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121 Nev.

1, 1 (2005)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 121
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121 Nev. 1, 1 (2005) Reno Hilton Resort Corp. v. Verderber
RENO HILTON RESORT CORPORATION, dba RENO HILTON, a Nevada Corporation;
PARK PLACE ENTERTAINMENT CORPORATION, a Delaware Corporation; and
FHR CORPORATION, a Nevada Corporation, Appellants, v. DIANE VERDERBER,
on Behalf of Herself and All Others Similarly Situated, Respondent.
No. 41645
February 24, 2005 106 P.3d 134
Appeal from a district court order denying a new trial with respect to the first phase of a
bifurcated class action. Second Judicial District Court, Washoe County; Steven P. Elliott,
Judge.
Class representative brought class-action lawsuit against hotel, seeking recovery of
compensatory and punitive damages concerning outbreak of Norwalk-like virus at hotel.
Following jury trial in first phase of action, the district court denied hotel's motion for new
trial. Hotel appealed, and class representative filed motion to dismiss. The supreme court held
that: (1) interlocutory order denying motion for new trial was not immediately appealable,
and (2) appellate rule providing that appeal may be taken from trial court order granting or
refusing new trial does not permit appeal from order granting or denying new trial motion
addressed to interlocutory order or judgment.
Dismissed.
........................................
121 Nev. 1, 2 (2005) Reno Hilton Resort Corp. v. Verderber
Lionel Sawyer & Collins and Dan C. Bowen, David N. Frederick and Samuel S. Lionel,
Las Vegas, for Appellants.
Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno; Lyle & Murphy and Robert
E. Lyle, Reno; Walkup Molodia Kelly & Echeverria and John P. Echeverria, San Francisco,
California, for Respondent.
1. Appeal and Error.
In class-action lawsuit arising from outbreak of Norwalk-like virus at hotel,
interlocutory order denying hotel's motion for new trial after first phase of bifurcated
proceedings, which divided issues of liability and class-wide punitive damages from
issue of each class member's compensatory damages, was not immediately appealable
under appellate rule providing that appeal may be taken from trial court order granting
or refusing new trial because rule applied to post-judgment orders denying new trial.
NRAP 3A(b)(2).
2. Appeal and Error.
Appellate rule providing that appeal may be taken from trial court order granting or
refusing a new trial does not permit an appeal from an order granting or denying a new
trial motion addressed to an interlocutory order or judgment. NRAP 3A(b)(2).
3. Appeal and Error.
General rule requiring finality before an appeal may be taken is not merely technical,
but is a crucial part of an efficient justice system. For the trial court, it inhibits
interference from the appellate court during the course of preliminary and trial
proceedings, and for the appellate court, it prevents an increased caseload and permits
the court to review the matter with the benefit of a complete record.
4. Appeal and Error.
For purposes of appealability of special orders after final judgment, order granting
new trial is not a special order after final judgment. If new trial were granted, then
judgment would be vacated and order granting new trial would simply be
nonappealable interlocutory order if it were not included in appellate rule providing that
appeal may be taken from trial court order granting or refusing new trial. NRAP
3A(b)(2).
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
This is an appeal from a district court order denying a new trial as to Phase I of a
bifurcated class action. Respondent has moved to dismiss the appeal for lack of jurisdiction,
contending that an order denying a new trial is not appealable when, as in this case, it is
interlocutory and does not follow the final judgment. Appellants oppose the motion and argue
that the language in the rule permitting an appeal from an order granting or denying a new
trial is unqualified, and so jurisdiction is proper. We conclude that the rule permits an
independent appeal only from a post-judgment order granting or denying a new trial, and
so we dismiss this appeal.
........................................
121 Nev. 1, 3 (2005) Reno Hilton Resort Corp. v. Verderber
permits an independent appeal only from a post-judgment order granting or denying a new
trial, and so we dismiss this appeal.
FACTS
The underlying class action arose from an outbreak of a Norwalk-like virus at the Reno
Hilton in May and June of 1996. The district court divided the action into two phases. The
first phase consisted of a jury trial on the issues of liability and class-wide punitive damages.
The jury found that appellants' policy of unpaid sick leave for its employees proximately
caused the outbreak. The jury further imposed over $25 million in punitive damages. Phase II,
which has not yet taken place, will consist of individual hearings for each class member to
assess compensatory damages.
Following the Phase I trial's conclusion, appellants moved for judgment notwithstanding
the verdict, or alternatively, a new trial. The district court denied the motion, and appellants
filed a notice of appeal from the order denying a new trial. Respondent then moved to dismiss
the appeal for lack of jurisdiction.
DISCUSSION
[Headnotes 1, 2]
To resolve the motion to dismiss, we must determine whether NRAP 3A(b)(2), which
provides that an appeal may be taken from a district court order granting or refusing a new
trial, permits this appeal. Respondent argues that the rule applies only to post-judgment
orders denying a new trial, not to an interlocutory order entered in the midst of bifurcated
proceedings. Appellants assert that the plain language of the rule permits this appeal.
Respondent argues that our previous decisions favor looking beyond the label of an order
or motion, and instead, focusing on what the order or motion actually does or seeks.
1
Respondent further emphasizes language in our previous opinions that disfavors piecemeal
review.
2
According to respondent, interpreting NRAP 3A(b)(2) in light of these policies
means that an interlocutory order denying a new partial trial is not independently appealable.
In support of her position, respondent cites an Oklahoma case, LCR, Inc. v. Linwood
Properties.
3
In LCR, the trial court had granted summary judgment as to some, but not all,
issues in the case.
4
The trial court at first denied, but then on reconsideration granted, the
respondent's motion for a new trial, and the appellant appealed.
____________________

1
See, e.g., Lee v. GNLV Corp., 116 Nev. 424, 996 P.2d 416 (2000); Bally's Grand Hotel v. Reeves, 112 Nev.
1487, 929 P.2d 936 (1996).

2
See, e.g., id.; Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986).

3
918 P.2d 1388 (Okla. 1996).

4
Id. at 1392.
........................................
121 Nev. 1, 4 (2005) Reno Hilton Resort Corp. v. Verderber
granted, the respondent's motion for a new trial, and the appellant appealed.
5
The Supreme
Court of Oklahoma dismissed the appeal for lack of jurisdiction.
6

The court recognized that the summary judgment was not a final judgment because it
resolved only some of the issues in the case, and accordingly the summary judgment was
simply an intermediate order, not a true judgment.
7
No judgment may arise from a ruling
that disposes of but a portion of an entire claim and leaves unresolved other issues joined by
the pleadings.
8
The court then reasoned that a new trial motion addressed to an intermediate
order could not result in an appealable order.
9

Appellants argue that LCR should be distinguished. They assert that the motion in that
case was not really for a new trial since no trial at all had occurred; rather, the motion was
actually a motion for reconsideration of the summary judgment. In appellants' view, LCR is
not persuasive here because Phase I was in fact a jury trial lasting over two weeks.
Appellants correctly point out the factual differences between this case and the situation
presented in LCR. But as discussed above, the Oklahoma Supreme Court's reasoning was not
based on the fact that there had been no actual trial. Instead, the court concluded that no
appeal could be taken from an order resolving a new trial motion addressed to an intermediate
order.
10
The court recently reaffirmed its holding in Chandler U.S.A., Inc. v. Tyree.
11

Also, other courts have reached the same conclusion on facts more similar to this case. For
example, in Cobb v. University of Southern California,
12
the California Court of Appeal held
that an order granting a new trial is appealable only to the extent that it contemplates a final
judgment. In Cobb, two claims were tried, breach of contract and racial discrimination.
13
The
jury found in the plaintiff's favor on the contract claim and could not reach a verdict on the
discrimination claim.
14
The trial court declared a mistrial as to the discrimination claim, and
it eventually granted a new trial as to the contract claim.
____________________

5
Id. at 1390.

6
Id. at 1394.

7
Id. at 1392.

8
Id.

9
Id. at 1393.

10
Id.

11
87 P.3d 598, 601 n.4 (Okla. 2004) (stating that an adjudication of a motion for new trial addressed to an
interlocutory order is not appealable).

12
53 Cal. Rptr. 2d 71, 73 (Ct. App. 1996).

13
Id. at 72.

14
Id.
........................................
121 Nev. 1, 5 (2005) Reno Hilton Resort Corp. v. Verderber
new trial as to the contract claim.
15
The California Court of Appeal dismissed the plaintiff's
appeal from the order granting a new trial, reasoning that the order granting a new trial,
issued prior to final determination of all causes of action and issues in the case, was
premature and is not appealable.
16

Similarly, in Rusin v. Midwest Enamelers, Inc.,
17
the Arkansas Court of Appeals
determined that an order denying a new trial motion is not appealable when the motion
addresses an order resolving only some of the claims presented. In that case, the appellant had
filed a complaint seeking liquidation and distribution of corporate assets, unpaid director's
fees, and unpaid bonuses.
18
The trial court held a hearing on the liquidation claim only and
denied it, expressly reserving all other issues for a jury trial.
19
The appellant filed a motion
for new trial, which was also denied.
20
The Arkansas Court of Appeals dismissed the appeal,
holding that despite the court rule providing that appeals may be taken from orders refusing
a new trial, that rule contemplates an appeal from an order granting or refusing a new trial in
cases in which all issues have been presented and decided. It can have no application to cases
involving multiple issues or claims in which some, but not all, are decided.
21

[Headnote 3]
Although conflicting authority exists,
22
the reasoning of the cases discussed above is
more persuasive. The general rule requiring finality before an appeal may be taken is not
merely technical, but is a crucial part of an efficient justice system. For the trial court, it
inhibits interference from the appellate court during the course of preliminary and trial
proceedings, and for the appellate court, it prevents an increased caseload and permits the
court to review the matter with the benefit of a complete record. If we were to accept
appellants' argument, then many interlocutory orders could become appealable simply if a
party filed a new trial motion and then appealed from the order ruling on the motion.
____________________

15
Id.

16
Id. at 73.

17
731 S.W.2d 226, 227 (Ark. Ct. App. 1987).

18
Id. at 227.

19
Id.

20
Id.

21
Id.

22
See, e.g., Travagliante v. J. W. Wood Realty Company, 425 S.W.2d 208 (Mo. 1968) (holding that order
granting new trial could be appealed even though some claims were still unresolved); C.M. v. K.M., 878 S.W.2d
55, 56 (Mo. Ct. App. 1994) (holding that any order granting a new trial is appealable even though the judgment
to which the motion is directed is not final).
........................................
121 Nev. 1, 6 (2005) Reno Hilton Resort Corp. v. Verderber
appealed from the order ruling on the motion. The result could be needless delay in district
court proceedings while new trial orders were individually reviewed, a significantly increased
caseload for this court, and confusion over the district court's jurisdiction and this court's
jurisdiction.
[Headnote 4]
And, we are unconvinced by appellants' assertion that if an interlocutory order granting or
denying a new trial is not appealable, then the rule is meaningless. Appellants incorrectly
assert that if a previous final judgment is required, then an order granting a new trial would be
appealable as a special order after final judgment, and an order denying a new trial could be
challenged in the appeal from the final judgment. Contrary to appellants' assertion, new trial
motions often raise issues that are different from those presented simply by the judgment
itself. While an appeal from a final judgment requires a review of the record, an appeal from
a new trial order often seeks review based on evidence not in the record to that point, e.g.,
juror misconduct or newly discovered evidence.
23
Thus, an appeal from an order resolving a
new trial motion frequently involves issues that are substantially different from those related
to the final judgment, and NRAP 3A(b)(2)'s inclusion of such orders is not rendered
meaningless by disallowing appeals from interlocutory orders resolving new trial motions.
24
We therefore conclude that the order denying appellants' motion for a new trial in this case is
not appealable.
CONCLUSION
We conclude that NRAP 3A(b)(2) does not permit an appeal from an order granting or
denying a new trial motion addressed to an interlocutory order or judgment. Accordingly, we
grant respondent's motion, and we dismiss this appeal.
25

____________________

23
See NRCP 59(a); see also Roscoe Pound, Appellate Procedure in Civil Cases 42 (1941) (noting that a
new trial [is] granted upon things out of [the record], be the record never so right' ) (quoting Witham v. Lewis,
1 Wils. 48, 55-56 (1744)).

24
We further note that an order granting a new trial could not be a special order after final judgment, because
if a new trial is granted, then the judgment is vacated. The order granting a new trial would simply be a
nonappealable interlocutory order if it were not included in NRAP 3A(b)(2).

