berger
v. United States, 295 U.S. 78, 88 (1935), quoted by us some twenty years ago in Garner v.
State, 78 Nev. 366, 370, 374 P.2d 525, 528 (1962):
The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one. See also State
v. Rodriguez, 31 Nev. 342, 347, 102 P. 863.
We reject the state's argument that the accumulation of improper suggestions and remarks
should, in the context of this case, be viewed as harmless. As we have previously observed:
In close cases of this character where counsel's argument to the jury by virtue of the
uncertain state of the evidence is magnified in importance, the importance of avoiding undue
appeals to sympathy, passion and prejudice are likewise magnified. State v. Kassabian, 69
Nev. 146, 148, 243 P.2d 264, 265 (1952).
We accordingly reverse the judgment of conviction and remand this case for a new trial.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 165, 165 (1982) Nationwide Mut. Ins. v. Maurigi
NATIONWIDE MUTUAL INSURANCE COMPANY and EDMOND G. PSALTIS,
Appellants, v. JEANETTE A. MAURIGI, Respondent.
No. 12904
April 28, 1982 643 P.2d 1216
Appeal from judgment against insurer, Second Judicial District Court, Washoe County;
Roy L. Torvinen, Judge.
Injured pedestrian brought action against offending driver and such driver's no-fault
insurer. The district court determined that insurer was liable to pedestrian on her claim for
basic reparation benefits, and insurer and driver appealed. The Supreme Court held that
pedestrian was not barred from claiming basic reparation benefits on ground she had failed to
insure vehicle owned by her as required by no-fault statute.
Affirmed.
Cromer, Barker, Michaelson, Gillock & Rawlings, Reno, for Appellants.
Durney, Guinan & Brennan, Reno, for Respondent.
Insurance.
Injured pedestrian, who sought recovery against offending driver and such driver's no-fault insurer under
alternative victim-compensation plan created by no-fault insurance statute, was not barred from claiming
basic reparation benefits because she had failed to insure vehicle owned by her as required by such statute.
NRS 698.190, 698.250, subds. 1, 2, 698.260, subds. 2, 3, 698.280, 698.340, 698.380, subd. 4; NRS
698.190, subd. 1 (Repealed).
OPINION
Per Curiam:
Respondent, while a pedestrian, was struck and injured by a vehicle driven by appellant
Psaltis in Reno on December 6, 1978. The driver was insured pursuant to NRS Chapter 698,
the no fault insurance act then in effect. Respondent was also the owner of a vehicle
registered in the state of Nevada, which did not have the insurance required by Chapter 698.
The court below determined that appellant insurer was liable to respondent on her claim for
basic reparation benefits. On appeal, the insurer and driver contend that respondent is barred
from claiming basic reparation benefits under former Chapter 698 because she had failed to
insure a vehicle owned by her as required by the statute.
98 Nev. 165, 166 (1982) Nationwide Mut. Ins. v. Maurigi
because she had failed to insure a vehicle owned by her as required by the statute.
Former NRS 698.190(1) required every owner of a motor vehicle registered in this state to
provide, by a contract of insurance or by qualifying as a self-insurer, security for the payment
of basic reparation benefits and for payment of tort liability arising from the maintenance or
use of the motor vehicle. The act also provided, former NRS 698.260(2), that [a]ny person
who sustains an injury and is not an operator or occupant of a motor vehicle shall claim basic
reparation benefits from insurers in the following order of priority: (a) His insurer. (b) The
insurer of the owner of the motor vehicle. (c) The insurer of the operator of the motor
vehicle. The statute provided that [b]asic reparation benefits shall be paid without regard to
fault, and without regard to immunity from liability or suit which might otherwise be
applicable. NRS 698.250(1) and (2). Furthermore, NRS 698.260(3) specifically provided for
priority of recovery by a pedestrian (that is, one who was not an operator or occupant of a
vehicle) who was injured by two or more motor vehicles and was not covered by basic
reparation insurance. Finally, the act specifically listed persons disqualified from basic or
added reparation benefits. NRS 698.340. Persons failing to comply with the requirements of
NRS 698.190 were not included on this list, although they were expressly excluded from
participation in the assigned claims plan. NRS 698.380(4).
The district court concluded that under this legislative scheme respondent was entitled to
claim basic reparation benefits from the insurer of the driver. We agree.
Respondent relies here, as he did below, upon Surman v. Griebel, 439 F.Supp. 1118
(D.Nev. 1977), followed in Laughlin v. Hydro Search, Inc., 96 Nev. 872, 620 P.2d 373
(1980). These cases were predicated upon an analysis of NRS 698.280, which abolished tort
liability with certain specified exceptions. In this case, the interpretation of the tort abolition
provision is not at issue. Instead, respondent sought recovery under the alternative
victim-compensation plan created by the no-fault insurance statute. See Hagains v.
Government Emp. Ins. Co., 376 A.2d 224 (N.J.Super. 1977).
The policy argument for denying basic reparation benefits protection to pedestrians is not
of the same force as that for denying the protection to an uninsured motorist; the fact that a
pedestrian owns an uninsured automobile is unrelated to the accident or injuries for which
compensation is sought. That the legislature was not concerned with the maintenance of
insurance for such persons is reflected in the specific provisions for recovery by uninsured
pedestrians in NRS 69S.260{3).
98 Nev. 165, 167 (1982) Nationwide Mut. Ins. v. Maurigi
legislature was not concerned with the maintenance of insurance for such persons is reflected
in the specific provisions for recovery by uninsured pedestrians in NRS 698.260(3).
We affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
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), SCR 10.
____________
98 Nev. 167, 167 (1982) Simmons v. Trivelpiece
KATHRYN SIMMONS, Individually and as Executrix Under the Will of WILLIAM LYON,
Appellant, v. MARGARET TRIVELPIECE, Respondent.
No. 12600
April 28, 1982 643 P.2d 1219
Appeal from judgment dismissing plaintiff's complaint, Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Suit was instituted to impose a trust upon certain real property. The district court granted
defendant's motion to dismiss on basis of running of limitations, and plaintiff appealed. The
Supreme Court held that the statute which operates to toll the period of limitations for when a
prospective defendant is absent from the state does not apply when the absent defendant is
otherwise subject to service of process regardless of whether the action is in personam or in
rem.
Affirmed.
John L. Shadek, Incline Village, for Appellant.
Richard W. Young, Reno, for Respondent.
Limitation of Actions.
The statute which operates to toll the period of limitations for the time of a prospective defendant's
absence from the state does not apply when the absent defendant is otherwise subject to service of process
regardless of whether the action is in personam or in rem; overruling Robinson v. Imperial Silver Mining
Co., 5 Nev. 55. NRS 11.300.
98 Nev. 167, 168 (1982) Simmons v. Trivelpiece
OPINION
Per Curiam:
Appellant Kathryn Simmons brought suit in 1979 against her sister, Margaret Trivelpiece,
seeking on various theories to impose a trust upon certain real property located in Reno,
Nevada, and deeded to Trivelpiece by the parties' parents in 1954. Trivelpiece had resided in
California since 1933, and service was effected upon her there, apparently pursuant to NRCP
4(e)(2). Appellant asserted five causes of action, three as executrix of her father's estate
(under an unprobated will), and two in her individual capacity, for imposition of a
constructive trust, or alternatively for finding a resulting trust or an express trust, upon the
property. Trivelpiece filed a motion to dismiss appellant's complaint for failure to state a
claim, NRCP 12(b)(5), on the basis of the applicable statutes of limitations. Appellant's
primary response was that the running of the statutes of limitations was tolled for the entire
period because of the defendant's residence in California and consequent absence from the
state of Nevada. The court below granted defendant's motion to dismiss.
Appellant asserts that through the operation of NRS 11.300, defendant, a resident of
California, could not invoke the protection of the applicable statutes of limitations. That
statute provides:
If, when the cause of action shall accrue against a person, he be out of the state, the
action may be commenced within the time herein limited after his return to the state; and
if after the cause of action shall have accrued he depart the state, the time of his absence
shall not be part of the time prescribed for commencement of the action.
As was ably pointed out by the court below, the initial approach of this Court to the
interpretation of this provision was one of literal application. The statute was held to apply to
any absence of a prospective defendant from the jurisdiction, whether the action was in
personam, Todman v. Purdy, 5 Nev. 238 (1869), or in rem, Robinson v. Imperial Silver
Mining Co., 5 Nev. 44 (1869). Since 1962, this stance has been eroded by a series of cases
which have held, in various contexts, that the tolling statute does not apply when the absent
defendant is otherwise subject to service of process. Cal-Farm Insurance v. Oliver, 78 Nev.
479, 375 P.2d 857 (1962); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966);
Havas v. Long, 85 Nev. 260, 454 P.2d 30 (1969); Brown v. Vonsild, 91 Nev. 646, 541 P.2d
528 (1975).
98 Nev. 167, 169 (1982) Simmons v. Trivelpiece
Appellant urges us not to extend the logic of the latter opinions to a case involving real
property, arguing that there is no basis for altering our 1869 holding in Robinson v. Imperial
Silver Mining Co., supra, because there has been no expansion in the area of in rem
jurisdiction comparable to that which has taken place in the area of personal jurisdiction. This
argument ignores the basic rationale of Robinson, which was that the statute contains no basis
for a distinction between personal actions and actions involving real property in its
application. We continue to find that analysis of the statute persuasive. To except actions
involving real property from the modern interpretation of the statute's application has no basis
in logic or policy. We therefore overrule our holding in Robinson to the extent that it required
application of the tolling statute where an absent defendant was nevertheless subject to
service of process.
With respect to her remaining contentions, we find that appellant has failed to demonstrate
prejudicial error properly preserved for appellate review.
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
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), SCR 10.
____________
98 Nev. 169, 169 (1982) Las Vegas Auto Leasing v. Davis
LAS VEGAS AUTO LEASING, INC., Appellant, v. RAYMOND DAVIS and JAMES E.
DAVIS, dba DESERT AUTO WRECKING, Respondents.
No. 12409
April 28, 1982 643 P.2d 1217
Appeal from judgment of involuntary dismissal and motion to vacate judgment, Eighth
Judicial District Court, Clark County; Keith C. Hayes and Addeliar D. Guy, Judges.
Plaintiff brought suit seeking deficiency judgment. The district court dismissed suit on
ground that plaintiff failed to provide required notice, and plaintiff appealed. The Supreme
Court held that contract was intended as a security agreement, and therefore, plaintiff was not
entitled to deficiency, having failed to provide notice required before vehicle repossessed
pursuant to security agreement may be sold.
98 Nev. 169, 170 (1982) Las Vegas Auto Leasing v. Davis
failed to provide notice required before vehicle repossessed pursuant to security agreement
may be sold.
Affirmed.
Reid & Alverson, Las Vegas, for Appellant.
Stanley W. Pierce, Las Vegas, for Respondents.
1. Secured Transactions.
Whether contract is security agreement or lease is determined by intention of parties as indicated by facts
of case.
2. Secured Transactions.
While contract in which plaintiff purported to lease motorcoach vehicle to defendants expressly
provided that there was no right to purchase, contract was intended as a security agreement, where its effect
was to require defendants to purchase vehicle for sum stated in contract, and therefore, plaintiff was not
entitled to deficiency, having failed to provide notice required before vehicle repossessed pursuant to
security agreement may be sold. NRS 482.516.
OPINION
Per Curiam:
Appellant and respondents entered into a written contract in which appellant purported to
lease a motorcoach vehicle to respondents. Appellant repossessed the vehicle following
respondents' default on the payments required by the agreement. Pursuant to the terms of the
contract, appellant sold the vehicle for the wholesale price, leaving a deficiency equal to the
difference between the sale price and respondents' maximum liability as stated in the contract.
Appellant brought suit in district court seeking a deficiency judgment. The district court
dismissed the suit pursuant to NRCP 41(b) on the ground that the appellant failed to provide
the notice required by NRS 482.516.
1
NRS 482.516 requires specific notice before a vehicle
repossessed pursuant to a security agreement may be sold.
____________________

1
NRS 482.516 provides, in pertinent part, as follows:
1. Any provision in any security agreement for the sale of a vehicle to the contrary notwithstanding,
at least 10 days' written notice of intent to sell a repossessed vehicle must be given to all persons liable on
the security agreement. The notice shall be given in person or shall be sent by mail directed to the address
of the persons shown on the security agreement, unless such persons have notified the holder in writing of
a different address.
. . .
3. During the period provided under the notice, the person or persons liable on the security
agreement may pay in full the indebtedness evidenced by the security agreement. Such persons shall be
liable for any deficiency after sale of the repossessed vehicle only if the notice prescribed by this section
is given within 60 days of repossession. . . .
98 Nev. 169, 171 (1982) Las Vegas Auto Leasing v. Davis
The sole issue raised on appeal is whether the district court erred in finding the purported
lease to be a security agreement such that the provisions of NRS 482.516 are applicable.
[Headnotes 1, 2]
Whether the contract is a security agreement or a lease is determined by the intention of
the parties as indicated by the facts of the case. U C Leasing, Inc. v. Laughlin, 96 Nev. 157,
606 P.2d 167 (1980). Appellant contends that the lack of an option or other right to purchase
the vehicle demonstrates that the agreement is not intended as an instrument for security. We
disagree. While the agreement expressly provides that there is no right to purchase, its effect
is to require respondents to purchase the vehicle for a sum stated in the contract. According to
the terms of the purported lease, a portion of each monthly payment is designated sales tax
and another portion is credited towards the stated original value of the vehicle. The difference
between the credited sums and the original value is specified as lessee's maximum liability.
Upon expiration or termination of the lease, the agreement requires that the lessor shall sell
the vehicle for the best wholesale price, and the lessee remains liable for the difference
between the sale price and the stated maximum liability.
There are other terms of the purported lease which indicate that a security agreement
was intended by the parties. According to the agreement, the lessee bears the risk of loss, theft
or damage and such loss does not relieve him of his payment obligation. The lessee is
required to insure against such loss, theft or damage and to indemnify the lessor for any
liability. Furthermore, the lessee is required to pay all charges, fees and taxes associated with
the use or ownership of the vehicle and appellant disclaims all warranties. See U C Leasing,
Inc., supra. Accordingly, we hold the district court did not err in finding the contract to be
intended as a security agreement. The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
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), SCR 10.
____________
98 Nev. 172, 172 (1982) Havas v. Hughes Estate, Summa Corp.
VICTOR HAVAS, Appellant, v. HUGHES ESTATE, SUMMA CORPORATION dba
DESERT INN HOTEL, Respondents.
No. 13046
April 30, 1982 643 P.2d 1220
Appeal from summary judgment, Eighth Judicial District Court, Clark County; William P.
Beko, Judge.
Action was brought against hotel for slander by comedian. The district court entered
summary judgment for hotel, and plaintiff appealed. The Supreme Court held that issue of
material fact existed on question of hotel's direct liability, even if comedian was independent
contractor, for hiring comedian hotel knew or should have known would make defamatory
statements, precluding summary judgment.
Reversed and remanded.
C. A. Jack Nelson, Las Vegas, and Harold M. Hecht, Las Vegas, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings, and John E. Gormley, Las Vegas, for
Respondents.
1. Appeal and Error; Judgment.
Rule providing that sworn or certified copies of all papers referred to in affidavit on motion for summary
judgment shall be attached thereto or served therewith is mandatory, and district court's reliance upon
affidavit which does not comply with rule may constitute reversible error. NRCP 56(e).
2. Judgment.
In action against hotel for slander by comedian, issue of material fact existed on question of hotel's direct
liability, even if comedian was independent contractor, for hiring comedian hotel knew or should have
known would made defamatory statements, precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment entered in favor of respondents. Appellant's
complaint alleged that he was slandered by a comedian during a performance at respondent
hotel, and that the comedian was either an agent, employee or independent contractor of the
hotel. Appellant also alleged that in employing the comedian, respondents knew or should
have known that the comedian would make false and slanderous statements.
98 Nev. 172, 173 (1982) Havas v. Hughes Estate, Summa Corp.
Respondents' motion for summary judgment was based upon the grounds that the
comedian was an independent contractor whose acts did not make respondents liable, and that
even if the comedian was an employee of respondents, the corporate respondent was not
liable for slander by the comedian because the corporation did not authorize the comedian's
remarks. The motion was supported by the affidavit of Walter Kane, respondents' director of
entertainment. The affidavit referred to a contract for musical services, and discussed
various terms of the contract. The motion stated that the written contract was attached as an
exhibit, but the contract was in fact not attached to the motion.
In response to the summary judgment motion, appellant requested a continuance.
Appellant pointed out that the written contract had not been attached to respondents' motion
for summary judgment, and that the Kane affidavit was conclusory, inadmissible and a
violation of NRCP 56(e). Appellant argued that he must have a copy of the contract . . . to
determine the facts as set forth by the affidavit of Walter Kane. Appellant requested a
continuance of the summary judgment proceeding in order to conduct discovery. In
opposition to the continuance, respondents failed to explain why the written contract was not
attached to the motion for summary judgment.
The district court denied appellant's request for a continuance, and granted respondents'
motion for summary judgment.
1
No reasons for the summary judgment were specified by the
district court.
[Headnote 1]
NRCP 56(e) provides that sworn or certified copies of all papers referred to in an affidavit
shall be attached thereto or served therewith. The rule is mandatory, and a district court's
reliance upon an affidavit which does not comply with the rule may constitute reversible
error. See Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 482 P.2d 814 (1971); cf. State of
Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944) (Fed.R.Civ.P. 56(e)).
[Headnote 2]
In addition to the irregularity of the Kane affidavit under NRCP 56(e), the affidavit fails to
establish as a matter of law that respondents have no liability to appellant. As mentioned
earlier, appellant's complaint alleged that when respondents employed the comedian,
respondents knew or should have known that the comedian would make defamatory
statements.
____________________

1
Appellant's action against the comedian is still pending in district court. The judgment in favor of
respondents was certified pursuant to NRCP 54(b).
98 Nev. 172, 174 (1982) Havas v. Hughes Estate, Summa Corp.
known that the comedian would make defamatory statements. Counsel for respondents has
acknowledged that this theory of respondents' direct liability, separate and apart from theories
relying upon respondeat superior, was not addressed in respondents' motion for summary
judgment. Indeed, the Kane affidavit contains nothing whatsoever dealing with this theory.
NRCP 56(c).
For the reasons discussed above, the district court erred by granting summary judgment to
respondents. Accordingly, we reverse the summary judgment, and remand for further
proceedings.
Gunderson, C. J., and Manoukian, Springer, and Steffen, JJ., and Young, D. J.,
2
concur.
____________________

2
The Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, was designated by the
Governor to sit in place of Justice John Mowbray, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
98 Nev. 174, 174 (1982) Nevada Bd. Osteopathic Med. v. Graham
NEVADA BOARD OF OSTEOPATHIC MEDICINE; O. W. WHITE, D.O.; T. C.
McCLEARY, D.O.; O. W. SHELKSOHN, D.O.; TED D'AMICO, D.O.; and RUTH
ARMSTRONG, As Members of the Nevada Board of Osteopathic Medicine, Appellants, v.
FRANK GRAHAM, D.O., Respondent.
No. 13410
April 30, 1982 643 P.2d 1222
Appeal from order reversing a decision of the Nevada Board of Osteopathic Medicine.
Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Appeal was taken from order of the district court reversing decision of Board of
Osteopathic Medicine to revoke physician's license for gross malpractice. The Supreme Court
held that: (1) because physician was deprived of his fundamental rights of due process of law,
Board's ruling was invalid, and (2) there was no statutory authority for award of fees to
physician.
Affirmed as modified.
Richard H. Bryan, Attorney General, Carson City; Robert N. Peccole, Chief Deputy
Attorney General, Las Vegas, for Appellants.
Richard D. Weisbart, Las Vegas, for Respondent.
98 Nev. 174, 175 (1982) Nevada Bd. Osteopathic Med. v. Graham
1. Constitutional Law.
Physician whose license was revoked for gross malpractice was deprived of his fundamental rights of due
process of law where Board of Osteopathic Medicine denied physician's rights to notice of hearing, to be
represented by counsel and right to call and examine witnesses. NRS 18.010, 233B.121 subds. 1, 3,
233B.123, subd. 4; Const.Art. 6, 19, subd. 1(c); SCR 10.
2. Costs.
Attorney fees may not be awarded in absence of statute, rule or contract granting them.
3. Physicians and Surgeons.
There was no statutory authority for award of fees to physician who successfully challenged revocation of
his license by Board of Osteopathic Medicine.
OPINION
Per Curiam:
The Nevada Board of Osteopathic Medicine issued a formal complaint against Frank
Graham alleging unprofessional conduct and gross malpractice. The Board conducted a
hearing on the complaint on July 17, 1979. Graham was present with counsel. At the
conclusion of the hearing it was agreed that two physicians would examine Graham relative
to his medical competency. This was done. The Board met on August 9, 1979 to consider the
results of the examination. The Board further considered newspaper reports concerning
Graham and two additional complaints that had been filed against Graham since the July
meeting. Neither Graham nor his counsel was present. At the conclusion of the meeting, the
Board voted to revoke Graham's license for gross malpractice.
[Headnote 1]
Graham appealed the Board's ruling to the district court. The court below found, among
other things, that at the August 1979 hearing Graham had been denied his statutory rights to
notice of the hearing (NRS 233B.121(1)); to be represented by counsel (NRS 233B.121(3));
the right to call and examine witnesses (NRS 233B.123(4)). The court concluded that because
Graham was deprived of his fundamental rights of due process of law, the Board's ruling was
invalid. We agree.
[Headnotes 2, 3]
The district court also awarded Graham $1,500.00 attorney's fees. This was improper. The
settled rule is that attorney's fees may not be awarded in the absence of a statute, rule or
contract granting them. State ex rel. List v. Courtesy Motors, 95 Nev. 103, 590 P.2d 163
(1979). NRS 18.010 only applies to actions for money damages.
98 Nev. 174, 176 (1982) Nevada Bd. Osteopathic Med. v. Graham
for money damages. International Industries v. United Mortgage Co., 96 Nev. 150, 157, 606
P.2d 163, 167 (1980). There is no statutory authority for the award of the fees.
We affirm the judgment below except as to the award of the attorney's fees, which we
reverse.
Gunderson, C. J., and Manoukian, Springer, 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 Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 176, 176 (1982) State v. Baliotis
THE STATE OF NEVADA, Appellant, v. DONALD
G. BALIOTIS, Respondent.
No. 12897
April 30, 1982 643 P.2d 1223
Appeal from order granting post-conviction relief. Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
State appealed from an order of the district court which granted respondent
post-conviction relief by setting aside his guilty plea to a 1969 charge of manufacture and
possession of dynamite machine. The Supreme Court held that respondent, who had been
discharged from probation in 1972, was not under sentence, within meaning of statute
permitting any person convicted of a crime and under sentence of death or imprisonment to
apply for post-conviction relief, at time he petitioned for post-conviction relief in 1978 in
order to have his guilty plea to a 1969 charge of manufacture and possession of dynamite
machine set aside.
Reversed and remanded.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edward B. Horn, Deputy District Attorney, Washoe County, for Appellant.
Jerome M. Polaha, Reno, for Respondent.
Criminal Law.
Respondent, who had been discharged from probation in 1972, was not under sentence, within meaning
of statute permitting any person convicted of a crime and under sentence of death or
imprisonment to apply for post-conviction relief, at time he petitioned for
post-conviction relief in 197S in order to have his guilty plea to a 1969 charge of
manufacture and possession of dynamite machine set aside.
98 Nev. 176, 177 (1982) State v. Baliotis
person convicted of a crime and under sentence of death or imprisonment to apply for post-conviction
relief, at time he petitioned for post-conviction relief in 1978 in order to have his guilty plea to a 1969
charge of manufacture and possession of dynamite machine set aside. NRS 177.315, subd. 1.
OPINION
Per Curiam:
The state has appealed from the district court's order granting respondent, Baliotis,
post-conviction relief by setting aside his plea of guilty to a 1969 charge of manufacture and
possession of a dynamite machine. The state contends, inter alia, that post-conviction relief
was unavailable to Baliotis pursuant to NRS 177.315. We agree.
There is evidence that during the 1969 plea negotiations, Baliotis inquired whether a
felony conviction would interfere with his right to own a firearm, which he believed he would
need for his work as a private investigator. Apparently relying on the assurances of the
District Attorney and his own counsel that no disability would follow successful termination
of probation, Baliotis pled guilty to the one count. Additional charges were dismissed.
Baliotis served a period of probation without incident outside of Nevada and was honorably
discharged from probation in 1972 by the sentencing judge, the Honorable Emile Gezelin,
now deceased.
In 1973, Baliotis purchased and registered a firearm in Nevada and pursued his profession
as a private investigator. He was arrested in 1977 pursuant to a federal indictment as an
ex-felon in possession of a firearm. 18 U.S.C. 922(h)(1); 924 (1968). That indictment was
dismissed on condition that Baliotis not purchase another firearm.
Baliotis petitioned for post-conviction relief in 1978, pursuant to NRS 177.315, in order to
have his guilty plea set aside as involuntary. He contended that his inability to lawfully
purchase a weapon had injured him in his capacity as a private investigator, and that his guilty
plea was based on misinformation concerning that disability supplied to him by both his own
and the prosecuting attorney. The trial judge, the Honorable John E. Gabrielli, granted the
requested relief. Although the state contests the propriety of the trial court's action on
substantive grounds, we need only address the applicability of NRS 177.315, which is
dispositive of this appeal.
NRS 177.315(1) provides:
Any person convicted of a crime and under sentence of death or imprisonment in the
state prison who claims that the conviction was obtained, or that the sentence was
imposed, in violation of the Constitution of the United States or the constitution of
this state may, without paying a filing fee, apply for post-conviction relief from the
conviction or sentence.
98 Nev. 176, 178 (1982) State v. Baliotis
the conviction was obtained, or that the sentence was imposed, in violation of the
Constitution of the United States or the constitution of this state may, without paying a
filing fee, apply for post-conviction relief from the conviction or sentence.
Appellant argues that the trial court erred in granting respondent's petition because
respondent's probation had already been satisfied and he was no longer under sentence by
the state as required by NRS 177.315(1).
We have interpreted the term under sentence as requiring, at minimum, some form of
constructive restraint or supervision. [T]he provision under sentence' means that the
petitioner must at the time he files his writ for habeas relief [pursuant to NRS 177.315] be
subject to Nevada authority, whether as one physically confined or under supervision as a
probationer or parolee or otherwise restrained of liberty. Dixon v. Warden, 85 Nev. 703,
704-5, 462 P.2d 753, 754 (1969). In Dixon we determined that NRS 177.315 did not permit a
petitioner incarcerated in federal prison to challenge a 1954 Nevada conviction.
We find no reason to depart from our ruling in Dixon. At the time he petitioned for
post-conviction relief, Baliotis was not subject to any actual or constructive restraint or
supervision. The post-conviction remedy provided by NRS 177.315 is not available to
respondent under the facts presented by this case.
The order granting respondent's petition for post-conviction relief is reversed and the case
remanded for reinstatement of the guilty plea and judgment of conviction.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 179, 179 (1982) Coats v. State
DONALD KEITH COATS, LOREN BERNARD CUNNINGHAM and MICHAEL ROBERT
WOYCKE, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 12556
April 30, 1982 643 P.2d 1225
Appeal from judgment of conviction by jury for three counts each of robbery with the use
of a deadly weapon, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that: (1) in prosecution for robbery with use of a deadly weapon,
district court did not err when it failed to instruct jury sua sponte on element of specific
intent; (2) photographic lineup at which robbery victim identified three defendants from nine
photographs as perpetrators of the crime was not impermissibly suggestive and their due
process rights were not violated by their identifications at trial, which was predicated on
victim's eyewitness observations during the course of the robbery; and (3) police detective's
testimony to effect that he obtained pictures of defendants used in photographic lineup from
homicide division of police department did not prejudice defendants.
Affirmed.
Smith & Maurer, Las Vegas, for Appellant Coats.
Frank J. Cremen, Las Vegas, for Appellant Cunningham.
Gerald Hardcastle, Las Vegas, for Appellant Woycke.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for robbery with use of a deadly weapon, district court did not err when it failed to instruct
jury sua sponte on element of specific intent.
2. Constitutional Law.
Photographic lineup at which robbery victim identified three defendants from nine photographs as
perpetrators of the crime was not impermissibly suggestive and their due process rights were not violated
by their identifications at trial, which was predicated on victim's eyewitness observation during the course
of the robbery. U.S.C.A.Const. Amend. 14.
3. Criminal Law.
Evidence of prior criminal activity may be admitted only for limited purposes, and then only if its
prejudicial effect is outweighed by its probative value.
98 Nev. 179, 180 (1982) Coats v. State
4. Criminal Law.
Police detective's testimony to effect that he obtained pictures of defendants used in photographic lineup
from homicide division of police department did not prejudice defendants, who were prosecuted on
robbery charges.
OPINION
Per Curiam:
The appellants were tried before a jury on three counts each of robbery with the use of a
deadly weapon. They were found guilty on all counts.
[Headnote 1]
Appellants contend the district court erred when it failed to instruct the jury sua sponte
that to be convicted of robbery the defendants had to have specific intent to deprive the
owners permanently of their property.
In Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981), this court held that the crime of
robbery as defined in NRS 200.380, represents a general intent crime. Accordingly, proof of
specific intent is not required in order to establish the crime of robbery. In the instant case, the
district court instructed the jury on the crime of robbery, by following the statutory definition
as set forth in NRS 200.380.
1
The district judge did not err in failing to instruct sua sponte
the jury on the element of specific intent.
[Headnote 2]
Next, appellants submit that the photographic lineup was impermissibly suggestive and a
denial of their due process rights. The applicable due process standard regarding photographic
lineups was enunciated in Simmons v. United States, 390 U.S 377, 384 (1968), wherein the
court held: . . .
____________________

1
NRS 200.380 states:
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 of 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.
98 Nev. 179, 181 (1982) Coats v. State
[C]onvictions based on eyewitness identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the photographic identification procedure
was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. See also Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), cert.
denied 396 U.S. 893 (1969).
In the case at bar, one of the robbery victims viewed a photographic lineup consisting of
nine photographs, three of which were of the appellants. After viewing the lineup, the robbery
victim identified appellants as the perpetrators of the crime. The record reflects that
identification of the appellants at trial was predicated on the victim's eyewitness observations
during the course of the robbery. We conclude the photographic lineup was not impermissibly
suggestive and appellant's due process rights were not violated.
Finally, appellants contend that testimony of a police officer witness was so prejudicial as
to render the trial unfair. Appellants submit that evidence of criminal activity unrelated to the
offense charged was erroneously admitted through the testimony of Detective Mings of the
Metropolitan Police Department.
[Headnote 3]
Evidence of prior criminal activity may be admitted only for limited purposes, and then
only if its prejudicial effect is outweighed by its probative value. Founts v. State, 87 Nev.
165, 483 P.2d 654 (1971). In Founts v. State, supra, this court held the rule proscribing the
introduction of previous offense testimony was not violated where the prosecution repeatedly
referred to the unusual and unfortunate nature of a prior meeting between the victim and
defendant. Likewise, in Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975), where a police
officer witness testified that he had arrested appellant on another incident and the trial court
offered to admonish the jury and give a limiting instruction, this court held that no damaging
previous-offense testimony was introduced.
[Headnote 4]
Here, Detective Mings testified without objection that he obtained the photographs of
appellants used in the photographic lineup from the homicide division of the Las Vegas
Police Department. However, after an offer of proof, two of the three defense counsel
objected to Mings' testimony. The district court overruled counsels' objections and allowed
Detective Mings to explain why a physical lineup was not conducted and how he obtained
the photographs of appellants.
98 Nev. 179, 182 (1982) Coats v. State
Detective Mings to explain why a physical lineup was not conducted and how he obtained the
photographs of appellants.
Detective Mings testified as follows:
Q. All right, Officer Mings. There was no physical lineup here, is that correct?
A. That's correct.
Q. And could you tell us why you did not have a physical lineup in this instance and
how you arrived at this photographic lineup?
A. Mr. Cummins called me and advised me that there were three subjects in custody
by the name of Killer, Diller, and Ace. At which time I proceeded to the Homicide
Detail and obtained photos of three subjects and held a photographic lineup because the
three subjects in custody were not in custody in my jurisdiction.
Prior to Detective Mings' testimony, the district court offered to admonish the jury and
give a limiting instruction, advising the jury that the Homicide Division investigates crimes
other than homicide. Two of the three defense counsel for appellants rejected the court's offer
because they felt an admonishment would only serve to highlight a remark that may have
gone unnoticed by the jury.
In our view, reference to the homicide division is too tenuous to have prejudiced
appellants in the factual context of this case. See Reese v. State, 95 Nev. 419, 596 P.2d 212
(1979). Here, as in Founts and Geary, no damaging previous-offense testimony was
introduced, and the rule proscribing introduction of such evidence was not violated.
The judgment of the district court is 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 place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 183, 183 (1982) Weston v. County of Lincoln
W. DAVID WESTON, Appellant, v. COUNTY OF LINCOLN and RUDY LISTER,
LINCOLN COUNTY TREASURER, Respondents.
No. 12410
April 30, 1982 643 P.2d 1227
Appeal from an order granting respondents' motion for summary judgment and denying
injunctive relief, Seventh Judicial District Court, Lincoln County; Merlyn H. Hoyt, Judge.
After property taxes on patented mining claims became delinquent, a tax deed to the
property was issued to county treasurer. Two days after issuance of the tax deed and before
the county gave notice of intent to sell the property at public auction, the plaintiff, who held
the principal interest in the mining claims, tendered full payment of the delinquent taxes. The
county refused to accept the tendered sum, whereupon plaintiff filed a lis pendens on the
property and sought injunctive relief. The district court denied injunctive relief and granted
the county's motion for summary judgment, and plaintiff appealed. The Supreme Court held
that NRS 517.410, which authorizes a county that has acquired title to a patented mining
claim through operation of the revenue laws to grant an applicant the right to enter and
explore the property, does not bar the former owner of a patented mining claim, or any person
designated in reconveyance statute, from exercising its right of reconveyance, provided by
NRS 361.585(3), until the county to which the tax deed issued exercises its authority pursuant
to NRS 517.410.
Reversed and remanded.
W. David Weston, in pro per, Salt Lake City, for Appellant.
John S. McGimsey, District Attorney, Lincoln County, for Respondents.
1. Statutes.
It is the Supreme Court's obligation to construe statutory provisions in such a manner as to render them
compatible whenever possible.
2. Taxation.
NRS 517.410, which authorizes a county that has acquired title to a patented mining claim through
operation of the revenue laws to grant an applicant the right to enter and explore the property, does not bar
the former owner of a patented mining claim, or any person designated in reconveyance statute,
from exercising its right of reconveyance, provided by NRS 361.5S5{3), until the
county to which the tax deed issued exercises its authority pursuant to NRS 517.410.
98 Nev. 183, 184 (1982) Weston v. County of Lincoln
designated in reconveyance statute, from exercising its right of reconveyance, provided by NRS
361.585(3), until the county to which the tax deed issued exercises its authority pursuant to NRS
517.410. NRS 361.585, subd. 3, 517.410.
OPINION
Per Curiam:
Appellant held the principal interest in ten patented mining claims located in Lincoln
County, Nevada. After the property taxes on the patented mining claims became delinquent, a
tax deed to the property was issued to the Lincoln County Treasurer in accordance with our
revenue laws.
1
Two days after the issuance of the tax deed and before Lincoln County gave
notice of intent to sell the property at public auction, appellant tendered full payment of the
delinquent taxes, penalties and interest pursuant to NRS 361.585(3).
2
The Lincoln County
Treasurer refused to accept the tendered sums, whereupon appellant filed a lis pendens on the
property and sought injunctive relief. The district court denied injunctive relief and granted
respondents' motion for summary judgment.
On appeal, the main issue is whether the district court erred in finding that NRS
361.585(3) does not apply to patented mining claims. We think the district court erred.
NRS 361.585(3) is expressly applicable to any property held in trust by the county
treasurer by virtue of a deed issued pursuant to our revenue laws.
____________________

1
Where delinquent taxes are not paid within a certain period, our revenue laws mandate that a tax certificate
issue to the county treasurer to hold the property subject to redemption within two years. If the property is not
redeemed within the two-year period, a tax deed to the property is issued to the county treasurer, in trust, for the
use and benefit of the county and state. See NRS 361.565 and NRS 361.585.