25
Appellants moved to consolidate this appeal with their related writ petition challenging several other
district court orders entered during the Phase I proceedings. In light of this opinion, we deny the motion to
consolidate. But appellants shall be permitted to supplement their petition in Docket No. 41960 to address the
new trial issues.
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........................................
121 Nev. 7, 7 (2005) Valley Elec. Ass'n v. Overfield
VALLEY ELECTRIC ASSOCIATION, a Nevada Non-Profit Cooperative Association,
Appellant, v. AUGUSTA H. OVERFIELD, aka AUGUSTA HARRIET OVERFIELD,
Deceased; ESTATE OF AUGUSTA H. OVERFIELD, aka AUGUSTA HARRIET
OVERFIELD; CHARLES OVERFIELD, an Individual; and ILO N. OVERFIELD, an
Individual, Respondents.
No. 41858
March 10, 2005 106 P.3d 1198
Appeal from a condemnation judgment that awarded respondents attorney fees. Fifth
Judicial District Court, Nye County; John P. Davis, Judge.
Non-profit utility cooperative brought condemnation action to secure an easement over
condemnee's land for the installation and maintenance of electrical power transmission line.
After condemnee rejected cooperative's pre-suit settlement offer of $6,000, the district court
entered judgment on jury's verdict awarding $15,045 to condemnee, and the trial court
awarded statutory attorney fees to condemnee. Cooperative appealed. The supreme court,
Maupin, J., held that as a matter of first impression, the general attorney fee statute allows
recovery of attorney fees by condemnation defendants who recover $20,000 or less in just
compensation for the taken property.
Affirmed.
Jones Vargas and Melvin D. Close Jr., R. Douglas Kurdziel and Tamara Beatty Peterson,
Las Vegas, for Appellant.
Nancy Theresa Lord, Pahrump, for Respondents.
1. Appeal and Error.
The appellate court generally reviews awards of attorney fees for abuse of discretion.
2. Appeal and Error.
Questions of law are reviewed de novo.
3. Costs.
In Nevada, a court may provide for an award of attorney fees only if a statute or rule
authorizes such an award.
4. Costs.
A party can be a prevailing party, under the general attorney fee statute, if it
succeeds on any significant issue in litigation that achieves some of the benefit it sought
in bringing suit. NRS 18.010.
5. Costs.
The judgment must be monetary in nature, in order for a party to be a prevailing
party under the general attorney fee statute. NRS 18.010.
........................................
121 Nev. 7, 8 (2005) Valley Elec. Ass'n v. Overfield
6. Eminent Domain.
The general attorney fee statute, which allows a trial court to award attorney fees to a
prevailing party who has not recovered more than $20,000, allows recovery of attorney
fees by condemnation defendants who recover $20,000 or less in just compensation for
the taken property, when an award of attorney fees is warranted in the trial court's
sound discretion. NRS 18.010(2)(a).
7. Eminent Domain.
Condemnee was prevailing party, as basis for award of attorney fees under general
attorney fee statute, in condemnation action brought by nonprofit utility cooperative to
secure an easement over condemnee's land for the installation and maintenance of
electrical power transmission line, where the money judgment entered pursuant to jury's
verdict exceeded cooperative's pre-suit settlement offer, though condemnee did not
initiate the lawsuit. NRS 18.010.
8. Costs.
Prevailing party, for purposes of general attorney fee statute, is broadly construed
so as to encompass plaintiffs, counterclaimants, and defendants. NRS 18.010.
9. Eminent Domain.
Judgments in eminent domain proceedings are money judgments, as is required for
condemnees to recover attorney fees under general attorney fee statute; such judgments
include determinations of just compensation for condemned property. Const. art. 1, 8,
cl. 6; U.S. Const. amend. 5; NRS 18.010, 37.009(3).
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
By the Court, Maupin, J.:
This case presents an issue of first impression for Nevada, whether district courts in
eminent domain actions may award landowners attorney fees under NRS 18.010. We
conclude that fees are available under the statute.
FACTS AND PROCEDURAL HISTORY
Appellant Valley Electric Association, a non-profit utility cooperative, filed the
condemnation action below to secure an easement over respondents' land for the installation
and maintenance of an electrical power transmission line. Respondents (the Overfields)
rejected Valley Electric's $6,000 pre-suit settlement offer, answered the condemnation
complaint and ultimately proceeded to trial. After obtaining a favorable jury verdict in the
amount of $15,045, the Overfields successfully moved for an award of attorney fees under
NRS 18.010. Valley Electric challenges the inclusion of attorney fees in the condemnation
judgment.
........................................
121 Nev. 7, 9 (2005) Valley Elec. Ass'n v. Overfield
DISCUSSION
[Headnotes 1, 2]
Although this court generally reviews awards of attorney fees for abuse of discretion,
1
this
matter implicates questions of law, which this court reviews de novo.
2

Both the Nevada and United States Constitutions allow for the taking of private property
for a public purpose, provided that the government pays just compensation.
3
Other entities,
such as public utilities, are authorized by statute to condemn private property.
4

[Headnote 3]
In Lamar v. Urban Renewal Agency, this court reaffirmed the general notion that
defendants in condemnation actions have no constitutional right to attorney fees as part of the
just compensation for taken property.
5
And, in United States v. Bodcaw Co., the United
States Supreme Court stated that compensation to a landowner for indirect costs incurred in a
condemnation action is a matter of legislative grace.
6
In Nevada, a court may provide for
an award of attorney fees only if a statute or rule authorizes such an award.
7

NRS Chapter 37, which contains the statutory scheme governing Nevada eminent domain
proceedings, provides the only explicit legislative authority for grants of attorney fees in the
context of condemnation proceedings. More particularly, NRS 37.140 authorizes attorney fee
awards in actions involving construction of railroad facilities, and NRS 37.180 authorizes fee
awards when the condemnor abandons the proceedings. Nothing in Chapter 37 expressly
limits fee awards to those specific scenarios, and the language of the two provisions does not
prohibit fee awards under other statutory authority.
8
From this, the Overfields reason that
NRS 1S.010, the general attorney fee statute, allows awards of attorney fees in
condemnation actions where recoveries of just compensation are limited in amount.
____________________

1
Parodi v. Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999).

2
Trustees v. Developers Surety, 120 Nev. 56, 59, 84 P.3d 59, 61 (2004).

3
Las Vegas Downtown Redev. Agency v. Pappas, 119 Nev. 429, 441, 76 P.3d 1, 5 (2003); U.S. Const.
amends. V, XIV; Nev. Const. art. 1, 8, cl. 6.

4
See, e.g., NRS 37.010(8) (authorizing public utilities to exercise right of eminent domain).

5
84 Nev. 580, 581, 445 P.2d 869, 869 (1968).

6
440 U.S. 202, 204 (1979).

7
Parodi, 115 Nev. at 240, 984 P.2d at 174.

8
Valley Electric suggests that we follow the Hawaii Supreme Court's approach in State v. Davis, 499 P.2d
663, 666 (Haw. 1972) (noting that specific statutory authorization of attorney fees when the condemnor
abandons eminent domain proceedings precludes such awards in other instances). Given our conclusion that
NRS 18.010 provides independent grounds for such awards, we decline to follow the Hawaii approach.
........................................
121 Nev. 7, 10 (2005) Valley Elec. Ass'n v. Overfield
NRS 18.010, the general attorney fee statute, allows awards of attorney fees in condemnation
actions where recoveries of just compensation are limited in amount. We agree.
[Headnotes 4, 5]
In this connection, NRS 18.010(2), in pertinent part, and with emphasis added provides:
In addition to the cases where an allowance is authorized by specific statute, the court
may make an allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000 . . . .
A party can prevail under NRS 18.010 if it succeeds on any significant issue in litigation
which achieves some of the benefit it sought in bringing suit.
9
Further, the judgment must
be monetary in nature.
10

[Headnote 6]
In Lamar, this court expressly declined to address whether NRS 18.010 applied to
condemnation actions, since the compensation award exceeded the then-existing statutory
recovery limit of $10,000 for fee eligibility.
11
Consistent with subsequent amendments to
NRS 18.010,
12
we now hold that NRS 18.010 authorizes attorney fee awards to
condemnation defendants who recover $20,000 or less in just compensation for the taken
property and when warranted in the court's sound discretion.
13
To hold otherwise would
force landowners in smaller value condemnation actions to accept unfair low-ball
settlement offers to avoid exhaustion of additional condemnation proceeds through attorney
fee expenditures.
[Headnotes 7-9]
Valley Electric argues that the Overfields fail to qualify as a prevailing party under the
statute because they did not initiate the lawsuit. We reject this argument because the term
prevailing party is broadly construed so as to encompass plaintiffs, counterclaimants, and
defendants.
14
Valley Electric also argues that the Overfields' award of compensation does
not qualify as a money judgment because condemnation proceedings result in a judgment
in rem, which imposes no direct obligation on the condemnor and operates solely with
regard to the property.
____________________

9
Women's Federal S & L Ass'n v. Nevada Nat. Bank, 623 F. Supp. 469, 470 (D. Nev. 1985).

10
Smith v. Crown Financial Services, 111 Nev. 277, 285, 890 P.2d 769, 774 (1995).

11
Lamar, 84 Nev. at 582, 445 P.2d at 870.

12
See A.B. 185, 63d Leg. (Nev. 1985) (increasing statutory limit of recovery from $10,000 to $20,000).

13
See Farmers Ins. Exchange v. Pickering, 104 Nev. 660, 765 P.2d 181 (1988).

14
Smith, 111 Nev. at 284, 890 P.2d at 773.
........................................
121 Nev. 7, 11 (2005) Valley Elec. Ass'n v. Overfield
Overfields' award of compensation does not qualify as a money judgment because
condemnation proceedings result in a judgment in rem, which imposes no direct obligation on
the condemnor and operates solely with regard to the property. We reject this argument as
well because judgments in eminent domain proceedings include determinations of just
compensation for condemned property.
15

CONCLUSION
We conclude that the district court properly awarded attorney fees in this instance. First,
the Overfields recovered less than $20,000 in the proceedings below, thus making them
eligible for such an award under NRS 18.010. Second, because they were prevailing parties
and recovered an amount substantially in excess of Valley Electric's settlement offer, no
abuse of the district court's discretion under this attorney fee statute has been shown.
Accordingly, we affirm the district court's inclusion of attorney fees in its condemnation
judgment.
Douglas and Parraguirre, JJ., concur.
____________
121 Nev. 11, 11 (2005) Carver v. El-Sabawi
JERRY D. CARVER, Appellant, v. RASHAD EL-SABAWI,
M.D., Respondent.
No. 41267
March 24, 2005 107 P.3d 1283
Appeal from a district court judgment entered on a jury verdict. Eighth Judicial District
Court, Clark County; Jennifer Togliatti, Judge.
Patient brought negligence action against anesthesiologist and surgeon, alleging that he
had suffered nerve injury to his left arm and hand sometime during or after an appendectomy.
The district court entered judgment upon jury verdict for defendants. Patient appealed. The
supreme court, Gibbons, J., held that mere happening instruction, which included statement
that negligence was never presumed, but had to be established by competent evidence,
coupled with instruction on res ipsa loquitur, conflicted to extent that prejudice to patient
resulted.
Reversed and remanded.
Hardesty, J., dissented in part.
____________________

15
See NRS 37.009(3) (defining judgment as the judgment determining the right to condemn property and
fixing the amount of compensation to be paid by the plaintiff).
........................................
121 Nev. 11, 12 (2005) Carver v. El-Sabawi
Burris, Thomas & Springberg and Laurence B. Springberg, Las Vegas, for Appellant.
Mandelbaum Gentile and Kim Irene Mandelbaum, Las Vegas, for Respondent.
1. Trial.
Jury instructions that tend to confuse or mislead the jury are erroneous.
2. Appeal and Error.
A judgment will not be reversed by reason of an erroneous instruction, unless upon
consideration of the entire case, including the evidence, it appears that such error has
resulted in a miscarriage of justice.
3. Appeal and Error.
Usually, without a trial transcript or a statement of the evidence, the record will
contain no substantial indicia that an error in instructing the jury has had a prejudicial
effect, but an examination of the partial record on appeal is warranted to ascertain
whether the possibility that the error was harmless could be disregarded as improbable
or remote.
4. Appeal and Error.
Where a party may reasonably contend that, but for the error, a different result might
have been reached, the burden of showing that prejudice resulted is met.
5. Negligence.
The general negligence rule is that a mere happening of an accident or injury will not
give rise to the presumption of negligence. The doctrine of res ipsa loquitur is an
exception to the general negligence rule, and it permits a party to infer negligence, as
opposed to affirmatively proving it, when certain elements are met.
6. Health.
Mere happening instruction, which included statement that negligence was never
presumed, but had to be established by competent evidence, coupled with instruction on
res ipsa loquitur, conflicted to extent that prejudice to patient resulted, in his medical
malpractice case against anesthesiologist and surgeon, alleging that he had suffered
nerve injury to his left arm and hand sometime during or after an appendectomy. To
instruct that negligence is never presumed and then proceed to further instruct of
scenario where negligence might in fact be presumed was prima facie prejudicial
because it raised strong possibility of confusing and misleading the jury. NRS
41A.100(1)(d).
7. Negligence.
In cases in which the trial court instructs the jury under the theory of res ipsa loquitur
and also includes a mere happening instruction, the trial court must omit from the mere
happening instruction the language stating that negligence is never presumed and
present instruction as follows: The mere fact that an unfortunate or bad condition
resulted to the patient involved in this action is not sufficient of itself to predicate
liability. NRS 41A.100(1)(d).
Before Rose, Gibbons and Hardesty, JJ.
........................................
121 Nev. 11, 13 (2005) Carver v. El-Sabawi
OPINION
By the Court, Gibbons, J.:
In this appeal, we consider whether a mere happening instruction and a res ipsa loquitur
instruction, given to the jury in a medical malpractice case, were so conflicting that absent
additional evidence, the judgment on the jury verdict should be reversed and this case
remanded for a new trial. We conclude that they were.
FACTS
Appellant Jerry D. Carver suffered a nerve injury to his left arm and hand sometime during
or after an appendectomy. He filed suit against anesthesiologist Rashad El-Sabawi, M.D., the
respondent, and surgeon Ronald Rosen, M.D., alleging negligence.
At trial, the district court gave a mere happening instruction that largely tracked language
found in Gunlock v. New Frontier Hotel.
1
The instruction read:
The mere fact that an unfortunate or bad condition resulted to the patient involved in
this action is not sufficient of itself to predicate liability. Negligence is never presumed,
but must be established by competent evidence.
The district court also gave a res ipsa loquitur instruction, based upon NRS 41A.100(1)(d).
2
The instruction stated:
The law provides for a rebuttable presumption that a personal injury was caused by
negligence where the personal injury was suffered during the course of treatment to a
part of the body not directly involved in the treatment or proximate thereto.
If you find by a preponderance of the evidence that an injury was suffered during the
course of treatment to a part of the body not directly involved in the treatment or
proximate thereto then the rebuttable presumption operates to shift to the defendants the
burden of proving, by a preponderance of the evidence, that the personal injury was not
caused by negligence.
____________________

1
78 Nev. 182, 370 P.2d 682 (1962).

2
NRS 41A.100 codifies and supplies the res ipsa loquitur theory of negligence in medical malpractice cases
where it is factually applicable. See Johnson v. Egtedar, 112 Nev. 428, 433-34, 915 P.2d 271, 274-75 (1996).
........................................
121 Nev. 11, 14 (2005) Carver v. El-Sabawi
If, on the other hand, you do not find by a preponderance of the evidence that an
injury was suffered during the course of treatment to a part of the body not directly
involved in the treatment or proximate thereto, then the burden of proving by a
preponderance of the evidence consisting of expert medical testimony or material from
recognized medical texts or treatises that the personal injury was caused by negligence
remains with the plaintiff.
Recognizing the potential for conflict between these two instructions, the district court
approved a separate stock instruction for clarification, which stated:
The Court has given you instructions embodying various rules of law to help guide
you to a just and lawful verdict. Whether some of these instructions will apply will
depend upon what you find to be the facts.
The jury returned a verdict for both doctors. Carver appeals.
3

DISCUSSION
Carver argues that the district court erred in giving the mere happening instruction because
it inappropriately raised his burden of proof, negated the res ipsa loquitur instruction, and
contained language that would confuse the jury. In response, Dr. El-Sabawi asserts that
competing instructions alone do not constitute reversible error because each litigant is entitled
to have the jury instructed on all theories of his or her case supported by the evidence and the
court's clarifying instruction reconciled any perceived conflict between the competing
instructions. Even if the mere happening instruction was given in error, Dr. El-Sabawi argues
that Carver failed to demonstrate from the partial record on appeal how that error affected the
jury verdict.
[Headnotes 1-4]
Jury instructions that tend to confuse or mislead the jury are erroneous.
4
However, a
judgment will not be reversed by reason of an erroneous instruction, unless upon
consideration of the entire case, including the evidence, it appears that such error has resulted
in a miscarriage of justice.
5
Usually, without a trial transcript or a statement of the evidence,
the record will contain no substantial indicia that an error in instructing the jury has had a
prejudicial effect.
____________________

3
Dr. Rosen settled and was dismissed from this appeal.

4
See Zelavin v. Tonopah Belmont, 39 Nev. 1, 7-11, 149 P. 188, 189-91 (1915).

5
Pfister v. Shelton, 69 Nev. 309, 310, 250 P.2d 239, 239 (1952); Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev.
662, 666, 448 P.2d 46, 49 (1968).
........................................
121 Nev. 11, 15 (2005) Carver v. El-Sabawi
dicia that an error in instructing the jury has had a prejudicial effect.
6
Nevertheless, an
examination of the partial record on appeal is warranted to ascertain whether the possibility
that the error was harmless could be disregarded as improbable or remote.
7
Where a party
may reasonably contend that, but for the error, a different result might have been reached, the
burden of showing that prejudice resulted is met.
8
Here, from the totality of the evidence
presented in the record, we conclude that appellant has met his burden.
A number of jurisdictions have addressed the potential conflict in offering both a mere
happening instruction and a res ipsa loquitur instruction. Some jurisdictions have stated that
their variations of a mere happening instruction and a res ipsa loquitur instruction should not
be given together because they may confuse the jury.
9
Other jurisdictions have stated that
their versions of these two instructions do not conflict when offered together.
10

[Headnote 5]
The general negligence rule is that a mere happening of an accident or injury will not give
rise to the presumption of negligence.
11
Res ipsa loquitur is an exception to the general
negligence rule, and it permits a party to infer negligence, as opposed to affirmatively proving
it, when certain elements are met.
12
However, in Gunlock, we stated, The mere fact that
there was an accident or other event and someone was injured is not of itself sufficient to
predicate liability.
____________________

6
Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971); see also Pfister, 69 Nev. at 310-11, 250
P.2d at 239-40.

7
Driscoll, 87 Nev. at 101, 482 P.2d at 294.

8
Id. at 102, 482 P.2d at 294; see also Peterson v. Silver Peak, 37 Nev. 117, 138, 140 P. 519, 527 (1914).

9
See, e.g., Rasmus v. Southern Pacific Company, 301 P.2d 23, 26-28 (Cal. Dist. Ct. App. 1956) (railroad
employee struck by pipe thrown by shipper's employee); Kitto v. Gilbert, 570 P.2d 544, 551 (Colo. Ct. App.
1977) (medical malpractice); Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 274 (Utah 1992) (medical
malpractice).

10
See, e.g., Bazzoli v. Nance's Sanitarium, 240 P.2d 672, 677-78 (Cal. Dist. Ct. App. 1952); Middleton v.
Post Transp. Co., 235 P.2d 855, 856 (Cal. Dist. Ct. App. 1951) (The fact that the doctrine of res ipsa loquitur is
applicable in an action for personal injury does not deprive a defendant of his right to an instruction that the
mere fact of injury is no evidence of his negligence or liability.); Jones v. Porretta, 405 N.W.2d 863, 874-76
(Mich. 1987) (medical malpractice); Stearns v. Plucinski, 482 N.W.2d 496, 498-99 (Minn. Ct. App. 1992)
(medical malpractice); Miller v. Kennedy, 588 P.2d 734, 737 (Wash. 1978) (medical malpractice); see also
Schnear v. Boldrey, 99 Cal. Rptr. 404, 408-09 (Ct. App. 1971) (medical malpractice).

11
Hilton v. Hymers, 57 Nev. 391, 395, 65 P.2d 679, 680 (1937).

12
Woosley v. State Farm Ins. Co., 117 Nev. 182, 188, 18 P.3d 317, 321 (2001).
........................................
121 Nev. 11, 16 (2005) Carver v. El-Sabawi
ficient to predicate liability. Negligence is never presumed but must be established by
substantial evidence.
13

[Headnote 6]
Here, the mere happening instruction follows Gunlock in stating that negligence is never
presumed. The use of the word never in the mere happening instruction suggests an
absolute proposition that clashes with the subsequent res ipsa loquitur instruction. To instruct
the jury that negligence is never presumed and then proceed to further instruct the jury of a
scenario where negligence may in fact be presumed is prima facie prejudicial because it raises
the strong possibility of confusing and misleading the jury. Consequently, Carver reasonably
contended that, but for the facially conflicting instructions, a different result might have been
reached at trial.
[Headnote 7]
Therefore, we hereby distinguish Gunlock in cases in which the district court instructs the
jury under the theory of res ipsa loquitur and also includes a mere happening instruction. In
such cases, the district court must omit from the mere happening instruction the Gunlock
language stating that negligence is never presumed. Here, the instruction must be presented to
the jury as follows: The mere fact that an unfortunate or bad condition resulted to the patient
involved in this action is not sufficient of itself to predicate liability.
CONCLUSION
Because a mere happening instruction that states that negligence is never presumed
conflicts with the res ipsa loquitur instruction, is a misleading and imprecise statement of the
law, and very likely confused and misled the jury, we conclude that Carver was prejudiced.
Accordingly, we reverse the district court's judgment and remand this matter for a new trial.
Rose, J., concurs.
Hardesty, J., concurring in part and dissenting in part:
The res ipsa instruction and the mere happening instruction given at trial were in conflict.
In medical malpractice cases, in which both of these instructions are given, the mere
happening instruction must be tailored to omit language stating that negligence is never
presumed. I concur in the instruction suggested by the majority.
____________________

13
78 Nev. at 185, 370 P.2d at 684; see also Eggers v. Harrah's Club, Inc., 86 Nev. 782, 784, 476 P.2d 948,
949-50 (1970).
........................................
121 Nev. 11, 17 (2005) Carver v. El-Sabawi
However, I dissent regarding the appropriate remedy for this jury instruction error. The
standard for reversal requires that [p]rejudice is not presumed,
1
and that [t]he burden is
upon the appellant to show the probability of a different result.
2
Establishing that a jury
instruction error had a prejudicial effect on a party usually requires presenting the trial
transcript or a statement of the evidence.
3
However, the majority simply presumes that
prejudice occurred given the conflicting instructions.
Carver had the affirmative duty to present evidence to establish that, but for the error, a
different result might have been reached. The record before us consists of the jury
instructions; a transcript of the argument settling instructions; and a transcript of the defense
expert's testimony who opined that: (1) Dr. El-Sabawi met the standard of care, (2) there was
no evidence that there was improper positioning or inadequate padding during surgery, and
(3) the medical records are not consistent with the claim that the ulnar nerve injury occurred
during anesthesia and surgery. This limited record does not contain sufficient evidence to
establish prejudice; therefore, I conclude that Carver failed to meet this burden, and
respectfully dissent as to the majority's reversal and grant of a new trial.
____________
121 Nev. 17, 17 (2005) Rhymes v. State
MICHAEL L. RHYMES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42010
March 24, 2005 107 P.3d 1278
Michael Rhymes appeals from a judgment of conviction, pursuant to a jury verdict, on
charges of lewdness with a minor under the age of fourteen. Eighth Judicial District Court,
Clark County; Michael A. Cherry, Judge.
The supreme court held that: (1) admission of evidence of defendant's prior bad acts was
proper, (2) failure to give limiting instruction prior to admission of prior bad acts evidence
was erroneous, but (3) error in failing to give limiting instruction before admission of prior
bad acts evidence was harmless.
Affirmed.
____________________

1
Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 666, 448 P.2d 46, 49 (1968).