2
NRS 361.585(3) provides in pertinent part as follows:
3. Notwithstanding the provisions of NRS 361.595 or 361.603, at any time during the 90-day period
specified in NRS 361.603, or before the public notice of sale by a county treasurer, pursuant to NRS
361.595, of any property held in trust by him by virtue of any deed made pursuant to the provisions of
this chapter, any person or persons specified in subsection 4 is entitled to have such property reconveyed
upon payment to the county treasurer of an amount equal to the taxes accrued, together with any costs,
penalties and interest legally chargeable against such property. A reconveyance shall not be made after
expiration of the 90-day period specified in NRS 361.603 or after commencement of posting or
publication of public notice pursuant to NRS 361.595.
It is not disputed that appellant qualifies as a person specified under subsection 4.
98 Nev. 183, 185 (1982) Weston v. County of Lincoln
held in trust by the county treasurer by virtue of a deed issued pursuant to our revenue laws.
Moreover, all laws relevant to the enforcement and collection of taxes and accrued penalties
are adopted by reference to patented mining claims. See NRS 362.220.
We disagree with respondents' contention and the conclusion of attorney general opinion
number seventeen, relied upon by the district court, that NRS 361.585(3) is not applicable to
patented mining claims because of conflict with NRS 517.410 and NRS 517.420.
3
NRS
517.410 authorizes a county that has acquired title to a patented mining claim through
operation of the revenue laws to grant an applicant the right to enter and explore the property.
Additionally, applicant is authorized by NRS 517.420 to pay the delinquent taxes, penalties,
costs and interest and thereby acquire title.
[Headnotes 1, 2]
It is our obligation to construe statutory provisions in such a manner as to render them
compatible whenever possible. State of Nevada v. Rosenthal, 93 Nev. 36, 559 P.2d 830
(1977). In view of this principle we conclude NRS 517.410 does not bar the former owner of
patented mining claims, or any person designated in the reconveyance statute, from exercising
his right of reconveyance provided by NRS 361.585(3) until the county to which the tax deed
issued exercises its authority pursuant to NRS 517.410. This construction places the statutes
in complete harmony. Under NRS 361.585(3) the right of reconveyance continues only so
long as the county does not take the steps prescribed by law to sell or otherwise convey the
property. Once such action is commenced, the right to reacquire title is lost. Where the
property sought to be reacquired is a patented mining claim, NRS 517.410 simply authorizes
the county to take certain action in addition to that prescribed by NRS 361.585(3).
____________________

3
NRS 517.410 provides, in pertinent part, as follows:
1. Upon receipt of an affidavit and petition as required by NRS 517.390, the board of county
commissioners, by an order appearing in its minutes, may give such petitioner permission to enter upon
any such claim or claims and explore the same for valuable minerals for a period of 6 months without any
charge therefor.
NRS 517.420 provides, in pertinent part, as follows:
1. At the expiration of 6 months, or sooner if the petitioner so desires, the county treasurer shall make
and execute a deed conveying the title of the county to such claim or claims to the petitioner for the sum
for which the property became the property of the county.
98 Nev. 183, 186 (1982) Weston v. County of Lincoln
Accordingly, we reverse the order granting summary judgment and remand to the district
court for proceedings consistent with this opinion. In view of our opinion, the other issues
raised on appeal need not be addressed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
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), SCR 10.
____________
98 Nev. 186, 186 (1982) Horvath v. Burt
ANN HORVATH, Appellant, v. JERALD BURT, Respondent.
No. 13076
April 30, 1982 643 P.2d 1229
Appeal from jury verdict for respondent and denial of appellant's motion for a new trial.
Second Judicial District Court, Washoe County; William H. Forman, Judge.
Tenant brought action against landlord for personal injuries sustained during her escape
from an apartment fire which was caused by defective wiring. The district court entered
judgment for landlord and denied tenant's motion for new trial based on trial court's error in
instructing jury on contributory negligence, and tenant appealed. The Supreme Court,
Springer, J., held that failure of 64-year-old woman to hang onto upper story windowsill to
await assistance in escaping from apartment fire did not constitute negligence contributing to
injuries when she fell or jumped from windowsill.
Reversed.
Mowbray, J., dissented.
Gordon W. Rice and Goedert & Walraven, Reno, for Appellant.
Sala, McAuliffe, Hill & White, Reno, for Respondents.
1. Negligence.
Ordinarily, existence of contributory negligence is question of fact; it becomes question of law when
evidence will support no other inference.
98 Nev. 186, 187 (1982) Horvath v. Burt
2. Negligence.
Failure of 64-year-old woman to hang onto upper story windowsill to await assistance in escaping from
apartment fire caused by defective wiring did not constitute negligence contributing to injuries when she
fell or jumped from windowsill.
3. Landlord and Tenant.
Risk of harm contemplated in statute imposing duty on landlords to maintain electrical wiring and
equipment of dwelling unit in safe condition included injury resulting from attempt to escape fire. NRS
118A.290.
4. Electricity.
Electricity is highly dangerous force, and risks involved in its use may place duty of inspection upon
party having control of premises.
5. Landlord and Tenant.
Landlord was not relieved of statutory duty to maintain electrical wiring and equipment of dwelling unit
in safe condition by location of wiring in inconvenient place under building where landlord was aware of
dangerous condition in that tenants had made numerous complaints concerning frequent power outages and
blown fuses. NRS 118A.290.
OPINION
By the Court, Springer, J.:
Appellant Ann Horvath sought damages from her former landlord Jerald Burt for injuries
sustained during a fire in the apartment house where she lived. After a jury verdict in favor of
the landlord, Horvath moved for a new trial. The motion was denied. Horvath appeals from
the jury verdict and the order denying her motion for a new trial.
Horvath urges that several errors were committed by the trial court. Because we conclude
that the trial court committed reversible error by instructing the jury on contributory
negligence, we need not consider the other issues presented.
[Headnote 1]
Ordinarily, the existence of contributory negligence is a question of fact; it becomes a
question of law when the evidence will support no other inference. Wagon Wheel v.
Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962). An examination of the record reveals no
evidence to justify a finding of contributory negligence.
[Headnote 2]
Horvath, a woman of 64 years, was awakened in the middle of the night by shouts of
warning. She opened the door to the hall and found it to be filled with smoke. A witness
testified that there was a terrific amount of flame which permitted "no way of going
downstairs at all."
98 Nev. 186, 188 (1982) Horvath v. Burt
no way of going downstairs at all. Trapped, Horvath broke an outside window and
positioned herself outside the building by hanging from the sill with her feet touching an
inclined, roof-like projection immediately below her. She subsequently jumped or fell,
seriously injuring herself.
Respondent claims that the facts establish that Horvath's negligence contributed to her
injuries. This contention is based on the testimony of a police officer who assisted at the fire.
Respondent argues that the police officer had told Horvath to wait, and that had she done so,
she would have been rescued without injury. Respondent's position, apparently, is that
Horvath had a duty to hold onto the wet sill a little longer than she did.
An examination of Officer Cordella's testimony does not support any inference of
negligence on the part of Mrs. Horvath. Cordella never identified Horvath; furthermore, there
is no indication that he specifically warned her or that, if warned, she heard the warning.
Cordella testified that he saw some people in the window of the northeast corner of the
building. The building was engulfed in fire, and the people in the window were screaming for
help. Cordella yelled to the people to wait for help since the fire department was nearby. He
then ran to another part of the yard, and in five or ten seconds, he returned with a ladder
which he used to help people exit. It was only after returning with the ladder that he noticed a
woman lying on the ground. The foregoing testimony at best merely indicates that Cordella
had the good fortune to find a ladder; and that discovery, coupled with his quick response,
prevented others in the building from having to jump or fall.
Under the circumstances of this case, we cannot find that the giving of an instruction on
contributory negligence was harmless. There is certainly evidence in this case from which a
jury could reasonably have concluded that respondent's failure to inspect the wiring was
either common law negligence or negligence per se. We must therefore conclude that
appellant was prejudiced by the giving of the improper instruction.
[Headnotes 3-5]
NRS 118A.290 imposes a duty on landlords to maintain the electrical wiring and
equipment of a dwelling unit in safe condition.
1
The statute was clearly designed to protect a
class of persons which included appellant; and the injury resulting from an attempt to escape
the fire may reasonably be said to fall within the risk of harm contemplated in the statute. See
W. Prosser, Law of Torts 200 {4th ed.
____________________

1
NRS 118A.290 Habitability of dwelling unit.
1. The landlord shall at all times during the tenancy maintain the
98 Nev. 186, 189 (1982) Horvath v. Burt
Law of Torts 200 (4th ed. 1971). Respondent claims that he was under no duty to inspect or
repair the wiring since it was located in an inconvenient place under the building. We do not
find this argument persuasive. Respondent was aware that the wiring in the lower portion of
the building was approximately seventy-five years old. That fact alone may be sufficient to
infer that respondent had notice. Electricity is a highly dangerous force, and the risks involved
in its use may place a duty of inspection upon the party having control of the premises. Cutler
v. P.S.P.M. Co., 34 Nev. 45 (1911).
2
Moreover, the age of the wiring in the immediate case
underscores the importance of inspection. Cf. Leavitt v. Glick Realty Corp., 285 N.E.2d 786
(Mass. 1972) (failure to inspect electrical wiring over a period of twenty-seven years held
evidence of negligence). There was, however, even more direct evidence that respondent was
aware of the dangerous condition. The tenants had made numerous complaints to the
management concerning frequent power outages and blown fuses. Respondent conceded at
trial that he was aware of at least some of these complaints. To say that under these facts
respondent was relieved of his legal duty merely because it would be inconvenient to inspect
or repair the wiring would be to vitiate the objective of the statute.
Since appellant may reasonably argue that a different result might have obtained in the
absence of the erroneous instruction, reversal is warranted. See Driscoll v. Erreguible, 87
Nev. 97, 102, 482 P.2d 291, 295 (1971).
The judgment of the trial court and order denying appellant's motion for a new trial are
therefore reversed.
____________________
dwelling unit in a habitable condition. A dwelling unit is not habitable if it substantially lacks:
* * *
(e) Electrical lighting, outlets, wiring and electrical equipment which conformed to applicable law
when installed and are maintained in good working order.

2
In Cutler, a decision which was essentially contemporaneous with the time of the electrical wiring in the
immediate case, this court said,
We can see no error in submitting to the jury, as a matter of law, the duty of defendants, owning or
controlling an electric wire dangerous to life and limb, [to make] an inspection as to the safety of said
wire in this age . . . where this newly discovered, life-destroying element is conveyed . . . into dwellings .
. .
it is both just and right that corporations and individuals . . . having control of wires conducting
electricity . . . should be compelled at all times to thoroughly and frequently inspect the wires, to the end
that they may at all times, in so far as it is within the reasonable power of man, render them safe. . . .
Id. at 62-63.
98 Nev. 186, 190 (1982) Horvath v. Burt
Gunderson, C. J., Manoukian, J., and Zenoff, Sr. J.,
3
concur.
Mowbray, J., dissenting:
Respectfully, I dissent. Horvath seeks reversal principally on the grounds that the district
judge erred in instructing the jury on (1) the landlord's duty to repair the premises and (2) in
giving the jury a contributory negligence instruction. In my opinion, the court did not commit
reversible error.
1. Horvath claimed that a landlord's liability for injuries sustained by tenants due to
defects in the leased premises should be predicated on strict liability rather than negligence.
The trial judge rejected the strict liability theory and instructed the jury that the landlord's
liability was predicated on negligence. It is the rule that liability is imposed only when the
landlord has notice of the defect and an opportunity to correct it, or failed to exercise ordinary
care in inspecting for defects. Morris v. Oney, 32 Cal.Rptr. 88 (Ct.App. 1963); Henderson v.
W. C. Haas Realty Management, Inc., 561 S.W.2d 382 (Mo.App. 1977); Sheehan v. 535
North Water Street, 67 N.W.2d 273 (Wis. 1954). The court properly instructed the jury on the
duty to repair.
2. As the majority opinion points out, the existence of contributory negligence is a
question of fact. It becomes a question of law only when the evidence will support no other
inference. Wagon Wheel v. Mavrogan, 78 Nev. 126, 128, 369 P.2d 688 (1962); Carter v. City
of Fallon, 54 Nev. 195, 201, 11 P.2d 817 (1932).
Officer Cordella testified that he arrived early at the scene of the fire and shouted to the
tenants in the upper story windows not to jump because the fire trucks were only a half a
block away. When he returned seconds later with a ladder, the other tenants were rescued
safely, but Horvath had already jumped.
1
He did not at the time identify Horvath but she
apparently was the only tenant who jumped.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6 19; SCR 10.

1
Officer Cordella testified as follows:
MR. HILL: Okay. When you ran towards the home, did you have an opportunity to observe some
people in the window on the northeast corner of the building?
OFFICER CORDELLA: I did.
MR. HILL: Okay. And did you shout any instruction to those people in the windows?
OFFICER CORDELLA: Upon my arrival, I noted the entire structure to be engulfed. The people in
the corner of the building were screaming for help and--
MR. HILL: What did you tell them?
OFFICER CORDELLA: I advised to the best of my memory--I didn't make any notes at the time--for
the people to wait, we were
98 Nev. 186, 191 (1982) Horvath v. Burt
He did not at the time identify Horvath but she apparently was the only tenant who jumped.
Horvath testified that while she was still standing in her apartment she saw an officer go by
looking for a ladder and that she knew that if she jumped she would be injured.
The issue is not, as the majority opinion frames it, whether the evidence clearly shows that
Officer Cordella positively identified Horvath in the window, or specifically warned her not
to jump. The issue is whether the evidence could support a reasonable inference in the mind
of a juror that Horvath, having been warned, jumped unnecessarily and thus contributed to
her own injuries. The evidence supports such an inference.
The district court adequately instructed the jury that one in imminent peril is not held to
the same standard of reasonable care as one acting under normal conditions.
2
The fact that
Horvath was frightened and under great stress does not make the giving of the contributory
negligence instruction erroneous.
3
Horvath has suffered a tragic accident.
____________________
going to get help, that the Fire Department was less than half a block away.
MR. HILL: And what did you do after that?
OFFICER CORDELLA: I headed towards the rear of the building looking for a ladder or something
for the people to exit the building with.
MR. HILL: And did you, in fact, find a ladder?
OFFICER CORDELLA: Yes, I did.
MR. HILL: And did you return with it to that scene?
OFFICER CORDELLA: I found a ladder laying in the back on the grass. I picked it up, ran towards
the front, leaned it up against the building and people began coming down.
MR. HILL: And how long did it take you to get from the area where the people were yelling for help
to the back part of the building and back up in front?
OFFICER CORDELLA: Close estimate of five to ten seconds.
MR. HILL: And at that time did you happen to notice an older woman on the ground at that time?
OFFICER CORDELLA: I believe while going through, I did not, but upon coming back with the
ladder, I did.
MR. HILL: So if I understand your testimony, she was not on the ground when you yelled up that
help was coming. Ten seconds later you returned with the ladder and at that time she was on the ground.
OFFICER CORDELLA: Yes.

2
Instruction No. 16:
Where one without fault of his own is placed in a position of great mental stress or sudden
emergency, the same degree of judgment and care is not required of him as is required of one who is
acting under normal conditions. The test to be applied is whether or not the person in such a position of
great mental stress or sudden emergency did or attempted to do what a reasonably careful person would
have done under the same or similar circumstances.

3
It appears that the jury's verdict was predicated on a finding that the landlord was not negligent, not on a
finding of contributory negligence.
98 Nev. 186, 192 (1982) Horvath v. Burt
Horvath has suffered a tragic accident. However, she was given a fair opportunity to
present her case to a jury. The jury found against her. No reversible error occurred at the trial.
I would affirm the judgment of the district court.
____________________
Just prior to reaching the defense verdict, the jury requested additional instructions defining reasonable
inspection. This suggests that the jury was more concerned with the landlord's duty than with Horvath's
contributory negligence.
____________
98 Nev. 192, 192 (1982) Wilkie v. State
ROBERT JAMES WILKIE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13518
May 6, 1982 644 P.2d 508
Appeal from judgment of conviction upon a jury verdict. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of second degree murder, and he
appealed. The Supreme Court held that although defendant, who was representing himself,
was confined in a maximum security cell, without access to a law library, his constitutional
rights were not violated; his confinement was directly caused by his own behavior as an
escapist and an admitted security risk, and he had two appointed standby attorneys, with
whom he refused to discuss his defense.
Affirmed.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Assistant Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Constitutional right of self-representation includes the right of access to an adequate law library.
2. Prisons.
Although defendant, who was representing himself, was confined in a maximum security cell, without
access to a law library, his constitutional rights were not violated; his confinement was directly caused by
his own behavior as an escapist and an admitted security risk, and he had two appointed standby
attorneys, with whom he refused to discuss his defense.
98 Nev. 192, 193 (1982) Wilkie v. State
risk, and he had two appointed standby attorneys, with whom he refused to discuss his defense.
3. Criminal Law.
Murder defendant was not entitled to a declaration of mistrial after detective referred in his testimony to
another homicide investigation, where the reference to the other homicide was an innocent, reasonable
response by the detective to a direct question asked him on cross-examination by defense counsel, and
where it was not an effort to prejudice defendant's case.
4. Criminal Law.
Defendant was not prejudiced when the district judge, at the close of the defense case, asked the
prosecuting attorney if he had any rebuttal and then laughed; the judge immediately explained that he was
only laughing at himself for asking the question since the defense had offered no witnesses, and he then
instructed the jury not to draw any inferences from his laughter.
OPINION
Per Curiam:
Appellant Robert James Wilkie was convicted by a jury of second degree murder. His
principal contention on appeal is that the conditions of his pretrial incarceration prevented
him from using the law library, thereby violating his right to conduct his own defense. He
also argues that the district court erroneously admitted evidence that he was under
investigation for a separate homicide, and that the judge's demeanor at the close of the
defense's case prejudiced him. Finding no error, we affirm the conviction.
THE FACTS
The homicide victim, Charles L. Young, was found strangled with a necktie in his hotel
room. Appellant was registered at the same hotel, the Union Plaza. The day following the
homicide, appellant sold Young's watch to a pawnshop, using as identification two cards
bearing Young's name. Appellant was arrested for the murder.
Appellant escaped from custody and was apprehended in California. After his return to
Nevada, appellant moved to represent himself. The district judge advised appellant that his
access to legal materials would be restricted, but granted the motion. The judge appointed the
Public Defender's office as standby counsel. Later, the Public Defender's office withdrew and
private counsel was appointed.
Appellant escaped two more times, and was placed in a maximum security cell, where he
remained until trial. He was kept in his cell twenty-three hours a day, and his commissary,
telephone and visitation privileges were restricted.
98 Nev. 192, 194 (1982) Wilkie v. State
in his cell twenty-three hours a day, and his commissary, telephone and visitation privileges
were restricted. He was not permitted to use the law library, except for one two-hour visit. He
complained to the district court on several occasions concerning the conditions of his
incarceration. However, he refused to discuss the case with his appointed standby counsel.
Appellant went to trial and was convicted. This appeal followed.
APPELLANT'S CONSTITUTIONAL CLAIM
[Headnote 1]
Appellant's right to represent himself is guaranteed by the United States Constitution.
Faretta v. California, 422 U.S. 806 (1975). This court has held that the right of
self-representation includes a right of access to an adequate law library. Wolfe v. State, 95
Nev. 240, 591 P.2d 1155 (1979). See also Bounds v. Smith, 430 U.S. 817 (1977).
[Headnote 2]
Appellant argues that his confinement in a maximum security cell, without access to a law
library, violated his rights under Faretta and Wolfe. However, appellant's confinement was
directly caused by his own behavior as an escapist and an admitted security risk. He does not
argue that he was unreasonably confined, but contends that, because he was representing
himself, special arrangements should have been made to permit him to use the law library.
Wolfe and Faretta guarantee no such special privileges to defendants who represent
themselves. See State v. Yanich, 516 P.2d 308 (Ariz. 1973); Ferrel v. Superior Court, 576
P.2d 93 (Cal. 1978). Moreover, appellant had two appointed standby attorneys, with whom he
refused to discuss his defense. It is likely that, had he enlisted their aid, his standby attorneys
could have provided him with legal materials. Cf. Hollis v. State, 95 Nev. 664, 601 P.2d 62
(1979) (provision of law books to defendant by standby counsel satisfies requirements of
Wolfe). See also, People v. Rice, 579 P.2d 647 (Colo.App. 1978).
We conclude that confining appellant in a maximum security cell did not violate his
constitutional rights.
OTHER ASSIGNMENTS OF ERROR
[Headnote 3]
Appellant also argues that the district court should have declared a mistrial after Detective
Plasse of the Santa Monica Police Department referred in his testimony to a homicide
investigation in Santa Monica.
98 Nev. 192, 195 (1982) Wilkie v. State
investigation in Santa Monica. Appellant contends that the reference raised the inference that
he was suspected of the Santa Monica killing, and was prejudicial.
The state called Plasse as a witness and asked him to describe an interview he had with
appellant in California, in which appellant made certain admissions. On cross-examination,
appellant's counsel directed Plasse to read a portion of his written report, which was prepared
after the interview. The report mentioned the Santa Monica homicide.
The district judge, who was able to observe the witness's testimony, concluded that the
reference was an innocent, reasonable response to a direct question asked by appellant's
counsel, and that it was not an effort to prejudice appellant's case. The judge therefore denied
the motion for a mistrial. We perceive no abuse of discretion. See Leaders v. State, 92 Nev.
250, 548 P.2d 1374 (1976).
[Headnote 4]
Finally, appellant claims he was prejudiced when the district judge, at the close of the
defense case, asked the prosecuting attorney if he had any rebuttal, and then unfortunately
laughed. Although a trial judge should avoid ill-timed laughter, we perceive no prejudice. The
district judge immediately explained that he was only laughing at himself for asking the
question since the defense had offered no witnesses, and instructed the jury not to draw any
inferences from his laughter. Cf. Vinci v. United States, 159 F.2d 777 (D.C.Cir. 1946);
People v. Franklin, 56 Cal.App.3d 18 (1976). Appellant did not object or move for a mistrial.
Under the circumstances, we hold that reversal is not warranted.
The judgment of conviction is affirmed.
____________
98 Nev. 196, 196 (1982) George v. State
JACK LLOYD GEORGE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12436
May 7, 1982 644 P.2d 510
Appeal from judgment of conviction on a jury verdict. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Defendant was convicted before the district court of first degree murder, and he appealed.
The Supreme Court, Mowbray, J., held that prosecutor's comments during closing argument
on defendant's failure to call his wife as a material witness constituted prejudicial error
warranting reversal and new trial.
Reversed and remanded.
James O. Porter, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
Criminal Law.
Prosecutor's comments during closing argument on defendant's failure to call his wife as a material
witness constituted prejudicial error warranting reversal and new trial. NRS 49.295, 49.405; N.M.
Rules of Evid., Rules 505(b)(1), 513(a).
OPINION
By the Court, Mowbray, J.:
The principal issue presented is whether it is permissible for a prosecutor to comment on a
defendant's failure to call his wife as a material witness. We hold that it is not permissible and
therefore we reverse and remand for a new trial.
THE FACTS
A jury found the appellant, Jack Lloyd George, guilty of the first degree murder of David
Stanton. At trial, Robert Land testified that he, George, and George's wife, went looking for
Stanton because Stanton had failed to return money previously given to him to buy drugs.
When the trio found Stanton they decided to take him into the desert for a beating. Land
claimed that Stanton attempted to escape. Land admitted shooting and killing Stanton at
George's insistence.
98 Nev. 196, 197 (1982) George v. State
George, on the other hand, testified that while he and his wife were in the company of
Land they did not intend to kidnap Stanton; that it was Land who physically forced Stanton
into the car. George stated that he went along because he was fearful of Land who he said had
become violent. George denied any complicity in the actual killing. George's wife did not
testify.
THE PROSECUTOR'S COMMENTS TO THE JURY
During closing argument counsel for the State made the following comments:
One point I want to make to you is there is the absence in this trial of testimony of
the defendant's wife, Toni George. Under the law, and under our rules of evidence I
cannot call Toni George to the stand as a witness. The defendant, however, has the right
to call his wife to the stand. The law provides that you may presume that when a
witness is technically available to one of the parties in a case, and that witness is not
available to the other party, that when the party to whom that witness is available does
not call that witness, that that witness's testimony would be unfavorable to him.
The State could not present to you the testimony of Toni George, and therefore we
could not play the videotape of her statement either.
George suggests that the comments violated the Nevada statute on the spousal privilege
and he seeks a new trial as a result of the prejudicial misconduct. NRS 49.295 is
unambiguous. It provides:
1(a) A husband cannot be examined as a witness for or against his wife without her
consent, nor a wife for or against her husband without his consent.
NRS 49.405 is clear in its mandate that neither the court nor counsel may comment on the
claim of the privilege or suggest any inference therefrom.
1
Emerson v. State, 98 Nev. 158,
643 P.2d 1212 (1982).
The State argues that since the privilege was not exercised, the prosecutor was free to
make the comments. We do not agree. As the court stated in State v. Frank, 589 P.2d 1047
(N.M. 1979) at page 1050: We do not regard it as necessary for a husband or wife to go
upon the stand and there affirmatively "exercise" the privilege not to testify.
____________________

1
NRS 49.405 provides:
1. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a
proper subject of comment by judge or counsel. No inference may be drawn therefrom.
98 Nev. 196, 198 (1982) George v. State
We do not regard it as necessary for a husband or wife to go upon the stand and there
affirmatively exercise the privilege not to testify. The decision of a husband in a case
like the present one not to call his wife as a witness is a sufficient exercise of the
privilege to justify invocation of the statutory protection.
2

The reason for the rule is well set forth in Daniels v. Beeson, 312 So.2d 441, 443 (Miss.
1975).
If the failure of the husband to call his wife as a witness in his behalf is to be
construed as testimony, or as a circumstance against him, his privilege and option in the
matter would be annulled, and he would be compelled, in all cases, to introduce her, or
run the hazard of being convicted on a constrained, implied confession or admission, or
to make explanations for not introducing her which might involve the sacred privacy of
domestic life.
We conclude, therefore, that the prosecutor's comments constituted prejudicial error
requiring reversal and a remand for a new trial.
3

Remaining assignments of error have been considered and found meritless.
Gunderson, C. J., Manoukian and Springer, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

2
The relevant New Mexico statutes parallel the Nevada statutes.
N.M.R. Evid. 505(b)(1), N.M.S.A. 1978 provides:
An accused spouse in a criminal proceeding has a privilege to prevent the other spouse from testifying
against the accused.
N.M.R. Evid. 513(a), N.M.S.A. 1978 provides:
The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper
subject of comment by judge or counsel. No inference may be drawn therefrom.

3
The State has relied heavily on People v. Coleman, 459 P.2d 248 (Calif. 1969). However, in California the
witness has the sole privilege not to testify against his or her spouse. California Evidence Code 970 provides:
Privilege not to testify against spouse.
Except as otherwise provided by statute, a married person has a privilege not to testify against his
spouse in any proceeding.

4
The Chief Justice 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.
____________
98 Nev. 199, 199 (1982) Staschel v. Weaver Brothers, Ltd.
CHARLES G. STASCHEL, Appellant, v. WEAVER
BROTHERS, Ltd., Respondent.
No. 13070
May 7, 1982 644 P.2d 512
Appeal from order denying relief from judgment. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Appeal was taken from order of the district court denying motion to set aside default
judgment. The Supreme Court, Mowbray, J., held that defendant was entitled to relief from
default which resulted from attorney misconduct.
Reversed and remanded.
[Reporter's note: This opinion was recalled December 20, 1982; see 98 Nev. 559, 655 P.2d
518 (1982)]
Gunderson, C. J., dissented.
James Shields Beasley, Reno, for Appellant.
Smith and Gamble, Ltd., and Wayne S. Chimarusti, Carson City, for Respondent.
1. Appeal and Error; Judgment.
Granting or denying of motion to vacate default rests in the sound discretion of the district court, and its
order will not be disturbed unless an abuse of discretion clearly appears.
2. Judgment.
Though the law ordinarily charges client with the unexcusable neglect of his attorney and gives him
redress against his counsel, clients have been given relief from default when attorney's failure to represent
the client amounts to misconduct.
3. Judgment.
Defendant was entitled to have default judgment set aside where, after attorney entered appearance for
defendant by filing answer and counterclaim, he did nothing but ignore the court's orders, which led to
entry of default judgment.
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order denying a motion to set aside a default judgment.
Respondent filed this action against appellant in the First Judicial District Court on April 3,
1979. Service of process was effected by leaving the summons and complaint at appellant's
place of business. A local attorney filed an answer and counterclaim. On July 2, 1979,
respondent served that attorney with a request for interrogatories. They were never answered.
98 Nev. 199, 200 (1982) Staschel v. Weaver Brothers, Ltd.
Respondent moved the court on September 18, 1979 for an order directing the filing of the
answers. The court granted the order; it was served on the same attorney and ignored. A
default judgment was entered on November 8, 1979 and a hearing on damages set for
November 21, 1979. Although served with notice, appellant's attorney did not attend the
hearing and the court finally entered a default judgment in favor of respondent and against
appellant for $255,254.71.
Appellant was in Montana at the time the case was filed. He returned periodically to
Carson City and he was advised by his attorney that the case was going smoothly. Appellant
learned from the Sheriff's Office of the default judgment and upon confronting his attorney
was advised that the attorney was giving up the practice of law.
1
Appellant then sought
present counsel and filed the instant motion to set aside the default judgment.
[Headnote 1]
The rule is well established that the granting or denying of a motion to vacate a default
rests in the sound discretion of the district court. The order will not be disturbed unless an
abuse of discretion clearly appears. Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Bryant
v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).
[Headnote 2]
Although the law ordinarily charges the client with the unexcusable neglect of his attorney
and gives him redress against his counsel, courts have given clients relief from a default when
the attorney's failure to represent the client amounts to misconduct. Daley v. County of Butte,
227 Cal.App.2d 380, 391-92, 38 Cal.Rptr. 693, 700 (1964). Here the attorney, by affidavit,
swore that he had no authority to represent the appellant. As the court said in Orange Empire
National Bank v. Kirk:
Thus, where a client is unknowingly deprived of effective representation by
counsel's failure to serve process, to appear at the pretrial conference, to communicate
with the court, client, and other counsel, and the action is dismissed by reason of the
attorney's misrepresentation, the client will not be charged with responsibility for the
misconduct of nominal counsel of record, providing the client acts with due diligence in
moving for relief after discovery of the attorney's neglect, and the opposing party's
rights will not be prejudiced nor suffer injustice as a result of the granting of relief.
____________________

1
The attorney has since been publicly reprimanded for dereliction of duty to a client in an unrelated matter.
98 Nev. 199, 201 (1982) Staschel v. Weaver Brothers, Ltd.
will not be prejudiced nor suffer injustice as a result of the granting of relief.
66 Cal.Rptr. 240, 244 (Ct.App. 1968).
[Headnote 3]
In the instant case, the attorney entered an appearance for the appellant by filing an answer
and counterclaim to respondent's claim. Thereafter, he did nothing but ignore the court's
orders which led to the entry of the default judgment. To characterize the attorney's failure to
represent his client as inexcusable neglect would be charitable but hardly candid. His
dereliction of the professional obligations owed appellant constituted actual misconduct.
Under the facts presented, we believe appellant should have his day in court. As the United
States Court of Appeals, District of Columbia said in Jackson v. Washington Monthly Co.:
We are constrained to conclude this appeal on a note of caution. Trial-court
dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken
only after unfruitful resort to lesser sanctions. [Citations omitted.] . . . Dismissals for
misconduct attributable to lawyers and in no wise to their clients invariably penalize the
innocent and may let the guilty off scot-free. That curious treatment strikes us as both
anomalous and self-defeating. [Citations omitted.] When the client has not personally
misbehaved and his opponent in the litigation has not been harmed, the interests of
justice are better served by an exercise of discretion in favor of appropriate action
against the lawyer as the medium for vindication of the judicial process and protection
of the citizenry from future imposition. [Citations omitted.] Public confidence in the
legal system is not enhanced when one component punishes blameless litigants for the
misdoings of another component of the system; to laymen unfamiliar with the
fundamentals of agency law, that can only convey the erroneous impression that
lawyers protect other lawyers at the expense of everyone else.
569 F.2d 119, 123-124, (D.C.Cir. 1977).
Accordingly, we reverse and remand the case for a trial on the merits.
Manoukian and Springer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice 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.
98 Nev. 199, 202 (1982) Staschel v. Weaver Brothers, Ltd.
Gunderson, C. J., dissenting:
I respectfully dissent.
In my view, the district court could properly determine, as it apparently did, that appellant
Staschel had failed to prove mistake, inadvertence, surprise or excusable neglect. NRCP
60(b). The record in this matter, including affidavits supporting appellant's motion for relief
from the judgment, is quite extensive. From the record, disparate inferences may be drawn
concerning the extent of appellant's knowledge, diligence or lack of it, and culpability in
allowing the judgment to be entered. The district court evidently simply was not satisfied that
appellant's predicament arose solely from clear misconduct on the part of his counsel.
In my opinion, this Court should not re-weigh the evidence, draw different inferences, and
substitute its judgment for that of the district court on factual issues which were that court's
province to consider--and as to which the appellant, as moving party, had the burden of proof.
____________
98 Nev. 202, 202 (1982) Robinson v. State
GEORGE ROBINSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13306
May 7, 1982 644 P.2d 514
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted in the district court of three counts of robbery with the use of a
deadly weapon, and he appealed. The Supreme Court held that admission of testimony,
during prosecution's case in chief, concerning admissions made by defendant during plea
negotiations was improper, and constituted reversible error.
Reversed and remanded.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
98 Nev. 202, 203 (1982) Robinson v. State
Criminal Law.
Admission of testimony, during prosecution's case in chief, concerning admissions made by defendant
during plea negotiations was improper, and constituted reversible error, because prosecutor intentionally
elicited such statutorily prohibited testimony and then remarked upon it three times during his closing
argument, and because the nature of the evidence was such that it was probably foremost in minds of jurors
when they voted for conviction. NRS 48.125, subd. 1.
OPINION
Per Curiam:
Appellant was convicted by a jury of three counts of robbery with the use of a deadly
weapon. During the prosecution's case in chief, testimony was elicited from a police detective
concerning admissions made by appellant during plea negotiations. Such testimony is
inadmissible. NRS 48.125(1).
1

In Mann v. State, 96 Nev. 62, 65, 605 P.2d 209, 210 (1980), this court noted that NRS
48.125(1) was a legislative declaration of a . . . public policy favoring the candid and honest
negotiations necessary for the successful operation of our plea bargaining system. . . .
In the present case the evidence against appellant was quite strong. However, the quantity
and character of the error, and the gravity of the resulting harm, were substantial. The
prosecutor intentionally elicited the prohibited testimony. He then remarked upon it three
times during his closing argument. The nature of the evidence was such that it was probably
foremost in the minds of the jurors when they voted for conviction. It would therefore be
inconsistent with the supervisory function of the appellate court in maintaining the standards
of the trial bench and bar, to the end that all defendants will be accorded a fair trial,
Weakland v. State, 96 Nev. 699, 701, 615 P.2d 252, 254 (1980), to hold that the admission of
the prohibited testimony was harmless error.
Other contentions need not be considered, as we reverse and remand for a new trial.
____________________

1
NRS 48.125(1) provides, in part, that:
[e]vidence . . . of an offer to plead guilty to the crime charged or any other crime is not admissible in a
criminal proceeding involving the person who made the plea or offer.
____________
98 Nev. 204, 204 (1982) Jiminez v. State, Dep't of Prisons
VINCENT JIMINEZ, Appellant, v. THE STATE OF NEVADA, NEVADA DEPARTMENT
OF PRISONS, An Agency of the STATE OF NEVADA, DOES
I through V, inclusive, and DOE CORPORATIONS I through V, inclusive, Respondents.
No. 13298
May 12, 1982 644 P.2d 1023
Appeal from dismissal of complaint, First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Prisoner sought reversal of order entered by the district court dismissing his personal
injury complaint for failure to comply with statute of limitations. The Supreme Court held
that amendment to prisoner's complaint, adding State as party, related back to filing of
complaint and therefore prisoner complied with two-year statute of limitations.
Reversed.
Pomeranz & Crockett, Las Vegas, For Appellant.
Richard H. Bryan, Attorney General, and Ernest E. Adler, Deputy Attorney General,
Carson City, for Respondents.
1. Limitation of Actions.
To extent that one-year statute of limitations for actions or claims against state not arising out of contract
depends on invalid claims notice provision requiring every claim against state to be presented to ex officio
clerk of State Board of Examiners within six months for commencement of limitation period, such portion
of statute of limitations is invalid. NRS 11.190, subd. 5(c), 41.036, 41.036, subd. 2.
2. Statutes.
Constitutionally objectionable portion of one-year statute of limitations or actions or claims against state
not arising out of contract, which portion depended upon invalid claims notice provision requiring every
claim against state to be presented to ex officio clerk of State Board of Examiners within six months, was
not severable where remaining provision would effectively impose shorter period between injury and
expiration of limitation period than existed with invalid claims notice provision, and such shortening of
time could not be presumed consistent with intent of legislature to put governmental units and agencies on
equal footing with private tort-feasors, and thus entire one-year statute of limitations for tort claims against
state was invalid. NRS 11.190, subd. 5(c), 41.031, 41.036, 41.036, subd. 2.
3. Limitation of Actions.
Amendment to prisoner's complaint, adding state as party to his action for personal injuries sustained
when steel plate fell on him at prison, related back to original filing date, and therefore prisoner complied
with two-year statute of limitations, where failure to name state in original complaint was not
conscious election but mistake in nomenclature, and state was served with original
complaint.
98 Nev. 204, 205 (1982) Jiminez v. State, Dep't of Prisons
state in original complaint was not conscious election but mistake in nomenclature, and state was served
with original complaint. NRS 11.190, subd. 4(e).
OPINION
Per Curiam:
Appellant, Vincent Jiminez, seeks reversal of an order dismissing his personal injury
complaint for failure to comply with the statute of limitations. We reverse the order of
dismissal and remand for further proceedings.
Jiminez, an inmate at the Nevada Department of Prisons in Carson City, was injured by a
steel plate which fell on him at the prison on September 1, 1976. On August 24, 1978,
appellant filed a complaint against:
NEVADA DEPARTMENT OF PRISONS, an Agency of THE STATE OF NEVADA,
DOES I through V inclusive and DOE CORPORATIONS I through V inclusive,
Defendants.
The state was served on September 13, 1978. Respondent Nevada Department of Prisons
(hereinafter Department) moved pursuant to NRCP 12(b)(1) to dismiss the complaint for
failure to name the State of Nevada as a party and consequent failure to invoke the subject
matter jurisdiction of the court. See NRS 41.031, NRS 41.0337.
Following dismissal without prejudice, appellant filed an amended complaint naming the
State of Nevada as a party on January 11, 1979. Respondents subsequently filed a motion to
dismiss, and the district court granted the motion, finding that appellant had not complied
with the one-year statute of limitations for claims against the state, NRS 11.190(5)(c). The
district court also determined that assuming the one-year limitation period was inapplicable,
appellant still had failed to file a complaint within the standard two-year limitation period of
NRS 11.190 (4)(e), because the amendment did not relate back to the original complaint.
NRCP 15(c).
There is no dispute that the original complaint was filed well after the limitation period
imposed by NRS 11.190(5)(c) and 41.036.
1
Nonetheless, we agree with appellant that the
effect of our decision in Turner v. Staggs, S9 Nev. 230, 510 P.2d S79, cert. denied 414 U.S.
1079 {1973), was to overturn the one year limitation period of NRS 11.190{5){c).2
____________________

1
NRS 41.036(2) provides in part:
Every . . . claim [not arising out of contract] against the state or any of its agencies shall be presented
to the ex officio clerk of the state board of examiners within 6 months. . . . He shall within 10 days
deliver a copy of the claim to the risk management division of
98 Nev. 204, 206 (1982) Jiminez v. State, Dep't of Prisons
our decision in Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied 414 U.S. 1079
(1973), was to overturn the one year limitation period of NRS 11.190(5)(c).
2

[Headnote 1]
In Turner, we declared unconstitutional, on equal protection grounds, a statutory provision
requiring plaintiffs injured by governmental tortfeasors (but not other plaintiffs) to give notice
of a claim within six months of the incident as a condition precedent to bringing suit. That
decision invalidated the notice of claims provision of NRS 41.036.
3
Although Turner is
silent concerning the issue of disparate statutes of limitations, NRS 11.190(5)(c) depends, at
least in part, on the invalid claims notice provision for commencement of the one-year
limitation period. That portion of NRS 11.190(5)(c) referring to NRS 41.036 is likewise
invalid.
[Headnote 2]
We conclude that the constitutionally unobjectionable portion of NRS 11.190(5)(c) is not
severable from that part which was invalidated by our decision in Turner. See County of
Clark v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976). The offensive portion of NRS
11.190(5)(c) relating to the notice of claims provision could be excised and the remainder of
the statute given legal effect. However, the remaining provision would effectively impose a
shorter period between injury and expiration of the limitation period than existed with
the invalid claims notice provision.
____________________
the department of administration, and refer the claim to the appropriate state agency, office or officer for
investigation and report of findings to the board. No action may be brought unless the board refuses to
approve or fails within 90 days to act upon the claim.
NRS 11.190 provides in part:
Actions other than those for recovery of real property . . . can only be commenced as follows:
. . .
5. Within 1 year:
. . .
(c) Actions or claims against the state not arising out of contract, after rejection by the state board of
examiners or the expiration of the time limited for their failure to act by subsection 2 of NRS 41.036.

2
NRS 11.190(5)(c) and 41.036(2) were amended in 1981 abolishing the notice of claims provision and the
one year statute of limitations for personal injury claims against the state. NRS 11.190(4)(e) now provides for a
two year limitation period to be imposed on claimants suing any tortfeasor for personal injury. The retroactivity
of this amendment was not raised on appeal. We decline to address that issue sua sponte, and find it unnecessary
to do so in light of our disposition of this case.

3
Although our ruling in Turner specifically concerned NRS 244.245 and 244.250--claim statutes relating to
actions against a county--that decision clearly had the effect of overturning other governmental claims statutes as
well. See NRS 41.031, 41.036.
98 Nev. 204, 207 (1982) Jiminez v. State, Dep't of Prisons
effectively impose a shorter period between injury and expiration of the limitation period than
existed with the invalid claims notice provision. We will not presume that shortening the time
available to bring a claim is consistent with the intent of the legislature in enacting NRS
41.031to waive the immunity of governmental units and agencies from liability for
injuries caused by their negligent conduct, thus putting them on equal footing with private
tort-feasors. Turner v. Staggs, supra at 235, 510 P.2d at 882.
The effect of Turner is, as appellant argues, to overturn the one-year statute of limitations
for tort claims against the state. Thus, the standard two-year tort statute of limitations is
applicable. NRS 11.190(4)(e)
We need not decide whether the caption in the original complaint properly named the state
as a party.
[Headnote 3]
In any event, we are persuaded that the amended complaint should relate back to the
original filing date. Where, as here, the failure to name the state in the original complaint was
not a conscious election, but a mistake in nomenclature, we have allowed amendments to
relate back to the original complaint when the proper defendant: (1) had actual notice of
institution of the action; (2) knew that it was the proper defendant in the action; and (3) was
not misled to its prejudice. Servatius v. United Resort Hotels, Inc., 85 Nev. 371, 373, 455
P.2d 621, 622-23 (1969). See also, Goodrich v. England, 262 F.2d 298 (9th Cir. 1958). Each
of these criteria is met in the instant case. We find particularly compelling the fact that the
state was served with the original complaint. Compare Garvey v. Clark County, 91 Nev. 127,
532 P.2d 269 (1975).
The amended complaint related back to the filing of the original complaint and, therefore,
Jiminez complied with the two-year statute of limitations of NRS 11.190(4)(e).
The complaint should not have been dismissed. We reverse the trial court's order and
remand the case for further proceedings.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 208, 208 (1982) Hardin v. District Court
KAMALA HARDIN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, and THE
HONORABLE GRANT BOWEN, District Judge, Respondents.
No. 14030
May 12, 1982 644 P.2d 1025
Defendant filed original petition for writ of mandamus or, in the alternative, a writ of
prohibition, contending that forgery count of information did not state public offense against
her. The Supreme Court held that it would not rule on defendant's challenge to forgery count
where defendant's trial would not be terminated even if requested writ was issued.
Petition denied.
Paul D. Elcano, Jr., Reno, for Petitioner.
Calvin R. X. Dunlap, District Attorney, and Edwin Basl, Deputy District Attorney, Washoe
County, for Respondents.
1. Prohibition.
Prohibition is appropriate means of challenging denial of habeas petition grounded upon claim that
indictment or information does not state a public offense.
2. Mandamus.
Where defendant, who sought writ of mandamus or, in the alternative, a writ of prohibition on ground
that forgery count of information did not state public offense against her, challenged information only as it
related to forgery count, and defendant's trial would not be terminated if Supreme Court were to issue
requested writ, Court would not rule on defendant's challenge to forgery count.
OPINION
Per Curiam:
Petitioner Kamala Hardin was charged by information with grand larceny, possession of
stolen property, and forgery. Thereafter, Hardin filed a pretrial petition for a writ of habeas
corpus. The district court granted Hardin habeas relief as to the grand larceny count, but
denied such relief as to the possession of stolen property and forgery counts. In this original
petition for a writ of mandamus or, in the alternative, a writ of prohibition, Hardin contends
that the forgery count does not state a public offense against her. Specifically, Hardin argues
that she cannot be convicted of forgery because she signed her true name to the
document in question.1
98 Nev. 208, 209 (1982) Hardin v. District Court
that she cannot be convicted of forgery because she signed her true name to the document in
question.
1

[Headnotes 1, 2]
Prohibition is the appropriate means of challenging the denial of a habeas petition
grounded upon the claim that the indictment or information does not state a public offense.
Lane v. Torvinen, 97 Nev. 121, 624 P.2d 1385 (1981); Husney v. O'Donnell, 95 Nev. 467,
596 P.2d 230 (1979); Sardis v. District Court, 85 Nev. 585, 460 P.2d 163 (1969); Garnick v.
District Court, 81 Nev. 531, 407 P.2d 163 (1965); Houser v. District Court, 75 Nev. 465, 345
P.2d 766 (1959). In the cited cases, however, the petitioner challenged the indictment or
information in its entirety. That is not the situation here. Hardin challenges the information
only as it relates to the forgery count. The trial on the possession of stolen property count will
not be affected by any action we take in this proceeding.
In Moore v. District Court, 96 Nev. 415, 610 P.2d 188 (1980), we held that a writ of
mandamus would not issue to compel entry of partial summary judgment, since such relief
would not dispose of the entire controversy. Although Moore arose in the civil setting, we
believe its rationale is equally applicable in this case. Hardin's trial would not be terminated
even if we were to issue the requested writ. Accordingly, in the exercise of our discretion, we
decline to rule at this time on Hardin's challenge to the forgery count.
Petition denied.
____________________

1
Hardin does not challenge that portion of the information charging her with possession of stolen property.
____________
98 Nev. 210, 210 (1982) Cord v. Cord
VIRGINIA KIRK CORD, Appellant, v. CHARLES E. CORD and EDWARD D. NEUHOFF,
Co-Executors of The Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT
LOBBAN CORD, Deceased, and Individually, Respondents.
No. 13040
May 12, 1982 644 P.2d 1026
Appeal from judgment of the Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Widow appealed from a judgment of the district court which declared all assets from estate
of decedent to be separate property. The Supreme Court held that: (1) where Supreme Court's
decision on first appeal between parties was premised upon the parties' involvement in a
post-nuptial agreement, and where Court considered only evidence relating to decedent's
financial activity from 1937 to 1953 when it found that decedent had devoted great time and
energy to management of his wealth whereas financial matters at issue in instant appeal, as
well as factual circumstances surrounding them, involved years 1953 to 1974, doctrine of law
of the case was not violated by lower court in its ruling that decedent expended only minimal
time and effort in supervision and investment of his separate property during years 1953 to
1974, and (2) where decedent never made a conscious choice to use his separate property,
rather than available community property, to pay community expenses, since decedent's
expenditures for community expenses were made while operating under erroneous
assumption that parties' post-nuptial agreement was valid and that all his funds were his
separate property, decedent's separate property was entitled to reimbursement for
expenditures for community expenses after community assets were exhausted.
Affirmed.
[Rehearing denied December 16, 1982]
Nada Novakovich, Reno, for Appellant.
Bradley & Drendel, Reno, For Respondents.
1. Appeal and Error; Courts.
A principle or rule of law enunciated by an appellate court which is necessary to the decision becomes
the law of the case and must be followed throughout its subsequent progress both in the lower court and
upon subsequent appeal.
2. Appeal and Error.
The law of the first appeal is the law of the case on all subsequent appeals in which the facts are
substantially the same.
98 Nev. 210, 211 (1982) Cord v. Cord
3. Appeal and Error.
Where Supreme Court's decision on first appeal between parties was premised upon the parties'
involvement in a post-nuptial agreement, and where Court considered only evidence relating to decedent's
financial activity from 1937 to 1953 when it found that decedent had devoted great time and energy to
management of his wealth whereas financial matters at issue in instant appeal, as well as factual
circumstances surrounding them, involved years 1953 to 1974, doctrine of law of the case was not violated
by lower court in its ruling that decedent expended only minimal time and effort in supervision and
investment of his separate property during years 1953 to 1974.
4. Husband and Wife.
Where a decedent had made a conscious choice to use his separate property, rather than available
community property, to pay community expenses, such use of his separate property would constitute a gift
to community for which reimbursement could not be claimed.
5. Husband and Wife.
Where decedent never made a conscious choice to use his separate property, rather than available
community property, to pay community expenses, since decedent's expenditures for community expenses
were made while operating under erroneous assumption that parties' post-nuptial agreement was valid and
that all his funds were his separate property, decedent's separate property was entitled to reimbursement for
expenditures for community expenses after community assets were exhausted.
6. Husband and Wife.
Rents and profits from a spouse's separate property constitute separate property.
7. Husband and Wife.
All property acquired after marriage is presumed to be community property; such presumption may be
rebutted by clear and convincing evidence.
8. Husband and Wife.
There must be an apportionment of any increment in value between separate estate of owner and
community, unless increment is due solely to a natural enhancement of the property or minimal effort by
the owner.
OPINION
Per Curiam:
Virginia Cord appeals from a judgment declaring all assets from the estate of E. L. Cord to
be separate property. This represents the second appeal between the parties.
In the initial case of Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978), we held a
post-nuptial agreement between Mr. and Mrs. E. L. Cord invalid. We reversed and remanded
the case for the district court to determine whether any of E. L. Cord's estate should be
apportioned as community property.
On remand, the parties stipulated that from 1937 to 1953, 11.6 percent of E. L. Cord's
separate holdings constituted community property.
98 Nev. 210, 212 (1982) Cord v. Cord
11.6 percent of E. L. Cord's separate holdings constituted community property. The parties
entered into this stipulation based on footnote number four in Cord v. Neuhoff, 94 Nev. 21,
573 P.2d 1170 (1978).
1
Consequently, the scope of trial was confined to the financial and
business activity of E. L. Cord from 1953 until his death in 1974.
During the two-week non-jury trial, several expert witnesses testified on the various
accounting procedures they used in apportioning E. L. Cord's estate. Appellant's expert
witnesses testified that under their formulas, 79.37 percent of E. L. Cord's separate estate
should be allocated to the community. In contrast, the respondents' expert witnesses
ultimately concluded that there was no community property at E. L. Cord's death in 1974.
The district court held that the accounting methods and evidence presented by the
respondents was more credible than the evidence presented by appellant. The lower court
dismissed appellant's action and held all assets of E. L. Cord to be separate property. We
affirm.
The district court found that E. L. Cord expended only minimal time and effort in the
supervision and investment of his separate property during the years 1953 to 1974.
Appellant contends that in so ruling, the lower court failed to follow the law of the case as
mandated in Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978).
In Cord v. Neuhoff, supra, this court noted, there is no suggestion that the increased value
of Errett's estate was due to a natural enhancement, or that he expended only minimal effort.
The evidence is otherwise and establishes that he devoted great time and energy to the
management of his wealth."
____________________

1 4
The financial records before the court, 1937 to 1953, are revealing in this regard. A year-by-year Pereira
analysis discloses that between 1937 and 1946, Virginia acquired no community property, because the yearly
income generated by the preceding year's net worth was always less than 7 percent. In 1947, however, income
exceeded 7 percent, thus generating community income which, when decreased by 1947 community expenses,
constituted 3.5 percent of the 1947 year-end net worth. Again in 1948, the income generated by the 96.5 percent
of the corpus remaining separate property exceeded a normal 7 percent return, resulting in an allocation of the
excess to the community estate. This excess, when added to the income directly generated by the 3.5 percent of
the corpus constituting community property and decreased by 1948 expenses, increased the community interest
in the entire corpus to approximately 15.8 percent. In all years between 1949 and 1952, community expenses
exceeded community income, thus causing a decrease in residual community holdings. Thus on December 31,
1952, approximately 11.6 percent of the holdings constituted community property. Cord v. Neuhoff, 94 Nev.
21, 27, 573 P.2d 1170, 1174 (1978) (emphasis in original).
98 Nev. 210, 213 (1982) Cord v. Cord
wealth. In the initial Cord case, the only evidence presented was the post-nuptial contract
and financial records of E. L. Cord from 1937 to 1953. Thus, this court did not consider any
evidence regarding the status of E. L. Cord's separate wealth or the time, effort and skill he
used in amassing it from 1953 to 1974.
[Headnotes 1, 2]
A principle or rule of law enunciated by an appellant court which is necessary to the
decision, becomes the law of the case and must be followed throughout its subsequent
progress both in the lower court and upon subsequent appeal. The law of the first appeal is
the law of the case on all subsequent appeals in which the facts are substantially the same.
LoBue v. State ex rel. Dept. Hwys., 92 Nev. 529, 554 P.2d 258 (1976); see also Walker v.
State, 85 Nev. 337, 455 P.2d 34 (1969); and State v. Loveless, 62 Nev. 312, 150 P.2d 1015
(1944).
[Headnote 3]
In the instant case, appellant erroneously concludes that the law and facts presented in her
first appeal are substantially the same as those presented herein. In Cord v. Neuhoff, supra,
our decision was premised upon the parties involvement in a post-nuptial agreement.
Moreover, this court only considered evidence relating to E. L. Cord's financial activity from
1937 to 1953. Here, the financial matters at issue, as well as the factual circumstances
surrounding them, involve the years 1953 to 1974. We conclude the doctrine of law of the
case was not violated by the lower court under the circumstances presented herein.
Next, appellant suggests the lower court erred in finding that the separate property of E. L.
Cord was entitled to reimbursement for expenditures for community expenses after
community assets were exhausted.
Appellant relies on the California Supreme Court case of See v. See, 64 Cal.2d 778, 51
Cal.Rptr. 888, 415 P.2d 776 (1966), wherein the court held: [A] husband who elects to use
his separate property instead of community property to meet community expenses cannot
claim reimbursement. In the absence of an agreement to the contrary, the use of his separate
property by a husband for community purposes is a gift to the community. The facts in See
v. See, supra, reflect that the plaintiff husband made a conscious election to spend his
separate wealth on community expenses and was guilty of commingling his separate funds
with community funds.
The facts in the instant case are more akin to those found in Beam v. Bank of America, 6
Cal.3d 12, 9S Cal.Rptr.
98 Nev. 210, 214 (1982) Cord v. Cord
Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490 P.2d 257 (1971). In Beam v.
Bank of America, supra, the plaintiff husband assumed during the course of marriage that all
his funds were his separate property. The evidence reflected that Mr. Beam did not make a
conscious choice to spend his separate property on community expenses. The court in Beam
distinguished See v. See, supra, and noted:
In the instant case, of course, Mr. Beam made no conscious choice to spend his separate
property, rather than the imputed community property on the family's living
expenses. Only by means of a formula now applied by the court do we divide Mr.
Beam's income into theoretical community and separate portions; Beam could
hardly draw upon a fictionalized separate source to pay family expenses. Thus our
decision in See is simply not in point.
Beam v. Bank of America, 6 Cal.3d 12, 98 Cal. Rptr. 137, 144, 490 P.2d 257, 264 (1971).
Here, E. L. Cord's expenditures for community expenses were made while operating under
the assumption that the parties' post-nuptial agreement was valid, and all his funds were his
separate property. Consequently, E. L. Cord never made a conscious choice to spend his
separate property on community expenses which exceeded community assets.
[Headnotes 4, 5]
If E. L. Cord had made a conscious choice to use his separate property, rather than
available community property, to pay community expenses, such use of his separate property
would have constituted a gift to the community for which reimbursement could not be
claimed. See See v. See, 64 Cal.2d 778, 51 Cal. Rptr. 888, 415 P.2d 776 (1966). The record
clearly establishes, however, that E. L. Cord assumed through the years 1953 until his death
in 1974 that all of his funds were his separate property. He did not consciously elect to pay
for community expenses out of income which is now deemed separate in character.
The standard enunciated in Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490
P.2d 257 (1971) supports the district court's ruling requiring reimbursement to E. L. Cord's
separate estate for expenditures on family living expenses in years when community assets
were exhausted.
[Headnotes 6, 7]
Under the law, rents and profits from a spouse's separate property constitute separate
property.
98 Nev. 210, 215 (1982) Cord v. Cord
property constitute separate property. However, all property acquired after marriage is
presumed to be community property. This presumption may be rebutted by clear and
convincing evidence. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
[Headnote 8]
It is well settled that there must be an apportionment of any increment in value between
the separate estate of the owner and the community, unless the increment is due solely to a
natural enhancement of the property or minimal effort by the owner. Pereira v. Pereira, 156
Cal. 1, 103 P. 488 (1909); Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973); Cord v.
Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978). In the instant case, the district court found that
E. L. Cord did not take an active part in any business he invested in or expend any time,
energy or skill in managing real property he owned. The court also found that any increase in
value of his separate property was attributable to other managers or general economic
conditions.
The record reflects that from 1953 to E. L. Cord's death in 1974, many of Cord's assets
increased in value due to natural enhancement and escalating real estate values. During this
time period, E. L. Cord's health noticeably declined. Consequently, he delegated substantial
authority to his son Charles, who acted as general manager for a number of Cord businesses.
Respondents presented several fact witnesses who testified about E. L. Cord's work habits
and declining health. Many of these same witnesses testified that Cord's assets increased in
value due to substantial holdings in raw land, inflationary factors, and natural enhancement.
Appellant called only one fact witness, who had sporadic contact with E. L. Cord. He
testified that Cord made all final decisions regarding his various business interests until his
death in 1974.
Both parties introduced expert testimony in the area of accounting. The experts for
respondents and appellant based their formulations on the year-by-year apportionment
method enunciated in Pereira v. Pereira, 156 Cal. 1, 103 P. 488 (1909). Although the expert
accounting witnesses for both parties testified that they utilized the Pereira apportionment
method, their particular accounting formulas resulted in vastly different findings.
The district court was presented with extremely conflicting evidence involving both
factual and accounting issues. Where a trial court, sitting without a jury, has made a
determination upon the basis of conflicting evidence, that determination should not be
disturbed on appeal if it is supported by substantial evidence."
98 Nev. 210, 216 (1982) Cord v. Cord
should not be disturbed on appeal if it is supported by substantial evidence. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); see also Ormachea v. Ormachea, 67 Nev. 273,
217 P.2d 355 (1950). Thus, the record must reveal that the judgment was clearly erroneous
and not based upon substantial evidence before the district court will be reversed. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
We cannot say from this record that the trial court erred in determining that the position
propounded by appellant was not adequately proved to the satisfaction of the court.
Appellant's other points of error being without merit, we affirm.
Gunderson, C. J. Manoukian and Springer, JJ., Zenoff, Sr. J.,
2
and Mendoza,
D. J.,
3
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in place of The Honorable
Cameron Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.

3
The Governor designated the Honorable John F. Mendoza, District Judge of the Eighth Judicial District, to
sit in this case in place of The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev.
Const., art. 6, 4.
____________
98 Nev. 216, 216 (1982) Rasmussen v. Thomas
WALTER L. RASMUSSEN and BEATRICE L. RASMUSSEN, Appellants, v. CLARENCE
R. THOMAS, BETTY J. THOMAS, TERRY K. THOMAS and
RICHARD F. THOMAS, Respondents.
No. 12991
May 12, 1982 644 P.2d 1030
Appeal from judgment, Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
An appeal was taken from a judgment of the district court dissolving a partnership and
awarding to respondents a return of their capital contributions to the partnership enterprise,
attorney fees and the rental value of real property owned by the parties as tenants in common.
The Supreme Court held that: (1) returning to respondents their capital contributions without
first requiring an accounting or settlement of the partnership affairs constituted reversible
error; (2) co-tenants were not liable to the other co-tenants for rent or for use of the leased
premises; and (3) trial court did not abuse its discretion in awarding partial attorney fees to
respondents because the action arose partly out of the partition of real property.
98 Nev. 216, 217 (1982) Rasmussen v. Thomas
awarding partial attorney fees to respondents because the action arose partly out of the
partition of real property.
Affirmed in part; reversed and remanded in part.
Wanderer and Wanderer, Las Vegas, for Appellants.
John Peter Lee and James C. Mahan; Johnson, Pilkington & Reynolds; and Callister &
Reynolds, Las Vegas, for Respondents.
1. Partnership.
Returning to respondents their capital contributions without first requiring an accounting or settlement of
the partnership affairs constituted reversible error; without an accounting of the partnership affairs
ascertaining what surplus, if any, remained after discharging liabilities, and collecting assets, an accurate
money judgment award, returning to respondents their interest in the partnership, could not be rendered.
2. Partnership.
Ordinarily, actions between partners with respect to partnership business are not maintainable until there
has been an accounting or settlement of the partnership affairs.
3. Partnership.
Upon dissolution of partnership, respondents were entitled to the value of their respective shares in the
partnership business, not to a return of capital invested. NRS 87.380, subd. 1.
4. Tenancy in Common.
Co-tenants were not liable to the other co-tenants for rent or for use of the leased premises.
5. Tenancy in Common.
In the absence of an agreement to pay or ouster by the co-tenant in possession, a tenant in common who
occupies all or more than his proportionate share of the common premises is not liable, because of such
occupancy alone, to his co-tenants for rent or the use and occupation of the premises.
6. Tenancy in Common.
Since each co-tenant has a right to occupy the common property, it follows that, in the absence of an
agreement to the contrary, one of them cannot collect rent from another for having exercised that right.
7. Partition.
Allowance of attorney fees under statute pertaining to partition actions is generally determined by
whether the services rendered by counsel were for the common benefit of all parties, and whether all parties
benefited from the service of counsel. NRS 39.480.
8. Partition.
Allowance of attorney fees in a partition action is a matter for the exercise of trial court's discretion.
NRS 39.480.
9. Attorney and Client; Partition.
Trial court did not abuse its discretion in awarding partial attorney fees to respondents because the action
arose partly out of the partition of real property; furthermore, the court was not precluded
from awarding attorney fees as charges against the common fund by the fact that the
partition proceedings were not of an adversary nature.
98 Nev. 216, 218 (1982) Rasmussen v. Thomas
partition of real property; furthermore, the court was not precluded from awarding attorney fees as charges
against the common fund by the fact that the partition proceedings were not of an adversary nature. NRS
39.480.
OPINION
Per Curiam:
Walter L. Rasmussen and Beatrice L. Rasmussen appeal from a judgment of the district
court dissolving a partnership and awarding to respondents a return of their capital
contributions to the partnership enterprise, attorney fees, and the rental value of the real
property owned by the parties as tenants in common.
We find no error in the district court's finding of the existence of the partnership
relationship
1
but disagree with its attempt to distribute partnership assets without requiring a
proper accounting among the parties. Further, we disagree with the district court's award of
rent but find no error in the award of attorney fees.
Return of Capital Contributions
The trial court awarded Richard Thomas $23,165.35 after deductions for salary draws and
taxes paid by the partnership business. A similar award was made to Clarence Thomas in the
sum of $16,379.28. The figures were taken from the partnership tax returns which were
understood to reflect accurately the individual partners' shares in annual profits.
[Headnotes 1, 2]
Appellants contend that the trial court committed reversible error in returning to
respondents their capital contributions without first requiring an accounting or settlement of
the partnership affairs. We agree. Ordinarily, actions between partners with respect to
partnership business are not maintainable until there has been an accounting or settlement of
the partnership affairs. See Clark v. Edris, 585 P.2d 264 (Ariz.App. 1978); Lau v. Valu-Bilt
Homes, Ltd., 582 P.2d 195, 200 (Hawaii 1978); Ewing v. Owens, 441 P.2d 964, 966 (Okla.
1968).
[Headnote 3]
Upon dissolution, the respondents in this case were entitled to the value of their
respective shares in the partnership business, not to a return of capital invested.
____________________

1
Appellants contend that the finding of the existence of a partnership relationship is not supported by
substantial evidence; that even if a partnership did exist the partnership agreement was not supported by
consideration; and that respondent Clarence Thomas was not a partner because he had no management rights.
We reject all three contentions.
98 Nev. 216, 219 (1982) Rasmussen v. Thomas
to the value of their respective shares in the partnership business, not to a return of capital
invested. See NRS 87.380(1);
2
Ewing v. Owens, supra. Respondents made no allegations of
fraud or misrepresentation on appellant Walter Rasmussen's part which would give rise to
further recovery under NRS 87.390.
3
Furthermore, no proof was presented showing any
special damage to the partnership business or to respondents through Rasmussen's actions.
See e.g., De Rigne v. Hart, 270 P. 1013 (Cal.App. 1928). Without an accounting of the
partnership affairs, ascertaining what surplus, if any, remained after discharging liabilities and
collecting assets, an accurate money judgment award, returning to respondents Clarence and
Richard Thomas their interest in the partnership, could not be rendered. It is impossible to
determine, from the record, whether the figures listed on the partnership tax returns
represented the partners' net share in the business.
This portion of the judgment is reversed and remanded for the trial court to determine,
after an accounting, the value of Clarence's and Richard's interest in the partnership consistent
with this opinion and NRS 87.380(1), and to enter judgment accordingly.
The Award of Additional Rent
The trial court awarded each of the respondents $6,624, plus interest, for the reasonable
rental value of the real property on which the business was located from January, 1974, to the
date of judgment, August, 1980.
4
Additionally, each respondent
____________________

2
NRS 87.380(1) provides that when dissolution is caused in a way other than in contravention of the
partnership agreement, each partner is entitled, as against his copartners, unless otherwise agreed, to have the
partnership property first applied to the discharge of the firm liabilities and the surplus applied to payment in
cash of the net amount owing the respective partners. When dissolution is caused in contravention of the
partnership agreement, i.e., wrongful dissolution, each innocent party is entitled, in addition to the foregoing, to
damages for breach of the agreement as against each guilty party. NRS 87.380(2). Our review of the record
indicates that the primary cause of the dissolution in this case was the was to receive $129 per misconduct
of appellant Walter Rasmussen, see NRS 87.320(1)(d), and thus NRS 87.380(1) governs the rights of the
respondent partners.

3
NRS 87.390(1) provides that where a partnership is rescinded on the ground of fraud or misrepresentation,
the party entitled to rescind is, without prejudice to any other right, entitled to a lien on or right of retention of
the surplus of the partnership property, after satisfying the partnership liabilities to third persons, for any sum of
money paid by him for the purchase of an interest in the partnership and for any capital or advances
contributed by him.

4
The real property was owned by appellants and respondents as tenants in common. It was not a partnership
asset. Pursuant to respondents'
98 Nev. 216, 220 (1982) Rasmussen v. Thomas
was to receive $129 per month for rent until the property was sold. The trial judge reasoned
that:
[I]mplicit in the agreement between the parties that the partnership would make only
the payments on the note, in lieu of rent, was the covenant that the partnership would
continue in existence, a covenant which Rasmussen breached by his intentional actions.
By virtue of his breach, Rasmussen has been allowed the full use and profit from the
realty and he must account to the other parties for reasonable rent.
[Headnote 4]
Appellants contend, inter alia, that since they were co-tenants, they were not liable to the
other co-tenants for rent or for the use of the premises. We agree.
[Headnotes 5, 6]
In the absence of an agreement to pay, or ouster by the co-tenant in possession, a tenant in
common who occupies all or more than his proportionate share of the common premises is
not liable, because of such occupancy alone, to his co-tenants for rent or the use and
occupation of the premises. Lanigir v. Arden, 85 Nev. 79, 81, 450 P.2d 148, 149 (1969).
Since each tenant has a right to occupy the common property, it follows that, in the absence
of an agreement to the contrary, one of them cannot collect rent from another for having
exercised that right.
In the instant case, appellants and respondents orally agreed, when they purchased the
property as tenants in common, that the partnership enterprise could use the property and pay
the mortgage installments, taxes and insurance in lieu of rent. No showing was made at trial
that appellants effected an ouster or exclusion of the other co-tenants. There was never a
demand made by any of the respondents for additional rent from appellants.
That the trial judge's reasoning in awarding additional rent was erroneous is evident in the
fact that the property was purchased before respondent Clarence Thomas became a partner.
Clarence testified that as long as [the business] kept the payments up to pay for the land and
taxes, it could operate there, and that he was trying to help [his] children along.
Respondent Richard Thomas remained a partner until December, 1978.
____________________
request for partition, the district court ordered the property to be sold, the proceeds distributed equally, and
awarded each of the respondents the rental value of the property.
98 Nev. 216, 221 (1982) Rasmussen v. Thomas
Thus, the award of additional rent to respondents as far back as 1974 was clearly erroneous.
We conclude that it was error to award respondents additional rent in the face of a contrary
agreement among all the co-tenants.
5
This portion of the trial court's judgment is reversed.
Attorney Fees
The trial court, pursuant to the stipulation of the parties to partition the real property,
ordered that the property be sold. The trial court awarded partial attorney fees to respondents
based on NRS 39.480,
6
since the action arose partly out of the partition of real property.
Respondents Clarence and Betty Thomas were awarded $1,000, and respondents Richard and
Terry Thomas were each awarded $750. The fees were to be paid from the proceeds of the
partition sale.
[Headnotes 7, 8]
Appellants contend that it was error to award attorney fees under NRS 39.480, since the
parties stipulated to the issue of partitioning the real property and it wasn't thus a matter
before the court. However, the allowance of attorney fees under NRS 39.480 is generally
determined by whether the services rendered by counsel were for the common benefit of all
parties, and whether all parties benefited from the service of counsel. See Weaver v. Laub,
574 P.2d 609, 614 (Okla. 1978); 59 Am.Jur.2d Partition 133-138 (1971). Additionally, the
allowance of attorney fees in a partition action is a matter for the exercise of the trial court's
discretion. In re Parr's Estate, 287 P.2d 906 (Okla. 1955).
____________________

5
We reject respondents' contention that the lower court properly awarded reasonable rent because the parties'
oral lease was void under NRS 111.210.

6
NRS 39.480 provides:
The costs of partition, fees of masters and other disbursements and also, in the discretion of the court,
reasonable counsel fees expended by the parties for the common benefit, shall be paid by the parties
respectively entitled to share in the lands divided, in proportion to their respective interests therein, and
may be included and specified in the judgment. In that case there shall be a lien on the several shares, and
the judgment may be enforced by execution against such shares and against other property held by the
respective parties. When, however, litigation arises between some of the parties only, the court may
require the expenses of such litigation to be paid by the parties thereto, or any of them. (Emphasis added.)
98 Nev. 216, 222 (1982) Rasmussen v. Thomas
[Headnote 9]
In this case, the respondents' attorneys prepared the complaints and cross complaints
seeking partition and instituted the action. The trial court ordered only a partial award because
the action also involved a partnership dispute. Further, the trial court was not precluded from
awarding attorney fees as charges against the common fund by the fact that the partition
proceedings were not of an adversary nature. Weaver v. Laub, supra; 59 Am.Jur.2d Partition
137 (1971). Thus, we conclude that the trial court did not abuse its discretion by awarding
such fees.
We affirm that part of the district court's judgment finding the existence of a partnership
and awarding attorney fees to respondents. We reverse that part of the district court's
judgment awarding respondents a return of their capital contributions; we remand for the trial
court to determine, after an accounting, the value of the interests of Clarence and Richard
Thomas in the partnership and to enter judgment accordingly. Finally, that part of the district
court's judgment awarding rent to respondents is reversed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

7
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 222, 222 (1982) Chaffee v. Smith
KYOKO CHAFFEE, Individually and as Guardian ad Litem of CHRISTINE CHAFFEE, A
Minor, and KENNETH CHAFFEE, A Minor, Appellant, v. FRANKLIN N. SMITH, dba
COULTHARD AND SMITH, Respondent.
No. 12830
May 27, 1982 645 P.2d 966
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Merlyn H. Hoyt, Judge.
Complainant, who had obtained judgment against airline training academy in underlying
wrongful death action, brought action against academy's former attorney for malpractice in
his dealings with academy. The district court entered order granting attorney's motion for
summary judgment and other related orders, and complainant appealed.
98 Nev. 222, 223 (1982) Chaffee v. Smith
orders, and complainant appealed. The Supreme Court held that public policy does not permit
enforcement of a legal malpractice action which has been transferred by assignment or by
levy and execution sale but was never pursued by original client.
Affirmed.
Rogers, Monsey, Woodbury & Berggreen and Douglas G. Crosby, Las Vegas; Ned Good
and Ian Herzog, Los Angeles, for Appellant.
Dickerson, Miles & Pico, Las Vegas, for Respondent.
1. Assignments; Execution.
Public policy does not permit enforcement of legal malpractice action which has been transferred by
assignment or by levy and execution sale but was never pursued by original client.
2. Attorney and Client.
Decision as to whether to bring malpractice action against attorney is one peculiarly vested in client.
OPINION
Per Curiam:
Appellant has appealed from an order granting respondent's motion for summary judgment
and related orders.
In an underlying wrongful death action, appellant obtained a judgment against Airline
Training Academy (ATA). Respondent originally represented both ATA and its insurer,
Airway Underwriters. Alleging lack of cooperation by ATA, respondent withdrew as counsel
for ATA. Thereafter, on behalf of Airway Underwriters, he obtained a default judgment
against ATA, resulting in forfeiture of insurance coverage. In the instant action, appellant has
sued respondent, ATA's former attorney, for malpractice in his dealings with ATA.
Appellant contends, inter alia, that the trial court erred in its determination that a lack of
privity with the original attorney-client relationship precluded her suing her opposing party's
attorney (respondent) for malpractice. Appellant claims that she acquired the cause of action
against respondent by levy and execution sale of ATA's property.
[Headnotes 1, 2]
Here, however, the transferred interest involves a previously unasserted claim. As a matter
of public policy, we cannot permit enforcement of a legal malpractice action which has been
transferred by assignment or by levy and execution sale, but which was never pursued by
the original client.
98 Nev. 222, 224 (1982) Chaffee v. Smith
transferred by assignment or by levy and execution sale, but which was never pursued by the
original client. See Goodley v. Wank & Wank, Inc., 133 Cal.Rptr. 83 (Cal.App. 1976);
Christison v. Jones, 405 N.E.2d 8 (Ill.App. 1980). The decision as to whether to bring a
malpractice action against an attorney is one peculiarly vested in the client. See Christison,
supra at 11. We reserve opinion on the question as to whether previously asserted legal
malpractice actions are transferable. See Goodly, supra; Collins v. Fitzwater, 560 P.2d 1074
(Ore. 1977).
The public policy issue is dispositive of this appeal. Therefore, we need not consider
appellant's remaining contentions.
1

The summary judgment is affirmed.
____________________

1
We express no opinion regarding the propriety of respondent's conduct.
____________
98 Nev. 224, 224 (1982) Mannon v. State
ROBERT MANNON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13110
May 27, 1982 645 P.2d 433
Appeal from judgment of conviction, Fifth Judicial District Court, Nye County; William
P. Beko, Judge.
Defendant was convicted before the district court of furnishing marijuana to both his son
and son of his girl friend, and he appealed. The Supreme Court held that: (1) girl friend's
testimony that she was one who furnished marijuana to boys did not constitute newly
discovered evidence since defense counsel had timely knowledge of its existence, but (2)
defense attorney's conflicting duties after she was informed that girl friend had furnished
marijuana to boys but was asked not to tell denied defendant his Sixth Amendment right to
effective assistance of counsel.
Reversed and remanded.
J. Gregory Damm, Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney general, Carson City, and Peter L. Knight, District Attorney,
Nye County, for Respondent.
1. Criminal Law.
Testimony by defendant's girl friend in which she admitted that she had been one who furnished
marijuana to boys did not constitute newly discovered evidence that entitled defendant to a
new trial where defense counsel had been given this information on night of first trial
day but was asked "not to tell" because girl friend was afraid defendant would be
angry with her for her disclosure.
98 Nev. 224, 225 (1982) Mannon v. State
newly discovered evidence that entitled defendant to a new trial where defense counsel had been given this
information on night of first trial day but was asked not to tell because girl friend was afraid defendant
would be angry with her for her disclosure. NRS 176.515.
2. Criminal Law.
Conflicting duties of trial counsel, who on night of first trial day was told by defendant's girl friend that
she had furnished marijuana in question to boys but who was asked not to tell, and who remained silent
until after trial, denied defendant his Sixth Amendment right to effective assistance of counsel.
U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Upon learning of defendant's girl friend's involvement in furnishing of marijuana, defense counsel was
presented with conflict between her obligation to protect confidentiality of statement and her obligation to
defend defendant vigorously and completely, and thus counsel was under ethical obligation to inform court
immediately that conflict had arisen which necessitated her withdrawal. NRS 175.383; ABA Code of
Prof.Resp., EC 5-15; DR 5-105.
4. Criminal Law.
Where actual conflict of interest prohibited defense attorney from providing defendant with adequate
assistance, no showing of actual prejudice was necessary to mandate reversal of defendant's conviction.
U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant was charged with furnishing marijuana to both his son and the son of his
girlfriend Lois Aguirre. NRS 453.321(2). At trial, Mannon was represented by an attorney
who had been appointed to represent Aguirre in another court on an unrelated charge.
1
On
the night of the first trial day, Aguirre called this attorney and admitted that she had been the
one who had furnished the marijuana to the boys. During the conversation, Aguirre asked the
attorney not to tell because she was afraid Mannon would be angry with her for her
disclosure. The attorney remained silent and, at the conclusion of the trial the next day, the
jury found Mannon guilty.
[Headnote 1]
Before sentencing, counsel made a motion for a new trial based on newly discovered
evidence. NRS 176.515. Aguirre testified to the above facts at the hearing on the motion after
waiving relevant privileges.
2
The motion was subsequently, and correctly, denied. Aguirre's
testimony did not constitute newly discovered evidence within the meaning of the statute
since counsel had timely knowledge of its existence.
____________________

1
Mannon is represented by a different attorney in this appeal.

2
At the conclusion of her testimony Aguirre was taken into custody.
98 Nev. 224, 226 (1982) Mannon v. State
counsel had timely knowledge of its existence. Burton v. State, 84 Nev. 191, 437 P.2d 861
(1968); See McLemore v. State, 94 Nev. 237, 577 P.2d 871 (1978).
[Headnote 2]
Mannon now argues that his trial attorney's conflicting duties operated to deny him his
sixth amendment right to effective assistance of counsel. We agree.
[Headnote 3]
Upon learning of Aguirre's involvement, counsel was presented with a conflict between
her obligation to protect the confidentiality of Aguirre's statement and her obligation to
defend Mannon vigorously and completely. Counsel was under an ethical obligation to
inform the court immediately that a conflict had arisen which necessitated her withdrawal.
ABA Code of Professional Responsibility, DR 5-105, EC 5-15 (1976). See NRS 175.383.
Had counsel withdrawn from Mannon's case, Aguirre may well have repeated her admission
to Mannon's subsequent attorney, who would have had no duty to withhold the information
from the court.
[Headnote 4]
The above facts demonstrate that an actual conflict of interest prohibited Mannon's
attorney from providing him with adequate assistance. As a result, no showing of actual
prejudice is necessary to mandate reversal. Cuyler v. Sullivan, 446 U.S. 335 (1980); see
Harvey v. State, 96 Nev. 850, 619 P.2d 1214 (1980).
This case is reversed and remanded for a new trial.
____________
98 Nev. 226, 226 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
ALBERT SCHULMAN dba SCHULMAN MEATS AND PROVISIONS, Appellant, v.
BONGBERG-WHITNEY ELECTRIC, INC., Respondent.
No. 13378
May 27, 1982 645 P.2d 434
Appeal from order denying appellant's motion to set aside a default judgment. Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge,
In action for breach of contract, the district court sua sponte entered default judgment
against defendant and subsequently denied motion to set aside default judgment, and
defendant appealed. The Supreme Court held that where defendant's attorney failed to
appear for trial of action for breach of contract, attorney's failure to appear was due to
innocent mistake and no bad faith or intent to delay proceedings was shown, and where
defendant applied promptly for relief and plaintiff neither moved for default judgment nor
opposed motion to set aside default, district court abused its discretion by refusing to set
aside default judgment.
98 Nev. 226, 227 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
attorney failed to appear for trial of action for breach of contract, attorney's failure to appear
was due to innocent mistake and no bad faith or intent to delay proceedings was shown, and
where defendant applied promptly for relief and plaintiff neither moved for default judgment
nor opposed motion to set aside default, district court abused its discretion by refusing to set
aside default judgment.
Reversed and remanded.
David Goldwater, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Robert M. Buckalew, Las Vegas, for Respondent.
1. Judgment.
Cases should be heard on the merits whenever possible.
2. Judgment.
Decision to grant or deny motion to set aside default judgment rests with the sound discretion of trial
court, and that discretion must not be arbitrary or cavalier but must be exercised within guidelines
established by Supreme Court.
3. Judgment.
Where defendant's attorney failed to appear for trial of action for breach of contract, attorney's failure to
appear was due to innocent mistake and no bad faith or intent to delay proceedings was shown, and where
defendant applied promptly for relief and plaintiff neither moved for default judgment nor opposed motion
to set it aside, district court abused its discretion by refusing to set aside default judgment. NRCP
60(b)(1).
OPINION
Per Curiam:
In this appeal we must decide whether the district court abused its discretion by refusing to
set aside a default judgment entered after appellant's attorney failed to appear for trial. We
conclude that under the facts presented the district court did abuse its discretion. We reverse
the judgment and remand for a trial on the merits.
THE FACTS
Respondent filed a complaint in the district court claiming damages for breach of contract.
Appellant's counsel failed to appear for trial. The district judge, sua sponte, entered a default
judgment against appellant.
Nine days later appellant moved to set aside the judgment. NRCP 60(b)(1). In support of
the motion, appellant's counsel submitted his own affidavit and that of his secretary.
98 Nev. 226, 228 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
submitted his own affidavit and that of his secretary. The affidavits stated that the attorney
had failed to appear for trial because he believed the trial had been reset. Respondent did not
oppose the motion. Nevertheless, the district court refused to set aside the default judgment.
This appeal followed.
THE DEFAULT JUDGMENT
[Headnote 1]
It is the policy of this state that cases be heard on the merits, whenever possible. Hotel Last
Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963).
[Headnote 2]
The decision to grant or deny a motion to set aside a default judgment rests with the sound
discretion of the trial court. Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Bryant v.
Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952). That discretion must not be arbitrary or cavalier;
it must be exercised within the guidelines established by this court. In Hotel Last Frontier,
supra, this court laid down the guidelines governing the exercise of the district court's
discretion when a motion to set aside a default is made pursuant to NRCP 60(b)(1):
(1) The showing required by NRCP 60(b)(1), formerly NCL 8640, of mistake,
inadvertence, surprise, or excusable neglect, singly, or in combination, must, of course
be made . . . What facts will establish the existence of one or more of the specified
conditions is largely discretionary. Yet, guides have been declared. Prompt application
to remove the judgment is a persuasive factor . . . .[L]ikewise, the absence of an intent
to delay proceedings. . . . The lack of knowledge of the party or counsel as to
procedural requirements has been given weight. . . . Good faith is significant. . . . (2)
The showing required by case precedent that a meritorious defense exist to the claim
for relief asserted, also must be made.
* * *
(3) Finally we mention, as a proper guide to the exercise of discretion, the basic
underlying policy to have each case decided upon its merits. In the normal course of
events, justice is best served by such a policy. Because of this policy, the general
observation may be made that an appellate court is more likely to affirm a lower court
ruling setting aside a default judgment than it is to affirm a refusal to do so. In the
former case a trial upon the merits is assured, whereas in the latter it is denied forever.
79 Nev. at 154-56, 380 P.2d at 294-95.
98 Nev. 226, 229 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
[Headnote 3]
Appellant has met the showing required by NRCP 60(b)(1). The attorney's failure to
appear was due to an innocent mistake. No bad faith or intent to delay the proceedings was
shown. Appellant applied promptly for relief. The Answer filed in the district court stated a
meritorious defense. In addition, we cannot ignore the fact that respondent neither moved for
the default judgment in the district court nor opposed appellant's motion to set it aside.
We hold that the district court abused its discretion by refusing to set aside the default
judgment. Accordingly, we reverse the judgment, and we remand the case for trial on the
merits.
____________
98 Nev. 229, 229 (1982) Temora Trading Co. v. Perry
TEMORA TRADING COMPANY, LTD., A Purported Trust, Appellant, v. WALLACE
PERRY, as Trustee of the Estate of Boyd James O'Donnell and Joan O'Donnell, Bankrupts,
Respondent.
No. 13531
May 27, 1982 645 P.2d 436
Appeal from order striking defendant's answer, entering a default judgment, and awarding
summary judgment. Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Defendant appealed from an order of the district court entering a default judgment against
it in action to quiet title. The Supreme Court held that corporate defendant's obstructing
discovery, being not responsive to certain interrogatories, and failing to have its officers
appear for depositions warranted dismissal where court had ordered corporation to produce its
officers for depositions.
Affirmed
[Rehearing denied November 22, 1982]
Wilson, Wilson and Barrows, Ltd., Elko; Terry & Winter, Carson City; and Moneymaker &
Morrison, Los Angeles, California, for Appellant.
Goicoechea, DiGrazia & Marvel, Elko; Russell Piccoli, Phoenix, Arizona, for
Respondent.
1. Pretrial Procedure.
Sanction of dismissal or default may be imposed only in cases of willful noncompliance of court's orders.
NRCP 37(b).
98 Nev. 229, 230 (1982) Temora Trading Co. v. Perry
2. Pretrial Procedure.
In action to quiet title, corporate defendant's obstructing discovery, being not responsive to certain
interrogatories, and failing to have its officers appear for depositions warranted dismissal where court had
ordered corporation to produce its officers for depositions. NRCP 37(b).
3. Cancellation of Instruments; Deeds.
Transfer of property to fictitious person is complete nullity, transferring no title; action to avoid such
transfer is not subject to statute of limitations.
OPINION
Per Curiam:
Respondent Wallace Perry, as Trustee of the Estate of Boyd James O'Donnell and Joan
O'Donnell, Bankrupts, commenced this action in the district court to quiet title to certain
property located in Elko County.
The district judge, after finding that appellant-defendant Temora Trading Company, Ltd.
had willfully failed to comply with the court's discovery orders, struck Temora's answer.
NRCP 37(b). Summary judgment was entered in favor of the Trustee. This appeal followed.
THE FACTS
O'Donnell filed for bankruptcy in Arizona. Respondent Perry was named trustee in the
bankruptcy proceedings. Although O'Donnell was adjudicated bankrupt, he was denied a
bankruptcy discharge. Just prior to filing his petition for bankruptcy, O'Donnell transferred
valuable real estate holdings to a James Gleason, who allegedly transferred the property to
Temora.
Discovery was protracted and bitterly fought. Eventually, Perry noticed the depositions of
three of Temora's officers in the Bahamas. At the time set for their depositions their local
attorney appeared and stated that they would not be deposed without an order from a
Bahamian court. Perry obtained an order from the district court in Elko compelling Temora to
produce its officers. The order was served on Temora's counsel in Elko. The officers still
refused to comply.
Thereafter, the district court struck Temora's answer and entered a default judgment
against Temora. Temora argues that the district court abused its discretion by granting a
default judgment as a sanction for failure to honor the court's orders. Temora also suggests
that Perry's complaint fails to state a cause of action because it appears on the face of the
complaint that the cause is barred by the statute of limitations. We reject Temora's
contentions and we affirm the default judgment.
98 Nev. 229, 231 (1982) Temora Trading Co. v. Perry
THE DEFAULT JUDGMENT
NRCP 37(b) empowers the district court with a broad range of sanctions that may be
invoked when parties fail to comply with discovery orders. The court may strike all or part of
a party's pleadings, and enter a default judgment.
[Headnotes 1, 2]
The sanction of dismissal or default may be imposed only in cases of willful
noncompliance of the court's orders. Finkelman v. Clover Jewelers Boulevard, Inc., 91 Nev.
146, 532 P.2d 608 (1975). The district judge in the instant case found that Temora's failure to
comply was willful. That finding is supported by substantial evidence, including Temora's
history of obstructing discovery, as well as the failure of Temora's officers to appear for their
depositions.
1