2
Id. at 667, 448 P.2d at 50.

3
Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971).
........................................
121 Nev. 17, 18 (2005) Rhymes v. State
Stanley A. Walton, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence of other crimes, wrongs, or acts is presumed to be inadmissible, and the
State bears the burden of requesting the admission of the evidence and establishing its
admissibility. NRS 48.045(2).
2. Criminal Law.
To establish admissibility of evidence of other crimes, wrongs, or acts, the State
must demonstrate, at a hearing outside the presence of the jury, that (1) the incident is
relevant to the crime charged, (2) the act is proven by clear and convincing evidence,
and (3) the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice. NRS 48.045(2).
3. Criminal Law.
Trial court, during hearing to determine admissibility of evidence of other crimes,
wrongs, or acts, erred in failing to make determination that prior bad acts at issue had
been proved by clear and convincing evidence, in prosecution for lewdness with a
minor under the age of 14. NRS 48.045(2).
4. Criminal Law.
Admission of evidence of defendant's prior bad acts, which involved situations in
which defendant had used his skills as a masseur to gain sexual access to victims, was
proper, despite trial court's error in failing to determine that defendant's alleged prior
bad acts had been proved by clear and convincing evidence, as such finding could be
implied from trial court's findings, in prosecution for lewdness with a minor under the
age of 14; when victim in incident at issue awoke to find her pajamas pulled down and
defendant lying beside her, he began to discuss his employment as a masseur and began
massaging victim's leg, which demonstrated a strong similarity between prior acts and
those involved in present case, and prior acts had occurred very close in time to acts
charged in the instant case. NRS 48.045(2).
5. Criminal Law.
Trial court's failure to give limiting instruction prior to testimony of two witnesses
concerning defendant's alleged prior bad acts was erroneous, in prosecution for
lewdness with a minor under the age of 14, as such instruction was required both at
time of admission of bad acts evidence, and at time of final charge to jury. NRS
48.045(2).
6. Criminal Law.
For purposes of requirement that, when trial court admits uncharged bad acts into
evidence, a limiting instruction should be given both at time evidence of uncharged acts
is admitted and in final charge to jury, the term uncharged bad acts refers to any acts
uncharged in case at bar, not to acts that were never charged in any case; fact that prior
acts have been charged in another matter does not negate requirement that State must
request a limiting instruction prior to admission of bad acts evidence, nor does it
alleviate trial court of its burden to give such instruction sua sponte if prosecutor fails
to request one. NRS 48.045(2).
........................................
121 Nev. 17, 19 (2005) Rhymes v. State
7. Criminal Law.
Trial court's error in failing to give limiting instruction prior to testimony of two
witnesses concerning defendant's alleged prior bad acts did not substantially affect
defendant's rights, and thus error was harmless, in prosecution for lewdness with a
minor under the age of 14; trial court gave limiting instruction prior to jury being
charged, and thus jury had been properly informed that prior bad acts evidence could be
considered only for limited purpose of proving intent. NRS 48.045(2).
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
SUMMARY
Appellant Michael Rhymes appeals from his judgment of conviction. Rhymes contends
that the district court erred in allowing the State to introduce evidence of prior bad acts and
by failing to give a proper limiting instruction to the jury when the district court admitted the
evidence in accord with this court's holding in Tavares v. State.
1

We conclude that the district court properly admitted the prior bad acts evidence. We also
conclude that the district court erred by failing to give an appropriate limiting instruction at
the time the district court admitted the uncharged bad acts evidence. We hold that when
evidence of prior bad acts concerns acts uncharged in the instant proceeding, instructions
must be given both at the time the evidence is admitted and again when the jury is charged.
We reiterate that the State bears the burden of requesting such an instruction. Nevertheless,
under the circumstances of this case, we conclude that the failure to give such an instruction
constituted harmless error.
FACTS
Appellant, Michael Rhymes, lived with Irene Vela, her daughter and her three sons. On the
evening of December 7, 2001, Vela's daughter invited a friend, the victim, age 12, over to
spend the night. After watching movies, the two girls fell asleep on the living room floor
while one of Vela's sons slept on the couch next to the two girls.
Later that evening, the victim was awakened when she felt her pajama bottoms being
pulled down. Rhymes was lying on the floor next to her, propped up on one elbow.
____________________

1
117 Nev. 725, 30 P.3d 1128 (2001).
........................................
121 Nev. 17, 20 (2005) Rhymes v. State
floor next to her, propped up on one elbow. Rhymes immediately threw the covers back onto
the victim. Rhymes continued to massage the victim's leg, around her knee and thigh, and told
her that he had taken massage classes and was going to get a job as a masseur. The victim
told Rhymes to stop and told him that she had to return to her apartment to get some
medicine. After waking her friend, the two girls went to the victim's apartment and tried to
get inside but were unsuccessful. The victim told her friend what had occurred between
herself and Rhymes, and the two girls returned to Vela's home but did not go back to sleep
until Rhymes and Vela left for work the next morning.
After returning home, the victim told her mother about the incident, and her mother called
the police. The police interviewed the two girls, who corroborated each other's stories. The
police administered a sexual assault exam on the victim, the results of which were negative.
The police also interviewed Rhymes, who denied touching the victim.
As a result of these events, Rhymes was charged on February 14, 2002, with one count of
lewdness with a child under the age of fourteen. Prior to trial the State filed a motion to admit
evidence of other bad acts uncharged in the present indictment. The State averred that these
acts were admissible to show intent and the absence of mistake.
To establish Rhyme's prior bad acts, the State called two witnesses who had previously
filed complaints against Rhymes for sexual misconduct. Both women received massages from
Rhymes in 2000 while he was a student at the Dahan Institute of Massage. Both women
alleged that Rhymes engaged in sexual misconduct during the course of their massages. One
of the women testified that during her massage Rhymes exposed her breast and partially
inserted one finger into her vagina after slipping his finger through the side of her panties.
The second witness testified that during her massage Rhymes uncovered her breast multiple
times, whispered things in her ear, touched her pubic hairs, and reached under her underwear
and started rubbing her clitoris. In a separate case, the State charged Rhymes with sexual
misconduct for his conduct involving these two women.
The district court admitted this evidence. The district court agreed with the State's
argument that it was relevant to establish Rhymes' intent and that there was a similarity
between the prior bad acts and the acts alleged in the instant case. Additionally, the district
court agreed that the evidence was more probative than prejudicial. The district court failed,
however, to determine whether the case had been proved by clear and convincing evidence.
Importantly, the district court also failed to give the required limiting instruction when this
evidence was admitted at trial.
........................................
121 Nev. 17, 21 (2005) Rhymes v. State
quired limiting instruction when this evidence was admitted at trial. The district court did,
however, provide such an instruction when the jury was charged.
The jury ultimately convicted Rhymes of lewdness with a minor under the age of fourteen,
and he was sentenced to life imprisonment with parole eligibility after a minimum of ten
years. Rhymes appeals, claiming that the district court erred by: (1) failing to conduct a
hearing, pursuant to the requirements of Petrocelli v. State,
2
to determine the admissibility of
the prior bad acts evidence; and (2) failing to give a limiting instruction regarding the limited
use of prior bad acts testimony at the time the evidence was admitted at trial.
DISCUSSION
The failure to hold a Petrocelli hearing
Rhymes contends that the district court never conducted a hearing to determine the
admissibility of the prior bad acts evidence and that in any event the prior bad acts were
insufficient to show motive, intent, or similarity evidencing a common scheme or plan.
[Headnotes 1, 2]
NRS 48.045(2) prohibits the introduction of evidence of other crimes, wrongs, or acts as
proof of a person's character, but allows such evidence to prove motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident. While such evidence
may be admitted for these limited purposes, this court has often looked upon the admission of
prior bad acts evidence with disfavor because the evidence is often irrelevant and prejudicial,
and forces a defendant to defend against vague and unsubstantiated charges.
3
For these
reasons, such evidence is presumed to be inadmissible, and the State bears the burden of
requesting the admission of the evidence and establishing its admissibility.
4
To accomplish
this task, the State must demonstrate, at a hearing outside the presence of the jury, that: (1)
the incident is relevant to the crime charged; (2) the act is proven by clear and convincing
evidence; and (3) the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice.
5

We have consistently held that the decision to admit or exclude such evidence is within the
discretion of the trial court and will not be overturned absent a showing that the decision is
manifestly incorrect.
____________________

2
101 Nev. 46, 692 P.2d 503 (1985).

3
Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1255 (2002) (quoting Tavares v. State, 117 Nev. 725,
730, 30 P.3d 1128, 1131 (2001)).

4
Tavares, 117 Nev. at 731, 30 P.3d at 1131.

5
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).
........................................
121 Nev. 17, 22 (2005) Rhymes v. State
be overturned absent a showing that the decision is manifestly incorrect.
6
Moreover, we have
determined that when the district court fails to conduct a hearing establishing the
aforementioned requirements, that failure is reversible error unless (1) the record is
sufficient for this court to determine that the evidence is admissible under the test for
admissibility of bad acts evidence set forth in Tinch; or (2) where the result would have been
the same if the trial court had not admitted the evidence.
7

[Headnotes 3, 4]
In the instant case, we conclude that the trial court did conduct a hearing to determine the
admissibility of the evidence. During the course of the hearing, the district court found the
prior bad acts testimony to be relevant as to both intent and similarity and found the evidence
to be more probative than prejudicial. However, we conclude that the district court erred in
failing to make a determination that the prior bad acts were proven by clear and convincing
evidence. Despite this omission, we conclude that such a finding can be implied from the
district court's findings, and the trial court properly admitted the prior bad acts evidence in
this instance. The record sufficiently establishes the occurrence of the collateral acts by clear
and convincing evidence.
In this case, the prior bad acts involved situations wherein Rhymes used his skills as a
masseur to gain sexual access to his victims. When the victim in this case awoke to find her
pajamas pulled down and Rhymes lying beside her, he began to discuss his employment as a
masseur and began massaging the victim's leg. This demonstrates a strong similarity between
the prior acts and those involved in the present case. It is notable that the prior bad acts
occurred very close in time to the acts charged in the instant case, further demonstrating
Rhymes' intent to use his skills as a masseur to facilitate sexual contact with his potential
victims.
As a result, the district court determined that the evidence was relevant and allowed it to
be admitted. Moreover, after listening to the arguments made by the State and by Rhymes, the
court acknowledged that while ordinarily such evidence would not be admitted, in this
particular instance the State's arguments were compelling and, therefore, the evidence was
admissible. Because this decision was not manifestly erroneous, this court concludes that the
evidence of uncharged prior bad acts was properly admitted in this case.
____________________

6
Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413, 416 (2002).

7
Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765, 767 (1998).
........................................
121 Nev. 17, 23 (2005) Rhymes v. State
The district court's failure to give a limiting instruction at the time the evidence was admitted
[Headnote 5]
Rhymes contends that the district court erred by failing to provide a limiting instruction
prior to the testimony of the two witnesses who testified concerning Rhymes' alleged prior
bad acts. In contrast, the State contends that it was unnecessary to provide an instruction at
the time the evidence was admitted because here the prior bad acts evidence involved acts
that were not uncharged bad acts in that Rhymes had been previously charged with crimes
based on his actions. We disagree with the State, and today we clarify the meaning of the
term uncharged bad acts as set forth in Tavares.
In Tavares, we determined that when a district court admits uncharged bad acts into
evidence, a limiting instruction should be given both at the time evidence of the uncharged
bad acts is admitted and in the trial court's final charge to the jury.
8
We considered the
provision of the instruction upon the admission of the evidence particularly important
because it permits the instruction to take effect before the jury has been accustomed to
thinking of it in terms of the inadmissible purpose.
9

In Tavares, the district court failed to provide a limiting instruction on prior bad acts that
occurred six years prior to the crime charged.
10
The State never brought charges against
Tavares for the commission of those prior bad acts. The State contends that as a result the
instant case is distinguishable because the testimony admitted here concerned acts for which
Rhymes was charged in another case. Therefore, the State contends that Tavares is
inapplicable.
[Headnote 6]
We disagree. We note that the term uncharged bad acts refers to any acts uncharged in
the case at bar. It does not refer to acts that were never charged in any case. The fact that the
prior bad acts have been charged in another matter does not negate the requirement that the
State must request a limiting instruction prior to the admission of bad acts evidence, nor does
it alleviate the district court of its burden to give such an instruction sua sponte if the
prosecutor fails to request one.
____________________

8
Tavares, 117 Nev. at 733, 30 P.3d at 1133.

9
Id. (quoting 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure 5066
(1977 & Supp. 2001)).

10
Id. at 728-29, 30 P.3d at 1130.
........................................
121 Nev. 17, 24 (2005) Rhymes v. State
[Headnote 7]
However, under Tavares we consider the failure to give such a limiting instruction to be
harmless if the error did not have a substantial and injurious effect or influence the jury's
verdict.
11
Here, the district court gave an instruction prior to the jury being charged.
Therefore, the jury was properly informed that the prior bad acts evidence could be
considered only for the limited purpose of proving intent and similarity between the acts.
Inasmuch as the jury was provided with this critical information prior to its deliberation and
there was uncertainty whether the prior bad acts were uncharged bad acts, we conclude that
the absence of such an instruction at the time the evidence was admitted did not substantially
affect Rhymes' rights. Accordingly, we conclude that the failure to give the limiting
instruction upon admission of the evidence in this case was harmless error under the facts of
this case.
CONCLUSION
We conclude that the district court erred by failing to expressly determine if the prior bad
acts were proven by clear and convincing evidence. However, we conclude that such a failure
does not constitute reversible error because the record sufficiently demonstrates, by clear and
convincing evidence, that the prior bad acts occurred. Moreover, we conclude that the district
court erred when it failed to give the jury a limiting instruction at the time the testimony on
the prior bad acts was admitted. Nevertheless, we conclude that such an error was harmless
because the jury received a limiting instruction prior to being charged and therefore the
district court's failure did not impact Rhymes' substantial rights in such a manner as to
warrant reversal. There is no evidence to suggest that Rhymes requested such an instruction at
the time the evidence was admitted, which would have required that the instruction be given.
Accordingly, we affirm the judgment of conviction.
____________________