In Skeen v. Valley Bank of Nevada, 89 Nev. 301, 511 P.2d 1053 (1973), this court held:
Default judgments will be upheld where the normal adversary process has been halted
due to an unresponsive party, because diligent parties are entitled to be protected
against interminable delay and uncertainty as to their legal rights. 89 Nev. at 303, 511
P.2d at 1054.
THE STATUTE OF LIMITATIONS
Temora argues that even if the district court did not err in striking its answer, it was error
to grant a default judgment. Temora's contention is that Perry's complaint failed to state a
cause of action because it did not plead facts showing that the statute of limitations was
tolled. See Kellar v. Snowden, 87 Nev. 4SS, 4S9 P.2d 90 {1971); Bank of Nevada v.
____________________

1
Temora was not responsive to certain interrogatories. In response to interrogatories 8 and 9, counsel for
Temora, Mr. Moneymaker, stated that James Gleasonaddress unknown formed Temora and contributed all
its property. The Nassau attorney who formed Temora, Mr. Ralph Seligman, in his deposition testified to the
contrary:
MR. MONEYMAKER: All right. Now I take it--has Mr. Gleason or Temora Trading Company
waived the attorney-client privilege of confidentiality imposed upon you under Bahamian law?
THE WITNESS: There is no attorney-client privilege between myself and Temora. As far as Mr.
Gleason is concerned, I am satisfied the gentleman does not exist.
MR. MONEYMAKER: All right. I take it, what you are telling me is that James Gleason, to your
knowledge, has not waived the privilege?
THE WITNESS: Mr. James Gleason, to my knowledge, does not exist, and therefore there is no
privilege to waive.
MR. MONEYMAKER: I take it
THE WITNESS: I am satisfied that I was duped as an instrument of fraud, and this is the reason I
have sworn my affidavit.
98 Nev. 229, 232 (1982) Temora Trading Co. v. Perry
Nev. 488, 489 P.2d 90 (1971); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966).
[Headnote 3]
However, Perry alleged in his complaint that Gleason was a fictitious person. When the
answer was stricken, all of Perry's allegations were taken as true. A transfer of property to a
fictitious person is a complete nullity, transferring no title. An action to avoid such a transfer
is not subject to the statute of limitations. Gayle v. Jones, 63 F.Supp. 481 (W.D.La. 1945);
Houghton v. Houghton, 116 So. 493 (La. 1928).
RES JUDICATA
Finally, Temora suggests that Perry's complaint is barred by the doctrines of res judicata
and collateral estoppel. These were affirmative defenses included in Temora's answer. The
defenses were stricken with the answer.
The judgment is affirmed.
____________
98 Nev. 232, 232 (1982) Weaver Brothers, Ltd. v. Misskelley
WEAVER BROTHERS, LTD., Appellant, v. LES MISSKELLEY, aka ROY LESTER
MISSKELLEY, dba LES MISSKELLEY COMPANY, Respondent.
No. 12938
May 27, 1982 645 P.2d 438
Appeal from order granting new trial, First Judicial District Court, Carson City; Frank B.
Gregory, Senior Judge.
Action was brought to recover damages for alleged breach of construction contract. The
jury returned a verdict for plaintiff. The district court granted new trial, and plaintiff appealed.
The Supreme Court held that: (1) district court, in deciding motion for judgment n.o.v., erred
by considering juror affidavits, and (2) district court erred by granting new trial on ground
that jury had disregarded its instructions regarding prevention of performance.
Reversed.
Wayne S. Chimarusti, Carson City, for Appellant.
Maurice J. Sullivan, Reno, for Respondent.
1. Judgment.
District court, in deciding motion for judgment n.o.v., erred by considering juror affidavits.
98 Nev. 232, 233 (1982) Weaver Brothers, Ltd. v. Misskelley
2. Trial.
Generally, jurors will not be permitted to impeach their own verdict.
3. Appeal and Error.
Plaintiff did not waive its objection to consideration of defendants' juror affidavit by submitting one of its
own, where plaintiff consistently maintained that consideration of affidavits was improper and merely
submitted affidavit supporting its position as means of protecting itself in case judge considered affidavits
submitted by defendant.
4. New Trial.
In determining propriety of granting of new trial for reason of [m]anifest disregard by the jury of the
instructions of the court, question is whether court is able to declare that had jurors properly applied
instructions of court, it would have been impossible for them to reach verdict which they reached. NRCP
59(a)(5).
5. New Trial.
In action to recover damages for alleged breach of construction contract, district court erred by granting
new trial on ground that jury had disregarded its instructions regarding prevention of performance, where
jury may well have found that plaintiff's failure to file financial statement was minor breach which did not
prevent or affect defendant's ability to perform because it was ignored by parties, and jury may have further
concluded that defendant's failure to supervise subcontractor properly was breach of sufficient magnitude
to warrant his dismissal and termination of contract. NRCP 59(a)(5).
OPINION
Per Curiam:
This action was commenced by appellant Weaver Brothers, Ltd. (Weaver) to recover
damages for an alleged breach of a construction contract by respondent Les Misskelley. The
jury returned a verdict for Weaver. Misskelley timely moved for a judgment n.o.v. or, in the
alternative, for a new trial. The district court denied the motion for judgment n.o.v. but
granted a new trial because it believed the jury had disregarded the instructions. This appeal
by Weaver challenges that ruling.
[Headnotes 1, 2]
Weaver first contends that the district court erred by considering juror affidavits in
deciding the motion. We agree. This court has long held that, as a general rule, jurors will not
be permitted to impeach their own verdict.
1
Close v. Flanary, 77 Nev. 87, 113-114, 360 P.2d
259, 273 (1961); So. Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 145-147, 73 P. 759, 762
(1903); see Kaltenborn v. Bakerink, 80 Nev. 16, 388 P.2d 572 (1964). Other courts have
specifically held juror affidavits inadmissible to show that the jurors misunderstood the
judge's instructions.
____________________

1
We have recognized a limited exception to this rule, not applicable here, where the affidavits are offered to
show intentional concealment of actual bias or prejudice by jurors during voir dire examination. McNally v.
Walkowski, 85 Nev. 696, 462 P.2d 1016 (1969).
98 Nev. 232, 234 (1982) Weaver Brothers, Ltd. v. Misskelley
to show that the jurors misunderstood the judge's instructions. Santilli v. Pueblo, 521 P.2d
170 (Colo. 1974); see also Horn v. Sturm, 408 P.2d 541 (Okla. 1965); Gardner v. Malone,
376 P.2d 651, 654 (Wash. 1962).
[Headnote 3]
Misskelley insists, however, that Weaver waived its objection to consideration of
Misskelley's juror affidavit by submitting one of its own. We disagree. Weaver consistently
maintained, both in its written authorities and at the hearing below, that consideration of the
affidavits was improper. Weaver merely submitted the juror affidavit supporting its position
as a means of protecting itself in case the judge considered the affidavit submitted by
Misskelley. The district court erred by considering the affidavits, and we decline to consider
them in deciding whether a new trial was properly granted.
[Headnote 4]
The main issue presented is whether the district court erred by granting a new trial on the
ground that the jury had disregarded its instructions regarding prevention of performance. A
new trial may be granted if there has been a [m]anifest disregard by the jury of the
instructions of the court. NRCP 59(a)(5). In determining the propriety of the granting of a
new trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the
jurors properly applied the instructions of the court, it would have been impossible for them
to reach the verdict which they reached. Fox v. Cusick, 91 Nev. 218, 533 P.2d 466 (1975);
see also Groomes v. Fox, 96 Nev. 457, 611 P.2d 208 (1980); Eikelberger v. Tolotti, 94 Nev.
58, 574 P.2d 277 (1978); Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969).
The record reveals that Misskelley was supervising contractor in charge of construction of
Weaver's manufacturing facility in Carson City. Misskelley had the proper contractor's
license, but his bid limit was $50,000--too low to permit him to construct Weaver's building.
Thereafter, Misskelley petitioned the Nevada State Board of Contractors for a one-time
increase in his bid limit to $1,000,000. The board denied Misskelley's application on August
15, 1978. Subsequently, however, the board indicated its willingness to grant a one-time
increase if Weaver filed an acceptable indemnification agreement and financial statement.
Weaver filed the indemnification agreement, but neglected to submit a financial statement.
As a result, no increase in the bid limit was granted. The evidence indicates, however, that
both parties ignored the absence of an increased limit.
Meanwhile, Misskelley hired a subcontractor to clear the property and prepare the dirt pad
upon which the building was to be constructed.
98 Nev. 232, 235 (1982) Weaver Brothers, Ltd. v. Misskelley
to be constructed. Weaver presented evidence that Misskelley did not properly supervise the
subcontractor. According to Weaver, there was a delay in the excavation and the
specifications were not being followed. On December 18, 1978, Weaver fired Misskelley.
[Headnote 5]
In concluding that his jury instructions regarding prevention of performance had been
misapplied, the district judge apparently reasoned that, by failing to file a financial statement
and by terminating Misskelley's employment, Weaver had prevented Misskelley's
performance. We do not believe, however, that the evidence presented mandated this
conclusion. The jury may well have found that Weaver's failure to file a financial statement
was a minor breach which did not prevent or affect Misskelley's ability to perform because it
was ignored by the parties.
2
The jury may have further concluded that Misskelley's failure to
supervise the subcontractor properly was a breach of sufficient magnitude to warrant his
dismissal and termination of the contract. Therefore, we are unable to declare that it was
impossible for the jury, correctly applying the instructions, to have reached the verdict which
they reached.
The order granting a new trial is reversed and the verdict of the jury is reinstated.
____________________

2
In addition, there is no evidence in the record that the board of contractors or the city interfered with
Misskelley's performance because of the bid limit.
____________
98 Nev. 235, 235 (1982) French v. State
ANTHONY RAY FRENCH, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12820
DANIEL ROY REZIN, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13039
May 27, 1982 645 P.2d 440
Appeals from judgments of conviction, adjudications of habitual criminality, and
sentences. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Following their felony convictions in the district court defendants were adjudged habitual
criminals and sentenced to ten years' imprisonment, and they appealed. The Supreme Court
held that district court has jurisdiction to dismiss habitual criminal count in information at
any time prior to sentencing.
98 Nev. 235, 236 (1982) French v. State
Court held that district court has jurisdiction to dismiss habitual criminal count in information
at any time prior to sentencing.
Convictions affirmed; adjudications of habitual criminality vacated and cases
remanded for resentencing.
J. Gregory Damm, State Public Defender, for Appellant Anthony Ray French.
Stephen R. Wassner, Zephyr Cove, for Appellant Daniel Roy Rezin.
Richard H. Bryan, Attorney General, Richard E. Thornley and Brooke A. Nielsen, Deputy
Attorneys General, Carson City, for Respondent.
Criminal Law.
Under statute, district court has jurisdiction to dismiss habitual criminal count in an information at any
time prior to sentencing. NRS 207.010, 207.010, subd. 4.
OPINION
Per Curiam:
The issue presented in these consolidated appeals is whether a district judge has discretion
to dismiss a habitual criminal count in an information at any time prior to sentencing. NRS
207.010. We hold that the court has such discretion.
Appellants were each convicted in the district court of a felony. Each had been convicted
of two prior felonies. Each was adjudged a habitual criminal under NRS 207.010, and
sentenced to ten years imprisonment. At the time of sentencing in each case, the district judge
stated that he did not have discretion to dismiss the count of the information charging
habitual criminality.
Appellants seek resentencing on the grounds that the district judge mistakenly failed to
exercise discretion given to him by NRS 207.010(4).
1
The state contends that the district
court had no discretion to dismiss the habitual criminal counts once two prior offenses had
been proved. We agree with appellants' argument, and we remand the case for resentencing.
NRS 207.010(4)reads:
It is within the discretion of the district attorney whether or not to include a count
under this section in any information, and the trial judge may, at his discretion,
dismiss a count under this section which is included in any indictment or
information.
____________________

1
French also appeals from his conviction on the escape charge, claiming a violation of his right to a trial
within sixty days under NRS 178.556. His contention is meritless and we affirm the conviction.
98 Nev. 235, 237 (1982) French v. State
or not to include a count under this section in any information, and the trial judge may,
at his discretion, dismiss a count under this section which is included in any indictment
or information. (Emphasis added.)
The statute contains no express limitation on the discretion conferred by subsection 4. The
purpose of the subsection, as revealed by the legislative history, is to permit a judge to
dismiss a count under NRS 207.010 when the prior offenses are stale or trivial, or in other
circumstances where an adjudication of habitual criminality would not serve the purposes of
the statute or the interests of justice. See also Dotson v. State, 80 Nev. 42, 389 P.2d 77
(1964).
We hold that a district judge has discretion to dismiss a count under NRS 207.010 at any
time before sentencing. Because the district judge in the instant cases failed to exercise the
discretion conferred on him by law, we affirm the convictions, but we vacate the
adjudications of habitual criminality and the sentences imposed thereon. We remand the cases
to the district court for resentencing in accordance with this opinion. We of course express no
opinion as to the sentences to be imposed on remand as that decision rests with the trial
judge.
____________
98 Nev. 237, 237 (1982) Kartheiser v. Hawkins
JAMES KARTHEISER, RENEE CASELLI and JOHN CASELLI, Appellants/Respondents,
v. DARYL B. HAWKINS, Respondent/Appellant.
No. 13190
June 3, 1982 645 P.2d 967
Appeal and cross-appeal from judgment quieting title to certain realty. Eighth Judicial
District Court, Carl J. Christensen, Judge.
Creditor of deed grantor brought action against grantees to quiet title to two residences
which were subject of transfer. The district court granted a judgment of quiet title to
properties to creditor subject to the two $8,000 deeds of trust held by grantees. Grantees
appealed. Creditor cross-appealed, claiming court erred in finding there was $8,000 due on
each of deeds of trust. The Supreme Court held that: (1) evidence was sufficient to support
finding that there was $8,000 due on each of two deeds of trust on property in question, and
(2) evidence of intentions of grantor and grantees was sufficient to support finding that when
grantor delivered quit claim deeds to grantees contemporaneously with delivery of deeds of
trust, it was only for additional purpose of securing grantees' $S,000 interest in each of
the properties, and not to surrender grantor's equity in properties; thus, subsequent
sheriff's sale of properties to grantor's creditor was proper in that grantor had equity in
properties at time of sale.
98 Nev. 237, 238 (1982) Kartheiser v. Hawkins
contemporaneously with delivery of deeds of trust, it was only for additional purpose of
securing grantees' $8,000 interest in each of the properties, and not to surrender grantor's
equity in properties; thus, subsequent sheriff's sale of properties to grantor's creditor was
proper in that grantor had equity in properties at time of sale.
Affirmed
Embry & Shaner, Ltd. Las Vegas, for Appellants.
Gordon L. Hawkins, Las Vegas, for Respondent.
1. Quieting Title.
In quiet title action, evidence was sufficient to support finding that there was $8,000 due on each of two
deeds of trust on property in question.
2. Deeds.
Intentions of parties to granting of deed are determined from all the circumstances surrounding the
transaction.
3. Mortgages.
In quiet title action, evidence of intentions of deed grantor and grantees was sufficient to support finding
that when grantor delivered quit claim deeds to grantees contemporaneously with delivery of deeds of trust,
it was only for additional purpose of securing grantees' $8,000 interest in each of the properties, and not to
surrender grantor's equity in properties; thus, subsequent sheriff's sale of properties to grantor's creditor was
proper in that grantor had equity in properties at time of sale.
OPINION
Per Curiam:
The respondent, Daryl B. Hawkins, commenced this action to quiet title to two residences
held in the name of Robert Durfee, not a party to this action.
The residences were acquired as part of a joint venture agreement between Durfee and the
appellants who contributed $10,000 to the properties.
Durfee, who became pressed by his creditors, decided to leave the country. Before doing
so, however, he gave the appellants two $8,000.00 deeds of trust covering each residence and
a quit claim deed to each of the properties.
Respondent Hawkins who had previously acquired a judgment against Durfee levied on
both residences and obtained a Sheriff's deed to each of the properties. Hawkins then
commenced the instant action to quiet title to the properties. Appellants answered that they
were mortgagees in possession and counter-claimed for an accounting of the rents
collected by Hawkins.
98 Nev. 237, 239 (1982) Kartheiser v. Hawkins
counter-claimed for an accounting of the rents collected by Hawkins.
The district judge ruled that appellants had an $8,000.00 security interest in each property,
as reflected in the recorded deeds of trust (the quit claim deeds were never recorded); that
Durfee owned the remaining equity in the residences. The court granted a judgment of quiet
title to the properties to Hawkins subject to the two $8,000.00 deeds of trust held by
appellants.
[Headnote 1]
The appellants' principal argument on appeal is that at the time of the Sheriff's sale of the
properties to Hawkins, Durfee had no equity in the properties as he had quit claimed his
interest in the properties to the appellants when he delivered to the appellants the two
$8,000.00 deeds of trust.
1

[Headnotes 2, 3]
The district judge found that when Durfee delivered the quit claim deeds to the appellants
contemporaneously with the delivery of the deeds of trust, it was only for the additional
purpose of securing the appellants' $8,000.00 interest in each of the properties. A deed
absolute on its face may be shown to be a mortgage in equity. . . . In such cases the form of
the transaction will be disregarded and its substance and the intention of the parties at the
time will control. Robinson v. Durston, 83 Nev. 337, 339, 432 P.2d 75, 76 (1967). The
intentions of the parties are determined from all the circumstances surrounding the
transaction. Rizo v. Macbeth, 398 P.2d 209 (Alaska 1965). The appellants chose to record the
deeds of trust rather than the quit claim deeds; they filed notice of breach under the deeds of
trust and commenced foreclosure proceedings. Appellants alleged in their answer that they
were mortgagees in possession. The record supports the judge's finding.
Remaining assignments of error have been considered and found meritless. The judgment
of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Hawkins has cross-appealed, claiming the court erred in finding there was $8,000.00 due on each of the
deeds of trust. Substantial evidence supports the court's finding that the sums were due.

2
The Chief Justice 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.
____________
98 Nev. 240, 240 (1982) Montgomery v. Royal Motel
HELEN MONTGOMERY and KENNETH MONTGOMERY, Appellants, v.
ROYAL MOTEL, Respondent.
No. 12884
June 3, 1982 645 P.2d 968
Appeal from grant of summary judgment. Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Motel renters who were assaulted and robbed by unknown assailant in their room brought
action against motel to recover damages. The district court entered judgment. Appeal was
taken. The Supreme Court, Manoukian, J., held that motel met required standard of conduct
in protecting its guests from criminal acts of third parties by complying with ordinance
requiring deadbolt locks but not self-locking doors.
Affirmed.
[Rehearing granted and this opinion recalled February 16, 1983; appeal dismissed March
18, 1983]
Richard W. Myers, Las vegas, for Appellants.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondent.
1. Negligence.
Standard of conduct defined by a legislative enactment is usually minimum standard and special
circumstances may support finding of negligence, despite compliance, if reasonable person would have
taken additional precautions but when facts pose a normal situation, within that contemplated by
enactment, it may be found, and can be ruled as matter of law, that actor has done his full duty by
complying with statute.
2. Innkeepers.
Renters of motel room failed to present facts which would indicate special circumstances requiring
affirmative action on part of motel beyond ordinance requiring deadbolt locks, and thus, renters could not
recover from motel when they were assaulted and robbed by an unknown assailant in their motel room
particularly since renters failed to present sufficient and specific facts that owner could reasonably have
foreseen or anticipated the criminal conduct in question.
OPINION
By the Court, Manoukian, J.:
On January 10, 1978, Appellants Helen and Kenneth Montgomery rented a room at
respondent Royal Motel, a fourteen unit building in Las Vegas. On February 1, the
Montgomerys had just returned to their motel room when they were assaulted and robbed by
an unknown assailant.
98 Nev. 240, 241 (1982) Montgomery v. Royal Motel
and robbed by an unknown assailant. The door to their room was not self-locking, but was
equipped with an operable deadbolt latch. The door was not locked when the assault
occurred, although the Montgomerys customarily locked the door immediately upon entry.
The trial court granted respondent's motion for summary judgment upon respondent's
presentation of evidence of a Las Vegas municipal ordinance, 4-10-2, Housing Security
Standards, which the trial court found set the applicable standard of conduct for the motel
proprietors. The ordinance requires deadbolt locks, but not self-locking doors at units such as
those at respondent's motel.
1

The main issue confronting us is whether the trial court erred in its determination that, as a
matter of law, respondent motel met the required standard of conduct in protecting its guests
from criminal acts of third parties by complying with the ordinance.
The ordinance applies to all residential type buildings and Section 1 clearly applies to
motels with individual entrances such as the Royal. Appellants contend, however, that the
ordinance establishes only a minimum standard of conduct and that reasonably prudent
conduct might require additional precautions under the circumstances (i.e., a self-locking
door), raising a question of fact for the jury.
Courts are reluctant to grant summary judgment in negligence cases because the issue of
the reasonableness of a defendant's conduct or standard of conduct is usually a question of
fact for the jury. Thomas v. Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970); Pickering v. State,
557 P.2d 125 (Hawaii 1976). Nonetheless, 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. Although we sympathize with appellants' plight, we find that summary judgment was
appropriate in this case.
____________________

1
The ordinance, 4-10-2, Housing Security Standards, reads in pertinent part:
(A) The following requirements shall apply to all residential type buildings including those existing,
those new and those to be constructed in order to provide the maximum possible security from criminal
actions to the permanent and transient occupants thereof, and to their possessions.
1. Dwellings, single housing units. These requirements shall apply to all housing unitsdetached,
attached to or within a buildinghaving individual entrances immediately accessible from the outside
without other intervening entrance doors.
. . .
(b) Dead bolts openable without key from the inside shall be provided on all housing unit entrance
doors.
98 Nev. 240, 242 (1982) Montgomery v. Royal Motel
The Restatement (Second) of Torts (1965), 285 states that the standard of conduct may
be established by a legislative enactment or administrative regulation; 286 suggests that the
court as a matter of law can adopt a legislative enactment as the standard of conduct if
various criteria are met.
2

[Headnote 1]
We recognize that the standard of conduct defined by a legislative enactment is usually a
minimum standard and that special circumstances may support a finding of negligence,
despite compliance, if a reasonable person would have taken additional precautions. See
Pickering v. State, supra; Jones v. Hittle Service, Inc., 549 P.2d 1383 (Kan. 1976);
Restatement (Second) Torts, 288C (1965).
3
But when the facts pose a normal situation,
within that contemplated by the enactment, it may be found, and can be ruled as a matter of
law, that the actor has done his full duty by complying with the statute. . . . Prosser on Torts,
36 (4th ed. 1971). See also, Jones v. Hittle, supra.
[Headnote 2]
In the affidavits in opposition to the motion for summary judgment, the Montgomerys
failed to present facts which would indicate that the case posed special circumstances
requiring affirmative action beyond the requirements of the ordinance.
____________________

2
The Restatement view permits adopting a legislative enactment if the purpose of the act is exclusively or in
part:
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Restatement (Second)Torts, 286 (1965).
We are satisfied that the ordinance meets the suggested criteria of 286.

3
The comment to 288C is illustrative:
a. Where a statute, ordinance or regulation is found to define a standard of conduct for the purposes
of negligence actions, as stated in 285 and 286, the standard defined is normally a minimum standard,
applicable to the ordinary situations contemplated by the legislation.
. . .
Where there are no . . . special circumstances, the minimum standard prescribed by the legislation or
regulation may be accepted by the triers of fact, or by the court as a matter of law, as sufficient for the
occasion; but if for any reason a reasonable man would take additional precautions, the provision does
not preclude a finding that the actor should do so.
98 Nev. 240, 243 (1982) Montgomery v. Royal Motel
ordinance. So far as appears, the proprietor had no reason to suspect that an attacker was near
the premises, there was no showing of a history of prior similar incidents, nor were the
Montgomerys deceived by the door's appearance. Compare, Peterson v. Salt River
Agricultural Improvement Power District, 391 P.2d 567 (Ariz. 1964); Potter v. Battle Creek
Gas Co., 185 N.W.2d 37 (Mich. 1970).
Finally, courts have repeatedly held that when a criminal act is precipitous, an owner will
not be liable for injuries to invitees since the act constitutes an unforeseeable intervening
force. See, e.g, Thomas v. Bokelman, supra; Totten v. More Oakland Residential Housing,
Inc., 134 Cal.Rptr. 29 (Cal.App. 1977); Brewer v. Roosevelt Motor Lodge, 295 A.2d 647
(Me. 1972). Compare, Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477
(D.C.Cir. 1970); Garzilli v. Howard Johnson's Motor Lodges, Inc., 419 F.Supp. 1210
(E.D.N.Y. 1976); O'Hara v. Western Seven Trees Corp. Intercoast Management, 142
Cal.Rptr. 487 (Cal.App. 1978). Here, appellants failed to present sufficient and specific facts
that respondent could reasonably foresee or anticipate the criminal conduct in question, and
the probability of injury resulting therefrom. See NRCP 56(e).
We affirm the judgment below.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 243, 243 (1982) Turner v. State
ROOSEVELT TURNER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12430
June 3, 1982 645 P.2d 971
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of robbery, kidnapping, and battery with
intent to commit robbery, each with use of a deadly weapon, and he appealed. The Supreme
Court held that: (1) evidence was sufficient to find defendant guilty of first degree kidnapping
as a separate associated offense, and (2) error in admitting statement in violation of
defendant's right to remain silent was harmless beyond a reasonable doubt.
98 Nev. 243, 244 (1982) Turner v. State
defendant's right to remain silent was harmless beyond a reasonable doubt.
Affirmed.
Manos & Cherry, and Mark Bailus, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney;
James Tufteland, and Randy Pike, Deputy District Attorneys, Clark County, for Respondent.
1. Kidnapping.
Separate conviction of kidnapping will lie if movement of victims is not incidental to associated offense
and there is a substantially increased risk of harm beyond that necessarily present in the associated offense.
NRS 200.310, subd. 1.
2. Kidnapping.
Whether movement of victim is incidental to associated offense and whether it increased the risk of harm
to the victims, so that separate conviction of kidnapping will lie, are questions of fact to be determined by
the trier of fact in all but the clearest cases. NRS 200.310, subd. 1.
3. Kidnapping.
Evidence was sufficient to sustain conviction for first degree kidnapping as a separate associated offense
in case in which, during robbery, victims were moved to various rooms throughout residence and
physically harmed. NRS 200.310, subd. 1.
4. Criminal Law.
Not every constitutional error mandates reversal; where independent evidence of guilt is overwhelming,
improperly admitted evidence is harmless error and resulting conviction will not be reversed.
5. Criminal Law.
Error in admitting defendant's inculpatory statement, made in conversation with police officer which
continued after defendant informed officer that he didn't want to talk about it, was harmless since
defendant was positively identified by both victims as one of their assailants. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Following a jury trial, appellant Roosevelt Turner was convicted of two counts of robbery,
two counts of kidnapping, and two counts of battery with the intent to commit robbery, each
with the use of a deadly weapon.
One night, at approximately 11:30 p.m., the two victims were forced, at gunpoint, to admit
appellant and his cohort into their apartment. They were later joined by a third intruder.
During the lengthy ordeal which followed, the victims were tied, threatened with death,
moved to various rooms throughout the residence, and physically harmed.
98 Nev. 243, 245 (1982) Turner v. State
throughout the residence, and physically harmed. Under coercion, the victims revealed the
location of their money and jewelry. Appellant and his companions left the premises only
after coercing a promise from one of the victims to obtain more money.
On appeal, appellant contends it was error to find him guilty of first degree kidnaping as a
separate associated offense. See NRS 200.310(1).
1
We disagree.
[Headnotes 1-3]
A separate conviction of kidnaping will lie if the movement of the victims is not incidental
to the associated offense and there is a substantially increased risk of harm beyond that
necessarily present in the associated offense. Wright v. State, 94 Nev. 415, 581 P.2d 442
(1978). Whether the movement of the victims is incidental to the associated offense and
whether it increased the risk of harm to the victims are questions of fact to be determined by
the trier of fact in all but the clearest cases. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181
(1980). In the case at bar, the evidence does not warrant interference with the jury's
determination.
We also disagree with appellant's claim that it was prejudicial error to admit into evidence
his inculpatory statement suggesting his presence at the crimes.
While at the police station to retrieve his property, appellant was interviewed by the police
officer connected with the investigation of the crimes.
2
During this interview, and before the
statement was made, appellant informed the officer that he didn't want to talk about it.
____________________

1
NRS 200.310(1)(1959)(amended July 1, 1979) in pertinent part, reads as follows:
200.310 1. Every person who shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal,
kidnap or carry away any individual human being by any means whatsoever with the intent to hold or
detain, or who holds or detains, such individual for the purpose of committing extortion or robbery upon
or from such individual, . . . shall be deemed guilty of kidnaping in the first degree.

2
At trial, the officer testified as follows:
Question. And what was it specifically that you asked or stated to him that prompted his response that
you have given us, as near to the exact words as you can tell us?
Answer. I told him, I says, If you get up there before the jury and they identify you as the person
that stuck that gun up her and says, see how this goes off, I told him, they will hang you.
Question. And that's as near as you can tell what your words to him were?
Answer. Yes, sir.
Question. And what was his response to that?
Answer. It was Will.
98 Nev. 243, 246 (1982) Turner v. State
[Headnote 4]
The respondent concedes that the officer's continued conversation with appellant is a
violation of appellant's constitutional right to remain silent. Nevertheless, not every
constitutional error mandates reversal. Chapman v. California, 386 U.S. 18 (1967). Where the
independent evidence of guilt is overwhelming, the improperly admitted evidence is harmless
error and the resulting conviction will not be reversed. Accord Chapman v. California, supra.
See Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981).
[Headnote 5]
In the instant case, appellant was positively identified by both victims as one of their
assailants. The case against appellant does not rest solely upon circumstantial evidence, but is
predicated upon the testimony of eyewitnesses to the crimes. See Corbin v. State, supra.
Accordingly, the error was harmless beyond a reasonable doubt.
The numerous other issues raised on appeal have been considered and are without merit or
fail to demonstrate prejudicial error.
The judgment of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 246, 246 (1982) Hendricks v. Perkins
JOHN HENDRICKS and HELEN HENDRICKS, Appellants,
v. CLYDE PERKINS, Respondent.
No. 12489
June 3, 1982 645 P.2d 973
Appeal from a judgment quieting title to real property, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Appeal was taken from a judgment of the district court quieting title to defendant to
undivided one-half interest in real property. The Supreme Court held that: (1) there was
substantial evidence that defendant, claiming through his parents, was the legal owner of an
undivided one-half interest in the land in question, although the quit claim deed executed
from the last recorded titleholder to the parents was lost, and {2) where the first clause in
the deed established the parties' intent to convey an undivided one-half interest in the
water rights appurtenant to the interest in land conveyed, a subsequent clause in the
deed conveying all water rights as adjudicated by the state engineer was limited to the
extent of the water rights initially conveyed in the deed.
98 Nev. 246, 247 (1982) Hendricks v. Perkins
question, although the quit claim deed executed from the last recorded titleholder to the
parents was lost, and (2) where the first clause in the deed established the parties' intent to
convey an undivided one-half interest in the water rights appurtenant to the interest in land
conveyed, a subsequent clause in the deed conveying all water rights as adjudicated by the
state engineer was limited to the extent of the water rights initially conveyed in the deed.
Affirmed.
Deaner & Deaner, and Michael A. Davis, Las Vegas, for Appellants.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Respondent.
1. Appeal and Error.
Before the district court will be reversed, the record must reveal that its judgment was clearly erroneous
and not based upon substantial evidence.
2. Quieting Title.
There was substantial evidence in quiet title action that defendant, claiming through his parents, was the
legal owner of an undivided one-half interest in the land in question, although the quit claim deed executed
from the last recorded titleholder to the parents was lost; the record showed the consideration that the
parents paid for the land, that the parents had paid taxes on the land through 1972 and that the defendant
had paid the taxes thereafter, and that the defendant and his parents had continually exercised acts of
ownership over the land.
3. Waters and Water Courses.
Where the first clause in a deed established the parties' intent to convey an undivided one-half interest in
the water rights appurtenant to the interest in land conveyed, a subsequent clause in the deed conveying all
water rights as adjudicated by the state engineer was limited to the extent of the water rights initially
conveyed in the deed.
OPINION
Per Curiam:
Appellants, John and Helen Hendricks, challenge a judgment quieting title to Government
Lots 2 and 3 in Moapa, Nevada, in favor of respondent, Clyde Perkins. Appellants contend
the court erred in finding respondent is the owner of an undivided one-half interest in the land
and water rights at issue.
In February of 1954, appellants purchased an undivided one-half interest in Government
Lots 2 and 3, containing 80 acres more or less," from Frank Perkins.1 The record reflects
appellants were advised, at the time of sale, that respondent's father, Joe Perkins, owned
the other one-half interest in the S0-acre parcel now in question.
98 Nev. 246, 248 (1982) Hendricks v. Perkins
more or less, from Frank Perkins.
1
The record reflects appellants were advised, at the time
of sale, that respondent's father, Joe Perkins, owned the other one-half interest in the 80-acre
parcel now in question.
Respondent's interest in the property at issue dates back to 1918, when his parents, Joe and
Kathryn Perkins, originally purchased an undivided one-half interest in Government Lots 2
and 3, from George S. Auerbach. The record establishes that Auerbach was paid a total of
$800 in exchange for a quit claim deed to the property. However, the Perkinses failed to
record the quit claim deed allegedly executed by the parties. Consequently, George Auerbach
is the last recorded titleholder to the property in question.
Respondent contends the original quit claim deed executed by Auerbach and his parents
has been lost. At trial, respondent introduced a copy of the quit claim deed which recited the
parties' names and described the land in question. The quit claim deed produced by
respondent was not signed or recorded by the parties; it was merely a copy of the original
deed which was allegedly lost.
In Langworthy v. Coleman, 18 Nev. 440 (1884), this court held that a deed is the best
evidence of a conveyance of property, but if testimony is admitted relating to the existence of
such a deed, it cannot be said there was no evidence of a conveyance of the title to the grantee
by the grantor. Likewise, in Miami Holding Corporation v. Matthews, 311 So.2d 802
(Fla.Dist.Ct.App. 1975), the court held that where a deed has been lost and its contents
established, it will be presumed that it was executed in conformity with all the requirements
of the law.
Here, there is substantial evidence in the record that respondent is the legal owner of an
undivided one-half interest in Government Lots 2 and 3. Respondent introduced evidence that
his parents paid George Auerbach $800 in consideration for the land in question. Moreover,
respondent's parents paid taxes on the property from 1920 through 1972; thereafter
respondent paid the taxes. The record also establishes that respondent and his parents
continually exercised acts of ownership over the property from 1918 until present.
[Headnotes 1, 2]
Before the district court will be reversed, the record must reveal that the judgment was
clearly erroneous and not based upon substantial evidence.
____________________

1
Originally, Kathryn and Joe Perkins, respondent's parents, owned the entire 80-acre parcel. In 1946, the
Perkinses sold an undivided one-half interest in the land to their nephew Frank Perkins.
98 Nev. 246, 249 (1982) Hendricks v. Perkins
upon substantial evidence. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 105 (1973). The record
does not establish the district court erred in finding respondent is the owner of an undivided
one-half interest in Government Lots 2 and 3.
Next, appellants contend the district court erred in granting respondent an undivided
one-half interest in the water rights of Government Lots 2 and 3. Appellants claim an absolute
right to all the water affecting the property, pursuant to their land sales agreement with Frank
Perkins, and an adjudication of water rights issued by the State Engineer.
In essence, appellants contend Joe and Kathryn Perkins conveyed all of their water rights
in Government Lots 2 and 3, when they sold an undivided one-half interest in the property to
Frank Perkins in 1946. Appellants claim Frank Perkins, in turn, transferred all of the water
rights to them when they purchased the property in 1954.
The deed transferring an undivided one-half interest in the property from Joe and Kathryn
Perkins to Frank Perkins, provides in pertinent part:
All the lots 4 and 5 of the North West Quarter (1/4) and Lot 6 of the South West
Quarter (1/4) and the South East Quarter (1/4) of the North East Quarter of Section 6,
containing one hundred and eight and thirty two hundredths (108.32) acres also an
undivided one half interest in Lots 2 and 3 in said section 6, all in Township 15 S. R. 66
E., M.D.B. & M. together with all water and water rights heretofor and now
appurtenant to said above described lands. . . .
Also all water rights as adjudicated by the State Engineer of Nevada in the 10th
Judicial Court of the State of Nevada, Clark County, Nevada dated March 24th 1920.
Here, the first clause in the Joseph Perkins to Frank Perkins deed clearly conveys an
undivided one-half interest in the water rights of Government Lots 2 and 3. It is the reference
to the adjudication of water rights by the State Engineer, upon which appellants rely in
claiming exclusive title to all the water rights.
In Fogus v. Ward, 10 Nev. 269 (1875), this court was faced with a similar problem in
construing a deed relating to water rights. The facts in Fogus reflect that the deed in question
granted an undivided one-half interest in a certain ditch and flume. The last clause of the
deed stated, and all the water of said Truckee River which may or can be led or conveyed
through said ditch and flume. On appeal, this court concluded the grantor specifically
limited the deed to an undivided one-half of the property and water privileges. The court
noted: "[W]e think the first clause in the premises of the deed clearly indicates the
intention of the parties thereto, and that the subsequent general clause must be
interpreted as limiting the extent of the grant to its specific and particular description."
98 Nev. 246, 250 (1982) Hendricks v. Perkins
[W]e think the first clause in the premises of the deed clearly indicates the intention of the
parties thereto, and that the subsequent general clause must be interpreted as limiting the
extent of the grant to its specific and particular description.
[Headnote 3]
In the instant case, the first clause in the deed clearly establishes the parties' intent to
convey an undivided one-half interest in the water rights appurtenant to the land in question.
Thus, the subsequent clause in the deed referring to water rights adjudicated by the State
Engineer is limited to the extent of the water rights initially conveyed in the deed.
Accordingly, we affirm the judgment of the district court.
Gunderson, C. J., 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. Nev. Const.,
art. 6, 19; SCR 10.
____________
98 Nev. 250, 250 (1982) Yoscovitch v. Wasson
SANDRA ANN YOSCOVITCH, Appellant, v. DUANE WASSON, Individually;
CAROLYN C. JARA and JOHN JOSEPH JARA, Individually and dba
7-11 MARKET, Respondents.
No. 12561
June 3, 1982 645 P.2d 975
Appeal from judgment dismissing appellant's action with prejudice, Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
Motorcycle passenger, who allegedly was injured when motorcycle collided with
automobile, brought action to recover against minor driver of automobile and persons who
allegedly had sold alcoholic beverages to driver. The district court granted such persons'
motion to dismiss, and passenger appealed. The Supreme Court held that: (1) passenger could
not recover against such persons on theory that there was causal nexus between the sale of
alcoholic beverages and the collision, and (2) alleged violation of statutes prohibiting sale of
liquor to minors did not give rise to civil liability.
Affirmed.
[Rehearing denied July 30, 1982]
W. H. Tobeler and Seymour H. Patt, Reno, for Appellant.
98 Nev. 250, 251 (1982) Yoscovitch v. Wasson
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, and Frann Moore, Reno, for
Respondents.
1. Intoxicating Liquors.
Motorcycle passenger, who allegedly was injured when motorcycle collided with automobile, could not
recover against persons, who sold alcoholic beverages to automobile driver, on theory that there was casual
nexus between such sale and the collision; proximate cause of the injury was to be deemed the driver's
consumption of liquor, rather than its sale.
2. Intoxicating Liquors.
Violation of statutes prohibiting sale of liquor to minors would not be negligence per se, and, thus, an
alleged violation of such statute by persons, who were alleged to have sold liquor to minor driver of
automobile subsequently involved in collision with motorcycle, did not give rise to civil liability. NRS
202.055.
OPINION
Per Curiam:
Appellant, Sandra Ann Yoscovitch, allegedly sustained injuries when the motorcycle on
which she was a passenger collided with an automobile driven by Duane Wasson. Her
complaint alleged that prior to the collision, Wasson, a minor, purchased alcoholic beverages
at a 7-11 market owned by respondents Carolyn and John Jara, and that he thereafter became
intoxicated, ran a stop sign, and caused the collision. Appellant filed suit not only against
Wasson, who failed to answer her complaint, but against respondents. It apparently is
appellant's theory that she can show a causal nexus between the sale of liquor and the later
collision, and that respondents negligently failed to inquire adequately as to Wasson's age.
Respondents filed a motion to dismiss for failure to state a claim upon which relief could be
granted. The district court granted respondents' motion. We affirm the judgment.
[Headnote 1]
In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), we held that a
liquor vendor cannot be held responsible to third persons for injury or death due to an
inebriated driver's conduct. The proximate cause of the injury is deemed to be the purchaser's
consumption of liquor, rather than its sale. See Cole v. Rush, 289 P.2d 450 (Cal. 1955); and
Parsons v. Jow, 480 P.2d 396 (Wy. 1971). Here, as in Hamm v. Carson City Nugget, Inc.,
supra, if civil liability is to be imposed upon a vendor who sells liquor to an inebriated
person, or a minor, it should be accomplished by legislative act. See also Mills v. Continental
Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970).
98 Nev. 250, 252 (1982) Yoscovitch v. Wasson
[Headnote 2]
Additionally, appellant contends the district court erred in concluding that she could not
pursue a civil action based on alleged criminal violations of state statutes prohibiting the sale
of liquor to minors.
1
Appellant suggests that respondents' alleged violations of criminal
statutes prohibiting the sale of liquor to minors, render them negligent per se.
In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), and in Davies v.
Butler, 95 Nev. 763, 602 P.2d 605 (1979), we specifically rejected the argument that violation
of a penal statute regulating the sale of intoxicating liquor constitutes negligence per se.
Accordingly, we must conclude that an alleged violation of NRS 202.055 and City of Reno
Municipal Code 4.04.240(a) does not give rise to civil liability.
Affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
The statutes at issue provide:
NRS 202.055:
Every person who knowingly sells, gives or otherwise furnishes intoxicating liquors to a person under
the age of 21 years, is guilty of a misdemeanor.
City of Reno municipal Code 4.04.240(a):
It shall be unlawful for any person other than a parent, guardian or physician to sell, deliver or give
away or otherwise furnish any alcoholic beverages to any person under the age of twenty-one years, or
leave or deposit any such alcoholic beverage in any place with the intent that the same shall be procured
by any person under the age of twenty-one years.