11
Id at 732, 30 P.3d at 1132.
____________
........................................
121 Nev. 25, 25 (2005) McConnell v. State
ROBERT LEE McCONNELL, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42101
March 24, 2005 107 P.3d 1287
Petition for rehearing of McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004),
affirming a judgment of conviction of first-degree murder and sentence of death. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
State petitioned for rehearing, challenging the holding that a felony may not be used both
to establish first-degree murder and to aggravate the murder to capital status. The supreme
court held that State failed to demonstrate that supreme court had overlooked or
misapprehended any material points of law or fact, and thus State was not entitled to
rehearing.
Petition denied.
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender,
Washoe County, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County, for Amicus Curiae State of Nevada.
Philip J. Kohn, Public Defender, Clark County; Franny A. Forsman, Federal Public
Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas; and JoNell
Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
1. Sentencing and Punishment.
State failed to demonstrate that supreme court overlooked or misapprehended any
material points of law or fact, with regard to substance of court's decision on direct
appeal affirming murder defendant's conviction and death sentence, and thus State was
not entitled to rehearing on issue of whether felony could be used both to establish
first-degree murder and to aggravate the murder to capital status. NRAP 40(c)(2).
2. Criminal Law.
New rules of criminal law or procedure apply to convictions that are not final.
3. Homicide.
The commission of a felony and premeditation are merely alternative means of
establishing the single mens rea element of first-degree murder; thus, they are different
ways of satisfying a single element.
........................................
121 Nev. 25, 26 (2005) McConnell v. State
4. Sentencing and Punishment.
If one or more jurors decide to convict of first-degree murder based only on a finding
of felony murder, then prosecutors cannot use the underlying felony as an aggravator in
the capital penalty phase.
5. Sentencing and Punishment.
A defendant becomes death eligible only after two steps: a finding that at least one
aggravator exists, and a finding that the mitigating evidence does not outweigh any
aggravator or aggravators. NRS 175.554(3).
Before the Court En Banc.
1

OPINION
Per Curiam:
Late last year in McConnell v. State,
2
this court affirmed appellant Robert Lee
McConnell's judgment of conviction of first-degree murder and sentence of death. The State,
however, seeks rehearing, challenging our holding that a felony may not be used both to
establish first-degree murder and to aggravate the murder to capital status.
3
The Clark
County District Attorney (amicus) has filed an amicus brief in support of the State's
position. At our direction, McConnell filed an answer to the rehearing petition, and the
Nevada Attorneys for Criminal Justice also filed an amicus brief, opposing rehearing. We
conclude that the State fails to demonstrate that this court overlooked or misapprehended any
material points of law or fact, so we deny the petition.
[Headnote 1]
NRAP 40(a)(1) requires a petition for rehearing to state briefly and with particularity the
points of law or fact which in the opinion of the petitioner the court has overlooked or
misapprehended. NRAP 40(c)(1) provides: Matters presented in the briefs and oral
arguments may not be reargued in the petition for rehearing, and no point may be raised for
the first time on rehearing. Under NRAP 40(c)(2), this court may consider rehearing [w]hen
the court has overlooked or misapprehended a material fact in the record or a material
question of law or has overlooked, misapplied or failed to consider a statute, procedural
rule, regulation or decision directly controlling a dispositive issue in the case.
Counsel for the State in this matter asserts that McConnell never raised the issue of the
propriety of using an underlying felony as an aggravating circumstance in a felony murder
and that this court acted unfairly in deciding the issue without notice to the State.
____________________

1
This appeal was submitted for decision before January 1, 2005. Only those justices remaining on the court
who participated in the original decision participated in the decision on rehearing.

2
120 Nev. 1043, 102 P.3d 606 (2004).

3
Id. at 1073, 102 P.3d at 627.
........................................
121 Nev. 25, 27 (2005) McConnell v. State
this court acted unfairly in deciding the issue without notice to the State. He also complains
that this court's opinion falsely besmirched his reputation, particularly by indicating that his
failure to respond to the non-existent argument somehow contributed to the court's disposal
of this appeal without oral argument.
4
Counsel, however, is wrong.
First, as page 3 of the State's own petition for rehearing reflects, the table of contents to
McConnell's opening brief expressly lists as argument VIII(A): Burglary aggravator was
improper because it alleged entry with intent to murder, based upon the underlying murder
and the single act should not be allowed to count as the underlying offense and as an
enhancing offense. Second, McConnell's opening brief at pages 48 and 49 specifically urges
that the penalty was improperly enhanced to death based upon improper use of the felony
murder aggravator and relies in large part upon the concurring opinion in our 2002 decision
in Leslie v. Warden,
5
quoting it as follows:
To meet constitutional muster, a capital sentencing scheme must genuinely narrow
the class of persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others found guilty
of murder. In upholding the use of underlying felonies to aggravate felony murders,
this court has never addressed Lowenfield v. Phelps, [484 U.S. 231 (1988),] a United
States Supreme Court case that has important implications for this issue. Under
Lowenfield, an aggravating circumstance can be identical to an element of the capital
murder itself as long as the state statute defines capital murder narrowly enough to
begin with. However, when a state broadly defines capital offenses, the narrowing must
occur through the jury's finding of aggravating circumstances at the penalty phase.
Nevada broadly defines capital offenses, particularly felony murder. Thus, the required
narrowing must occur through the jury's finding of aggravating circumstances.
The question is, does the felony aggravator set forth in NRS 200.033(4) genuinely
narrow the death eligibility of felony murderers? First, compared to the felony basis for
felony murder, NRS 200.033(4) limits somewhat the felonies that serve to aggravate a
murder. But the felonies it includes are those most likely to underlie felony murder in
the first place. Second, the aggravator applies only if the defendant [k]illed or
attempted to kill" the victim or "[k]new or had reason to know that life would be
taken or lethal force used."
____________________

4
See id. at 1062 n.36, 102 P.3d at 620 n.36 (The State's failure to address this issue contributed to our
decision not to conduct oral argument in this case.).

5
118 Nev. 773, 784-86, 59 P.3d 440, 448-49 (2002) (Maupin, J., concurring).
........................................
121 Nev. 25, 28 (2005) McConnell v. State
or attempted to kill the victim or [k]new or had reason to know that life would be
taken or lethal force used. This is narrower than felony murder, which in Nevada
requires only the intent to commit the underlying felony. This notwithstanding, it is
quite arguable that Nevada's felony murder aggravator, standing alone as a basis for
seeking the death penalty, fails to genuinely narrow the death eligibility of felony
murderers in Nevada.
6

Counsel for the State also claims that he was wrongly criticized for not responding to the
Supreme Court decision in Lowenfield when McConnell never made a single mention of
that case. Counsel is again mistaken. The above quotation from Leslie in McConnell's brief
clearly mentions and argues Lowenfield. In point of fact, the concurrence in Leslie, relied
upon at length by McConnell, encouraged the parties to litigate the issue of narrowing on
remand of that case and, by implication, invited the bench and bar generally to reconsider the
issue. That McConnell chose to do so and the State did not does not mean that the issue was
not framed in this appeal. It was, and we properly undertook to reach it.
7

Furthermore, we observe that this court's examination of this state's death penalty scheme
does not stand alone. The United States Supreme Court itself has in recent years reexamined
its own precedent and redirected the national debate over the death penalty, placing this field
of jurisprudence in transition in many respects.
8

Counsel further incorrectly asserts that our opinion made no mention of the State
Constitution and is based only on federal law. McConnell explicitly relied on the Nevada
Constitution in addition to federal law: We therefore deem it impermissible under the United
States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution
on the felony upon which a felony murder is predicated."
____________________

6
Id. at 784-85, 59 P.3d at 448-49 (Maupin, J., concurring) (footnotes omitted).

7
We have not in any respect attempted to besmirch counsel's reputation. We recognize his long service to
his community and the Washoe County District Attorney's Office and his most distinguished record as an
advocate before this court.

8
E.g., Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment's prohibition of cruel and
unusual punishment precludes the execution of offenders who were under 18 years of age when their crimes
were committed); Ring v. Arizona, 536 U.S. 584 (2002) (holding that a capital sentencing scheme under which a
judge determines aggravating circumstances violates the Sixth Amendment right to a jury trial); Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment precludes the execution of the mentally
retarded).
........................................
121 Nev. 25, 29 (2005) McConnell v. State
felony murder is predicated.
9
And we specifically identified the provisions of the Nevada
Constitution that independently require aggravating circumstances to narrow death eligibility:
Nevada's own constitutional bans against the infliction of cruel or unusual punishments' and
the deprivation of life without due process of law.'
10

The rehearing petition and the brief by amicus also fail to show that we overlooked or
misapprehended any material points of law or fact in regard to the substance of our decision
in McConnell.
[Headnote 2]
Amicus first points out accurately that McConnell did not address whether the ruling
regarding felony aggravators is retroactive, but we did not overlook this issue. Before
deciding retroactivity, we prefer to await the appropriate post-conviction case that presents
and briefs the issue. Amicus also informs us that it is currently prosecuting several cases that
were remanded for new penalty hearings and claims that it is impossible to know at this
point whether the application of the felony aggravator at the new penalty hearing is
permissible under the Court's ruling. This question, which is distinct from retroactivity in
post-conviction collateral proceedings, is hardly impossible to answer. Our caselaw makes
clear that new rules of criminal law or procedure apply to convictions which are not final.
11

[Headnote 3]
The State and amicus claim that McConnell conflicts with Schad v. Arizona,
12
where a
majority of the Supreme Court agreed that Arizona's defining first-degree murder as either
premeditated or felony murder without requiring a jury to agree unanimously on either theory
in order to convict did not violate due process. But our opinion does not require jurors to
agree on one theory to convict a defendant of first-degree murder. We simply advised the
State that if it charges alternative theories of first-degree murder and seeks a death sentence,
jurors should receive a special verdict form that allows them to indicate what theory they base
any murder conviction on.
____________________

9
McConnell, 120 Nev. at 1069, 102 P.3d at 624.

10
Id. at 1063 & n.46, 102 P.3d at 621 & n.46.

11
See Clem v. State, 119 Nev. 615, 627-28, 81 P.3d 521, 530-31 (2003); see also Griffith v. Kentucky, 479
U.S. 314, 321 n.6 (1987) (stating that a conviction becomes final when judgment has been entered, the
availability of appeal has been exhausted, and a petition for certiorari to the Supreme Court has been denied or
the time for such a petition has expired).

12
501 U.S. 624, 630-45 (1991) (plurality opinion); id. at 648-52 (Scalia, J., concurring).
........................................
121 Nev. 25, 30 (2005) McConnell v. State
der conviction on. Without the return of such a form showing that the jury did not rely on
felony murder to find first-degree murder, the State cannot use aggravators based on felonies
which could support the felony murder.
13
Amicus further argues: If premeditation and
felony murder have been held to constitute the same mens rea element, then it is contrary to
reason that the felony aggravator narrows one theory of first-degree murder and not the
other. Amicus implies, inaccurately, that premeditation and felony murder are identical. As
this court has explained, the commission of a felony and premeditation are merely
alternative means of establishing the single mens rea element of first degree murder.
14
Thus, they are different ways of satisfying a single element. It is therefore not contrary to
reason to recognize that when felony murder is used both to satisfy that element and to
establish an aggravating circumstance, the required narrowing process may not be
accomplished.
[Headnote 4]
Citing Schad, the State also inquires what should be done if all of the charged theories
have been proved, or if the jury is split regarding the theory of liability. McConnell makes
clear that if one or more jurors decide to convict based only on a finding of felony murder,
then prosecutors cannot use the underlying felony as an aggravator in the penalty phase.
15
The opinion does not expressly address whether use of a felony aggravator is precluded if the
jurors find unanimously that a murder was deliberate and premeditated but also find that it
was felony murder. It is not a ground for rehearing that this issue remains for resolution in a
case which squarely presents it.
Amicus next claims that this court misconstrued the narrowing requirement of Zant v.
Stephens
16
and applied an incorrect standard. However, amicus quotes Supreme Court
caselaw dealing with vagueness and overbreadth issues and disregards the specific question
decided by McConnell and the Supreme Court decision germane to that question, Lowenfield
v. Phelps.
17
Amicus suggests that we should have decided this case based on consideration
of Nevada's capital sentencing scheme in its entirety. We disagree. The pertinent issue in this
case is whether felony aggravators constitutionally narrow death eligibility in a felony
murder, not whether the statutory scheme in the abstract can withstand a general
constitutional challenge.
____________________

13
McConnell, 120 Nev. at 1069, 102 P.3d at 624.

14
Holmes v. State, 114 Nev. 1357, 1363-64, 972 P.2d 337, 341 (1998) (citing Schad, 501 U.S. at 637, for the
same proposition under Arizona law).