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 253, 253 (1982) NL Industries v. Eisenman Chemical Co.
NL INDUSTRIES, INC.; and THE 25 CORPORATION, INC., Appellants, v. EISENMAN
CHEMICAL COMPANY; and MARVEL-JENKINS RANCHES, a Copartnership Composed
of LOUISE M. MARVEL, THE ESTATE OF ERNEST R. MARVEL, RICHARD T.
MARVEL, MARY (aka MARY O.) MARVEL, THOMAS J. MARVEL, ROSITA (aka
ROSITA P.) MARVEL, JOHN W. MARVEL and WILBURTA MARVEL, Respondents.
No. 13646
June 3, 1982 645 P.2d 976
Appeal from Order Permitting Immediate Occupancy. Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Owner of mineral lease appealed from judgment of the district court which granted mining
company exclusive and immediate possession of the property. The Supreme Court,
Manoukian, J., held that: (1) holding of mineral reserves is a mining use, and (2) immediate
extraction and production of mineral resources is not a more necessary public use than the
holding of ore in reserve for future mining so as to permit one intending immediate extraction
to condemn a mineral interest held by a company intending to hold the ore in reserve for
future mining.
Reversed.
[Rehearing denied August 17, 1982]
Hill, Cassas, deLipkau & Erwin, Reno; Marshall, Bratter, Greene, Allison & Tucker, and
Richard L. Bond, New York, New York, for Appellant NL Industries, Inc.
C. E. Horton, Ely; Davis, Graham & Stubbs and Neil Peck, Denver, Colorado, for
Appellant The 25 Corporation, Inc.
Hoy & Miller, Chartered, Elko; Van Cott, Bagley, Cornwall & McCarthy and E. Scott
Savage, Salt Lake City, Utah, for Respondent Eisenman Chemical Company.
John E. Marvel, Elko; F. Alan Fletcher, Salt Lake City, Utah, for Respondent
Marvel-Jenkins Ranches.
Smith & Gamble, Carson City; Evans, Kitchel & Jenckes, Phoenix, Arizona, for Amici
Curiae Phelps Dodge Corp.; ASARCO, Inc.; Sunshine Mining Co.; Milchem, Inc.; Noranda
Exploration, Inc.; and Genstar Cement and Lime Co.
98 Nev. 253, 254 (1982) NL Industries v. Eisenman Chemical Co.
Durney, Guinan & Brennan, Reno, for Amicus Curiae Dresser Industries, Inc.
Vargas & Bartlett, and Robert W. Marshall, Reno, for Amicus Curiae Duval Corp.
Ross P. Eardley, Elko, for Amici Curiae Bullion Monarch Company, and Metals
Incorporated.
Charles M. McGee, Reno, for Amicus Curiae Western Gas, Oil & Mining, Ltd.
1. Eminent Domain.
Without a right on the part of the mining company to condemn, there could be no right to immediate
occupancy.
2. Eminent Domain.
Holding of mineral reserves is a mining use for purposes of mining company's power of eminent domain.
NRS 37.030, subd. 3.
3. Eminent Domain.
Immediate extraction and production of mineral resources is not a more necessary public use than holding
ore in reserve for future mining so as to give a mining company which intends immediate extraction to take
a mineral deposit by eminent domain from a mining company which is holding the ore in reserve. NRS
37.030, subd. 3.
4. Eminent Domain.
Nevada's eminent domain statutes do not authorize condemnation of property for mining purposes when
such property is already devoted to a legitimate mining purpose and the condemnor's proposed activities
would extinguish or seriously interfere with condemnee's mining use.
5. Eminent Domain.
Mining, being of paramount interest, is a public use and the power of eminent domain can be exercised
on behalf of that industry. NRS 37.010, subd. 6.
6. Eminent Domain.
If a mining company were to purchase and hold land for a nonmining, nonpublic purpose, there would be
no justification for exempting the property from condemnation by another mining company simply because
the current owner was a mining entity. NRS 37.010, subd. 6.
7. Eminent Domain
Condemnation of property already appropriated for public use is permitted if a more necessary public use
is contemplated by the condemnor. NRS 37.030, subd. 3.
8. Eminent Domain.
Condemnation is not permitted when the condemnee's actual or contemplated public use is the same as
that proposed by the condemnor and the proposed use will defeat or seriously interfere with the
condemnee's use. NRS 37.030, subd. 3.
9. Statutes.
Court will not construe statutes in a manner which will bring about unreasonable result or result contrary
to the legislature's purpose.
98 Nev. 253, 255 (1982) NL Industries v. Eisenman Chemical Co.
OPINION
By the Court, Manoukian, J.:
Appellants NL Industries and The 25 Corporation,
1
appeal from a district court order
granting respondent Eisenman Chemical Company exclusive and immediate occupancy of a
portion of disputed mining property near Carlin, Nevada. The order grants respondent
Eisenman the right to extract and sell barite ore from the property and to use its surface areas
to complete extraction from a nearly exhausted claim. The district court issued the order
pursuant to NRS 37.100, which provides for immediate occupancy pending judgment in a
condemnation proceeding if the equities favor the plaintiff and if the relative damages which
may accrue indicate a need for immediate relief.
Appellants contend that the order was improper in this case. They allege, inter alia, that
because the disputed property was already appropriated for mining use and Eisenman's
proposed action would destroy that use, condemnation of mineral deposits was impermissible
and therefore, immediate occupancy was improperly granted. Under the circumstances
revealed by the record now before us, we agree with appellants' contention.
NL and Eisenman are competitors in the barite mining industry. Since 1973, Eisenman has
actively mined and processed barite from property known as the Lakes No. 1 unpatented lode
mining claim (hereinafter Claim).
Since 1964, The 25 Corporation, through predecessors in interest, has owned the fee
interest in the surface estate of a large cattle ranch in northeastern Nevada. The mineral rights
to The 25 Corporation's ranch are shared between The 25 Corporation and respondent
Marvel-Jenkins, each owning a 50 percent undivided interest. The 25 Corporation has the
exclusive right to lease the mineral rights and did so lease eight sections of land known as the
Lakes Property (hereinafter Property) in October 1980 to NL. NL had held contractual
rights to prospect for minerals on the ranch since 1979. The Property includes and surrounds
the smaller Claim area. The NL lease will terminate in 10 years if no minerals from the
Property have been put into commercial production by that time. The Marvel-Jenkins 50
percent interest is subject to defeasance {reverting to The 25 Corporation) if minerals are
not produced by mid-19S4.
____________________

1
Marvel-Jenkins Ranches, a co-partnership and owner of an undivided 50 percent interest in the mineral
rights on the disputed property, originally joined this action as a co-appellant. Marvel-Jenkins has since
withdrawn its appeal, having settled with Eisenman and adopted the position of co-respondent.
98 Nev. 253, 256 (1982) NL Industries v. Eisenman Chemical Co.
defeasance (reverting to The 25 Corporation) if minerals are not produced by mid-1984.
[Headnote 1]
In its complaint, Eisenman alleges that under theories of reformation, equitable estoppel
and adverse possession, it owns a 75 percent undivided mineral interest in the Claim,
including extralateral and appurtenant rights, and seeks to condemn the remaining 25 percent.
2
Alternatively, Eisenman seeks to condemn all of appellants' interest in the Claim (including
extralateral/appurtenant rights) if it is determined that Eisenman does not otherwise own a 75
percent interest. Eisenman also alleges that the lease between NL and The 25 Corporation
should be abrogated, because the two corporations were engaged in a conspiracy to deprive
Eisenman of the lease and the Marvel-Jenkins group of their 50 percent interest in the
Property's mineral rights. The only part of the complaint relevant to this appeal concerns
Eisenman's alleged right to condemn the mineral interest in the Property. Without a right to
condemn, there can be no right to immediate occupancy. Shaklee v. District Court, 636 P.2d
715 (Colo. 1981).
The Property contains an estimated eight million tons of barite ore, worth approximately
$40,000,000. The immediate occupancy order grants Eisenman the right to extract
approximately 190,000 tons of ore on the Property outside the Claim. The order also grants
Eisenman exclusive access to surface areas on the Property to conduct ancillary mining
activities to extract the ore that remains within the Claim's vertical boundaries.
Based on testimony and other evidence presented at the hearing on the immediate
occupancy order below, the district court made two findings pertinent to this appeal: (1)that
appellant NL had no plans to mine the Property immediately, but was holding the barite in
reserve for up to ten years (the initial lease period); and (2) that respondent Eisenman had a
comprehensive mining plan calling for immediate extraction of the disputed ore.
The district court based its decision to grant the order permitting immediate occupancy on
its conclusion that the holding of mineral reserves is a mining use, but the development and
mining of mineral rights or a mineral deposit is a more necessary public use."3
[Headnotes 2-4]
____________________

2
Eisenman's complaint included causes of action alleging that Eisenman owns a 75 percent interest in the
Claim through record chain of title. In an order granting partial summary judgment, the district court appears to
have resolved these causes of action in favor of appellants.
98 Nev. 253, 257 (1982) NL Industries v. Eisenman Chemical Co.
and mining of mineral rights or a mineral deposit is a more necessary public use.
3

[Headnotes 2-4]
We agree that the holding of mineral reserves is a mining use, but we reject the lower
court's determination that immediate extraction and production of mineral resources is a more
necessary public use than holding ore in reserve for future mining. It is beyond question that
Eisenman's proposed use, extraction of barite ore, will entirely destroy NL's intended use,
namely, to maintain a reserve of barite for future production. Nevada's eminent domain
statutes do not authorize condemnation of property for mining purposes when such property
is already devoted to a legitimate mining purpose and the condemnor's proposed activities
would extinguish or seriously interfere with the condemnee's mining use.
[Headnote 5]
It is well established in this state that mining, being of paramount interest, is a public use
and that the power of eminent domain can be exercised on behalf of that industry. NRS
37.010(6).
4
See also, State ex rel. Standard Slag Co. v. District Court, 62 Nev. 113, 143 P.2d
467 (1943); Goldfield Consolidated Milling & Transportation Co. v. Old Sandstorm Annex
Gold Mining Co., 38 Nev. 426, 150 P.313 (1915); Dayton Gold & Silver Mining Co. v.
____________________

3
NRS 37.030(3) provides that property already appropriated to a public use may be condemned but such
property shall not be taken unless for a more necessary public use than that to which it has been already
appropriated.

4
NRS 37.010 enumerates the public uses for which the right of eminent domain may be exercised, including:
6. Mining, smelting and related activities. Mining, smelting and related activities as follows:
(a) Mining and related activities, which are recognized as the paramount interest of this state.
(b) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to facilitate the
milling, smelting or other reduction of ores, or the working of mines, and for all mining purposes; outlets,
natural or otherwise, for the deposit or conduct of tailings, refuse, or water from mills, smelters, or other
work for the reduction of ores from mines, mill dams, natural gas or oil pipe lines, tanks or reservoirs;
also an occupancy in common by the owners or possessors of different mines, mills, smelters or other
places for the reduction of ores, or any place for the flow, deposit or conduct of tailings or refuse matter;
also necessary land upon which to erect smelters and to operate the same successfully, including
deposition of fine flue dust, fumes and smoke.
98 Nev. 253, 258 (1982) NL Industries v. Eisenman Chemical Co.
& Silver Mining Co. v. Seawell, 11 Nev. 394 (1876). The circumstances of this case,
however, create an issue of first impression for this court. Despite respondent's contentions to
the contrary, in no case has the right to condemn mineral deposits been at issue. In the
Nevada cases noted above, this court was concerned only with the right to condemn property
to conduct ancillary mining purposes for development of the condemnor's existing mine. And
we are aware of no case from any other jurisdiction which directly addresses the issue
confronting us in this appeal.
[Headnote 6]
We find nothing in Nevada statutes or prior case law that would absolutely preclude
condemnation of property for the purpose of extracting the mineral deposits contained
therein. See Milchem, Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968). Nor do we
find that appellants seriously question this general authority to condemn mineral deposits;
they claim, instead, that Chapter 37 does not authorize one mining company to condemn
another mining company's ore. That argument improperly focuses on the label attached to the
condemnee and condemnor. The essential determinant is the purpose which the condemnee
and condemnor intend for the property. It is conceivable that a mining company might
purchase and hold land for a non-mining, non-public purpose. Under such circumstances, we
see no justification for exempting property from condemnation simply because the owner is a
mining entity. Ultimately, when the allegations of Eisenman's complaint are fully litigated at
trial, perhaps proof will be adduced that NL is not, in fact, holding the property in question
for the purpose of mining. However, the district court found, on the basis of the record as
presently developed, that NL's use of the property was mining-related and therefore, a public
use. The prior public use doctrine is well recognized in the law of eminent domain:
[P]roperty of a private corporation devoted to a public use, although not clothed with a
specific exemption from subsequent condemnation, cannot be taken to be used in the
same manner for the same purpose by a different corporation, even by express
enactment of the legislature.
1 J. Sackman, Nichols' Law Of Eminent Domain, 2.2[9], n. 3 (rev. 3d ed. 1981). See also,
Utah Copper Co. v. Stephen Hayes Estate, Inc., 31 P.2d 624 (Utah 1934), cert. denied 295
U.S. 742 (1935).
98 Nev. 253, 259 (1982) NL Industries v. Eisenman Chemical Co.
[Headnotes 7, 8]
NRS 37.030(3) permits condemnation of property already appropriated for public use if a
more necessary public use is contemplated by the condemnor. That statute, however, cannot
support condemnation when the condemnee's actual or contemplated use is the same as that
proposed by the condemnor, and the proposed use will defeat or seriously interfere with the
condemnee's use. See Standard Slag, supra; Marsh Mining Co. v. Inland Empire Mining &
Milling Co., 165 P. 1128 (Idaho 1916); State ex rel. Butte-Los Angeles Mining Co. v. District
Court, 60 P.2d 380 (Mont. 1936).
Respondents place particular reliance on our decision in Goldfield, supra, in which we
stated that [t]he mere possibility that the land may some time in the future be used by [the
condemnee] for mining purposes will not prevent condemnation. Id. at 446, 150 P. at 319. In
the instant case, however, the record does not show that NL's mining use is a mere
possibility. The condemnee in Goldfield had ceased using the subject property for mining
purposes for some time. Here, NL had leased the property a mere five days before Eisenman
commenced this litigation. The record would not support a finding of abandonment of mining
purpose, nor, of course, did the district court make such a finding.
5

[Headnote 9]
We are also impressed by the public policy considerations which militate against the
district court decision. The record in this case, as well as the briefs of several amici curiae,
support appellants' position that mineral reserves are as important to the welfare of the mining
industry as actual production of ore, particularly for companies that produce industrial
minerals such as barite, which is primarily used to facilitate oil and gas exploration.
Development of barite mining property consumes considerable time and expense. In order to
maintain a continuous and reliable supply of barite of reasonable quality, substantial reserves
are necessary. Were we to adopt the district court's interpretation of NRS 37.030{3), we
would impose uncertainty and instability in an important Nevada industry.
____________________

5
Respondents contend that NL does not intend to mine the property, that it leased the property merely to
withhold barite from competitors and/or to circumvent the Marvel-Jenkins interest in the mineral rights. The
district court's findings do not support these contentions. Those findings accompany an order granting relief
pending final judgment; they are, therefore, interim in nature and may change after full trial on the merits. See
NRS 37.100. If Eisenman ultimately proves that NL does not have a good faith intent to mine the property, it
may be that the property would be subject to condemnation, since NL could not then be said to hold the reserves
for a legitimate mining purpose.
98 Nev. 253, 260 (1982) NL Industries v. Eisenman Chemical Co.
court's interpretation of NRS 37.030(3), we would impose uncertainty and instability in an
important Nevada industry. Such a result would thwart the clear intent of the legislature--to
encourage the development of mining in this state. We will not construe statutes in a manner
which will bring about an unreasonable result, or a result contrary to the legislature's purpose.
Thomas v. State, 88 Nev. 382, 498 P.2d 1314 (1972); Cannon v. Taylor, 87 Nev. 285, 486
P.2d 493 (1971), modified, 88 Nev. 89, 493 P.2d 1313 (1972).
We need not reach the other issues raised by appellants.
6
The district court's decision is
reversed and the order permitting immediate occupancy is vacated.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

6
We recognize that appellants acknowledge the propriety of condemnation for ancillary mining purposes
necessary to extract ore within the Claim boundaries, if Eisenman proves ownership rights to the Claim at trial,
and if such ancillary use would not defeat NL's own current and anticipated mining uses.

7
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 260, 260 (1982) Real Estate Div. v. Jones
REAL ESTATE DIVISION, DEPARTMENT OF COMMERCE, STATE OF NEVADA,
Appellant, v. ROBERT V. JONES, Respondent.
No. 13154
GERALD RANSDELL and VICKIE L. JONES, Appellants, v. REAL ESTATE DIVISION,
DEPARTMENT OF COMMERCE, STATE OF NEVADA, Respondent.
No. 13551
June 8, 1982 645 P.2d 1371
Consolidated appeals from district court judgments reversing and sustaining decision of
the Nevada Real Estate Advisory Commission, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Judicial review was sought of decisions of the Nevada Real Estate Advisory Commission.
The district court initially reversed and remanded, and following remand, sustained modified
action of the Commission, and consolidated appeals were taken.
98 Nev. 260, 261 (1982) Real Estate Div. v. Jones
taken. The Supreme Court held that: (1) although licensed salesman may have violated statute
by taking her briefcase containing earnest money check on ten-day family vacation,
suspending her license therefor was abuse of discretion, and (2) since case against the
salesman failed, findings against supervising broker regarding culpability, incompetence or
negligence also failed.
Case No. 13154 affirmed; Case No. 13551 reversed.
Richard H. Bryan, Attorney General, Franklin C. Hoover and Steven F. Stucker, Deputy
Attorneys General, Carson City, for Real Estate Division, Department of Commerce, State of
Nevada.
Gladstone & Stark, Las Vegas, for Robert V. Jones, Gerald Ransdell and Vickie L. Jones.
1. Brokers.
Revocation or suspension of lawfully acquired real estate salesman's or broker's license constitutes abuse
of discretion by the disciplining authority unless the record reflects support in the form of sufficient
competent evidence. NRS 645.630.
2. Brokers.
Uncorroborated hearsay evidence will not warrant revocation or suspension of a lawfully acquired real
estate salesman's or broker's license. NRS 645.630.
3. Brokers.
Although by taking her briefcase containing earnest money check on ten-day family vacation licensed
real estate salesperson may have violated statute requiring a salesman to promptly pay over a deposit to the
broker, it was abuse of discretion to suspend her license where retention of the check was inadvertent.
NRS 645.310, subd. 2, 645.630.
4. Brokers.
Where record did not support disciplinary action taken by Real Estate Advisory Commission against
licensed real estate salesman, findings against licensed broker regarding his culpability, incompetence or
negligence as supervising broker in transaction also failed. NRS 645.630.
OPINION
Per Curiam:
These consolidated appeals stem from a real estate transaction which became the subject
of a disciplinary hearing before the Nevada Real Estate Advisory Commission
(Commission). At the conclusion of the hearing the Commission revoked the real estate
corporate broker's license of Gerald Ransdell and the salesman's licenses of husband and
wife, Robert Jones and Vickie Jones.
98 Nev. 260, 262 (1982) Real Estate Div. v. Jones
Ransdell and the salesman's licenses of husband and wife, Robert Jones and Vickie Jones.
Thereafter, under a petition for review, the district court reversed the Commission's decision
as to Robert Jones and remanded for further consideration the Commission's ruling against
Ransdell and Vickie Jones. The Commission then appealed to this Court for relief from the
district court's decision and order. Upon remand, the Commission modified its initial ruling
and suspended the licenses of Ransdell and Vickie Jones for the period of one year. The latter
parties now urge this Court to reverse the decision of the district court sustaining the modified
action of the Commission. We find ample basis for affirming the district court's initial ruling
as it pertained to Robert Jones, but are compelled to reverse its affirmance of the
Commission's modified decision regarding Ransdell and Vickie Jones.
The distillate of the issues on appeal requires this Court to determine whether the district
court erred: (1) in finding an abuse of discretion on the part of the Commission in its initial
rulings; and (2) in finding substantial evidence in the record to support the Commission's
one-year suspension of the licenses of Ransdell and Vickie Jones.
The operative facts surround a real estate transaction between Capital Development
Corporation (Capital) as purchaser, and Theodore and Mildred Ortiz as sellers of a five acre
parcel of unimproved land situated in Henderson, Nevada. Vickie Jones presented the
purchase offer and a photocopy of a $1,000 earnest money check made payable to the
intended escrow depositary, Fidelity Title Company, to the listing broker, Fidelity Realty
Company.
1
Mrs. Jones was a licensed salesman employed by Mojave Realty and Investment
Company (Mojave Realty). The aforesaid offer was given to Ed St. John, a salesman
employed by Fidelity Realty, who thereafter opened escrow at Fidelity Title Company. The
written offer and acceptance agreement referenced receipt of $1,000 by Capital as earnest
money to be applied against the total purchase price, and the maker of the earnest money
check was also Capital. The escrow instructions referred to the earnest money as being with
the broker and required its deposit into escrow prior to closing. Before escrow opened, Mrs,
Jones inadvertently took the earnest money check with her on vacation. In the meantime,
problems surfaced concerning the transaction and the purchaser decided to cancel
escrow.
____________________

1
There is no relationship between Fidelity Title Company and Fidelity Realty Company.
98 Nev. 260, 263 (1982) Real Estate Div. v. Jones
meantime, problems surfaced concerning the transaction and the purchaser decided to cancel
escrow. When Mrs. Jones returned, her husband, Robert Jones, informed her that the
transaction would not close and secured the return of the earnest money check. Thereafter a
complaint was filed by sellers and the disciplinary hearing ensued.
As a predicate for its revocation of the three licenses of the petitioners below, the
Commission in substance concluded that: (1) Petitioners Robert and Vickie Jones violated
NRS 645.630
2
by concealing their status as agent and principals in the transaction and by
their nondisclosure of the relationship between Capital, the purchaser, and Mojave Realty, the
purchaser's agent;
3
(2) that petitioners Ransdell and Vickie Jones failed, intentionally or
otherwise, to deposit in escrow or with Mojave Realty the $1,000 earnest money payment as
required by NRS 645.3104 and 645.630;5 and {3) that petitioner Ransdell improperly
supervised the Mojave Realty sales personnel.
____________________

2
NRS 645.630 provided in part at the time pertinent to this action:
The commission may suspend, revoke or reissue subject to conditions any license issued under the
provisions of this chapter at any time where the licensee has, by false or fraudulent representation,
obtained a license, or where the licensee, whether or not acting as a licensee, is found to be guilty of:
. . .
4. Acting for more than one party in a transaction without the knowledge of all parties for whom he
acts.
. . .
14. Negligence, or failure to disclose or to ascertain and disclose to any person with whom such
licensee is dealing, any material fact, data or information concerning or relating to the property with
which such licensee is dealing, which such licensee knew.
. . .
16. The claiming or taking by a licensee of any secret or undisclosed amount of compensation,
commission or profit or the failure of a licensee to reveal to the employer of such licensee the full amount
of such licensee's compensation, commission or profit under any agreement authorizing or employing
such licensee to sell, buy or exchange real estate for compensation or commission prior to or coincident
with the signing of such agreement evidencing the meeting of the minds of the contracting parties,
regardless of the form of such agreement, whether evidenced by documents in an escrow or by any other
or different procedure.
. . .

3
All three licensees were corporate officers of Capital Development Corporation, the stock of which was
owned entirely by Robert and Vickie Jones. Mojave Realty and Investment Company was totally owned by
Capital Development Corporation. At the time of the transaction, Robert and Vickie Jones were both real estate
salesmen employed by Mojave Realty.
98 Nev. 260, 264 (1982) Real Estate Div. v. Jones
by NRS 645.310
4
and 645.630;
5
and (3) that petitioner Ransdell improperly supervised the
Mojave Realty sales personnel. The district court determined, upon hearing the petition for
review, that the finding of nondisclosure or concealment was unsupported by substantial
competent evidence and that there was insufficient evidence upon which to revoke the license
of Robert Jones. Additionally, the district court held that error arose by reason of the
Commission's refusal to supply petitioners a copy of the written complaint submitted by Mr.
and Mrs. Ortiz as required by NRS 645.680(4)
6
and by its denial of a continuance of the
hearing under the circumstances. We merely note, without need for further discussion, our
concurrence with the holding of the district court in each of the foregoing particulars. In our
view, however, the entire matter should have been reversed on the record as to all of the
licensees.
[Headnotes 1, 2]
Our task on appeal has been to search the record for a foundation of substantial evidence
upon which to validate the rulings of the Commission. NRS 233B.121(8). It is settled that a
revocation or suspension of a lawfully acquired license constitutes an abuse of discretion by
the disciplining authority unless the record reflects support in the form of sufficient
competent evidence. Uncorroborated hearsay evidence does not measure up to the required
standard. Walker v. City of San Gabriel, 129 P.2d 349 (Cal. 1942); Biegler v. Nevada Real
Est. Div., 95 Nev. 691, 601 P.2d 419 (1979).
____________________

4
NRS 645.310 provided in part at the time pertinent to this action:
1. All deposits accepted by every person, copartnership, corporation or association holding a real
estate broker's license under the provisions of this chapter, which deposits are retained by such real estate
broker pending consummation or termination of the transaction involved, shall be accounted for in the
full amount thereof at the time of the consummation or termination.
2. Every real estate salesman, promptly on receipt by him of a deposit on any transaction in which he
is engaged on behalf of a broker, shall pay over the deposit to the real estate broker.

5
NRS 645.630(7) provided at the time pertinent to this action:
7. Failing, within a reasonable time, to account for or to remit any moneys coming into his possession
which belong to others.

6
NRS 645.680(4) provided at the time pertinent to this action;
4. The licensee shall be given at least 30 days' prior notice in writing by the real estate division of the
date, time and place of the hearing, which notice shall contain an exact statement of the charges filed,
together with a copy of the complaint and copies of any and all communications, reports, affidavits or
depositions in possession of the real estate division relevant to the complaint.
98 Nev. 260, 265 (1982) Real Estate Div. v. Jones
[Headnote 3]
In the instant case, the Commission found that Vickie Jones fraudulently misrepresented
the existence of earnest money and the deposit thereof in trust with Mojave Realty. No
competent evidence supportive of such finding exists in the record. To the contrary, the
sellers and their agent were provided a photocopy of a check made payable to Fidelity Title
Company and were informed via the written offer that it was receipted by the buyer, Capital.
As far as the record reveals, Ed St. John of Fidelity Realty Company informed the title officer
to indicate in the escrow instructions that the earnest money was with the broker. It is clear
that the check made payable to the title company could not have been deposited in Mojave
Realty's trust account and in any event it was to be delivered to Fidelity Title Company prior
to the close of escrow. There is no evidence suggesting the check would have been
dishonored upon presentment. Based upon the aforementioned factual findings of
nondisclosure and fraudulent misrepresentation of earnest money, neither of which have
substantial competent evidential support, the Commission entered conclusions of law against
Vickie Jones regarding, inter alia, false promises, failure to account, nondisclosure and
failure to deal fairly. All are without substantial basis in the record. It is true, of course, that
Vickie Jones may have violated the literal terms of NRS 645.310(2) by taking her briefcase
containing the earnest money check on the ten-day family vacation. It is unrefuted on the
record, however, that the retention of the check by Mrs. Jones was inadvertent. Such human
frailty, in the context of the single incident here presented, did not, therefore, rise to the level
of perfidy, incompetence or negligence which would justify the imposition of either a
revocation or suspension of her license. In short, the record does not reflect evidence of the
kind of conduct described by the Commission's findings of fact and conclusions of law
regarding Vickie Jones. Whether evidence of a substantial nature could have been produced
against her is futile conjecture. The Real Estate Division, having the burden of proof, elected
to content itself with uncorroborated hearsay and inconclusive affidavits. No attempt was
made by the Real Estate Division to have the complaining witnesses or the knowledgeable
salesman for Fidelity Realty Company present at the hearing. The resulting evidence did not
support the exercise of the Commission's discretion in the revocation or suspension of
petitioners' licenses. Walker v. City of San Gabriel, supra.
98 Nev. 260, 266 (1982) Real Estate Div. v. Jones
[Headnote 4]
Since we have ruled that the record does not support the Commissions's action against
Robert and Vickie Jones it follows that the findings against Ransdell regarding his
culpability, incompetence or negligence as supervising broker in the transaction must also
fail. Other issues not specifically addressed in this opinion are deemed to be without merit.
The decision of the Commission both initially and as later modified does not meet the
substantial evidence test. Accordingly, the judgment of the district court is affirmed as to case
number 13154, and reversed as to case number 13551.
____________
98 Nev. 266, 266 (1982) Franklin v. State
ALAN DARRELL FRANKLIN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13130
June 15, 1982 646 P.2d 543
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted in the district court of burglary, robbery with use of deadly
weapon and two counts of attempted sexual assault with use of deadly weapon. He appealed.
The Supreme Court, Manoukian, J., held that: (1) trial court's rejection of requested
instruction regarding defendant's failure to testify constituted error; however, error was
harmless, and (2) admission of evidence indicating defendant's refusal to answer question by
police officer constituted error; however, error was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland and James W. Erbeck, Deputy District Attorneys, Clark County, for
Respondent.
1. Courts.
In cases determining complete retroactivity or prospectivity of new constitutional rules, factors to be
considered are purpose of rule, reliance on prior, contrary law, and effect retroactive application would
have on administration of justice.
98 Nev. 266, 267 (1982) Franklin v. State
2. Courts.
Decision in Carter v. Kentucky requiring courts to honor request for cautionary instructions that
defendant in criminal trial may not be compelled to testify, in order to comport with defendant's privilege
against self-incrimination is applicable to cases pending on direct review when the United States Supreme
Court announced its decision. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
In criminal prosecution which was pending on direct appeal when United States Supreme Court rendered
decision in Carter v. Kentucky requiring courts to honor requests for cautionary instructions in order to
comport with defendant's Fifth Amendment privilege against self-incrimination, trial court committed error
by refusing defendant's requested instruction that it is a constitutional right of defendant in criminal trial
that he may not be compelled to testify; however, error was harmless since competent evidence of
defendant's guilt was overwhelming. U.S.C.A.Const. Amend. 5.
4. Criminal Law
Failure of trial court in criminal prosecution to give requested instruction regarding defendant's Fifth
Amendment privilege against self-incrimination is not reversible error if court determines that it was
harmless beyond reasonable doubt. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
It is constitutionally impermissible to admit evidence of defendant's invocation of his Fifth Amendment
privilege to remain silent. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
In criminal prosecution, trial court erred by denying defendant's motion in limine to exclude statement
indicating his desire not to answer questions about what he did to one of the victims after he forced her to
disrobe and touched her; however, error was harmless where prosecution did not emphasize silence or use
it to overtly foment an adverse inference of guilt in minds of jury, defendant's refusal to answer came in
midst of unbroken chain of voluntary statements, and evidence of defendant's guilt was overwhelming.
U.S.C.A.Const. Amend. 5.
OPINION
By the Court, Manoukian, J.:
A jury convicted the appellant, Alan Darrell Franklin, of burglary, robbery with use of a
deadly weapon and two counts of attempted sexual assault with use of a deadly weapon.
Franklin seeks reversal on several grounds. We address two of appellant's assignments of
error: (1) the trial court's rejection of appellant's requested instruction regarding a defendant's
failure to testify, and (2) the admission of evidence indicating appellant's refusal to answer a
question by a police officer. We determine that although the trial court erred in both
instances, the errors were harmless beyond a reasonable doubt and do not warrant
reversal of the conviction.
98 Nev. 266, 268 (1982) Franklin v. State
the errors were harmless beyond a reasonable doubt and do not warrant reversal of the
conviction.
According to the testimony of prosecution witnesses, in the early morning hours of
February 6, 1980, two women, Cathy and Vivian, were opening a Las Vegas store for
business. Franklin entered the store and threatened both women with a butcher knife, ordering
them into an office. Franklin forced one of the women, Vivian, to open the store's cash
register, from which he took bills and a roll of quarters. Appellant took Vivian into a
storeroom and, according to Vivian, forcefully removed her blouse, pulled down her slacks
and underwear and penetrated her vagina with his finger. Vivian also testified that Franklin at
least partially penetrated her with his penis.
The other woman, Cathy, called the police, who arrived while Franklin was still in the
storeroom. According to the first officer at the scene, Vivian emerged from the storeroom
upset and only partially clothed. The police recovered currency and a roll of quarters from
Franklin's pockets.
Franklin was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
One officer testified that Franklin said, I'm so stupid, I don't know why I tried it. Later that
morning, after again receiving a Miranda warning, Franklin was interviewed by a Henderson
Police Department detective, to whom Franklin admitted that he had had a knife, forced the
women to give him the money, told Vivian to take off her clothes, and touched her. When
asked what he did to her, he replied, Well, I'd rather not say at this time. The detective
ceased this particular inquiry, but continued the interview.
1. The Cautionary Jury Instruction.
The major issue on appeal is whether the trial court committed reversible error by refusing
the following jury instruction requested by appellant:
It is a constitutional right of a defendant in a criminal trial that he may not be
compelled to testify. You must not draw any inference from the fact that he does not
testify. Further, you must neither discuss this matter nor permit it to enter into your
deliberations in any way.
1
The recent Supreme Court decision of Carter v. Kentucky,
450 U.S. 2SS {19S1), requires courts to honor requests for such cautionary
instructions, in order to comport with a defendant's Fifth Amendment privilege
against self-incrimination.
____________________

1
Appellant's counsel expressly declined a related instruction, which, if requested, must be given pursuant to
NRS 175.181. The statutory instruction provides:
[I]n accordance with a right guaranteed by the constitution, no person can be compelled in a criminal
action to be a witness against himself.
98 Nev. 266, 269 (1982) Franklin v. State
The recent Supreme Court decision of Carter v. Kentucky, 450 U.S. 288 (1981), requires
courts to honor requests for such cautionary instructions, in order to comport with a
defendant's Fifth Amendment privilege against self-incrimination. Respondent concedes that
the trial court's refusal of the requested instruction constitutes error under Carter. The state
claims, however, that the Carter decision should not be applied retroactively to this case. The
Carter decision is silent as to its retroactive application.
[Headnote 1]
We are concerned here only with partial retroactivity; Franklin's judgment of conviction
was not final at the time the Carter rule was announced in March 1981. Although the practice
is not universal, the Supreme Court has noted that generally, a new rule is applicable to cases
pending on direct review when the rule is announced. Linkletter v. Walker, 381 U.S. 618, 627
(1965). But see, Stovall v. Denno, 388 U.S. 293 (1967).
2

In Tehan v. United States, 382 U.S. 406 (1966), the Court was required to determine the
retroactivity of the rule established in Griffin v. California, 380 U.S. 609 (1965): adverse
comment by a prosecutor or judge upon a defendant's failure to testify violates the Fifth
Amendment privilege against self-incrimination. The Tehan Court determined that on
balance, retroactivity of the Griffin rule to cases in which the judgment was final on the date
of Griffin's issuance was not warranted. The Court noted, however, that the question in Tehan
was not pure prospectivity of Griffin, [n]or [was] there any question of the applicability
of the Griffin rule to cases still pending on direct review at the time it was announced. Id. at
409, n. 3 (emphasis added).
[Headnotes 2, 3]
In Griffin, the Court anticipated and reserved the related constitutional question raised by
Carter. Griffin, supra at 615, n. 6. The Carter decision makes clear that both the Griffin and
Carter rulings serve the same purpose and support the same proposition--that a defendant
cannot be penalized for the exercise of his constitutional right not to testify.
____________________

2
In cases determining complete retroactivity or prospectivity of new constitutional rules, the Supreme Court
has consistently considered three factors: (1) the purpose of the rule; (2) the reliance on prior, contrary law; and
(3) the effect retroactive application would have on the administration of justice. See Tehan v. United States, 382
U.S. 406 (1966). We have adopted the same analysis to determine the retroactivity of new Supreme Court
rulings in which retroactive effect has been left undecided. See Hatley v. State, 97 Nev. 360, 630 P.2d 1225
(1981).
98 Nev. 266, 270 (1982) Franklin v. State
exercise of his constitutional right not to testify. Carter, supra at 301. We are satisfied that the
Carter decision warrants that same retroactive effect given the analogous Griffin rule; Carter
is applicable to cases pending on direct review when the Supreme Court announced its
decision.
3
Therefore, the trial court committed error by refusing defendant's requested
instruction.
However, we reject appellant's contention that Carter requires automatic reversal for such
error. The Carter Court expressly declined to address the question of automatic reversal
because the state had failed to raise the harmless error argument below. Id. at 304. The Court
noted only that it was arguable that refusal to give such a requested instruction could never
be harmless. Id. (citing Bruno v. United States, 308 U.S. 287 (1939)).
In Chapman v. California, 386 U.S. 18 (1967), the Court determined that the violation of
the Griffin rule would be governed by the harmless error standard.
[Headnote 4]
The Chapman Court concluded that protecting the defendant's Fifth Amendment privilege
is a consideration of a different order from those concerns underlying other constitutional
decisions which have mandated automatic reversal. See Gideon v. Wainwright, 372 U.S. 335
(1963), (indigent's right to counsel); Payne v. Arkansas, 356 U.S. 560 (1958), (coerced
confessions). In these instances, there is a clear danger of convicting the innocent. . . . By
contrast, the Fifth Amendment's privilege against self-incrimination is not an adjunct to the
ascertainment of truth. Tehan, supra at 416. We have already noted the analogous
relationship between the Griffin and Carter holdings; we see no justification for applying a
different standard of review to the rule announced in Carter. We join several other
jurisdictions
4
which have determined that Carter did not abrogate the Chapman test: the
error is not reversible if the court determines that it was harmless beyond a reasonable doubt.
____________________

3
Several other jurisdictions have, without comment, applied Carter to cases pending on direct review at the
time Carter was announced. See, e.g., People v. Silver, 175 Cal.Rptr. 483 (Cal.App. 1981); People v. Crawford,
632 P.2d 626 (Colo.App. 1981).