15
McConnell, 120 Nev. at 1069, 102 P.3d at 624.

16
462 U.S. 862, 877 (1983).

17
484 U.S. 231, 241-46 (1988).
........................................
121 Nev. 25, 31 (2005) McConnell v. State
whether the statutory scheme in the abstract can withstand a general constitutional challenge.
18

Amicus argues next that this court misconstrued the authority relied on in McConnell.
First, amicus distinguishes two decisions from other jurisdictions which we cited, State v.
Middlebrooks
19
and Engberg v. Meyer,
20
both of which deemed the use of the felony in a
felony murder as an aggravator to be improper. Amicus fails, however, to point out any
misapprehension by this court. Our opinion did not rely on the two decisions; it simply cited
them and others as examples of the varied decisions by other courts on this issue.
21
Amicus
nevertheless argues that the aggravators at issue in Middlebrooks and Engberg were identical
with felony murder, whereas in Nevada the felony aggravator is narrower than felony murder.
This still reveals no misapprehension; our opinion recognized and discussed the narrowing
effect of Nevada's felony aggravator but concluded that the effect was too slight to satisfy
either the United States or the Nevada Constitution.
22

Amicus also asserts that we misconstrued and misapplied Lowenfield because in that case
the Supreme Court concluded that a felony may be used as both an element of felony murder
and a felony aggravator while we reached the opposite conclusion. This simplistic analysis
is of no value. McConnell expressly recognized that under Lowenfield it is possible for an
element of capital murder to serve also as an aggravatorif the definition of capital murder is
sufficiently narrow to begin with.
23
Thus, we asked, is Nevada's definition of capital felony
murder narrow enough that no further narrowing of death eligibility is needed once the
defendant is convicted?
24
The answer is no, as we concluded.
25

But amicus also takes issue with this conclusion and accuses this court of stating, in
conclusory fashion, that Nevada's definition of felony murder does not provide
constitutional narrowing. According to amicus, [i]t remains unknown why the Court has
decided to simply count the number of felonies contained within the first-degree felony
murder statute and conclude that it is too broad."
____________________

18
Cf. McConnell, 120 Nev. at 1070, 102 P.3d at 625 (We hold to our precedent rejecting . . . general
challenges to Nevada's capital sentencing scheme.).

19
840 S.W.2d 317, 341-47 (Tenn. 1992), superseded by statute as stated in State v. Stout, 46 S.W.3d 689,
705-06 (Tenn. 2001).

20
820 P.2d 70, 86-92 (Wyo. 1991).

21
McConnell, 120 Nev. at 1063 n.42, 102 P.3d at 620 n.42.

22
Id. at 1066-69, 102 P.3d at 622-24.

23
Id. at 1064-65, 102 P.3d at 621.

24
Id. at 1065, 102 P.3d at 621.

25
Id. at 1065, 102 P.3d at 622.
........................................
121 Nev. 25, 32 (2005) McConnell v. State
first-degree felony murder statute and conclude that it is too broad. Our opinion, however,
explained why felony murder in Nevada requires further narrowing, and we did not simply
count the number of felonies in the statute. We noted that under Lowenfield there are two
ways a regime of capital punishment can constitutionally narrow death eligibility: a
legislature may provide a sufficiently narrow definition of capital offenses, or a legislature
may more broadly define such offenses and provide for narrowing at the penalty phase by a
jury's finding of aggravating circumstances.
26
We then made clear why Nevada's regime falls
in the latter category. We pointed out that Nevada defines first-degree felony murder more
broadly than does the Louisiana statute discussed in Lowenfield; most important, the offense
in Nevada requires no specific intent to kill or to inflict great bodily harm, as does the
Louisiana offense.
27
We further pointed out that Nevada's definition of felony murder is
broader than that set forth in the death penalty statute extant in 1972 when the Supreme Court
temporarily ended executions in the United States.
28
Consequently, felony murder in Nevada
is so broadly defined that further narrowing of death eligibility by the finding of aggravating
circumstances is necessary.
29
Amicus fails to address this analysis, let alone show that it is in
error.
Amicus also claims that
without any citations for support the Court concluded that the narrowing capacity of the
felony aggravators is theoretical and in practical terms, the aggravators cover the vast
majority of first-degree felony murders. Further, the Court stated that the second half of
the felony aggravator statute can be overlooked and may not receive consideration by
the jury. Such statements by the Court are conclusory, speculative and without support.
Although implying disagreement with our conclusion in McConnell that the felony and
sexual-penetration aggravators encompass the vast majority of felony murders,
30
amicus
does not identify any weakness in our reasoning or provide any data to contradict it. And we
unassailably supported our concern that juries may overlook the second half of the felony
aggravator,that is, the intent elementby pointing out that in the penalty phase of this
very case the jury was not instructed on the required intent and therefore gave it no
consideration.
31

____________________

26
Id. at 1064, 102 P.3d at 621.

27
Id. at 1065-66, 102 P.3d at 622.

28
Id. at 1066, 102 P.3d at 622.

29
Id.

30
Id. at 1067, 102 P.3d at 623.

31
Id. at 1068, 102 P.3d at 624.
........................................
121 Nev. 25, 33 (2005) McConnell v. State
[Headnote 5]
Amicus is correct that a defendant in Nevada becomes death eligible only after two steps:
a finding that at least one aggravator exists and a finding that the mitigating evidence does not
outweigh any aggravator or aggravators.
32
McConnell did not discuss the second step, and
therefore amicus says this court failed to discern that the capital sentencing scheme as a
whole sufficiently narrows death eligibility. The potential effect of mitigating evidence does
not provide the required narrowing. In effect, amicus advances the novel and unsound
argument that an aggravator that fails to constitutionally narrow death eligibility is of no
concern because of the possibility that a jury may not return a death sentence due to
mitigating circumstances.
Finally, amicus asserts that the weight of authority is against this court's application of
Lowenfield and cites four decisions from other jurisdictions.
33
Amicus does not indicate how
the decisionswhich considered Arkansas, Delaware, and Florida statutesreveal any
material misapprehension by this court in this case. We actually cited three of these decisions
in McConnell and noted that they deemed the use of the felony in a felony murder as an
aggravator to be proper.
34
The essential point that amicus overlooks is that the analysis and
result in this case are dependent on the pertinent Nevada statutes.
Because no grounds for rehearing have been presented, we deny the State's petition.
____________________

32
NRS 175.554(3); Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000).

33
Deputy v. Taylor, 19 F.3d 1485, 1500-02 (3d Cir. 1994); Johnson v. Dugger, 932 F.2d 1360, 1368-70
(11th Cir. 1991); Perry v. Lockhart, 871 F.2d 1384, 1392-93 (8th Cir. 1989); Ferguson v. State, 642 A.2d 772,
780-81 (Del. 1994).

34
McConnell, 120 Nev. at 1063 n.42, 102 P.3d at 620 n.42.
____________
........................................
121 Nev. 34, 34 (2005) RTTC Communications v. Saratoga Flier
RTTC COMMUNICATIONS, LLC, a Nevada Limited Liability Company, Appellant, v.
THE SARATOGA FLIER, INC., a California Corporation, dba PINSKER AND
COMPANY, Respondent.
No. 41005
April 14, 2005 110 P.3d 24
Appeal from a final judgment of the district court in a contract dispute and an order
awarding attorney fees. Second Judicial District Court, Washoe County; Brent T. Adams,
Judge.
California executive recruiting agency brought breach-of-contract action against client and
others, alleging that client failed to pay amount due after agency located candidate who was
hired by client. Client filed counterclaim, seeking return of fee for locating a candidate who
became client's chief executive officer (CEO). Following a bench trial, the district court
entered judgment in favor of agency on agency's claim, dismissed counterclaim, and awarded
attorney fees. Client appealed. The supreme court, Douglas, J., held that: (1) agency met
statutory definition of employment agency; (2) as a matter of first impression, for purposes of
statute prohibiting employment agencies from doing business in state without a license,
agency was not doing business in state; (3) agency was not required to qualify and file
under foreign corporation statutes to be eligible to bring collection action; and (4) agency's
joint, unapportioned offer of judgment was sufficient to support award of attorney fees
against client.
Affirmed.
[Rehearing denied June 2, 2005]
Law Offices of Richard McKnight, P.C., and Richard McKnight, Las Vegas, for Appellant.
Lemons Grundy & Eisenberg and Alice G. Campos Mercado and David R. Grundy, Reno,
for Respondent.
Brian Sandoval, Attorney General, and Dianna Hegeduis, Senior Deputy Attorney
General, Carson City, for Amicus Curiae.
1. Labor and Employment.
Executive recruiting agency met statutory definition of employment agency, as
would support claim that agency was required to be licensed; agency furnished
information to its client, which was seeking employees. NRS 611.020(2)(b), 611.030.
........................................
121 Nev. 34, 35 (2005) RTTC Communications v. Saratoga Flier
2. Labor and Employment.
For purposes of statute prohibiting employment agencies from doing business in
state without a license, California executive recruiting agency was not doing business
in state when it was working for Nevada client, although agreement between agency
and client was signed in Nevada, and although hiring of employees identified by agency
occurred in Nevada; agency conducted most, if not all, of actual search in California,
and employees who were hired were California natives. NRS 611.030(2).
3. Corporations.
Since it was transacting business in interstate commerce, California corporation, an
executive recruiting agency, was not required to qualify and file under Nevada's foreign
corporation statutes to be eligible to bring collection action against client in Nevada;
corporation sought and identified eventual employees hired by client in California,
maintained no offices in Nevada, and did not solicit Nevada employers. NRS
80.055(1)(m).
4. Corporations.
When determining whether foreign corporation is doing business in Nevada for
purposes of foreign-corporation statute, which imposed certain filing requirements,
court first looks to the nature of the company's business functions in the state and then
to the quantity of business it conducts in the state. NRS 80.015(1)(m).
5. Costs.
Executive recruiting agency's joint, unapportioned offer of judgment against client,
client's manager, and alleged successor corporation of client was sufficient to support
award of attorney fees against client in breach-of-contract action; defendants had unity
of interest, client was solely authorized to make decision whether to settle, action and
offer of judgment were brought in good faith, and requested fees were reasonable and
justified. NRS 17.115; NRCP 68.
6. Costs.
Award of attorney fees lies within the trial court's discretion.
7. Costs.
Trial court may not award attorney fees absent authority under a specific rule or
statute.
8. Costs.
Offer of judgment must specify the statute or rule that provides for the costs or fees
sought by the offeror. NRS 17.115; NRCP 68.
9. Costs.
When exercising discretion to award attorney fees based on offer of judgment, court
must consider: (1) whether plaintiff's claim was brought in good faith, (2) whether
defendants' offer of judgment was reasonable and in good faith in both its timing and
amount, (3) whether plaintiff's decision to reject offer and proceed to trial was grossly
unreasonable or in bad faith, and (4) whether fees sought by offeror are reasonable and
justified in amount. NRS 17.115; NRCP 68.
10. Costs.
Purpose of statute and rule governing offers of judgment is to encourage settlement.
NRS 17.115; NRCP 68.
Before the Court En Banc.
........................................
121 Nev. 34, 36 (2005) RTTC Communications v. Saratoga Flier
OPINION
By the Court, Douglas, J.:
In this appeal we consider whether NRS 611.030, which requires that employment
agencies operating in Nevada be licensed by the Labor Commissioner, applies to out-of-state
executive recruiters. We conclude that NRS 611.030 does not require an executive recruiting
agency operating in another state to obtain a Nevada license when that agency is hired for a
single transaction by a Nevada employer.
FACTS AND PROCEDURAL HISTORY
In the fall of 2001, appellant Reno Tahoe Tech Center Communications, LLC (RTTC)
solicited the services of Saratoga Flier, Inc., d/b/a Pinsker and Company (Pinsker), in
California for the purpose of recruiting and selecting a chief executive officer (CEO) for
RTTC. Pinsker was a California corporation, but it was not required to be licensed as an
employment agency under California law.
1