4
See People v. Silver, supra; Parker v. State, 425 N.E.2d 628 (Ind. 1981); Richardson v. State, 402 So.2d
848 (Miss. 1981), for examples of jurisdictions which have adopted the harmless error standard for the Carter
rule. However, in People v. Crawford, supra; Mosley v. State, 402 So.2d 559 (Fla.App. 1981) and Brown v.
State, 617 S.W.2d 234 (Tex.Cr.App. 1981), the courts determined that Carter required automatic reversal for a
trial court's refusal to give the requested instruction.
98 Nev. 266, 271 (1982) Franklin v. State
In the instant case, based on the victims' testimony, police accounts, the appellant's own
admissions and the physical evidence presented at trial, we find that competent evidence of
appellant's guilt was overwhelming. Failure to give the requested cautionary instruction likely
had minimal, if any, impact on the jury's decision, and we conclude the error was harmless
beyond a reasonable doubt.
2. Testimony Regarding Appellant's Refusal to Respond to Police Interrogation.
Appellant was twice given his Miranda warnings, once just after police arrived at the
scene and again at the police station. On both occasions, he indicated his willingness to
discuss the incident without an attorney. Appellant contends that the trial court committed
reversible error by admitting defendant's statement indicating his desire not to answer
questions about what he did to Vivian after he forced her to disrobe and touched her.
[Headnotes 5, 6]
We agree that the trial court erred by denying Franklin's motion in limine to exclude the
statement. It is constitutionally impermissible to admit evidence of a defendant's invocation
of his Fifth Amendment privilege to remain silent. Michigan v. Mosley, 423 U.S. 96 (1975);
Miranda, supra at 468, n. 37. See also, Bernier v. State, 96 Nev. 670, 614 P.2d 1079 (1980);
Vipperman v. State, 92 Nev. 213, 547 P.2d 682 (1976).
We believe, however, that this issue is also governed by the harmless error standard. See
e.g., Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1976); Bernier and Vipperman, supra.
Several factors support a finding that the error was harmless beyond a reasonable doubt. The
prosecution did not emphasize the silence or use it to overtly foment an adverse inference of
guilt in the minds of the jury. See Shepp, supra. Appellant's refusal to answer came in the
midst of an unbroken chain of voluntary statements. See State v. Walker, 235 N.W.2d 810
(Minn. 1975), cert. denied, 426 U.S. 950 (1976). Finally, as we have already determined,
other evidence of appellant's guilt was overwhelming; the reference to his silence on one
question likely had little impact on the jury. The jury found appellant guilty of attempted
sexual assault, not sexual assault. That finding could reasonably be based on Franklin's
statements to the detective prior to his refusal to answer the one specific question. The jury
apparently did not infer from Franklin's silence any more wrongdoing than that to which he
voluntarily admitted.
We conclude that the error in admitting evidence of appellant's silence was harmless
beyond a reasonable doubt.
98 Nev. 266, 272 (1982) Franklin v. State
We decline to address appellant's remaining assignments of error, which we find to be
without merit.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 272, 272 (1982) Curtis D. v. State
CURTIS D., A Minor, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13054
June 15, 1982 646 P.2d 547
Appeal from an adjudication of delinquency and order of commitment, Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Appeal was taken from the district court which adjudicated appellant a delinquent and
ordered him committed to youth training center. The Supreme Court held that: (1) evidence
supported determination that movement of victim substantially increased risk of harm to her,
and thus a separate charge of first degree kidnaping was proper, and (2) juvenile's presence,
together with the other circumstances, both during and after kidnaping, was sufficient to
support an inference that he was a party to the offense.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and D.
Thomas Ferraro, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A separate charge of first degree kidnaping is proper if the movement of the victim is not merely
incidental to the associated offense and it results in substantially increased risk of harm. NRS 200.310,
subd. 1.
2. Kidnaping.
Whether the movement of kidnaping victim is incidental to the associated offense and whether the risk of
harm was substantially increased thereby are questions of fact to be determined by the trier of fact in all but
the clearest cases. NRS 200.310, subd. 1.
98 Nev. 272, 273 (1982) Curtis D. v. State
3. Criminal Law.
Evidence that victim was abandoned, unconscious, on isolated perimeter of the desert as dark approached
supported determination that movement of victim substantially increased risk of harm to her, and thus a
separate charge of first degree kidnaping was proper. NRS 200.310, subd. 1.
4. Kidnaping.
Juvenile's presence, together with other circumstances, both during and after kidnaping, was sufficient to
support an inference that he was a party to the offense. NRS 200.310, subd. 1.
OPINION
Per Curiam:
Following a contested hearing before a juvenile referee, appellant was found guilty of
misdemeanor battery and first degree kidnaping for the perpetration of these crimes upon a
thirteen-year-old female.
1
The district court adopted the referee's findings, adjudicated
appellant a delinquent and ordered him committed to the Nevada Youth Training Center at
Elko, Nevada.
On the afternoon of the assault, the victim was walking alone on a Las Vegas residential
street. A pick-up truck, occupied by appellant and two other juvenile males, stopped beside
her. In response to a query by appellant, the victim approached the truck, whereupon the
driver and the other juvenile force her into the cab of the vehicle.
The victim was then transported a short distance into the desert where she was taken from
the truck. While one of his companions held her, appellant and the other youth cut her on the
face, arms and stomach. The assault ended when the victim was pushed and struck her head
on a rock. The blow rendered her unconscious. When she regained consciousness the day was
becoming dark and the truck was gone.
On appeal, appellant contends that the circumstances do not support a separate charge of
first degree kidnaping and there is insufficient evidence to establish his complicity in that
crime. We disagree.
____________________

1
NRS 200.481(2)(a) (1977)(amended 1979 and 1981) provides:
2. Any person convicted of a battery, other than a battery committed by an adult upon a child which
constitutes child abuse, shall be punished:
(a) If the battery is not committed with a deadly weapon, and no substantial bodily harm to the victim
results, for a misdemeanor.
NRS 200.310(1) provides in pertinent part:
1. . . . [E]very person who leads, takes, entices, or carries away or detains any minor . . . with the
intent to hold such minor to unlawful service, or perpetrate upon the person of such minor any unlawful
act is guilty of kidnaping in the first degree.
98 Nev. 272, 274 (1982) Curtis D. v. State
[Headnotes 1, 2]
A separate charge of first degree kidnaping is proper if the movement of the victim is not
merely incidental to the associated offense and it results in substantially increased risk of
harm. Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Whether the movement of the
victim is incidental to the associated offense and whether the risk of harm is substantially
increased thereby are questions of fact to be determined by the trier of fact in all but the
clearest cases. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181 (1980).
[Headnote 3]
Ordinarily, movement of the victim in the commission of a battery is not incidental to that
offense. Moreover, in the instant case, it is uncontroverted that the victim was abandoned,
unconscious, on the isolated perimeter of the desert as dark approached. Such evidence
supports the determination that the movement of the victim substantially increased the risk of
harm to her. A separate charge of first degree kidnaping is proper.
[Headnote 4]
Similarly, the record supports appellant's complicity in the kidnaping. The mere presence
of appellant at the time his companions forced the victim into the truck is not sufficient to
make him an accessory and therefore a principal under NRS 195.020.
2
However, it was
appellant's query that induced the victim to approach the truck. She was detained in the cab
by appellant and one companion while the other drove into the desert. Appellant was not
merely present, he was an active participant in her forcible transportation and the events that
followed. His presence, together with the other circumstances, both during and after the
kidnaping, is sufficient to support an inference that he was a party to the offense. See Baker v.
Sheriff, 93 Nev. 11, 558 P.2d 629 (1977); Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528
(1969).
The other claims of error raised by appellant fail to demonstrate prejudicial error or are
without merit. Accordingly, we affirm the adjudication of delinquency and commitment
order of the district court.
____________________

2
NRS 195.020 provides in pertinent part:
195.020 Who are principals. Every person concerned in the commission of a felony, gross
misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or
abets in its commission, and whether present or absent; and every person who, directly or indirectly,
counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross
misdemeanor or misdemeanor is a principal, and shall be proceeded against and punished as such.
98 Nev. 272, 275 (1982) Curtis D. v. State
affirm the adjudication of delinquency and commitment order of the district court.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 275, 275 (1982) Las Vegas Valley Water v. Curtis Park
LAS VEGAS VALLEY WATER DISTRICT, THE OFFICE OF THE STATE ENGINEER
OF THE STATE OF NEVADA, and ROLAND D. WESTERGARD, State Engineer,
Division of Water Resources, Appellants, v. CURTIS PARK MANOR WATER
USERS ASSOCIATION, Respondent.
No. 13159
June 15, 1982 646 P.2d 549
Appeal from judgment granting equitable relief, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Appeal was taken from judgment of the district court granting equitable relief with respect
to State Engineer's decision to revoke temporary well permits. The Supreme Court held that:
(1) abuse of discretion provided the only grounds for reversal of the Engineer's decision, and
(2) district court was without authority to grant equitable relief since adequate remedy existed
at law through limited judicial review for abuse of discretion.
Reversed and remanded.
Robert J. Miller, District Attorney, and Susan L. Johnson, Deputy District Attorney, Clark
County, for Appellant Las Vegas Valley Water District.
Richard H. Bryan, Attorney General, and George Campbell, Deputy Attorney General,
Carson City; and Beckley, Singleton, DeLanoy & Jemison, Chartered, and Mark C. Scott, Jr.,
Las Vegas, for Appellant Roland D. Westergard, State Engineer, Division of Water
Resources.
Nitz & Schofield, Las Vegas, for Respondent.
98 Nev. 275, 276 (1982) Las Vegas Valley Water v. Curtis Park
1. Waters and Water Courses.
In light of the discretionary nature of the State Engineer's action in revoking temporary well permits,
abuse of discretion provided the only grounds for reversal of the Engineer's decision. NRS 534.120,
534.120, subd. 3(a).
2. Equity.
District court was without authority to grant equitable relief with respect to State Engineer's revocation of
temporary well permits, since adequate remedy existed at law through limited judicial review for abuse of
discretion. NRS 233B.140, subd. 5, 533.450.
OPINION
Per Curiam:
In this appeal we are asked to determine whether the district court erred in granting
equitable relief to respondent.
Curtis Park Manor is a subdivision of approximately 257 half-acre lots in Northwest Las
Vegas. In 1957, 1958 and 1960, Alfred Swartz, as president of Curtis Park Manor Water
Users Association (hereinafter Association), received three temporary well permits to serve
a total of 145 lots in the subdivision. The subdivision has relied on these three private wells
for its water since the first homes were constructed over 20 years ago.
Each permit contained the express provision that this permit . . . is further subject to
revocation when water is available from the Las Vegas Water District. . . . These permits
were issued pursuant to NRS 534.120, which allows the State Engineer to grant temporary
permits to appropriate ground water, subject to revocation when water can be furnished by
an entity such as a water district. . . .
In 1976, Mr. Swartz, who had maintained the water system until that time and to whom
users had paid a monthly fee, sold his interest in the system to the Association.
Also in 1976, the completion of a pipeline in Michael Way, adjacent to Curtis Park,
enabled the Water District to serve Curtis Park. In August 1976, appellant State Engineer
notified Curtis Park homeowners that pursuant to NRS 534.120, their permits were subject to
revocation, since appellant Water District could now serve the subdivision. A follow-up letter
notified the Association of the state's intent to revoke and requested that the Association
submit its planned procedures for conversion to the District source or other alternative
measures. In January 1977 the State Engineer issued an order revoking the three permits
effective April 11, 1977.
The Association's search for purchasable permanent water rights proved unsuccessful,
and their application for permanent permits was denied after a hearing.1 In February
1977, the Association filed a petition for review of the Engineer's decision to revoke the
temporary permits in district court, seeking: {1) reinstatement of the revoked permits, {2)
a stay in the execution of the Engineer's order until permanent water rights could be
purchased or {3) a review of the Engineer's order under NRS 533.450.
98 Nev. 275, 277 (1982) Las Vegas Valley Water v. Curtis Park
rights proved unsuccessful, and their application for permanent permits was denied after a
hearing.
1
In February 1977, the Association filed a petition for review of the Engineer's
decision to revoke the temporary permits in district court, seeking: (1) reinstatement of the
revoked permits, (2) a stay in the execution of the Engineer's order until permanent water
rights could be purchased or (3) a review of the Engineer's order under NRS 533.450.
The State Engineer counterclaimed, seeking to enjoin Curtis Park from servicing more
than the original 145 lots, if the court cancelled the revocations. That counterclaim indicated
that 169 lots were being served by the wells under the temporary permits. Testimony
subsequently revealed that approximately 257 lots were served by the disputed system. The
Water District intervened as co-defendant in March 1979.
The trial court determined that Curtis Park was entitled to equitable relief,
2
rescinded the
Engineer's January 1977 revocation order, reinstated the permits, made them permanent and
ordered that the new permits allow for appropriation of water sufficient to serve all 257 lots
in the subdivision.
Appellants contend that the district court was without authority to grant equitable relief.
We agree.
Respondent primarily relies on Bailey v. State, 95 Nev. 378, 594 P.2d 734 (1979), and
State Engineer v. American National Insurance Co., 88 Nev. 424, 498 P.2d 1329 (1972). In
both Bailey and American National, the State Engineer, pursuant to the mandatory language
in NRS 533.410, cancelled permits to appropriate water because the permittees had failed to
file the requisite proof of applying the water to beneficial use. The court in both cases
recognized that the statute required the Engineer to summarily cancel the permits.
____________________

1
No appeal was taken from the denial of the application for permanent permits.

2
The trial court primarily based its decision to grant equitable relief on the following findings of facts and
conclusions drawn from those facts: (1) the permits had been granted and the well system had been in use for
more than twenty years; (2) until notified by the Engineer in 1976, the homeowners were not aware that their
permits were revocable; (3) the Association had spent approximately $250,000 in improvements on the well
system, approximately $25,000 of which went toward the acquisition of permanent water rights; (4) the cost of
conversion to Water District sources would be considerable; (5) the Water District would use the same aquifers
to supply water to Curtis Park as Curtis Park now uses for its well system; and (6) there would be no significant
impairment of any existing water rights if Curtis Park continued to appropriate water under the permits and no
other persons would be damaged by such appropriation. These facts were under considerable dispute at the
hearing below.
98 Nev. 275, 278 (1982) Las Vegas Valley Water v. Curtis Park
Engineer to summarily cancel the permits. Nonetheless, [t]his directive to his office does not
. . . affect the power of the district court to grant equitable relief to the permittee when
warranted. American National, supra at 426, 498 P.2d at 1330.
In American National, we suggested that the legislature alleviate the awkward and
unenviable position in which NRS 533.410 places the State Engineer. Id. at 426, 498 P.2d at
1330. Under that statute, he must summarily cancel permanent permits for failure to comply
with filing requirements, yet the district court can reverse his decision and grant equitable
relief. We suggested a legislative change in NRS 533.410, which would give the Engineer
discretion in a permit cancellation. With such a change court reversal would only be
appropriate in the event of an abuse of discretion. Id. at 427, 498 P.2d 1331. (Emphasis
added.)
NRS 534.120, the revocation statute in dispute in this case, is distinguishable from the
statute in Bailey and American National; it clearly does grant the Engineer discretion to
revoke temporary permits. The state engineer may . . . [i]ssue temporary permits to
appropriate ground water . . . which may be revoked. . . . NRS 534.120(3)(a). (Emphasis
added.)
[Headnotes 1, 2]
In light of the discretionary nature of the Engineer's action, abuse of discretion provides
the only grounds for reversal of the Engineer's decision. The district court was without
authority to grant equitable relief, since an adequate remedy exists at law. See American
National, supra. See also, Thrifty Drugs and Markets, Inc. v. Hunter Lake P.T.A., 85 Nev.
162, 451 P.2d 713 (1969).
We decline to rule on whether the record indicates an abuse of discretion by the State
Engineer. The trial court made no determination on that issue. The record before us consists
of a de novo hearing to determine the appropriateness of equitable relief. Such a proceeding is
entirely distinct in scope and purpose from the limited judicial review for abuse of discretion.
See NRS 533.450; NRS 233B.140(5); see also, Revert v. Ray, 95 Nev. 782, 603 P.2d 262
(1979).
The decision of the trial court is reversed and the cause is remanded for further
proceedings in accordance with this opinion.
Gunderson, C. J., Manoukian, Springer, and Mowbray JJ., and Zenoff, Sr. J.,
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.
____________
98 Nev. 279, 279 (1982) Riesterer v. Dietmeier
BETTY J. RIESTERER, Appellant, v. SARA JANE DIETMEIER and THE ESTATE OF
JOHN E. RIESTERER, Respondents.
No. 13113
June 15, 1982 646 P.2d 551
Appeal from order of the district court denying petition to appoint special administrator.
Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Testator's daughter filed petition for letters of ancillary administration seeking to have will
admitted to probate and widow sought appointment of special administrator. The district
court determined that will was not revoked and widow appealed. The Supreme Court held
that: (1) remarriage to a former spouse is a marriage for purposes of statute providing for
revocation of a will upon marriage, but (2) property settlement entered into by husband and
wife at the time of their divorce was a marriage contract providing for wife, so that
husband's will was not revoked upon their remarriage.
Affirmed.
Thorndal, Backus, Lyles & Maupin and James G. Armstrong, Las Vegas, for Appellant.
Reid & Alverson, Las Vegas, for Respondents.
1. Wills.
Remarriage to a former spouse is a marriage for purposes of statute providing for revocation of a will
following the testator's marriage. NRS 133.110.
2. Wills
Purpose of statute providing for revocation of a will upon marriage is to prevent unintentional
disinheritance of the surviving spouse.
3. Wills.
Property settlement entered into between husband and wife at the time of their divorce was a marriage
contract for purposes of statute calling for revocation of a will upon the testator's marriage unless
provision has been made for the spouse by marriage contract and, upon remarriage of the husband and
wife, husband's will was not revoked. NRS 133.110.
OPINION
Per Curiam:
John and Betty Riesterer were married in 1976. In 1979 John purchased a home in
Henderson in his name. Later in 1979 John and Betty separated, and in consideration of
Betty's release of all claims against his property, John tendered to Betty approximately
$50,000 in cash and real and personal property.
98 Nev. 279, 280 (1982) Riesterer v. Dietmeier
John and Betty separated, and in consideration of Betty's release of all claims against his
property, John tendered to Betty approximately $50,000 in cash and real and personal
property. Subsequently, in July 1979, John executed the will in controversy, leaving his entire
estate with the exception of two small bequests, to his daughter, Sara Jane, and making no
mention of Betty. John and Betty were divorced two weeks later, but remarried in February
1980. John died in April 1980 in Missouri, survived by his wife and daughter. The only
property of value in the estate is the home in Henderson.
Respondent, Sara Jane, filed a Petition for Letters of Ancillary Administration, seeking to
admit the will to probate.
Appellant, Betty, petitioned for appointment of a special administrator on the grounds that
the will was revoked pursuant to NRS 133.110. The trial court determined that the will was
not revoked and denied appellant's petition.
We must determine whether a will, executed by a decedent after making a property
settlement in a divorce action, is revoked upon subsequent remarriage to the former spouse,
pursuant to NRS 133.110.
NRS 133.110 provides:
If a person marries after making a will and the spouse survives the maker, the will is
revoked as to the spouse, unless provision has been made for the spouse by marriage
contract, or unless the spouse is provided for in the will, or in such a way mentioned
therein as to show an intention not to make such provision; and no other evidence to
rebut the presumption of revocation shall be received.
Appellant contends that the will, executed after the property settlement, was revoked by
the subsequent remarriage. Respondents argue that the statute is inapplicable to wills such as
John's, made prior to a remarriage to the former spouse. Respondents also contend that if
NRS 133.110 is applicable, the property settlement should be considered a marriage
contract which, pursuant to the statute, would rebut the presumption of revocation. The trial
court's decision was based on the latter position.
There is some support for respondents' contention that NRS 133.110 is inapplicable to
wills made prior to remarriage to the former spouse. In Leggett v. Estate of Leggett, 88 Nev.
140, 494 P.2d 554 (1972), we were asked to determine the effect of NRS 133.110 on a will
which left nothing to the testator's wife and made only passing reference to her. The testator
had divorced his wife, had agreed to a property settlement and had remarried the same
person after executing the will.
98 Nev. 279, 281 (1982) Riesterer v. Dietmeier
divorced his wife, had agreed to a property settlement and had remarried the same person
after executing the will.
Leggett concluded that the reference to the wife in the will, albeit nominal, was sufficient
to demonstrate the testator's intention not to provide for her, thereby triggering rebuttal of the
presumption of revocation upon remarriage.
[Headnotes 1, 2]
This case does not impel a departure from Leggett as to the applicability of NRS 133.110
to cases involving remarriage to the former spouse. Although such remarriage is undoubtedly
an event of some rarity, we are not convinced that the legislature intended to exclude from
NRS 133.110, wills executed prior to remarriage to the former spouse. The statute's purpose
is to prevent unintentional disinheritance of the surviving spouse. Leggett, supra at 143, 494
P.2d at 558. Certainly, it is conceivable that a surviving former spouse, who has remarried the
testator, could suffer unintentional disinheritance. We note that other courts, faced with
similar pretermitted spouse statutes, have applied the statutes to wills executed prior to
remarriage to the former spouse. See, e.g., Perkins v. Brown, 27 So.2d 521 (Fla. 1946); Estate
of Montoya, 556 P.2d 353 (N.M. 1976). See also, 2 W. Bowe & D. Parker, Page on Wills,
21.91 (rev. ed. 1960).
[Headnote 3]
Even so, in this case, respondent has successfully rebutted the presumption of revocation.
Appellant was the recipient of a property settlement upon her divorce from the testator. A
property settlement is a marriage contract within contemplation of NRS 133.110, and its
existence in this case rebuts the presumption of revocation. Appellant's contention that a
marriage contract is one made exclusively in contemplation of marriage is without merit. In re
Estate of Nelson, 537 P.2d 765 (Wash. 1975), presented the Washington Supreme Court with
analoguous factual circumstances. The Nelson court construed a similar statutory exception to
the presumption of revocationmarriage settlementto include a post-nuptial property
settlement. We are especially persuaded by that part of the Nelson decision which noted that
the purpose of these statutesprevention of unintentional disinheritance of the surviving
spousewould not be served when any separate arrangement exists to indicate that the
decedent wished to keep the will in force and provide specially for the spouse. . . . Whether
the agreement is ante- or post-nuptial it shows that separate provision was made for the
spouse rendering the presumption of intent to revoke inapplicable." Id. at 772 {Emphasis
in original.)
98 Nev. 279, 282 (1982) Riesterer v. Dietmeier
separate provision was made for the spouse rendering the presumption of intent to revoke
inapplicable. Id. at 772 (Emphasis in original.)
The decision of the trial court is affirmed.
Gunderson, C. J. Manoukian, Springer, and Mowbray, JJ. and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 282, 282 (1982) Automatic Merchandisers, Inc. v. Ward
AUTOMATIC MERCHANDISERS, INC., Appellant,
v. LURA WARD, Respondent.
No. 12736
June 15, 1982 646 P.2d 553
Appeal from judgment for damages following jury trial. Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Defendant in personal injury action appealed from judgment of the district court entered in
favor of plaintiff. The Supreme Court held that: (1) plaintiff had not failed to mitigate
damages by declining certain elective surgery, and (2) award of $75,000 in damages was not
excessive.
Affirmed.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Victor Alan Perry, Kenneth Bick,
Reno, for Appellant.
Echeverria and Osborne, Reno, for Respondent.
1. Damages.
Injured person cannot recover for damages which could have been avoided by the exercise of reasonable
care.
2. Damages.
Doctrine of mitigation of damages is applied to preclude recovery for disability which could have been
avoided if the plaintiff had exercised reasonable diligence in seeking medical care, including surgical
treatment.
3. Damages.
Failure of plaintiff to undergo surgery did not show a failure to mitigate damages where surgery was not
consistently recommended prior to trial, where neither the treating physician nor the defendant's expert
witness recommended surgical intervention by the time of trial, as the plaintiff's condition had improved
with conservative treatment, and where surgery was recommended only as an elective procedure.
98 Nev. 282, 283 (1982) Automatic Merchandisers, Inc. v. Ward
4. Damages.
Award of $75,000 to injured plaintiff who suffered injury to the seventh cervical nerve or a protrusion or
herniation of a cervical disc resulting in headaches and considerable recurrent pain in the neck, shoulder,
and arm and who would suffer intermittent pain and consequent curtailment of daily activities for the rest
of his life was not excessive.
OPINION
Per Curiam:
Automatic Merchandisers appeals from a judgment awarding respondent $75,000 in
personal injury damages. Appellant raises several assignments of error, two of which we
address. Appellant contends that the trial court erred: (1) by refusing to instruct the jury on
respondent's obligation to mitigate her damages, and (2) by denying a motion to alter or
amend judgment because the verdict was excessive. Each of the issues being without merit,
we affirm.
In July 1977, respondent, Lura Ward, was a passenger in a vehicle operated by Mrs. Gloria
Correll. The Correll vehicle was struck with considerable force from behind by a van driven
by Robin Graham and owned by appellant, Automatic.
Correll, and subsequently Ward, filed suit against Graham and Automatic. Motions to
consolidate the Ward and Correll actions were denied. Correll received a verdict of $65,000
against Automatic, which was found 100 percent negligent. After the Correll judgment, Ward
moved for and was granted partial summary judgment on the question of liability against
appellant.
At the trial on damages, Ward's treating physician, Dr. Ernest Mack, testified that he
believed she had suffered injury to the seventh cervical nerve or a protrusion or herniation of
the cervical disc, resulting in headaches, and also considerable and recurrent pain in the neck,
shoulder and arm. In his opinion, intermittent pain and consequent curtailment of daily
activities will continue for the rest of Ward's life. Dr. Mack had recommended surgery (a
foraminotomy) to Ward when her condition had not improved some months after the
accident. At that time, Ward declined surgery, and when she became pregnant shortly
thereafter, Dr. Mack advised against an operation. Sometime after May 1979, Ward indicated
to Dr. Mack that she would undergo the surgery. By the time of the trial in January 1980,
Ward had not undergone surgery, but her condition had improved to the point where both Dr.
Mack and Dr. Robert Morelli, the appellant's expert witness, believed surgery was no longer
indicated.
98 Nev. 282, 284 (1982) Automatic Merchandisers, Inc. v. Ward
Appellant contends that the trial court erred in refusing to give two instructions. The first
instruction advised the jury that any award for damages must contemplate the injured person's
obligation to exercise ordinary care to obtain medical treatment. The second refused
instruction would have required the jury to decide when the respondent could have undergone
surgery and to award damages up to that date.
[Headnotes 1, 2]
It is unquestioned that an injured person cannot recover for damages which could have
been avoided by the exercise of reasonable care. See Southern Pacific Transportation Co. v.
Fitzgerald, 94 Nev. 241, 577 P.2d 1234 (1978). The doctrine of mitigation of damages has
been applied to preclude recovery for disability which could have been avoided if the plaintiff
had exercised reasonable diligence in seeking medical care, including surgical treatment. See
e.g., Cline v. United States, 270 F.Supp. 247 (S.D.Fla. 1967); Jancura v. Szwed, 407 A.2d
961 (Conn. 1978); Couture v. Novotny, 211 N.W.2d 172 (Minn. 1973). When there is
evidence that a plaintiff may have failed to exercise the reasonable care required to promote
recovery, it also has been held that the defendant is entitled to an instruction to that effect,
upon request. Jancura v. Szwed, supra.
[Headnote 3]
In the instant case, however, appellant failed to present evidence that respondent's
disinclination to undergo surgery was unreasonable. In the cases relied on by appellant and
cited above, surgery was recommended at the time of trial. Here, surgery was not even
consistently recommended prior to trial, and neither Ward's treating physician nor appellant's
expert witness recommended surgical intervention by the time of trial, since respondent's
condition had improved with conservative treatment. It is undisputed that Ward sought and
received competent medical, albeit non-surgical, treatment. The evidence indicated that the
surgery was recommended only as an elective procedure. No witness refuted Dr. Mack's
conclusion that in light of Ward's improvement, her decision to decline surgery was
appropriate. In the context of the facts and circumstances of this case, it was not error to
refuse the instruction on mitigation of damages.
[Headnote 4]
Appellant also contends that the trial court erred in refusing to grant a new trial because the
jury's $75,000 award was excessive. We have repeatedly expressed our reluctance to
substitute our judgment for that of the trier of fact on the issue of damages. See e.g., Southern
Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 49S {1967); Brownfield v. Woolworth Co.,
98 Nev. 282, 285 (1982) Automatic Merchandisers, Inc. v. Ward
435 P.2d 498 (1967); Brownfield v. Woolworth Co., 69 Nev. 294, 248 P.2d 1078 (1952).
[T]he court is not justified in reversing the case or granting a new trial on the ground that the
verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or
corruption in the jury. Watkins, supra at 495, 435 P.2d at 513-514 (quoting Forrester v.
Southern Pacific, 36 Nev. 247, 134 P. 753 (1913)).
The award in this case may be unusually high; however, we do not find it so flagrantly
improper as to suggest jury passion, prejudice or corruption.
Appellant's remaining assignments of error are without merit.
The district court judgment is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 285, 285 (1982) Laughlin Recreational v. Zab Dev.
LAUGHLIN RECREATIONAL ENTERPRISES, INC. and DONALD J. LAUGHLIN,
Appellants/Cross-Respondents, v. ZAB DEVELOPMENT CO., INC. and KEITH FLIPPIN,
Respondents/Cross-Appellants.
No. 13392
June 18, 1982 646 P.2d 555
Appeal and cross-appeal from judgment. Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Action was brought against contractor alleging failure to complete performance of a
contract to build a hotel and casino on plaintiff's property. The district court entered judgment
in favor of the contractor, and plaintiff appealed. The Supreme Court held that: (1) substantial
evidence supported all the trial court's findings; (2) the contractor was entitled to award of
attorney fees and prejudgment interest; and (3) trial court erred in awarding contractor
prejudgment interest at a rate higher than the statutory rate on amounts owing under the
contract, except to the extent that such amounts were represented by a promissory note, which
provided for a higher rate of interest.
Affirmed as modified.
[Rehearing denied November 22, 1982]
Morris & Wood, Las Vegas, for Appellants/Cross-Respondents.
98 Nev. 285, 286 (1982) Laughlin Recreational v. Zab Dev.
Galatz, Earl & Biggar, Las Vegas, for Respondents/Cross-Appellants.
1. Accord and Satisfaction; Contracts.
In suit against contractor for failure to complete performance of a contract to build a hotel and casino on
plaintiff's property, substantial evidence supported trial court's findings that the parties intended a
cost-plus-profit contract with no maximum price, that the contract was substantially performed, that the
contractor's acceptance of a check marked final payment from plaintiff's bank was not intended to be an
accord and satisfaction, and that all but one of the promissory notes from plaintiff to contractor did not
represent actual debts between the parties.
2. Costs.
Attorney fees may not be awarded in the absence of a statute, rule or contract.
3. Bills and Notes.
Prevailing contractor, in suit for failure to complete performance of a contract to build a hotel and casino
on plaintiff's property, was entitled to award of attorney fees, where the contract and the promissory note
from plaintiff to the contractor provided for an award of attorney fees.
4. Interest.
Prejudgment interest should be awarded in contract actions, regardless of whether the judgment is for a
liquidated or unliquidated sum.
5. Interest.
Prevailing contractor, in suit for failure to complete performance of a contract to build a hotel and casino
on plaintiff's property, was entitled to award of prejudgment interest.
6. Interest.
In the absence of an express, written agreement, the rate of prejudgment interest to be awarded in a
contract action is governed by statute. NRS 99.040.
7. Interest.
Trial court erred in awarding prejudgment interest at a rate higher than the statutory rate on amounts
owing contractor under hotel and casino construction contract, except to the extent that such amounts were
represented by a promissory note, which provided for a higher rate of interest.
OPINION
Per Curiam:
Laughlin Recreational Enterprises, Inc. (Laughlin) appeals from the district court's
judgment awarding damages on a construction contract, plus interest and attorney's fees, to
respondent Zab Development Co., Inc. (Zab). Zab cross-appeals from the district court's
decision cancelling certain promissory notes executed by Laughlin in Zab's favor.
98 Nev. 285, 287 (1982) Laughlin Recreational v. Zab Dev.
THE FACTS
Zab contracted with Laughlin to build a hotel and casino on property owned by Laughlin.
The parties signed a standard AIA form contract, specifying that Laughlin would pay Zab's
costs of construction plus $100,000.00 profit and $80,000.00 overhead, with a maximum cost
to Laughlin of $1,209,600.00. At the same time, the parties signed a separate agreement, and
later they periodically executed various modifications to the contract.
As Laughlin ran short of cash, the parties entered into a series of financial transactions
evidenced by promissory notes from Laughlin to Zab. In addition, Zab loaned Laughlin
$30,000.00 which was not evidenced by a note.
Eventually, Laughlin brought this action against Zab, claiming that the contract had not
been performed. Zab counterclaimed, alleging that the contract was fully performed, and that
money was still owing under the contract. Zab also sought to collect on the promissory notes.
The district judge found that the contract had been substantially performed, and awarded
judgment in favor of Zab. The court also found that the AIA contract was not the complete
agreement of the parties, and that the parties intended a cost-plus-profit contract without any
maximum cost to Laughlin. The court therefore awarded damages to Zab in excess of the
maximum price term in the contract. The court cancelled all but one of the promissory notes,
finding that they did not evidence actual debts.
THE SUFFICIENCY OF THE EVIDENCE
Of the numerous issues raised on appeal, most are challenges to the sufficiency of the
evidence supporting the findings of the district court. Laughlin challenges the findings that
(1) the parties intended a cost-plus-profit contract with no maximum price; (2) the contract
was substantially performed; and (3) the acceptance by Zab from Laughlin's bank of a check
marked final payment was not intended to be an accord and satisfaction. Zab challenges the
court's finding that all but one of the promissory notes did not represent actual debts between
the parties.
[Headnote 1]
We have examined the record, and we find that there is substantial evidence to support all
of the court's findings. We have repeatedly held that where the trial court's findings are
supported by substantial evidence they will not be disturbed on appeal.
98 Nev. 285, 288 (1982) Laughlin Recreational v. Zab Dev.
appeal. Beverly Enterprises v. Globe Lane Corp. 90 Nev. 363, 526 P.2d 1179 (1974); Lawry
v. Devine, 82 Nev. 65, 410 P.2d 761 (1966).
THE AWARD OF ATTORNEY'S FEES
[Headnotes 2, 3]
Attorney's fees may not be awarded in the absence of a statute, rule or contract. State ex
rel. List v. Courtesy Motors, 95 Nev. 103, 590 P.2d 163 (1979). In the instant case the
construction agreement expressly provided for an award of attorney's fees as did the
promissory note. The district court did not err in awarding attorney's fees.
THE AWARD OF PREJUDGMENT INTEREST
The district judge awarded prejudgment interest to Zab on the contract damages, the
promissory note, and the $30,000.00 loan, at a rate of ten percent. Laughlin argues that this
was error, because the damage amounts were unliquidated.
[Headnotes 4, 5]
In Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968), this court decided
that prejudgment interest should be awarded in contract actions from the time the sum
became due. It is irrelevant whether the judgment is for a liquidated or unliquidated sum.
Arley v. Liberty Mutual Fire Ins. Co., 85 Nev. 541, 458 P.2d 742 (1969). The court did not
err in awarding prejudgment interest.
[Headnotes 6, 7]
However, in the absence of an express, written agreement, the rate of interest to be
awarded is governed by NRS 99.040. Paradise Homes, supra, 84 Nev. at 116; 437 P.2d at 83.
At the time of the judgment in the instant case, the statute provided for interest at a rate of
eight percent. It was error for the district court to award interest at ten percent on the contract
damages and the $30,000.00 loan. The court's action was correct with respect to the
promissory note, which provided for ten percent interest. Accordingly, the judgment is
modified to provide interest at eight percent on the contract damages and the $30,000.00 loan.
Other assignments of error have been considered and found meritless. As modified, the
judgment is affirmed.
____________
98 Nev. 289, 289 (1982) Bludsworth v. State
CURT BLUDSWORTH, JUDI BLUDSWORTH, Appellants, v. THE STATE OF NEVADA,
Respondent.
No. 13100
June 18, 1982 646 P.2d 558
Appellant Curt Bludsworth appeals from a judgment of conviction for murder in the
second-degree and for child abuse and neglect. Appellant Judi Bludsworth appeals from a
judgment of conviction for child abuse causing serious bodily harm. First Judicial District
Court, Carson City; Howard D. McKibben, Judge.
The Supreme Court, Springer, J., held that: (1) there was ample evidence to support the
criminal convictions; (2) trial court properly admitted evidence that child had sustained a bite
mark on his scrotum prior to day of his fatal injury; and (3) trial court properly refused to
sever the trial on the murder and child abuse charges.
Affirmed.
J. Gregory Damm, State Public Defender, Robert Bork, Deputy Public Defender, Carson
City, for Appellant Judi Bludsworth.
Daniel U. Smith, Belli & Choulos, San Francisco, Gary Logan, Las Vegas, for Appellant
Curt Bludsworth.
Richard H. Bryan, Attorney General, William A. Maddox, District Attorney, Carson City,
for Respondent.
1. Homicide; Infants.
Evidence, including testimony by a number of expert witnesses that child was a victim of battered child
syndrome, plus expert medical testimony of unusual placement and severity of bruises on top of child's
head, contradicting accident theory, supported convictions of child's mother and stepfather of child abuse,
and child abuse and second-degree murder, respectively.
2. Homicide.
Trial court, in prosecution for murder and child abuse, properly admitted evidence that child had
sustained a bite mark on his scrotum prior to the day of his fatal injury, even though it had not been
established that either of the defendants was responsible for prior injuries.
3. Criminal Law.
Trial court properly refused to sever trials of mother and stepfather on murder and child abuse charges,
because they arose out of the same series of acts, and because the evidence was clearly relevant to both the
murder and child abuse charges. NRS 173.115.
98 Nev. 289, 290 (1982) Bludsworth v. State
4. Infants.
Phrase unjustifiable physical pain or mental suffering, in context of statute authorizing criminal
penalties for any adult who willfully causes or permits a child * * * to suffer unjustifiable physical pain or
mental suffering as a result of abuse or neglect, was not unconstitutionally vague as applied to instant
defendants, where state alleged and proved that defendants either struck child on head or permitted him to
be struck, because in light of evidence concerning violence or force used against child and severity of his
injuries, defendants could not claim that they could not have reasonably known their conduct was criminal.
NRS 200.508.
5. Criminal Law.
Criminal statute is unconstitutionally vague only if one cannot reasonably understand that contemplated
conduct is proscribed.
OPINION
By the Court, Springer, J.:
This is a case of child abuse which tragically ended in the death of two-year old Eric
Johnson, the son of appellant Judi Bludsworth and stepson of appellant Curt Bludsworth. Eric
died after sustaining severe head injuries. Following Eric's death, the state instituted criminal
proceedings against the appellants. Curt was convicted by a jury of child abuse and
second-degree murder. Judi was convicted by the same jury of child abuse.
Appellants assert that numerous errors were committed in the trial below. Curt's principal
argument is that the state failed to prove beyond a reasonable doubt that Eric died as a result
of his criminal act. At trial, the defense had claimed that Curt accidentally injured Eric by
dropping him as Eric and he climbed the stairs in the family home. Appellants argue that all
evidence presented at trial was consistent with the theory that Eric's injury was accidental. We
disagree.
[Headnote 1]
There was ample evidence to support the criminal convictions. A number of expert
witnesses testified that Eric was a victim of the battered child syndrome, an accepted
diagnosis signifying serious and persistent physical abuse. The expert opinion that the victim
was a battered child, coupled with some additional proof, has been held sufficient to permit a
jury to conclude that the child's injury occurred at the culpable hands of its parents. People
v. Henson, 349 N.Y.S.2d 657, 665-66 (N.Y. 1973); accord People v. Barnard, 286 N.W.2d
870 (Mich. App. 1979).
Curt was alone with Eric at the time of the fatal injury, and he admitted involvement in
the purported accident.
98 Nev. 289, 291 (1982) Bludsworth v. State
he admitted involvement in the purported accident. In addition to the overwhelming evidence
that Eric was a battered child, there was other important evidence to refute Curt's explanation
of the event. Expert medical testimony, including evidence of the unusual placement and
severity of bruises on the top of Eric's head contradicted the accident theory. The combined
evidence was sufficient to establish the corpus delicti for each criminal conviction.
[Headnote 2]
During the trial, considerable evidence was presented that Eric had sustained numerous
bruises, including a bite mark on his scrotum, prior to the day of his fatal injury.
Appellants claim prejudicial error from the admission of this evidence. Appellants first
assert that expert medical testimony concerning the bite mark was incompetent because it was
based upon inadequate and inconclusive evidence.
The trial court properly admitted expert opinion testimony that the bruise on Eric's scrotum
resulted from a human bite. Prior to the presentation of the evidence to the jury, the court held
an in camera hearing to determine the competence of the evidence. The court found the
expert, a forensic odontologist, to be properly qualified. The expert witness acknowledged the
inherent limitations in his investigation. Because the bite mark was located on pliable tissue,
the expert testified that it was impossible to make an ideal comparison between the bite mark
and a dental impression of either appellant; however, the expert was able to testify, based on a
reasonable dental certainty, that the bruises on Eric's scrotum were caused by human teeth.
The trial court properly concluded that any dispute over the evidence went to its weight and
not its admissibility.
Appellants also erroneously argue that the bite mark evidence and evidence of other
bruises were incompetent because there was no prior establishment, by clear and convincing
evidence, that either Curt or Judi was responsible for each of the prior injuries.
1
Admissibility of the bite mark and other bruise evidence does not depend on connecting
either defendant to the infliction of the injury. It is independent, relevant circumstantial
evidence tending to show that the child was intentionally, rather than accidentally, injured on
the day in question.
____________________

1
With respect to the bite mark, the forensic odontologist testified that although the scrotal tissue was too
pliable to permit a perfect comparison, he was able to determine that the bite mark was not made by Judi; and
while he could not be certain that Curt Bludsworth was responsible for the injury, the expert concluded that
Curt's dentition was consistent with the mark.
98 Nev. 289, 292 (1982) Bludsworth v. State
Proof that a child has experienced injuries in many purported accidents is evidence that the
most recent injury may not have resulted from yet another accident. See Barnard, supra.
[Headnote 3]
Appellants also claim that the trial court committed prejudicial error in refusing to sever
the trials on the murder and child abuse charges.
2
Both appellants base their arguments on
the assumption that certain evidence which was admissible on one count was inadmissible on
the other count. Curt argues that the evidence of prior injuries, if admissible at all, was
admissible only on the child abuse count and was therefore prejudicial on the murder count.
Judi argues the opposite.
We cannot agree with either appellant. The child abuse and murder counts were properly
joined since they arose out of the same series of acts. NRS 173.115 permits joinder in such
instances.
3
The information clearly limited the charge of child abuse to the events occurring
on September 3, 1979, the date of the fatal injury. The trial court repeatedly advised the jury
that the evidence was not admissible to prove separate prior acts of child abuse; it was
admissible only as circumstantial evidence to prove culpability for the events of September 3.
The evidence was clearly relevant to both the murder and child abuse charges. Since both
charges related to the same transaction and since the allegedly prejudicial information was
admissible on both counts, the trial court did not err in refusing to sever the counts.
[Headnotes 4, 5]
Appellants next claim that the Nevada child abuse statute is unconstitutionally vague. Both
appellants were convicted under NRS 200.508, which authorizes criminal penalties for any
adult who willfully causes or permits a child . . . to suffer unjustifiable physical pain or
mental suffering as a result of abuse or neglect. . . . Appellants charge that the phrase
unjustifiable physical pain or mental suffering is unconstitutionally vague.
____________________

2
NRS 174.165 provides that trials on separate counts may be severed if either party would be prejudiced by
joinder.

3
NRS 173.115 provides as follows:
NRS 173.115 Joinder of offenses. Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged, whether felonies or
misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.
98 Nev. 289, 293 (1982) Bludsworth v. State
Our statute, as applied to these appellants, is clearly constitutional. A criminal statute is
unconstitutionally vague only if one cannot reasonably understand that contemplated conduct
is proscribed. United States v. National Dairy Corp., 372 U.S. 29, 32-33 (1963). The state
alleged and proved that appellants either struck Eric on the head or permitted him to be
struck. In light of the evidence concerning the violence or force used against Eric and the
severity of his injuries, it is untenable for appellants to claim that they could not have
reasonably known their conduct was criminal.
We have considered the other assignments of error presented by appellants and find them
to be without merit.
4
The convictions of both appellants are affirmed.
Gunderson, C. J., and Manoukian, Mowbray, and Steffen, JJ., concur.
____________________

4
Appellant Curt Bludsworth has also questioned whether child abuse might be a lesser included offense of
murder. To determine whether punishment on two charges would constitute double jeopardy, the applicable test
is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284
U.S. 299 (1932). See also Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981). There is at least one element in
each offense which is not present in the other. Conviction for murder requires, of course, that the victim die.
Conviction for child abuse requires, among other things, that the victim be under the age eighteen. Child abuse
thus is not a lesser included offense of murder.
____________
98 Nev. 293, 293 (1982) Schwob v. Hemsath
CHARLES SCHWOB, ROBERT SCHWOB, COAST-TO-COAST STORE OF MINDEN,
NEVADA, Appellants, v. ROBERT W. HEMSATH, Respondent.
No. 13198
June 23, 1982 646 P.2d 1212
Appeal from final judgment. Ninth judicial District Court, Douglas County; Frank B.
Gregory, Senior Judge.
Appeal was taken from the district court which entered judgment against corporation in
dispute over property. The Supreme Court held that where title to asset in dispute was in
corporation which had never been served with summons in action, and had never appeared as
a defendant, judgment could not be entered against it.
Reversed and remanded with directions.
Smith & Gamble, Carson City, for Appellants.
98 Nev. 293, 294 (1982) Schwob v. Hemsath
Sheerin, O'Reilly, Walsh & Keele, Carson City, for Respondent.
1. Quieting Title.
Where corporation held legal title to property in controversy, a hardware store, and district court ordered
that hardware store be conveyed to the respondent, the corporation was an indispensable party in action.
NRCP 19(a).
2. Appeal and Error; Parties.
Failure to join an indispensable party is fatal to a judgment and may be raised by an appellate court sua
sponte. NRCP 19(a).
3. Parties.
Where title to asset in dispute was in corporation which was an indispensable party but had never been
served with summons in action, and had never appeared as a defendant, judgment could not be entered
against the corporation. NRCP 4(d), 19(a).
OPINION
Per Curiam:
1

[Headnotes 1, 2]
The record before this court indicates that the district court entered judgment against a
corporation, R.N.S., Inc., which was never served with process in the action. Without proper
service of process the district court acquires no jurisdiction over a party. NRCP 4(d);
Brockbank v. District Court, 65 Nev. 781, 201 P.2d 299 (1948); State v. District Court, 51
Nev. 206, 273 P. 659 (1929). Nothing in the record before this court suggests that R.N.S.,
Inc., has ever appeared in the action or subjected itself to the jurisdiction of the court. Cf.
Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971). It is undisputed that R.N.S., Inc., holds
legal title to the property in controversy here, a hardware store in Minden. By its judgment,
the district court ordered that the hardware store be conveyed to respondent Hemsath. Thus it
is evident that R.N.S., Inc., is an indispensable party. NRCP 19(a); Johnson v. Johnson, 93
Nev. 655, 572 P.2d 925 (1977); Chiodo v. General Waterworks Corporation, 380 F.2d 860
(10th Cir.), cert. denied, 389 U.S. 1004 (1967). Failure to join an indispensable party is fatal
to a judgment and may be raised by an appellate court sua sponte. Provident Bank v.
Patterson, 390 U.S. 102 (1968); Johnson v. Johnson, supra.
[Headnote 3]
In this case, it is conceded that title to the asset in dispute is in a corporation which has
never been served with summons in the action, and has never appeared as a defendant.
____________________

1
The Honorable Noel E. Manoukian, Justice, voluntarily disqualified himself from the decision of this case.
98 Nev. 293, 295 (1982) Schwob v. Hemsath
the action, and has never appeared as a defendant. See Blum v. Postal Telegraph, 60 F.Supp.
237 (W.D.Pa. 1945) (plaintiff must comply with service of summons requirements to add
party defendant). Accordingly, we reverse the judgment of the district court and remand this
case with directions to allow the respondent the opportunity to join the party, and to grant a
new trial if the party is properly joined. Sandobal v. Armour and Company, 429 F.2d 249 (8th
Cir. 1970); McShan v. Sherrill, 283 F.2d 462 (9th Cir. 1960).
Reversed and remanded.
____________
98 Nev. 295, 295 (1982) Hill v. State
EUGENE CARMEN HILL, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12980
June 25, 1982 647 P.2d 370
Appeal from judgment of conviction of second degree murder following jury trial. Second
Judicial District Court, Washoe County; William N. Forman, Judge.
The Supreme Court held that: (1) an honest, but unreasonable, belief in the necessity of
self-defense does not reduce the offense from murder to manslaughter, and (2) it was not
reversible error to refuse to instruct that prosecution had burden of proving that defendant did
not act in self-defense.
Affirmed.
William N. Dunseath, Public Defender, and Jane G. McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Calvin R. X. Dunlap, District Attorney, and Edward B. Horn and Bruce Laxalt, Deputy
District Attorneys, Washoe County, for Respondent.
1. Homicide.
An honest, but unreasonable, belief in the need for self-defense, does not reduce the degree of the offense
from murder to manslaughter. NRS 200.010, 200.040, 200.050, 200.120, 200.130.
2. Homicide.
Burden of proving absence of justification or excuse for homicide rests with the state. NRS 200.010,
200.040, 200.050, 200.120, 200.130.
3. Criminal Law.
Although it is preferable that the jury be specifically instructed as to state's burden of proof on a
defendant's affirmative defense, it was not reversible error to refuse to instruct that
prosecution had burden of proving that defendant did not act in self-defense where,
as a whole, instructions adequately informed jury that the prosecution's burden of
proof applied to that affirmative defense.
98 Nev. 295, 296 (1982) Hill v. State
to state's burden of proof on a defendant's affirmative defense, it was not reversible error to refuse to
instruct that prosecution had burden of proving that defendant did not act in self-defense where, as a whole,
instructions adequately informed jury that the prosecution's burden of proof applied to that affirmative
defense. NRS 200.010, 200.120, 200.130.
OPINION
Per Curiam:
Appellant has appealed from a judgment of conviction of second degree murder following
a jury verdict. He contends that the trial court erred by refusing to instruct the jury that an
honest, but unreasonable belief in the need for self-defense reduces the degree of the offense
from murder to manslaughter. He also contends that reversible error occurred when the trial
court refused to instruct the jury that the prosecution has the burden of proving that the
defendant did not act in self-defense. We reject both contentions and affirm the conviction.
Appellant was convicted of second degree murder for the January 14, 1980, fatal stabbing
of David Wayne Palmer in a pool hall and bar in Reno. At trial, Hill based his defense largely
on a theory of self-defense. There was testimony, much of it from Hill himself, indicating that
Palmer and his friends had verbally threatened Hill and that Palmer had brandished a pool cue
at him. Other testimony from several eyewitnesses contradicted Hill's theory of self-defense
and suggested that Hill, who was intoxicated at the time, was the perpetrator of and aggressor
in the ensuing fight. No one witnessed the actual stabbing, but when the fight ended, Palmer
collapsed, mortally wounded, and died shortly thereafter from a stab wound to the chest.
The trial judge instructed the jury on the elements of murder, manslaughter and
self-defense. See NRS 200.010, 200.120, 200.130.
[Headnote 1]
NRS 200.120, 200.130 require that in order for homicide to be justified, the defendant's
belief in the necessity of using force in self-defense must be reasonable. Appellant urges us to
adopt the rule espoused in People v. Flannel, 603 P.2d 1 (Cal. 1980). The California Supreme
Court held that if a defendant entertained an honest, but unreasonable, belief in the necessity
of self-defense, at most he could be convicted only of manslaughter, since such a belief is
inconsistent with and negates malice, an element of murder.
98 Nev. 295, 297 (1982) Hill v. State
We reject this imperfect self-defense theory because, unlike California's statutory
scheme, NRS 200.040 and NRS 200.050 provide an express restriction on the situations
giving rise to voluntary manslaughter.
1
As the Arizona Supreme Court stated in State v.
Tuzon, 575 P.2d 1231, 1235 (Ariz. 1978) (interpreting A.R.S. 13-462):
[a] plea of self-defense . . . only seeks to justify a homicide. If the jury had found that it
was unreasonable for the appellant to believe that the victim was shooting at him, then
the homicide simply was not justified. The standard is a reasonable person's belief, not
the unreasonable, even if honest, belief of the accused. [Citation omitted.]
[Headnotes 2, 3]
Finally, the trial court did not commit reversible error by refusing to instruct the jury that
the prosecution has the burden of proving that the defendant did not act in self-defense.
Without doubt, the burden of proving absence of justification or excuse for the homicide
resides with the state. See St. Pierre v. State, 96 Nev. 887, 620 P.2d 1240 (1980), and Kelso
v. State, 95 Nev. 37, 588 P.2d 1035, cert. denied, 442 U.S. 921 (1979). It is preferable that
the jury be specifically instructed as to the state's burden of proof on a defendant's affirmative
defense. However, the trial court gave numerous instructions, which taken as a whole,
adequately informed the jury that the prosecution's burden of proof applied to defendant's
affirmative defense. See People v. Travis, 558 P.2d 579 (Colo. 1976). The instant case is
readily distinguishable from St. Pierre and Kelso, supra, in which a given instruction
impermissibly placed the burden of proving self-defense squarely on the defendant.
We affirm appellant's conviction.
____________________

1
NRS 200.040 provides:
Manslaughter is the unlawful killing of a human being, without malice express or implied, and
without any mixture of deliberation. It must be voluntary, upon a sudden heat of passion, caused by a
provocation apparently sufficient to make the passion irresistible; or, involuntary, in the commission of
an unlawful act, or a lawful act without due caution or circumspection.
NRS 200.050 provides:
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.
____________
98 Nev. 298, 298 (1982) Public Serv. Comm'n v. Lear
PUBLIC SERVICE COMMISSION OF NEVADA and SOUTHWEST GAS
CORPORATION, A Nevada Corporation, Appellants, v. JOHN O. LEAR and MARILEE
LEAR, Respondents.
No. 13200
June 25, 1982 646 P.2d 1213
Appeal from order vacating and remanding Public Service Commission decision, Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from an order of the district court vacating and remanding a Public
Service Commission decision against gas customers. The Supreme Court held that district
court did not err in vacating and remanding Public Service Commission decision against gas
customers who had claimed that gas bill was in error where Commission relied solely on
evidence of accurate meter reading while refusing even to consider evidence presented by
customers since reliance on gas meter readings was not only reliable means of determining
gas consumption.
Affirmed.
Zev E. Kaplan, Carson City, for Appellant Public Service Commission.
William A. Claerhout and Rochelle Levine Berkley, Las Vegas, for Appellant Southwest
Gas Corp.
Stephen R. Minagil, Las Vegas, for Respondents.
1. Public Utilities.
Neither district court nor Supreme Court may substitute its judgment for that of Public Service
Commission. NRS 704.540, 704.540, subd. 3.
2. Public Utilities.
Supreme Court, like district court, is limited in its review of Public Service Commission's decision to
determination of whether the decision was supported by substantial evidence. NRS 704.540, 704.540,
subd. 3.
3. Gas.
District court did not err in vacating and remanding Public Service Commission decision against gas
customers who had claimed that gas bill was in error where Commission relied solely on evidence of
accurate meter reading while refusing even to consider evidence presented by customers since reliance on
gas meter readings was not only reliable means of determining gas consumption.
98 Nev. 298, 299 (1982) Public Serv. Comm'n v. Lear
OPINION
Per Curiam:
This appeal is taken from a district court order vacating and remanding a Public Service
Commission (PSC) decision against respondents John and Marilee Lear. We affirm.
In February 1979, the Lears received a monthly bill from Southwest Gas Corporation
(Southwest) in the amount of $465.46. This figure allegedly represented the amount of gas
Southwest had furnished the Lears during the billing period of January 19, 1979 to February
20, 1979. Since this bill was much higher than their previous bills, the Lears complained to
Southwest. Not being able to settle their dispute with Southwest, the Lears filed a complaint
with the PSC. After a hearing, the PSC concluded that Southwest had proved it had delivered
at least $465.46 worth of gas to the Lears, and that Southwest was entitled to payment in that
amount.
Thereafter, the Lears filed a complaint in district court seeking judicial review of the PSC's
decision pursuant to NRS 704.540. No new evidence was presented at the district court
hearing. However, after reviewing the pleadings and the transcript of the PSC hearing, the
district court entered an order vacating the PSC's decision in favor of Southwest on the
ground that it was not supported by substantial evidence. The PSC and Southwest have
appealed.
[Headnotes 1, 2]
The sole issue on appeal is whether the district court erred by vacating the PSC's decision
for lack of substantial evidence. Neither the district court, nor this court, may substitute its
judgment for that of the PSC. State PSC v. Zephyr Cove Water Co., 94 Nev. 634, 584 P.2d
698 (1978); No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). The
supreme court, like the district court, is limited in its review to a determination of whether the
PSC's decision was supported by substantial evidence. Id.
1

[Headnote 3]
At the PSC hearing, the Lears presented evidence that their previous and subsequent
monthly gas bills were $31.72 and $2S.S0, respectively.
____________________

1
Citing NRS 704.540(3), the Lears contend, for the first time on appeal, that the district court was not limited
in its review to a determination of whether the PSC's decision was supported by substantial evidence. We do not
find the Lears' construction of NRS 704.540(3) persuasive in view of our holdings in State PSC v. Zephyr Cove
Water Co., supra, and No. Las Vegas v. Pub. Serv. Comm'n, supra, both of which involved actions brought
pursuant to NRS 704.540.
98 Nev. 298, 300 (1982) Public Serv. Comm'n v. Lear
previous and subsequent monthly gas bills were $31.72 and $28.80, respectively. Mrs. Lear
testified that her husband was out of town for 13 days of the billing period in question, and
that his absence affected her style of living so as to reduce the amount of gas usage. She also
testified that they had not used their swimming pool heater, downstairs fireplace, or barbeque
during Mr. Lear's absence. The Lears also presented the testimony of John G. Tryon, an
engineering professor, who stated that based on his examination of photographs of the
swimming pool taken during the billing period, it was his opinion that the pool heater had not
been used, since there was snow surrounding the pool.
Southwest countered with evidence that the Lears' gas meter had been read and reread,
tested and retested. The first test showed that the meter was accurate to .10 percent slow in
favor of the customer. The second test revealed that the meter was .05 percent slow in favor
of the customer. The gas line was checked, and no leaks were found. In its presentation,
Southwest called seven witnesses, all with expertise in the natural gas industry, and all of
whom testified that the meter accurately reflected the amount of gas the company had
delivered to the Lears. The testimony indicated that once the gas passed through the meter,
Southwest could neither control nor explain what use was made of it by the customer.
After hearing the evidence, the PSC entered a decision in favor of Southwest. The district
court apparently viewed the PSC decision as relying solely on evidence of the accurate meter
while refusing even to consider the evidence presented by the Lears. Indeed, the PSC decision
states in part: This Commission has determined that reliance upon accurate meters is the
only viable means of measuring the quantity of gas delivered by a utility to a customer. In
vacating and remanding the decision, the district court stated:
IT IS HEREBY ORDERED that the STATE OF NEVADA, PUBLIC SERVICE
COMMISSION'S position of relying on the testing of the gas meter exclusively is
reasonable for the greatest number of disputed bill cases. However, when the
challenged bill reflects a dollar amount so inconsistent with prior and subsequent gas
usage, as in the instant case, the COMMISSION must consider other evidence.
Therefore, under the circumstances of the instant case, the order of the PUBLIC
SERVICE COMMISSION is unreasonable and not supported by substantial evidence.
This case is remanded to the STATE OF NEVADA, PUBLIC SERVICE
COMMISSION to enter an order not inconsistent with the above.
98 Nev. 298, 301 (1982) Public Serv. Comm'n v. Lear
The district court's conclusion is not unreasonable. While reliance on accurate meters is
certainly a viable means of measuring the amount of gas delivered by a utility to its customer,
we decline to adopt the rule urged by appellants that such reliance is the only viable means of
determining gas consumption.
Affirmed.
2

____________________

2
At oral argument, counsel for the Lears conceded that the district court's order did not mandate a PSC
decision in their favor, but merely remanded the case for consideration of other evidence, presumably the
evidence presented by the Lears at the hearing. We express no opinion as to what the PSC's decision should be
on remand.
____________
98 Nev. 301, 301 (1982) Walport v. Walport
EDWARD E. WALPORT, Appellant, v. ELIZABETH
J. WALPORT, Respondent.
No. 13639
June 25, 1982 646 P.2d 1215
Appeal from order denying motion to modify decree of divorce, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Ex-husband appealed from an order of the district court which denied his motion to
modify a decree of divorce. The Supreme Court held that ex-wife's failure to obtain counsel
and to file her brief despite two delays granted by the Supreme Court to allow her to do so,
and despite a warning that failure to comply with the court order might be treated by the court
as a confession of error, warranted a finding of confession of error.
Reversed and remanded.
Robert C. LePome, Las Vegas, for Appellant.
Elizabeth J. Walport, Las Vegas, In Proper Person.
Divorce.
On appeal of order denying motion to modify decree of divorce, respondent's failure to retain counsel and
file answering brief in six-month period, despite Supreme Court's entry of two orders granting her
additional 30 days to obtain counsel and to file brief, and despite warning that failure to comply with court
order might be treated as confession of error, warranted treating respondent's conduct as confession of
error.
98 Nev. 301, 302 (1982) Walport v. Walport
OPINION
Per Curiam:
On January 20, 1982, respondent was granted 30 days in which to obtain counsel, and 60
days in which to file her brief in this matter. Respondent failed to comply with that order. On
April 5, 1982, we entered an order, sua sponte, granting respondent an additional 30 days to
obtain counsel and to file her brief in this matter. Respondent was, at that time, informed that
failure to comply with our order might be treated by the court as a confession of error and
appropriate disposition of the appeal made. Nevertheless, respondent has not filed an
answering brief and, apparently, has not retained counsel.
We choose to treat respondent's conduct as a confession of error. NRAP 31(c); Rockwell
v. Rockwell, 98 Nev. 80, 640 P.2d 1318 (1982). Accordingly, we reverse the order denying
appellant's motion to modify the decree of divorce in this matter, and we remand to the
district court for further proceedings.
____________
98 Nev. 302, 302 (1982) Hardin v. Griffin
CORDELL HARDIN, Petitioner, v. HONORABLE MICHAEL R. GRIFFIN, DISTRICT
JUDGE, FIRST JUDICIAL DISTRICT, DEPARTMENT I, Respondent.
No. 14102
June 25, 1982 646 P.2d 1216
Petition for writ of mandamus or prohibition.
Accused petitioned for writ of mandamus or prohibition challenging a district court order
denying his pretrial petition for writ of habeas corpus. The Supreme Court held that: (1)
pretrial habeas corpus could not be used to challenge admissibility of evidence on
constitutional grounds; (2) the Court would not entertain a petition for writ of mandamus or
prohibition challenging the district court's probable cause determination; and (3) even if
defendant were to prevail on his argument that prior drunk driving convictions could only be
used for enhancement at the time of sentencing on conviction of felony drunk driving, he
would not be entitled to release from custody because he would still have to stand trial on
felony charge and thus, his argument was not the proper subject of a pretrial habeas corpus
petition.
Petition denied.
98 Nev. 302, 303 (1982) Hardin v. Griffin
J. Gregory Damm, Nevada State Public Defender, and Annabelle Whiting Hall, Deputy
State Public Defender, Carson City, for Petitioner.
William Maddox, District Attorney, Carson City, for Respondent.
1. Habeas Corpus.
Pretrial habeas corpus could not be used to challenge admissibility of evidence on constitutional grounds,
but such challenge could be made on motion to suppress evidence, and review of district court's ruling
could be sought following trial and conviction.
2. Mandamus; Prohibition.
Supreme Court would not entertain petition for writ of mandamus or prohibition which challenged district
court's probable cause determination.
3. Habeas Corpus.
In prosecution for felony driving under influence of intoxicating liquors, defendant would not be entitled
to immediate release from custody even if he prevailed on his contention that three prior convictions could
be used solely for sentencing enhancement purposes, rather than as elements of offense, and thus this
contention could not be entertained on pretrial habeas corpus petition; furthermore, defendant would have
plain, speedy and adequate remedy of appeal for any prejudicial error which might occur in use of those
prior convictions.
OPINION
Per Curiam:
This original proceeding in mandamus and prohibition challenges the order of the district
court denying a pretrial petition for writ of habeas corpus. For the reasons set forth below, we
deny the petition for extraordinary relief. NRAP 21(b).
Hardin stands charged with driving under the influence of intoxicating liquors. The
criminal information alleges that this is Hardin's third offense within five years, and that the
offense is therefore a felony under NRS 484.379. At the preliminary hearing on January 12,
1982, evidence of Hardin's two prior convictions was admitted over a defense objection. The
justice of the peace found probable cause to believe that Hardin committed the felony, and
Hardin was bound over to the district court for trial.
The major premise of the habeas corpus petition was that insufficient evidence was
presented at the preliminary hearing because the evidence of Hardin's two prior convictions
was constitutionally infirm.
1
The district court found that records of the prior convictions
were admissible at the preliminary hearing; therefore, the court found that probable
cause existed as to the felony charged.
____________________

1
Specifically, Hardin argued that the records of the prior convictions, both of which were based on guilty or
nolo contendere pleas, did not show sufficient waivers of counsel. Hardin also argued that there was no showing
that the pleas were knowing and voluntary.
98 Nev. 302, 304 (1982) Hardin v. Griffing
of the prior convictions were admissible at the preliminary hearing; therefore, the court found
that probable cause existed as to the felony charged.
[Headnotes 1, 2]
Pretrial habeas corpus may not be used to challenge admissibility of evidence on
constitutional grounds. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). Such a challenge
should be made in a motion to suppress evidence, and review of the district court's ruling may
be sought following trial and conviction. Id. In addition, we will not entertain a petition for
writ of mandamus or prohibition which challenges the district court's probable cause
determination. Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980). Therefore, we
decline to review, in this original prohibition and mandamus proceeding, the district court's
pretrial ruling as to admissibility of evidence.
[Headnote 3]
The habeas corpus petition filed in district court also discussed the question of whether the
prior convictions were elements of the offense or were merely to be used for enhancement at
the time of sentencing. The district court ruled that the prior convictions would be used as
substantive proof of the crime charged, and that the prior convictions would not be used
solely for enhancement purposes during sentencing. The present petition challenges that
ruling.
We note that even under Hardin's interpretation of NRS 484.379, and even if Hardin were
to prevail in his argument as to how the prior convictions should be used at trial, Hardin
would not be entitled to immediate release from custody because he would still have to stand
trial on the felony charge. Thus, Hardin's argument was not the proper subject of a pretrial
habeas corpus petition. See NRS 34.360 et seq.; cf. Director, Dep't Prisons v. Arndt, 98 Nev.
84, 640 P.2d 1318 (1982) (habeas corpus warranted only to challenge legality of custody or
restraint).
Furthermore, to the extent that Hardin invites this court to issue a pretrial interpretation of
NRS 484.379, we decline to intervene. Hardin's contention as to how the prior convictions
should be used at trial can be raised on direct appeal if Hardin is convicted. NRS 177.045.
Thus, he will have a plain, speedy and adequate remedy for any prejudicial error which might
occur at trial, and this court will have a complete record upon which to review the issues
presented. See NRS 34.170; 34.330.
The petition is denied.
2

____________________

2
Of course, we express no opinion on the merits of issues raised by Hardin in this petition.
____________
98 Nev. 305, 305 (1982) State v. O'Donnell
The STATE OF NEVADA, Petitioner, v. THE HONORABLE THOMAS J. O'DONNELL,
District Judge, Eighth Judicial District Court of the State of Nevada; and DONALD J.
BOWEN, Defendant, Respondents.
No. 14010
June 25, 1982 646 P.2d 1217
State petitioned for writ of mandamus, challenging district court's order dismissing
criminal complaint against defendant on ground of late filing of transcript of record of
original proceedings. The Supreme Court held that late filing of transcript by justice's court
did not warrant dismissal of underlying criminal charges against defendant.
Petition granted.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Petitioner.
David Abbatangelo, Las Vegas, for Respondents.
Criminal Law.
Late filing of transcript of record of original proceedings against defendant by justice's court on
defendant's appeal of conviction to the district court did not warrant dismissal of underlying criminal
charges against defendant.
OPINION
Per Curiam:
This petition for a writ of mandamus challenges the respondent district court's order
dismissing the criminal complaint against defendant Donald J. Bowen, real party in interest.
1

On January 6, 1982, Bowen was convicted in justice's court of disturbing the peace.
Bowen thereafter appealed his conviction to the district court. On March 1, 1982, the district
judge dismissed the complaint and charges against Bowen, with prejudice, on the ground that
the justice's court had failed to transcribe and transfer the record of the original proceedings
against Bowen within the ten days prescribed by NRS 1S9.030.2 The district judge
reasoned that the district attorney's office had the responsibility to see that Bowen's
appeal proceeded in accordance with the law, and that to ignore the ten-day time limit set
forth in NRS 1S9.030 exhibited a procedural laxity which warranted dismissal of the
charges against the defendant.
____________________

1
We note that respondent did not file an answer against issuance of a writ as ordered by this court. Despite
this dereliction, we review the merits of the petition pursuant to NRS 34.200 and NRS 34.260.
98 Nev. 305, 306 (1982) State v. O'Donnell
against Bowen within the ten days prescribed by NRS 189.030.
2
The district judge reasoned
that the district attorney's office had the responsibility to see that Bowen's appeal proceeded
in accordance with the law, and that to ignore the ten-day time limit set forth in NRS 189.030
exhibited a procedural laxity which warranted dismissal of the charges against the defendant.
In most appeals, the burden is not on the respondent to insure that the record is filed or to
otherwise perfect the appeal. See, e.g., NRAP 12(c); NRS 189.065. We have found no case or
statutory authority to support the reasoning of the district judge that the prosecutor's office
had the responsibility to see that the record on Bowen's appeal was timely filed with the
district court.
We hold that the late filing of the transcript by the justice's court does not warrant
dismissal of the underlying criminal charges against the defendant. Accordingly, we grant the
writ of mandamus and direct the district court to vacate its order dismissing the criminal
complaint and charges against Bowen. The district court shall proceed with the merits of
Bowen's appeal.
____________________

2
NRS 189.030 provides in pertinent part:
1. The justice shall, within 10 days after the notice of appeal is filed, transmit to the clerk of the
district court the transcript of the case, all other papers relating to the case and a certified copy of his
docket. (Emphasis added.)
2. The justice shall give notice to the appellant or his attorney that the transcript and all other papers
relating to the case have been filed with the clerk of the district court.
____________
98 Nev. 307, 307 (1982) Collier v. Legakes
GREGORY ALAN COLLIER, Petitioner, v. THE HONORABLE ROBERT G. LEGAKES,
as District Judge, Eighth Judicial District Court of the State of Nevada, in and for the County
of Clark, Respondent.
No. 13900
THE STATE OF NEVADA, Petitioner, v. THE HONORABLE THOMAS J. O'DONNELL,
District Judge, Eighth Judicial District Court of the State of Nevada, in and for the County of
Clark; BERNICE DIANE CARDARELLI; WILLIAM O'DONNELL; and VICKY
INGEGNERI, Defendants, Respondents.
No. 13914
RUSSELL WAYNE CREW, Petitioner, v. THE HONORABLE ADDELIAR D. GUY, Judge
of the Eighth Judicial District of the State of Nevada, in and for the County of Clark,
Respondent.
No. 13928
June 25, 1982 646 P.2d 1219
Consolidated petitions were filed for writs of mandamus challenging district court orders
granting and denying pretrial motions to disqualify the Clark County district attorney's office
from prosecution of certain criminal proceedings. The Supreme Court denied petitions in two
cases as there was no showing that district judges acted arbitrarily or capriciously in refusing
to disqualify prosecutor and issued writ in one case where disqualification was based solely
on appearance of impropriety.
Petitions denied in No. 13900 and No. 13928. Petition granted in No. 13914.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland, and Daniel M. Seaton, Deputy District Attorneys, Clark County; Morgan D.
Harris, Public Defender, Terrence M. Jackson, Deputy Public Defender, Clark County;
Goodman, Terry, Stein & Quintana, Las Vegas, for Petitioners.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland, and Daniel M. Seaton, Deputy District Attorneys, John J. Momot, David
Abbatangelo, Las Vegas, for Respondent.
98 Nev. 307, 308 (1982) Collier v. Legakes
1. Criminal Law.
Disqualification of a prosecutor's office rests with the sound discretion of the district court and in
exercising that discretion the trial judge should consider all the facts and circumstances and determine
whether the prosecutorial function could be carried out impartially and without breach of any privileged
communication.
2. Criminal Law.
Vicarious disqualification of prosecutor's office may be warranted in extreme cases where the appearance
of unfairness or impropriety is so great that the public trust and confidence in the criminal justice system
could not be maintained without such action, and such an extreme case may exist even where the state has
established an effective screen precluding the individual lawyer's direct or indirect participation in
prosecution.
3. Mandamus.
While mandamus lies to enforce ministerial acts or duties and to require the exercise of discretion, it will
not serve to control the proper exercise of that discretion or to substitute the judgment of a reviewing court
for that of the lower tribunal.
4. Criminal Law.
District judges exercised their discretion and neither defendant demonstrated that the judges acted
arbitrarily or capriciously in refusing to disqualify Clark County prosecutor's office where when one
defendant's case first came to public defender's office the present chief deputy district attorney was then the
chief deputy public defender but was not participating in defendant's prosecution and where, in second
case, a deputy with the district attorney's office had, while in private practice, represented a codefendant at
latter's murder trial, but had not participated in instant defendant's prosecution.
5. Mandamus.
Mandamus would lie where district court did not exercise its discretion in ruling on motion to disqualify
county district attorney's office because chief deputy district attorney had formerly represented defendant
while employed at public defender's office but had disqualified prosecutor's office solely on basis of
appearance of impropriety.
OPINION
Per Curiam:
In these mandamus proceedings, all petitioners challenge orders of the respondent district
court granting of denying pretrial motions to disqualify the Clark County District Attorney's
Office from the prosecution of certain criminal proceedings. We deny the petitions in No.
13900 and No. 13928. We grant the petition in No. 13914.
STATEMENT OF THE FACTS
No. 13900:
Petitioner Collier is charged with murder, robbery with the use of a weapon, and
possession of a firearm by an ex-felon. Collier is represented by the Clark County Public
Defender's Office.
98 Nev. 307, 309 (1982) Collier v. Legakes
Office. When his case first came to the public defender's office, Thomas Leen was the chief
deputy public defender. Thomas Leen now works for the Clark County District Attorney's
Office as chief deputy district attorney, but is not participating in Collier's prosecution.
Collier moved the district court to disqualify the district attorney's office from prosecuting
his case. The district court conducted an evidentiary hearing and thereafter denied Collier's
motion.
No. 13914:
Defendants William O'Donnell, Vicky Ingegneri, and Bernice Cardarelli are charged with
selling a controlled substance and conspiracy to sell a controlled substance. Defendant
O'Donnell is represented by the Clark County Public Defender's Office and defendants
Ingegneri and Cardarelli have each retained private counsel.
Defendant Cardarelli moved the district court to disqualify the Clark County District
Attorney's Office from prosecuting the case on the ground that Thomas Leen had formerly
represented co-defendant O'Donnell while Leen was employed at the Clark County Public
Defender's Office. The district court, without holding an evidentiary hearing, granted
Cardarelli's motion, thereby disqualifying the district attorney's office from prosecuting all
three defendants.
No. 13928:
Petitioner Russell Crew, charged with two counts of murder and two counts of use of a
deadly weapon in the commission of a crime, moved the district court to disqualify the Clark
County District Attorney's Office from prosecuting his case. He contended that a conflict of
interest was present due to Bill Berrett's position with the district attorney's office as a deputy.
Mr. Berrett, a former private practitioner, had represented Crew's co-defendant at the
co-defendant's murder trial. Berrett is not participating in Crew's prosecution, however.
After holding a hearing on the motion, and reviewing the briefs and affidavits submitted in
support of and in opposition to the motion, the district court denied Crew's motion.
DECISION
[Headnotes 1, 2]
The disqualification of a prosecutor's office rests with the sound discretion of the district
court. Tomlin v. State, 81 Nev. 620, 407 P.2d 1020 (1965); Hawkins v. 8th District Court, 67
Nev. 248, 216 P.2d 601 (1950); Trone v. Smith, 621 F.2d 994 {9th Cir.
98 Nev. 307, 310 (1982) Collier v. Legakes
(9th Cir. 1980). In exercising that discretion, the trial judge should consider all the facts and
circumstances and determine whether the prosecutorial function could be carried out
impartially and without breach of any privileged communication. As stated in State v.
Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind. 1982):
[E]thical rules require that a lawyer should avoid even the appearance of professional
impropriety and that in certain situations the disqualification of one lawyer within a law
firm means that all members of the firm are also disqualified. Canons 5 and 9, DR
5-105(D). While this principle is strictly enforced in the context of civil actions
conducted by private law firms, it is less strictly applied to government agencies. Where
a lawyer who has represented a criminal defendant on prior occasions is one of the
deputy prosecutors, disqualification of the entire office is not necessarily appropriate.
Individual rather than vicarious disqualification may be the appropriate action,
depending upon the specific facts involved. (Emphasis added.)
Further, we recognize that vicarious disqualification may be warranted in extreme cases
where the appearance of unfairness or impropriety is so great that the public trust and
confidence in our criminal justice system could not be maintained without such action. Such
an extreme case might exist even where the state has established an effective screen
precluding the individual lawyer's direct or indirect participation in the prosecution.
[Headnote 3]
Finally, while mandamus lies to enforce ministerial acts or duties and to require the
exercise of discretion, it will not serve to control the proper exercise of that discretion or to
substitute the judgment of this court for that of the lower tribunal. See Kochendorfer v. Board
of Co. Comm'rs, 93 Nev. 419, 566 P.2d 1131 (1977).
[Headnote 4]
In petition No. 13900, the district judge, after considering the testimonial evidence
presented at the evidentiary hearing, exercised his discretion and denied Collier's motion to
disqualify. Similarly, in petition No. 13928, the district judge, after holding a hearing on
Crew's motion to disqualify and reviewing the briefs and affidavits submitted in support of
and in opposition to the motion, denied Crew's motion. Since the respondent district judges in
both petition No. 13900 and petition No. 13928 exercised their discretion, and since neither
Collier nor Crew has demonstrated that the district judges acted arbitrarily or capriciously in
doing so, mandamus does not lie to challenge the denial of their motions to disqualify.
98 Nev. 307, 311 (1982) Collier v. Legakes
to challenge the denial of their motions to disqualify. Accordingly, we deny the petitions in
No. 13900 and No. 13928.
[Headnote 5]
In petition No. 13914, however, the district judge granted the motion to disqualify without
holding an evidentiary hearing. Additionally, the district judge refused to hear argument from
the district attorney. His ruling was based solely on the appearance of impropriety, rather than
a consideration of all the facts and circumstances. We find, therefore, that the district judge,
in effect, failed to exercise his discretion. Accordingly, we grant a petition for writ of
mandamus in No. 13914. We vacate the order of the district court disqualifying the entire
district attorney's office. The district court shall conduct an evidentiary hearing on defendant
Cardarelli's motion, and after a consideration of all the relevant facts, shall determine whether
the prosecutorial function can be carried out by the Clark County District Attorney's Office
impartially and without breach of any privileged communication.
1