A recruitment agreement was signed in Nevada by RTTC manager Kreg Rowe and
Pinsker, providing for a $50,000 consulting fee to hire a CEO. The agreement additionally
provided that if any other employee was hired as a direct result of Pinsker's services, RTTC
would pay Pinsker an amount equal to one-third of that employee's actual first year cash
compensation.
Pinsker met with RTTC executives to develop a profile for the CEO position and was
invited to an RTTC management meeting a few weeks later to gain a better understanding of
the organization. Subsequently, Pinsker recommended Madison Laird, a California resident,
for the CEO position. Pinsker checked Laird's references and scheduled an interview for
RTTC with Laird. RTTC hired Laird as President/CEO, with Pinsker assisting in the
negotiations of the compensation package. Pinsker was paid its $50,000 fee according to the
agreement.
While searching for CEO candidates, Pinsker also interviewed California resident Janice
Fetzer. Pinsker communicated to RTTC that Fetzer, while not an appropriate CEO candidate,
would be a good candidate for a Vice-President position. Pinsker eventually recommended
Fetzer to Laird. Laird asked Pinsker how any fee due Pinsker for hiring Fetzer would affect
RTTC's bottom line.
____________________

1
See Cal. Civil Code 1812.501(a)(1) (West 1998) (defining employment agencies, in pertinent part, as
[a]ny person who, for a fee or other valuable consideration to be paid, directly or indirectly by a jobseeker,
performs, offers to perform or represents it can or will perform any of the following services (emphasis added)).
........................................
121 Nev. 34, 37 (2005) RTTC Communications v. Saratoga Flier
due Pinsker for hiring Fetzer would affect RTTC's bottom line. Pinsker advised Laird that the
fee was governed by the recruitment agreement with RTTC. Laird interviewed Fetzer and
subsequently hired her for an annual salary of $160,000. Pinsker billed RTTC $53,333 under
the agreement.
Pinsker was never paid and sued RTTC and Rowe in March 2002 to collect the fee due for
hiring Fetzer. RTTC counterclaimed for the return of the fee paid to Pinsker for hiring Laird,
alleging that Pinsker was not licensed in Nevada as an employment agency.
Originally, Pinsker had named as defendants RTTC, Rowe as agent for RTTC, and
Redundant Networks, Inc. (Redundant), as successor-in-interest to RTTC. In May 2002,
Pinsker made an offer to take judgment against all three defendants in the amount of $45,000.
That offer was rejected. Rowe and Redundant were voluntarily dismissed in September 2002.
After a two-day trial, the district court ruled in favor of Pinsker, awarding it $53,333, plus
interest. The court found that the recruiting agreement was valid and enforceable, that Pinsker
deserved to be compensated for its work under the agreement, and that NRS Chapter 611 did
not apply to Pinsker. The court also dismissed RTTC's counterclaim. Subsequently, the court
granted Pinsker's motion for attorney fees under NRCP 68. RTTC filed a timely appeal. We
affirm.
DISCUSSION
RTTC first argues that Pinsker meets the statutory definition of employment agency.
Pinsker, on the other hand, urges this court to conclude that executive recruiting agencies that
only charge fees to employers, not prospective employees, do not fall under the licensing
requirement of Nevada's employment agency statutes, since those statutes are intended to
protect employees, not employers, from unlicensed agencies.
Statutory definition of employment agency
[Headnote 1]
As recognized by the United States Supreme Court, a fundamental canon of statutory
construction is that a court must first presume that a legislature says in a statute what it
means and means in a statute what it says there.
2
This court has stated that when the
language of a statute is plain, its intention must be deduced from such language, and the
Court has no right to go beyond it,
3
and [w]here the language of a statute is susceptible of
a sensible interpretation, it is not to be controlled by any extraneous considerations."
____________________

2
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992).

3
Hess v. The County Commissioners of Washoe County, 6 Nev. 104, 107 (1870) (republished as 5-6-7 Nev.
444, 446).
........................................
121 Nev. 34, 38 (2005) RTTC Communications v. Saratoga Flier
sible interpretation, it is not to be controlled by any extraneous considerations.
4

NRS 611.020(2)(b) defines employment agency, in part, as follows:
2. Employment agency means any person who, for a fee, commission or charge:
. . .
(b) Furnishes information to a person seeking employees enabling or tending to
enable him to obtain employees . . . .
The plain language of NRS 611.020(2)(b) makes it clear that even an executive
recruitment firm such as Pinsker, which charges fees only to employers, falls within the
definition provided in the statute. Regardless of the fee arrangements, or any other
considerations, the firm at issue did indeed [furnish] information to a person seeking
employees, as specifically delineated in the statute. Thus, Pinsker meets the statutory
definition of employment agency. Next, we consider whether the statutes require licensing of
an out-of-state employment agency for a single transaction within this state.
Doing business in Nevada
NRS 611.030 requires that employment agencies operating in Nevada be licensed.
5
Subsection (1) forbids opening, keeping, operating or maintaining an employment agency in
the state. Subsection (2) forbids soliciting employers in the state, and referring or placing a
person for employment in this state, or otherwise doing business in this state.
Pinsker did not open, keep, operate or maintain an employment agency in this state,
since it was located in California. Further, the record demonstrates that RTTC solicited
Pinsker in California, and that Pinsker located Laird and Fetzer in California.
[Headnote 2]
The issue, then, is whether Pinsker's agreement with RTTC constitutes do[ing] business
in this state for the purposes of NRS 611.030(2).
____________________

4
Latterner v. Latterner, 51 Nev. 285, 290, 274 P. 194, 195 (1929).

5
NRS 611.030 states:
1. A person shall not open, keep, operate or maintain an employment agency in this state without first
obtaining a license therefor as provided in NRS 611.020 to 611.320, inclusive, from the Labor
Commissioner.
2. No employment agency may solicit any employer in this state and refer or place any person for
employment with such employer or otherwise do business in this state unless such employment agency
has
........................................
121 Nev. 34, 39 (2005) RTTC Communications v. Saratoga Flier
RTTC urges this court to conclude that Pinsker was doing business in Nevada since the
agreement was signed in Nevada and the hiring of the employees occurred in Nevada.
Alternatively, RTTC argues that Pinsker had no standing to bring a collection action, since
Pinsker had not qualified and filed as a foreign corporation doing business in Nevada as
required by NRS 80.055.
The issue of whether or not Pinsker's single transaction is considered do[ing] business
under NRS 611.030(2) is an issue of first impression. The most instructive case law and
statutory language involve Nevada's foreign corporation statutes, NRS Chapter 80, also at
issue here.
[Headnote 3]
Under NRS 80.015(1)(m), [t]ransacting business in interstate commerce does not
constitute doing business in this state, since states may not impose filing requirements in a
way that will interfere with federal regulation of interstate commerce.
6

[Headnote 4]
This court has held that transacting a single piece of business in the state is not doing
business' in the sense contemplated by the [foreign corporation] statute.
7
In determining
whether a company is doing business in Nevada, this court has used a two-pronged test as
set forth in Sierra Glass & Mirror v. Viking Industries.
8
The court first looks to the nature of
the company's business functions in the state and then to the quantity of business it conducts
in the state.
9
In Sierra Glass, an Oregon corporation maintained one sales representative in
Nevada, who took orders locally and then remitted the orders and payments to the Oregon
corporation. The Nevada sales comprised about one-seventh of the corporation's total sales
volume. This court determined that the nature of the Oregon corporation's business was
predominantly interstate rather than intrastate, but the quantity of business done in
Nevada was substantial.
____________________
obtained a license from the Labor Commissioner under the provisions of NRS 611.045.
3. Any person who opens, keeps, operates or maintains an employment agency without first
procuring a license is guilty of a misdemeanor.

6
Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119, 121, 808 P.2d 512, 513 (1991) (citing Robbins v.
Shelby Taxing District, 120 U.S. 489 (1886)).

7
Pacific States Sec. Co. v. District Court, 48 Nev. 53, 57, 226 P. 1106, 1107 (1924) ([I]t may be laid down
as a general rule that the action of a foreign corporation in entering into one contract or transacting an isolated
business act in the state does not ordinarily constitute the carrying on or doing of business' therein.).

8
Sierra Glass, 107 Nev. at 122, 808 P.2d at 513 (citing Eli Lilly & Co. v. Sav-On Drugs, 366 U.S. 276
(1961)).

9
Id.
........................................
121 Nev. 34, 40 (2005) RTTC Communications v. Saratoga Flier
Oregon corporation's business was predominantly interstate rather than intrastate, but the
quantity of business done in Nevada was substantial. Ultimately, although acknowledging
that the issue was extremely close, this court concluded that the Oregon corporation's
business in Nevada had not taken on an intrastate quality.
10
Thus, the Oregon corporation
was not required to comply with Nevada's foreign corporation laws before filing an action in
Nevada.
11

In this instance, Pinsker was transacting business in interstate commerce. Pinsker was
incorporated in California, and it sought and identified the eventual employees hired by
RTTC in California. Pinsker maintained no offices in Nevada and did not solicit Nevada
employers. Therefore, Pinsker was not required to qualify and file under Nevada's foreign
corporation statutes to be eligible to bring suit for collection against RTTC.
The foreign corporations statutes specifically disavow their applicability to any other
provision of law.
12
Nevertheless, the two-prong test utilized by this court in Sierra Glass is
instructive in determining whether Pinsker was doing business in this state for the
employment agency statutes at issue. As noted above, Pinsker's business functions in this
state were limited to meeting with RTTC and signing the agreement. Pinsker actually
conducted most, if not all, of the actual search for potential executives in California. Even the
two executives identified by Pinsker and subsequently hired by RTTC were California
natives. Neither the nature nor the quantity of business conducted by Pinsker in Nevada rises
to the level necessary to be considered do[ing] business in this state under NRS 611.030(2).
Accordingly, Pinsker's lack of an employment agency license does not render the recruitment
agreement unenforceable.
Attorney fees
[Headnotes 5-7]
An award of attorney fees lies within the district court's discretion,
13
but a court may not
award attorney fees absent authority under a specific rule or statute.
14
Both NRCP 68 and
NRS 17.115 allow for an award of attorney fees to a party that makes an offer of
judgment that is refused by the other party, and then subsequently obtains a more
favorable judgment.
____________________

10
Id. at 125, 808 P.2d at 515.

11
Id.

12
NRS 80.015(4)(b).

13
Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 722 (1993).

14
State, Dep't of Human Resources v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).
........................................
121 Nev. 34, 41 (2005) RTTC Communications v. Saratoga Flier
allow for an award of attorney fees to a party that makes an offer of judgment that is refused
by the other party, and then subsequently obtains a more favorable judgment.
15
Here, the
district court cited NRCP 68 in its award of attorney fees to Pinsker.
[Headnotes 8, 9]
An offer of judgment must specify the statute or rule that provides for the costs or fees
sought by the offeror.
16
In addition, when exercising discretion to award attorney fees based
on such an offer, a court must consider the four factors articulated in Beattie v. Thomas:
17

(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendants'
offer of judgment was reasonable and in good faith in both its timing and amount; (3)
whether the plaintiff's decision to reject the offer and proceed to trial was grossly
unreasonable or in bad faith; and (4) whether the fees sought by the offeror are
reasonable and justified in amount.
In Yamaha Motor Co. v. Arnoult,
18
this court concluded that when the defendant is the
offeree instead of the offeror, the first factor should be whether the defendant's claims or
defenses were litigated in good faith.
19

Prior to 1998, joint unapportioned offers of judgment were invalid for an award of attorney
fees under both NRCP 68 and NRS 17.115.
20
However, NRCP 68 was amended in 1998 and
NRS was amended in 1999 to permit an award of fees when there has been an
unapportioned offer of judgment, under certain circumstances.
____________________

15
NRCP 68(f)(2) ([T]he offeree shall pay the offeror's post-offer costs, applicable interest . . . and
reasonable attorney's fees.).

16
MRO Communications v. American Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999); Ramadanis v.
Stupak, 104 Nev. 57, 59-60, 752 P.2d 767, 768 (1988).

17
99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).

18
114 Nev. 233, 955 P.2d 661 (1998).