____________________

1
We express no opinion on what the outcome of that hearing should be.
____________
98 Nev. 311, 311 (1982) Golden Nugget, Inc. v. Ham
GOLDEN NUGGET, INC., A Nevada Corporation, Appellant, v. A. W. HAM, Jr., An
Individual, FIRST NATIONAL BANK OF NEVADA, as Trustee Under That Certain Trust
Agreement, Dated June 27, 1973, Wherein A. W. Ham, Jr. is Trustor and Bank of Nevada is
Trustee, and DORIS HAM SHUPE, An Individual, Respondents.
No. 12569
June 25, 1982 646 P.2d 1221
Appeal from judgment for respondent. Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Corporation brought action against former corporate director to recover for breach of
fiduciary duty. Following remand, 95 Nev. 45, 589 P.2d 173 (1979), the district court ruled
that plaintiff's claim was barred by statute of limitations, and plaintiff appealed. The Supreme
Court held that evidence sustained finding that corporation knew or reasonably should have
known of facts giving rise to its claim the day the corporation circulated a consent statement
seeking stockholder approval of corporation's lease of subject property from the corporate
director, and suit, which was not filed within three years after that date, was barred by
applicable statute of limitations.
98 Nev. 311, 312 (1982) Golden Nugget, Inc. v. Ham
corporate director, and suit, which was not filed within three years after that date, was barred
by applicable statute of limitations.
Affirmed.
Hilbrecht, Jones, Schreck & Bernhard, Las Vegas, and Ronald M. Sohigian, Los Angeles,
for Appellant.
Wiener, Waldman & Gordon, Las Vegas, and Laurence A. Speiser, Las Vegas, For
Respondent A. W. Ham, Jr.
Morse-Foley, Las Vegas, for Respondent First National Bank of Nevada.
1. Fraud; Limitation of Actions.
Three-year statute of limitations is applicable to suit for breach of fiduciary duty, but the statute does not
commence to run until plaintiff knew or reasonably should have known facts giving rise to defendant's
alleged breach of fiduciary duty. NRS 11.190, subd. 3(d).
2. Limitation of Actions.
Where fiduciary relationship exists, facts which would ordinarily require investigation may not excite
suspicion, and statute of limitations governing suit for breach of fiduciary duty may be tolled if fiduciary
fails to fulfill his obligation and also fails to inform the other party of his failure, resulting in fraudulent
concealment. NRS 11.190, subd. 3(d).
3. Limitation of Actions.
Fraudulent concealment must be alleged with particularity, and plaintiff must show the means by which
previously unknown information was acquired within statutory limitations period which led to discovery of
the concealment and underlying breach of fiduciary duty. NRS 11.190, subd. 3(d).
4. Limitation of Actions.
In action for breach of fiduciary duty arising out of corporate director's failure to advise corporation of its
opportunity to lease certain property, evidence sustained finding that corporation knew or reasonably
should have known of facts giving rise to its claim the day the corporation circulated a consent statement
seeking stockholder approval of corporation's lease of subject property from the corporate director, and
suit, which was not filed within three years after that date, was barred by applicable statute of limitations.
NRS 11.190, subd. 3(d).
OPINION
Per Curiam:
Appellant, Golden Nugget, Inc. (GNI), alleges, inter alia, that the trial court erred in
finding that appellant's claim against respondents is barred by the statute of limitations. We
agree with the trial court, and therefore decline to address the several other issues raised
in this appeal.
98 Nev. 311, 313 (1982) Golden Nugget, Inc. v. Ham
agree with the trial court, and therefore decline to address the several other issues raised in
this appeal.
The underlying facts of this case have been discussed in our decision of Golden Nugget,
Inc. v. Ham, 95 Nev. 45, 589 P.2d 173 (1979). In summary, Golden Nugget, Inc. seeks
damages for breach of fiduciary duty by Ham and a declaration that it is the legal owner of an
undivided one-half interest in certain real property presently held in trust by First National
Bank. GNI's action is based on the fact that in 1969, while serving as corporate director and
counsel for GNI, Ham leased from his former wife, Doris Ham Shupe, an undivided one-half
interest in and option to purchase real property on Fremont Street in Las Vegas. At the time
of the lease transaction, GNI had extended its operations to every other lot on Fremont Street
through a series of property acquisitions. GNI asserts that Ham breached his fiduciary duty to
GNI by failing to advise the corporation of its opportunity to lease Shupe's interest in the
property.
In Golden Nugget, supra, we reversed the trial court's order granting respondents' motion
for summary judgment based on the running of the three year statute of limitation. NRS
11.190(3)(d). On remand and after trial on the merits, the trial court again determined that the
action was barred by the statute of limitations. Based on the record now before us, we agree.
[Headnote 1]
GNI filed its cause of action in September 1974. The applicable statute of limitations for
breach of fiduciary duty is the three year period provided by NRS 11.190(3)(d). Shupe v.
Ham, 98 Nev. 61, 639 P.2d 540 (1982). The statute of limitations does not commence to run,
however, until appellant knew or reasonably should have known facts giving rise to
respondent's alleged breach of fiduciary duty. Shupe v. Ham, supra, at 65, 639 P.2d at 542.
The trial court determined that appellant knew or reasonably should have known such facts
by November 10, 1970, the day GNI circulated a consent statement seeking stockholder
approval of the corporation's lease of the subject property from Ham. We find substantial
evidence to support that finding, and will not disturb the trial court's decision on appeal.
There was testimony that prior to the Ham/Shupe lease, Ham apprised the president of
GNI that he intended to lease Shupe's one-half interest in the property. Mathew Grossman
was an independent attorney hired by GNI to prepare the consent statement for the 1970
Ham/GNI lease, but who also drafted certain changes in the Ham/GNI lease related to his
knowledge of the 1969 HamJShupe lease agreement.
98 Nev. 311, 314 (1982) Golden Nugget, Inc. v. Ham
knowledge of the 1969 Ham/Shupe lease agreement. In addition, there was evidence that
Grossman received a letter from Ham describing the Ham/Shupe property settlement
agreement in which Shupe acquired her one-half interest in the subject property and that he
received a copy of the Ham/Shupe 1969 lease prior to November 10, 1979. The consent
statement clearly indicated that Ham had held Shupe's one-half undivided interest in trust
after the property settlement agreement and then had leased that interest in August 1969 for
99 years, at $7,500 per month with an option to purchase for $1,000,000. Grossman reviewed
the entire consent statement with GNI's board of directors prior to its circulation in November
1970.
In Golden Nugget v. Ham, supra, we stated that [m]ere disclosure of a transaction by a
director, without disclosure of the circumstances surrounding the transaction, is not sufficient,
as a matter of law, to commence the running of the statute. Id. at 48, 589 P.2d at 175. We
also determined that as corporate director and counsel, Ham was under a duty not only to
inform GNI of the circumstances of the transaction, but also to advise GNI of its legal rights
regarding the lease from Shupe.
We do not abrogate that holding today. In our prior decision, our concern was whether the
statute of limitations had run as a matter of law. In that case, an issue of material fact was
raised by the affidavit of William Boyd, a GNI director, who asserted that no knowledge of
GNI's opportunity was available until June, 1973. Id. at 48, 589 P.2d at 175. The effect of our
ruling was simply to remand the issue to the court for a full trial on the merits. Not only did
Boyd fail to testify at trial to explain the claim made in the affidavit, but GNI provided no
other evidence to demonstrate what facts it received after November 10, 1970, which led it to
discover that Ham had usurped a corporate opportunity and thereby breached his fiduciary
duty. In short, as respondents argue, the facts available to GNI at the filing of the complaint
appear no different from those it had on November 10, 1970.
[Headnote 2-4]
We recognize that where a fiduciary relationship exists, facts which would ordinarily
require investigation may not excite suspicion. Bennett v. Hibernia Bank, 305 P.2d 20, 33
(Cal. 1956). And the statute of limitations may be tolled if a fiduciary fails to fulfill his
obligations and also fails to inform the other party of his failure, resulting in fraudulent
concealment. Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971). However, fraudulent
concealment must be alleged with particularity.
98 Nev. 311, 315 (1982) Golden Nugget, Inc. v. Ham
particularity. The plaintiff must show the means by which previously unknown information
was acquired within the statutory period which led to discovery of the concealment and
underlying breach of fiduciary duty. See Bennett v. Hibernia Bank, supra at 35; Bainbridge v.
Stoner, 106 P.2d 423 (Cal. 1940); Bank of America National Trust and Savings Ass'n v.
Williams, 200 P.2d 151 (Cal.App. 1949). The record before us is devoid of such specific
averments and proof.
We conclude that GNI possessed sufficient facts by November 1970 to cause a reasonable
person to inquire as to the circumstances of the Ham/Shupe lease and GNI's rights thereto.
Therefore, the suit is barred by the limitation period.
We affirm the judgment of the district court.
Gunderson, C. J., Manoukian, Springer, and Steffen, JJ., and McKibben, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Howard McKibben, judge of the Ninth Judicial District Court, to
sit in the place of The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev. Const., art.
6, 4.
____________
98 Nev. 315, 315 (1982) Keresey v. Nevada National Bank
BRADY WILLIAMS KERESEY, Appellant, v. NEVADA NATIONAL BANK, A National
Banking Association, Respondent.
No. 12705
June 25, 1982 646 P.2d 1224
Appeal from a district court order granting summary judgment. Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
National bank filed complaint seeking declaratory judgment that promissory note,
including interest term, was binding and enforceable against maker. The district court entered
summary judgment in favor of the bank, and appeal was taken. The Supreme Court held that
national banking association situated in Nevada was entitled to charge interest rate in excess
of general usury statute but within allowable limits of Nevada Thrift Companies Act where
terms of loan met requirements of the Thrift Companies Act.
Affirmed.
98 Nev. 315, 316 (1982) Keresey v. Nevada National Bank
Noel Stephen Topol, Reno, For Appellant.
Belford and Semenza, Reno, for Respondent.
1. Banks and Banking.
The phrase any rate of interest, as used in Nevada Thrift Companies Act, fixed interest rate for
purposes of National Banking Act. NRS 99.050, 677.010 et seq., 677.730; 12 U.S.C.A. 85.
2. Banks and Banking.
National banking association situated in Nevada was entitled to charge interest rate in excess of general
usury statute but within allowable limits of Nevada Thrift Companies Act where terms of loan met
requirements of the Thrift Companies Act. NRS 99.050, 677.010 et seq., 677.730; 12 U.S.C.A. 85.
OPINION
Per Curiam:
This is an appeal from a district court order granting summary judgment. The issue
presented is whether a national banking association situated in Nevada may charge an interest
rate in excess of the general usury statute but within the allowable limits of the Nevada Thrift
Companies Act. We conclude that it may.
Respondent Nevada National Bank lent appellant Keresey $12,000 at an annual interest
rate of 20 percent. The loan was secured by a deed of trust. After he had received the
proceeds of the loan, Keresey, through his attorney, notified Nevada National Bank that he
considered the loan usurious and accordingly was not obligated to pay the agreed upon
interest. Nevada National Bank then filed a complaint for declaratory judgment, seeking a
decree that the note, including the interest term, was binding and enforceable against Keresey.
The district court judge granted summary judgment in the bank's favor. Keresey appeals.
Appellant argues that the loan was usurious because the then-existing usury statute
prohibited interest rates in excess of 18 percent per annum.
1
The Nevada Thrift Companies
Act, however, specifically exempted thrift companies from this ceiling under certain
circumstances. NRS 677.730, for example, permitted thrift companies to lend at any rate of
interest if the principal amount was $10,000 or more and the obligation was secured by
collateral with a market value of at least 115 percent of the amount due on the loan.
____________________

1
At the time of the loan in issue, NRS 99.050 provided, in pertinent part: Parties may agree for the payment
of any rate of interest on money due or to become due on any contract which does not exceed the rate of 18
percent per annum. . . . Any agreement of a greater rate of interest than specified in this section is void as to all
interest. 1979 Nev. Stats. 963. The statute was amended in 1981 to permit any [agreed upon] rate of interest.
1981 Nev. Stats. 1593.
98 Nev. 315, 317 (1982) Keresey v. Nevada National Bank
the principal amount was $10,000 or more and the obligation was secured by collateral with a
market value of at least 115 percent of the amount due on the loan. Appellant does not deny
that the terms of the loan met the requirements of the statute; his objection is based on the
premise that respondent was not entitled to lend money under the thrift companies provision.
[Headnotes 1, 2]
The National Banking Act authorizes national banking associations to charge the same
interest rate permissible for banks organized pursuant to state law.
2
The Act has been
interpreted to give national banks a most favored lender status. See Tiffany v. National
Bank of Missouri, 85 U.S. 409 (1873); Commissioner of Small Loans v. First National Bank,
300 A.2d 685 (Md.App. 1973). Thus, where a national bank complies with the statutory
requirements for any loan authorized under state law, it may charge the maximum interest
rate to which another lender would be entitled. Since appellant's loan conformed to the terms
of NRS 677.730, the bank was permitted to charge any rate of interest on which the parties
agreed.
3

Appellant also argues that it is against public policy to permit interest rates which exceed
the general usury statute. This is a matter properly addressed to the legislature and not this
court. By exempting thrift companies from the general interest ceiling, the legislature has
declared its view that there is nothing inherently contrary to public policy to be found in
agreements to pay greater interest rates than those authorized under the general usury statute.
4
The judgment of the district court is affirmed.
____________________

2
Any association may take . . . and charge on any loan or discount made . . . interest at the rate allowed by
the laws of the State . . . where the bank is located . . . and no more, except that where by the laws of any State a
different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations
organized or existing in any such State under this chapter. When no rate is fixed by the laws of the State, . . . the
bank may take . . . a rate not exceeding 7 per centum or 1 per centum in excess of the discount rate on ninety-day
commercial paper in effect at the Federal reserve bank. . . . 12 U.S.C. 85 (1976).

3
Appellant contends that since the applicable statute, NRS 677.730, permits any rate of interest, it does not
specify a rate for purposes of 12 U.S.C. 85; appellant concludes that the interest ceilings provided in 85 must
therefore apply. The phrase any rate of interest, however, is held to fix an interest rate for purposes of the
federal statute. See Daggs v. Phoenix National Bank, 177 U.S. 549 (1900); Hiatt v. San Francisco National
Bank, 361 F.2d 504 (9th Cir. 1966), cert. denied, 385 U.S. 948 (1966), rehearing denied, 385 U.S. 1021 (1967).

4
Our conclusion is supported by the repeal of the 18 percent interest ceiling. See 1981 Nev. Stats. 1593.
98 Nev. 315, 318 (1982) Keresey v. Nevada National Bank
The judgment of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 318, 318 (1982) Kennedy v. Kennedy
YVONNE A. KENNEDY, Appellant, v.
JERRY L. KENNEDY, Respondent.
No. 13179
June 25, 1982 646 P.2d 1226
Appeal from order granting judgment for arrearages and modifying divorce decree, Eighth
Judicial District Court, Clark County; Robert G. Legakes, Judge.
Wife brought complaint on California divorce decree for child support arrearages. The
district court entered judgment for arrearages and modified the decree prospectively to reduce
the amount of child support, and wife appealed. The Supreme Court held that: (1) trial court
erred by failing to include interest in the judgment for arrearages, and (2) trial court did not
err by modifying decree prospectively without filing of a formal motion to modify.
Affirmed in part; reversed and remanded in part.
Patrick A. Gaura, Las Vegas, for Appellant.
Speiser & Unger, Las Vegas, for Respondent.
1. Interest.
Under California law, divorced spouse is entitled to interest at legal rate on support arrearages which
have accrued according to terms of decree of marital dissolution.
2. Interest.
In proceeding under California divorce decree for child support arrearages, trial court erred by not
including interest on unpaid support payments since California law entitled divorced spouse to interest at
legal rate.
3. Divorce.
In proceeding on California divorce decree for child support arrearages, trial court did not err by
permitting judgment to be enforced in installment payments.
4. Divorce.
In proceeding on California divorce decree for child support arrearages, trial court did not err
by modifying decree prospectively without filing of a formal motion to modify; trial
court could on its own motion and with adequate notice to parties raise issue of
modification.
98 Nev. 318, 319 (1982) Kennedy v. Kennedy
arrearages, trial court did not err by modifying decree prospectively without filing of a formal motion to
modify; trial court could on its own motion and with adequate notice to parties raise issue of modification.
OPINION
Per Curiam:
Appellant Yvonne Kennedy filed a complaint seeking to establish a California divorce
decree as a Nevada judgment and to recover child support arrearages. After several hearings,
the district court entered an order granting full faith and credit to the California decree,
awarding appellant a judgment for arrearages in the amount of $7,837.00, and modifying the
decree prospectively so as to reduce respondent Jerry Kennedy's child support obligation.
This appeal followed.
[Headnotes 1, 2]
Appellant first contends that the district court erred by failing to include in the judgment
for arrearages interest on the unpaid child support from the date of accrual. The question of
whether a divorced spouse is entitled to interest on unpaid support payments due under a
divorce decree is governed by the law of the state where the decree was rendered. See Slade v.
Slade, 468 P.2d 627 (N.M. 1970); In re Kern's Estate, 147 P.2d 498 (Or. 1944). In California,
a divorced spouse is entitled to interest at the legal rate on support arrearages which have
accrued according to the terms of a decree of marital dissolution. Huellmantel v. Huellmantel,
57 P. 582 (Cal. 1899); In re Marriage of Popenhager, 160 Cal.Rptr. 379 (Ct.App. 1979); In re
Marriage of Hoffee, 131 Cal.Rptr. 637 (Ct.App. 1976). The district court erred by not
including interest on the unpaid support payments, from the date each payment was due, as
part of the judgment for arrearages. Accordingly, this portion of the judgment for arrearages
is reversed and remanded for calculation and inclusion of interest on the unpaid arrearages.
[Headnote 3]
The next issue is whether the district court erred by permitting the judgment for arrearages
to be enforced at the rate of $50.00 per month. In Reed v. Reed, 88 Nev. 329, 497 P.2d 896
(1972), this court held that liquidation of a judgment for arrearages may be scheduled in any
manner the district court deems proper under the circumstances. See also, Chesler v. Chesler,
87 Nev. 335, 486 P.2d 1198 (1971). California law also permits the judge to order that
discharge of a judgment for arrearages be made in installment payments. See Messenger v.
Messenger, 297 P.2d 988 (Cal. 1956). Accordingly, the district court did not err by
permitting installment payments.
98 Nev. 318, 320 (1982) Kennedy v. Kennedy
court did not err by permitting installment payments. Nevertheless, the monthly payment set
by the district court for enforcement of the judgment did not include consideration of past and
future interest on the arrearages. As mentioned above, the judgment should include interest.
Therefore, we vacate the amount set by the district court ($50 per month), and remand for
determination of a payment schedule which will allow for liquidation of arrearages on a
reasonable basis.
[Headnote 4]
Appellant also contends that the district court erred by modifying the decree prospectively
without the filing of a formal motion to modify. Appellant has cited no relevant authority for
the proposition that the district court cannot, on its own motion and with adequate notice to
the parties, raise the issue of modification.
1
This contention is therefore rejected.
Other contentions raised by appellant are without merit.
Affirmed in part; reversed and remanded in part.
____________________

1
Appellant does not contend that she received insufficient notice of the district court's intention to consider
modification, prior to the hearing on that issue. Furthermore, we note that the district court took evidence of
respondent's financial situation, and reduced the support obligation prospectively upon a showing of change in
circumstances.
____________
98 Nev. 320, 320 (1982) Sheriff v. Hamilton
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
KENNETH WESLEY HAMILTON, Respondent.
No. 14073
June 25, 1982 646 P.2d 1227
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
The district court granted pretrial petition for writ of habeas corpus. On appeal by the
sheriff, the Supreme Court held that in view of testimony of hotel security guard that
approximately 25 minutes after defendant rented room the guard discovered that television set
had been unbolted, taken off stand and removed and that there was no evidence of breaking,
independent evidence that defendant was registered occupant of the room and as such had key
to room was sufficient to corroborate accomplice testimony so as to hold him to answer
burglary charge.
Reversed.
98 Nev. 320, 321 (1982) Sheriff v. Hamilton
Robert J. Miller, District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, Clark County, for Respondent.
1. Criminal Law.
Corroboration of accomplice testimony is necessary even at preliminary hearing stage.
2. Criminal Law.
Corroborative evidence is sufficient if it tends to connect defendant with commission of the offense.
3. Criminal Law.
In view of testimony of hotel security guard that approximately 25 minutes after defendant rented room
the guard discovered that television set had been unbolted, taken off stand and removed and that there was
no evidence of breaking, independent evidence that defendant was registered occupant of the room and as
such had key to room was sufficient to corroborate accomplice testimony so as to hold defendant to answer
burglary charge.
OPINION
Per Curiam:
Respondent Hamilton was charged, by criminal complaint, with the crime of burglary.
Following a preliminary hearing, Hamilton was held to answer as charged, and an
information was filed against him. Thereafter, he successfully petitioned for a writ of habeas
corpus. The state has appealed.
1

Leslie Hendricks, Hamilton's alleged accomplice in the burglary, was one of the state's
witnesses at the preliminary hearing.
2
She testified that, on the evening in question,
Hamilton requested her help in stealing a television set from the Four Queens Hotel, and she
agreed. About 9:00 p.m. Hamilton and Hendricks entered the Four Queens together, and
Hamilton checked into room 1418. They then entered this room, Hamilton unscrewed the
television set from its stand, and the two carried the set down the stairs. Hendricks remained
at the bottom of the stairs with the television set while Hamilton went to find a taxi. While
Hamilton was away, Hendricks was apprehended by hotel security personnel.
[Headnotes 1, 2]
The only issue presented here is whether the testimony of
____________________

1
The state may appeal from an order granting a pretrial petition for a writ of habeas corpus. NRS 34.380(4).

2
We note that the state fully performed its plea bargain with Hendricks prior to her testimony at the
preliminary hearing.
98 Nev. 320, 322 (1982) Sheriff v. Hamilton
Hendricks was adequately corroborated by the other evidence presented. Corroboration of
accomplice testimony is necessary, even at the preliminary hearing stage. State v. Wyatt, 84
Nev. 731, 448 P.2d 827 (1968); Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); In re
Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915). Corroborative evidence is sufficient if
it tends to connect the defendant with the commission of the offense. NRS 175.291(1); see
Sheriff v. Hilliard, 96 Nev. 345, 608 P.2d 1111 (1980); Austin v. State, 87 Nev. 578, 491
P.2d 724 (1971).
[Headnote 3]
In granting Hamilton habeas relief, the district court apparently concluded that Hendricks'
testimony was not sufficiently corroborated.
3
We disagree with this characterization.
Hendricks' testimony was corroborated by independent evidence that Hamilton was the
registered occupant of room 1418. The security guard testified that approximately 25 minutes
after Hamilton rented room 1418, the guard discovered that its television set had been
unbolted, taken off the stand, and removed. The guard also testified that there was no
evidence of a breaking, raising the inference that the perpetrator had used a key to gain entry.
Of course, as the registered occupant, Hamilton had a key to the room.
We conclude that the district court committed substantial error in granting the habeas
petition. Cf. Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981) (supreme court will not
overturn granting of pretrial habeas petition for lack of probable cause absent showing of
substantial error). Accordingly, we hereby reverse the order granting Hamilton's petition for a
writ of habeas corpus.
____________________

3
The district court focused on the fact that no one had seen Hamilton enter or leave room 1418 and that the
state did not specifically establish the existence of the television set in room 1418 prior to Hamilton's renting of
that room.
____________
98 Nev. 323, 323 (1982) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v.
THE STATE OF NEVADA, Respondent
No. 12654
June 25, 1982 647 P.2d 865
Appeal from a judgment of conviction and sentence for attempted escape, possession and
control of a dangerous weapon by an incarcerated person, possession of a firearm by an
ex-felon, and two counts of robbery and use of a deadly weapon in the commission of a crime
following a plea of guilty on the first three charges and a trial by jury on the two armed
robbery charges. Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The Supreme Court, Springer, J., held, inter alia, that possession of a dangerous weapon
by an incarcerated person is a lesser included offense of attempted escape with the use of a
dangerous weapon, but the offense of being an ex-felon in possession of a concealable
firearm is not a lesser included offense.
Reversed in part; affirmed in part.
Kirk B. Lenhard, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, Clark
County, for Respondent.
1. Indictment and Information.
Possession of a dangerous weapon by an incarcerated person is a lesser included offense of attempted
escape with the use of a dangerous weapon, but the offense of being an ex-felon in possession of a
concealable firearm is not a lesser included offense. NRS 202.360, 212.090, subd. 1(a), 212.185.
2. Criminal Law.
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test for
determining if two offenses or only one has been committed is whether each provision requires proof of a
fact which the other does not.
3. Criminal Law.
Whether a crime is incidental to another offense is generally a question of fact.
4. Criminal Law.
Defendant's robbery convictions, involving his taking guards' uniforms and equipment at gunpoint, were
entirely separate and independent felonies and were not incidental to the primary offense of attempted
escape. NRS 212.090, subd. 1(a).
5. Criminal Law.
Determination whether a crime is incidental to another offense should be made by the trier of fact in all
but the clearest of cases.
98 Nev. 323, 324 (1982) McKenna v. State
OPINION
By the Court, Springer, J.:
The primary issue before us is whether, in this particular case, violations of NRS 212.185
(possession of a dangerous weapon by an incarcerated person) and NRS 202.360 (possession
of a concealable firearm by ex-felon) are lesser offenses included within NRS 212.090(1)(a)
(escape with the use of a dangerous weapon by one charged with or convicted of a felony).
Appellant Patrick McKenna attempted to escape from lawful custody at the Clark County
Jail. McKenna, already an ex-felon, was facing additional felony charges. While attempting to
escape he employed the use of a Smith & Wesson 9-mm semi-automatic weapon.
As a consequence of his actions, McKenna pleaded guilty to attempted escape with the use
of a dangerous weapon and was sentenced to 20 years imprisonment. At the same time he
pleaded guilty to violations of NRS 212.185 and NRS 202.360 and was sentenced separately
for each offense. In pleading guilty to each offense he had reserved the right to argue double
jeopardy at the time of sentencing.
[Headnote 1]
In committing the offense proscribed by NRS 212.090(1)(a),
1
escaping with the use of
a dangerous weapon, McKenna was necessarily an incarcerated person in possession of such
a weapon. See NRS 212.185.
2
The offense of attempted escape with the use of a dangerous
weapon cannot be committed without committing the other offense of possession of a
dangerous weapon by a person who is incarcerated.
____________________

1
NRS 212.090(1) provides as follows:
212.090 Prisoner escaping. Every prisoner confined in a prison or being in the lawful custody of an
officer or other person, who escapes or attempts to escape from such prison or custody, if he is held on a
charge, conviction or sentence of:
1. A felony, shall be punished:
(a) Where a dangerous weapon is used or one or more hostages are taken to facilitate the escape or
attempted escape, or substantial bodily harm results to anyone as a direct result of the escape or
attempted escape, by imprisonment in the state prison for not less than 2 years nor more than 20 years,
and may be further punished by a fine of not more than $20,000. The sentence imposed pursuant to this
paragraph shall run consecutively after any sentence imposed for the original felony, and is not subject to
suspension or the granting of probation.
(b) Where none of the aggravating factors specified in paragraph (a) is present, 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
NRS 212.185 provides as follows:
212.185 Possession, control of dangerous weapon by incarcerated person prohibited; punishment.
98 Nev. 323, 325 (1982) McKenna v. State
with the use of a dangerous weapon cannot be committed without committing the other
offense of possession of a dangerous weapon by a person who is incarcerated. See Lisby v.
State, 82 Nev. 183, 414 P.2d 592 (1966). No additional fact finding was necessary to satisfy
all of the elements of possession of a dangerous weapon by an incarcerated person. The latter
is therefore a lesser included offense and must be set aside. See Litteral v. State, 97 Nev. 503,
634 P.2d 1226 (1981).
[Headnote 2]
We cannot agree, however, that the offense of being an ex-felon in possession of a
concealable firearm
3
is necessarily included in the offense of attempted escape with a deadly
weapon. This court adopted the Blockburger
4
test in Litteral, supra.
____________________
1. Any person who is incarcerated in the state prison or any county or city jail or other correctional
facility in this state, or is transferred for medical or psychiatric treatment at another institution, or is in
transit to or from such facility, or is in the legal custody of any correctional officer or employee, and who
possesses or has in his custody or control any:
(a) Instrument or weapon of the kind commonly known as a blackjack, slung shot, billy, sand-club,
sandbag or metal knuckles;
(b) Explosive substance, including fixed ammunition, or any incendiary or explosive device;
(c) Dirk, dagger, switchblade knife or sharp instrument;
(d) Pistol, revolver or other firearm;
(e) Device capable of propelling a projectile with sufficient force to cause bodily harm, including but
not limited to a pellet gun, slingshot, blowgun, crossbow or bow and arrow; or
(f) Other similar weapon, instrument or device,
shall be punished by imprisonment in the state prison for not less than 1 nor more than 6 years.
2. For the purposes of this section, incarceration begins upon assignment to a cell or other place
within the correctional facility after completion of the initial booking procedure.

3
NRS 202.360 provides, in pertinent part as follows:
1. The terms pistol, revolver, and firearm capable of being concealed upon the person, as used
in this section, apply to and include all firearms having a barrel less than 12 inches in length.
2. After July 1, 1925, no unnaturalized foreign-born person, and no person who has been convicted
of a felony in the State of Nevada, or in any one of the states of the United States of America, or in any
political subdivision thereof, or of a felony in violation of the laws of the United States of America, 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.
3. Any person who violates the provisions of this section shall be punished by imprisonment in the
state prison for not less than 1 year nor more than 6 years, and may be further punished by a fine of not
more than $5,000.
* * *

4
Blockburger v. United States, 284 U.S. 299 (1932).
98 Nev. 323, 326 (1982) McKenna v. State
supra. Where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test for determining if two offenses or only one has been committed is whether
each provision requires proof of a fact which the other does not.
One of the elements of the attempted escape charge, as stated in the indictment, is that the
attempted escape was perpetrated while McKenna was being held . . . on a felony charge,
to-wit, murder.
The ex-felon in possession of a concealable weapon charge stated that McKenna was a
person having the status of ex-felon stemming from a previous conviction for sexual assault.
Each of the two statutory provisions, then, required proof of a fact which the other did not.
One case required proof that McKenna was held on a felony charge of murder; the other
required proof that McKenna was an ex-felon. Consequently McKenna is guilty of
committing each offense.
In addition to the foregoing offenses, McKenna was charged with two counts of robbery
with the use of a deadly weapon. The robberies arose out of the same course of events as the
attempted escape. The robbery charges were tried to a jury following McKenna's guilty pleas
to the three charges discussed above. The jury found McKenna guilty.
McKenna asks us to set aside the two robbery convictions because, he claims, the
robberies were incidental to the primary offense of attempted escape. In support of his
position, McKenna relies largely upon Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). In
Wright we held that kidnapping may not be charged as an additional offense to robbery where
movement of the victim was only incidental to robbery and where no increased risk occurred
as a result of the movement. McKenna views his robberies as analogous to the Wright
situation. Wright, however, is easily distinguishable from the present case. Some movement
or confinement of the victim is inherent in almost every robbery. We do not agree that
robbery is in the same sense incidental to an escape attempt.
[Headnotes 3-5]
Whether a crime is incidental to another offense is generally a question of fact. McKenna
took the guards' uniforms and equipment at gun-point. It appears that these robberies were
entirely separate and independent felonies. In any event, such a determination should be made
by the trier of fact in all but the clearest of cases. Sheriff v. Medberry, 96 Nev. 202, 204,
606 P.2d 181, 182 (1980); accord Langford v. State, 95 Nev. 631, 600 P.2d 231 (1979). Since
it would be illogical and inappropriate for us to hold, as a matter of law, that the robberies
were incidental to escape, we do not reverse on this ground.
98 Nev. 323, 327 (1982) McKenna v. State
inappropriate for us to hold, as a matter of law, that the robberies were incidental to escape,
we do not reverse on this ground.
The conviction under NRS 212.185 is reversed. All other convictions are affirmed.
Gunderson, C. J., and Manoukian, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 327, 327 (1982) Sheriff v. Blasko
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
JOSEPH CHARLES BLASKO, Respondent.
No. 13893
June 25, 1982 647 P.2d 371
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that: (1) indictment was insufficient to enable defendant to
defend against charge of conspiracy; (2) attempted grand larceny was an offense separate and
distinct from burglary; and (3) evidence was sufficient to establish probable cause.
Affirmed in part; reversed in part.
[Rehearing denied December 16, 1982]
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Appellant.
Heaton & Wright, Las Vegas, for Respondent.
1. Indictment and Information.
Accusation must include such a description of the acts alleged to have been committed as will enable the
accused to defend against the accusation. NRS 173.075, subd. 1.
2. Indictment and Information.
Indictment which did not specify the place of conspiracy or the means by which the conspiracy was to be
accomplished was not sufficiently definite to enable defendant to defend against the accusation.
3. Criminal Law.
Attempted grand larceny can be an offense separate and distinct from burglary.
4. Criminal Law.
Where burglary count was based on entry into store with intent to commit grand larceny and the
attempted grand larceny charge was based on an alleged attempt to break and enter a vault located inside
the store, the two crimes were separate, the attempt charge was not a lesser
included offense of the burglary charge, and charging the defendant with both crimes
was not an attempt to impose double punishment for the same burglary.
98 Nev. 327, 328 (1982) Sheriff v. Blasko
the store, the two crimes were separate, the attempt charge was not a lesser included offense of the burglary
charge, and charging the defendant with both crimes was not an attempt to impose double punishment for
the same burglary.
5. Criminal Law.
Testimony that police were watching van in which defendant was found because of information that they
had received that a similar van would be equipped with radios to warn persons involved in burglary of any
police activity in the area was not inadmissible hearsay as it was offered not to prove the truth of the matter
asserted but rather to show why the police were observing the van.
6. Criminal Law.
Evidence that police had been informed that a van similar to that in which defendant was observed would
be in the neighborhood of a burglary and would be equipped with radios to warn those participating in
burglary of any police activity, that a scanner which would have enabled the occupant of the van to monitor
the police air waves was found in the van along with a walkie-talkie which had been secretly marked by the
police, and that the three participants who actually did the breaking and entering were apprehended on the
roof of the building was sufficient to establish probable cause to hold defendant on charges of burglary,
attempted grand larceny, possession of burglary tools, and conspiracy to commit burglary.
OPINION
Per Curiam:
The Sheriff of Clark County has appealed from a district court order granting Joseph
Charles Blasko's petition for a writ of habeas corpus.
1

Blasko was charged, by grand jury indictment, with burglary, attempted grand larceny,
possession of burglary tools, and conspiracy to commit burglary. In granting the writ, the
district court found that the state had not adequately pleaded the conspiracy count; that the
attempted grand larceny count was an improper attempt by the state to impose double
punishment for the burglary; and that there was insufficient evidence to establish probable
cause to hold Blasko on any of the counts.
[Headnotes 1, 2]
1. The Sheriff first contends that the district court erred by concluding that the conspiracy
count had been inadequately pleaded. NRS 173.075(1) provides in pertinent part: The
indictment or the information shall be a plain, concise and definite written statement of
the essential facts constituting the offense charged."
____________________

1
Blasko has moved to dismiss this appeal on the ground that the notice of appeal was untimely filed. See
NRS 34.380(4). We note that substantial confusion was created by the existence of two orders granting habeas
relief. Having considered the arguments of the parties, we deny the motion to dismiss. See Ross v. Giacomo, 97
Nev. 550, 635 P.2d 298 (1981).
98 Nev. 327, 329 (1982) Sheriff v. Blasko
indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged. An accusation must include such a
description of the acts alleged to have been committed as will enable the accused to defend
against the accusation. Lane v. Torvinen, 97 Nev. 121, 624 P.2d 1385 (1981); Simpson v.
District Court, 88 Nev. 654, 503 P.2d 1225 (1972). In upholding a conspiracy indictment, we
recently stated:
The gist of the crime of conspiracy is the unlawful agreement or confederation.
[Citation omitted.] 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.
Lane v. Torvinen, supra, 624 P.2d at 1386. Here, by contrast, the indictment does not specify
the place of the conspiracy or the means by which the conspiracy was to be accomplished. We
conclude, as did the district court, that the conspiracy count is not definite enough to enable
Blasko to defend against the accusation. The order granting the petition for a writ of habeas
corpus, as it relates to the conspiracy count, is affirmed.
[Headnotes 3, 4]
2. The Sheriff next contends that the district court erred by granting habeas relief as to the
attempted grand larceny count. In granting the writ, the district court concluded that the
charge of burglary with intent to commit grand larceny necessarily included the attempt to
commit grand larceny. We are not persuaded by the district court's analysis. Attempted grand
larceny can be an offense separate and distinct from burglary. Warden v. Peters, 83 Nev. 298,
429 P.2d 549 (1967). In Peters, this court stated: The attempt [to commit grand larceny] here
was an offense separate and distinct from the burglary and was charged in the information as
such. Id. at 303, 429 P.2d at 552. In this case, as in Peters, the attempted grand larceny was
an offense separate and distinct from the burglary. The burglary count was based on the entry
of Bertha's Gifts and Home Furnishings, with intent to commit grand larceny. The attempted
grand larceny count was based on an alleged attempt to break and enter a vault located inside
Bertha's. The order granting Blasko's habeas petition, as it relates to the attempted grand
larceny count, is reversed.
3. The Sheriff's final contention is that the district court erred by concluding that there was
insufficient evidence to establish probable cause to hold Blasko on any of the counts.
98 Nev. 327, 330 (1982) Sheriff v. Blasko
In Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981), we held that, absent a showing of
substantial error on the part of the district court, this court will not overturn the granting of a
pretrial habeas petition for lack of probable cause.
[Headnotes 5, 6]
Our review of the record reveals that the burglary in this case allegedly involved six
participants. The three participants who actually did the breaking and entering were
apprehended on the roof of Bertha's. Two other participants were found driving separate
vehicles in the area of Bertha's. Blasko was apprehended in a white van parked in
Commercial Center near Bertha's. The police were watching the van because of information
they had received that a white van bearing a Superman figure on the side would be equipped
with radios to warn those on the roof of any police activity in the area.
2
During the burglary,
the police observed Frank Cullotta, an alleged participant in the burglary, pull his car up next
to the van and speak into a radio. Later, Cullotta returned and parked next to the van.
3
Following Blasko's arrest, a search warrant was secured and the van was searched. The van
contained a scanner which would have enabled the occupant to monitor the police airwaves.
In addition, the police found a walkie-talkie which they had secretly marked following one of
the videotaped planning sessions at the informant's apartment. Based upon this evidence, we
believe there was clearly probable cause to hold Blasko as a participant in the burglary and
related crimes committed on July 4, 1981. We therefore conclude that the district court
committed substantial error in granting the habeas petition for lack of probable cause.
Accordingly, that portion of the order granting the habeas petition for lack of probable cause
is reversed.
Affirmed in part; reversed in part.
4

____________________

2
Contrary to Blasko's contention, this evidence was not inadmissible hearsay, since it was offered not to
prove the truth of the matter asserted, i.e., that Blasko was performing surveillance for those on the roof, but
rather to show why the police were observing the van. See NRS 51.035.

3
The police were aware of Cullotta because their informant had allowed them to monitor the informant's
apartment with television cameras and microphones. Cullotta was involved in at least two videotaped meetings
in June, 1981, at which the burglary was planned.

4
In view of this disposition we need not address the Sheriff's motion for expedited oral argument filed
March 8, 1982.
____________
98 Nev. 331, 331 (1982) Carter v. State
JAMES LEE CARTER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12702
June 29, 1982 647 P.2d 374
Appeal from a judgment of conviction following a guilty plea for the crimes of sexual
assault with use of a deadly weapon and robbery with use of a deadly weapon, both upon a
person over sixty-five years of age, Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Defendant pleaded guilty to sexual assault and robbery of a 73-year-old woman with the
use of a knife. The district court imposed consecutive sentences for the aggravating factors of
the use of a deadly weapon and the fact that the victim was over 65 years of age. Defendant
appealed. The Supreme Court held that: (1) the sentencing court may not impose consecutive
enhancement penalties for the use of a deadly weapon and for when the victim is over the age
of 65; (2) due process was not violated merely because statute imposing an additional penalty
when the victim of the crime is over the age 65 does not require knowledge of the victim's
advanced age; and (3) the defendant's right to equal protection was not violated on theory that
the statute distinguishes between perpetrators of crimes against victims over the age of 65 and
those who are younger.
Affirmed in part; reversed in part and remanded.
William N. Dunseath, Public Defender, Michael B. McDonald, and N. Patrick Flanagan,
Deputy Public Defenders, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Richard F. Cornell and Edward B. Horn, Deputy District Attorneys, Washoe County, for
Respondent.
1. Statutes.
Where legislative intent of criminal statute is ambiguous, statute must be strictly construed against
imposition of penalty for which it did not provide clear order.
2. Criminal Law.
Sentencing court may not impose consecutive enhancement penalties under statute providing additional
penalty for use of deadly weapon and providing additional penalty when victim is over age of 65 for the
same offense. NRS 193.165, 193.167, 193.167, subd. 1(f).
3. Criminal Law.
Imposition of consecutive additional sentences for sexual assault and robbery of 73-year-old woman for
use of deadly weapon and for fact that victim was over age of 65 was improper. NRS 193.165,
193.167, 193.167, subd. 1(f).
98 Nev. 331, 332 (1982) Carter v. State
4. Constitutional Law; Criminal Law.
Statute providing additional penalty when victim of crime is over age 65 does not deny due process
merely because statute does not require knowledge of victim's advanced age. NRS 193.167;
U.S.C.A.Const. Amends. 5, 14.
5. Constitutional Law; Criminal Law.
Statute providing additional penalty when victim of crime is over age 65 does not violate defendant's
right to equal protection on theory that statute distinguishes between perpetrators of crimes against victims
over 65 years of age and those who are younger. NRS 193.167; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Appellant pleaded guilty to the sexual assault and robbery of a seventy-three-year-old
woman with the use of a knife. The district court judge sentenced appellant pursuant to NRS
193.165 and NRS 193.167. Appellant received twenty years for the sexual assault, plus an
enhancement of twenty years for use of a deadly weapon, and an additional twenty years
because his victim was over sixty-five years. The district court ordered the three twenty-year
terms to run consecutively. Appellant was also sentenced to fifteen years for the robbery, plus
an