19
Id. at 252, 955 P.2d at 673.

20
Yada v. Simpson, 112 Nev. 254, 258, 913 P.2d 1261, 1263 (1996) (plaintiff's unapportioned offer to
multiple defendants invalid to support award of attorney fees); Morgan v. Demille, 106 Nev. 671, 674, 799 P.2d
561, 563 (1990) (unapportioned offer from multiple plaintiffs to sole defendant invalid to support award of
attorney fees); Ramadanis, 104 Nev. at 59, 752 P.2d at 768 (defendant's unapportioned offer to multiple
plaintiffs, here a corporation and its principal, invalid to support award of attorney fees); Uniroyal Goodrich
Tire v. Mercer, 111 Nev. 318, 322-23, 890 P.2d 785, 788-89 (1995) (plaintiff's unapportioned offer to multiple
defendants valid to support award of attorney fees, since defendants had stipulated in advance which entity
would pay any judgment, therefore no separate liability or basis of liability between defendants, and counsel for
joint defendants could appropriately assess risk of refusing offer).
........................................
121 Nev. 34, 42 (2005) RTTC Communications v. Saratoga Flier
17.115 was amended in 1999
21
to permit an award of fees when there has been an
unapportioned offer of judgment, under certain circumstances.
22

NRCP 68(c)(2) now reads, in pertinent part, as follows:
(2) Offers to Multiple Defendants. An offer made to multiple defendants will
invoke the penalties of this rule only if (A) there is a single common theory of liability
against all the offeree defendants, such as where the liability of some is entirely
derivative of the others or where the liability of all is derivative of common acts by
another, and (B) the same entity, person or group is authorized to decide whether to
settle the claims against the offerees.
[Headnote 10]
The conditions under which joint unapportioned offers of judgment are sufficient to allow
for an award of attorney fees under NRCP 68 and NRS 17.115 are almost identical. Both the
rule and the statute call for either a single theory of liability or derivative liability for all, and
both call for the same person or entity to be able to make the decision of whether or not to
settle. These conditions help to accomplish the purpose of both the statute and the rule, which
is to encourage settlement,
23
and they serve to assuage the concerns that joint unapportioned
offers of judgment do not encourage settlement,
24
since such offers are only allowed in
circumstances where that purpose can be served.
It is undisputed here that Pinsker obtained a more favorable judgment than its offer of
judgment and that the district court properly cited appropriate authority in the award. RTTC
argues, however, that the district court improperly applied the Beattie factors and that the
unapportioned offer of judgment was insufficient to support an award.
____________________

21
A review of the minutes of the Assembly Committee on Judiciary, May 6 and 11, 1999, shows that NRS
17.115 was amended to make it consistent with Nevada Rules of Civil Procedure 68.

22
NRCP 68 (replaced, effective October 27, 1998); 1999 Nev. Stat., ch. 258, 1-3, at 1102-05 (amending
NRS 17.115 as of May 24, 1999).

23
Beattie, 99 Nev. at 588, 668 P.2d at 274; Dillard Department Stores v. Beckwith, 115 Nev. 372, 382, 989
P.2d 882, 888 (1999) (The purpose of NRS 17.115 and NRCP 68 is to save time and money for the court
system, the parties and the taxpayers. They reward a party who makes a reasonable offer and punish the party
who refuses to accept such an offer. (citing Muije v. A North Las Vegas Cab Co., 106 Nev. 664, 667, 799 P.2d
559, 561 (1990))).

24
Yada, 112 Nev. at 258, 913 P.2d at 1263 ([A] single plaintiff's offer of judgment . . . not apportioned
among multiple defendants . . . does not serve to encourage settlement since the individual defendants are unable
to determine their share of a joint offer and make a meaningful choice between accepting the offer or continuing
to litigate.).
........................................
121 Nev. 34, 43 (2005) RTTC Communications v. Saratoga Flier
In the district court's order awarding fees, all four Beattie factors are mentioned, as well as
the additional factor from Yamaha.
25
Additionally, there is ample support in the record to
support the district court's findings that both Pinsker's claim and offer of judgment were
brought in good faith, that RTTC had a meritorious defense and acted in good faith in
rejecting Pinsker's offer, and that the requested attorney fees were reasonable and justified.
We find no abuse of discretion in the district court's analysis of the Beattie factors.
The district court, in the order granting the motion for attorney fees, stated that there was a
single theory of liability against all three defendants. This statement was based on the court's
finding that Pinsker made two claims for relief, both arising from [its] service in procuring a
management employee. Both of these claims were directed at all defendants, but only one
defendant would have been responsible for the judgment. The district court also found that
the defendants had a unity of interest, apparent from the fact that defendants were jointly
represented in this matter by one law firm.
With respect to a single theory of liability, ample evidence in the record supports Rowe's
liability only as an agent of RTTC. Redundant Networks, Inc., is mentioned in the original
complaint and in the pleadings on the defendants' motion to dismiss as successor in interest to
RTTC. In RTTC's motion for summary judgment, RTTC admits that if an obligation to pay
the commission exists here it is the obligation of RTTC only.
With respect to unity of interest, evidence in the record reveals that joint counsel for the
three original defendants admitted that RTTC would be liable for any judgment rendered.
From this the district court could reasonably conclude that RTTC was solely authorized to
make the decision of whether or not to settle.
Thus, substantial evidence supports the district court's finding of unity of interest and a
single theory of liability, and the district court did not abuse its discretion as to the attorney
fees award. Accordingly, we affirm the award of the district court.
CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court and its order
awarding attorney fees.
Becker, C. J., Rose, Maupin, Gibbons, Hardesty and Parraguirre, JJ., concur.
____________________

25
Uniroyal Goodrich Tire, 111 Nev. at 322-23, 890 P.2d at 789 (Beattie factors should have express written
support in decision, but award is proper if the record makes clear that the trial court considered the factors;
unless evaluation of the factors is arbitrary or capricious, they will not be disturbed).
____________
........................................
121 Nev. 44, 44 (2005) Jordan v. State, Dep't of Motor Vehicles
JAMES JACOB JORDAN, Appellant, v. THE STATE OF NEVADA on Relation of the
DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, CAPITOL POLICE
DIVISION, JIMMIE JONES, Respondents.
No. 38189
JOHN LUCKETT, Appellant, v. EDWARD DOUMANI and
LA CONCHA MOTEL, Respondents.
No. 39052
April 14, 2005 110 P.3d 30
Proper person appeals from district court orders granting summary judgment in an
intentional tort action (Docket No. 38189) and dismissing an intentional tort/negligence
action for failure to post security for costs (Docket No. 39052). First Judicial District Court,
Carson City; Michael R. Griffin, Judge (Docket No. 38189); Eighth Judicial District Court,
Clark County; Kathy A. Hardcastle, Judge (Docket No. 39052).
Arrestee sued State for oppression while using physical force, malicious prosecution, false
imprisonment, false lawsuit, libel, and perjury, and he was granted leave to proceed in forma
pauperis. The district court granted summary judgment for State, and ordered that arrestee
would not be allowed to proceed as proper person litigant with waiver of fees in any new
actions and would be required to obtain leave of court before filing any new action. In a
second action, a nonresident plaintiff brought claims against alleged con artist and motel
owner for unlawful practice of law, negligence, conspiracy to commit and aid fraud, and
intentional infliction of emotional distress, and plaintiff was granted in forma pauperis status.
The district court dismissed the action, based on plaintiff's failure, as nonresident, to post
security for costs, declared plaintiff a vexatious litigant, and restricted his court access.
Appeals were taken in each case. The supreme court held that: (1) pre-service complaint
review may be used, to prevent litigation abuse by proper person litigants with in forma
pauperis status; (2) four-factor analysis guides courts in balancing various interests implicated
by court-access restrictions on vexatious litigants; (3) sua sponte vexatious-litigant order
violated litigant's due process rights; (4) vexatious-litigant restrictive order could not
implicate other courts' powers; (5) fact issue precluded summary judgment on claims for
malicious prosecution, false arrest, and false imprisonment; and (6) court could waive
statutory requirement that nonresident plaintiff post security for costs.
Affirmed in part, reversed in part and remanded (Docket No. 38189); affirmed and
remanded with instructions (Docket No. 39052).
........................................
121 Nev. 44, 45 (2005) Jordan v. State, Dep't of Motor Vehicles
[Rehearing denied June 6, 2005]
James Jacob Jordan, Lynnwood, Washington, in Proper Person.
John Luckett, Anaheim, California, in Proper Person.
Brian Sandoval, Attorney General, Carson City, for Respondents State of Nevada and
Jimmie Jones.
Law Offices of Michael F. Bohn, Ltd., and Michael F. Bohn, Las Vegas, for Respondents
Edward Doumani and La Concha Motel.
1. Costs.
Upon receiving a proper-person civil complaint and an application to proceed in
forma pauperis, the district court must first consider the application's merits and
determine whether the accompanying affidavit and any additional investigation
demonstrate that the applicant is unable to pay the costs of proceeding with the action,
and if the court so finds, the court must grant the applicant leave to proceed without the
payment of costs and file the complaint. NRS 12.015.
2. Costs.
Once the proper-person civil plaintiff's application to proceed in forma pauperis is
granted and the complaint is filed, the district court is free to review the complaint's
merits for apparent defects, and if the complaint appears completely frivolous on its
face, meaning that it appears to lack an arguable basis either in law or in fact, then the
court may direct the clerk to defer issuing the summonses pending the completion of its
review, and the court may then hold a preliminary evidentiary hearing with the plaintiff
to determine whether the action should be allowed to proceed, and if the district court
determines that the action or a specific claim is indeed frivolous, the court can dismiss
the action or claim. NRS 12.015; NRCP 11(c)(2)(3).
3. Costs.
The dismissal of a complaint as frivolous, based on information obtained in a
preliminary evidentiary hearing after the proper-person civil plaintiff has been granted
in forma pauperis status and the complaint has been filed, but before issuance of
summonses, is an extreme action, and if the complaint can be amended to cure any
apparent defects, the plaintiff should be permitted to do so. NRS 12.015; NRCP 11.
4. Courts; Equity.
Nevada courts possess inherent powers of equity and of control over the exercise of
their jurisdiction.
5. Injunction.
Nevada courts have the power to permanently restrict a vexatious litigant's right to
access the courts. Const. art. 6, 6(1); NRCP 11.
6. Injunction.
A court may permanently restrict a vexatious litigant's right to access the courts
either after a party so moves, or in appropriate circumstances, sua sponte. NRCP
11(c)(1).
7. Constitutional Law; Injunction.
Because an order permanently restricting a vexatious litigant's right to access the
courts implicates an individual's constitutional right to access the courts, such orders
must be narrowly tailored.
........................................
121 Nev. 44, 46 (2005) Jordan v. State, Dep't of Motor Vehicles
8. Injunction.
A four-factor analysis guides courts in balancing the various interests implicated by
court-access restrictions on vexatious litigants: (1) due process requires notice and
opportunity to be heard before issuance of restrictive order, (2) district court must
create adequate record for appellate review, (3) district court must make substantive
findings as to frivolous or harassing nature of litigant's actions, and (4) restrictive order
must be narrowly drawn to address the specific problem encountered. U.S. Const.
amend. 14; NRCP 11(c).
9. Injunction.
A court considering a vexatious-litigant restrictive order must use caution in
reviewing filings in other cases, so as not to interfere with other judges' pending
assignments, and the judge issuing the restrictive order should rely only on observations
obtained from cases to which he or she is assigned, and on actual rulings in other cases.
10. Injunction.
While a vexatious-litigant restrictive order may be warranted based solely on
documents before the district court in that particular case, the district court must
identify those documents and explain how, by filing them, the litigant abused the court
system.
11. Injunction.
A vexatious-litigant restrictive order cannot issue merely upon a showing of
litigiousness; the litigant's filings must not only be repetitive or abusive, but also
without an arguable factual or legal basis, or filed with the intent to harass.
12. Constitutional Law; Injunction.
While courts may, as a general rule, restrict vexatious litigants' access to courts,
constitutional considerations prohibit a complete ban on filings by indigent proper
person litigants if the ban prevents the litigant from proceeding in criminal cases and in
original civil actions that sufficiently implicate a fundamental right; such orders are
impermissible.
13. Injunction.
Since vexatious-litigant restrictive orders necessarily implicate future filings of
actions, which may involve criminal cases or fundamental rights, even broad restrictive
orders should set an appropriate standard against which any future filings will be
measured, e.g., barring litigant from filing any new actions involving specific defendant
or specific claim, or barring litigant from filing any new actions unless court first
determines that proposed action is not frivolous or brought for improper purpose and/or
implicates a fundamental right.
14. Appeal and Error.
The appellate court examines vexatious-litigant restrictive orders under an abuse of
discretion standard.
15. Constitutional Law; Injunction.
Sua sponte vexatious-litigant order, entered without first providing proper-person
civil litigant with notice or opportunity to respond, violated litigant's due process rights;
while district court's previous orders hinted at its displeasure with litigant's improper
filings, court never expressly warned litigant that it was considering issuing restrictive
order affecting his right to access the court. U.S. Const. amend. 14.
16. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant did not satisfy
requirement of creating adequate record for appellate review.
........................................
121 Nev. 44, 47 (2005) Jordan v. State, Dep't of Motor Vehicles
view. While order contained partial explanation, i.e., that litigant repeatedly, in that
case and others, wasted State's resources with meritless and unintelligible filings that
did not conform with court rules, and while order included two examples of such
filings, order did not otherwise contain list of filings and rulings that led court to
impose broad filing restriction, and order did not sufficiently indicate that litigant had
previously instituted other suits that were determined meritless or otherwise resulted in
adverse resolution.
17. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant was improper,
where it did not contain substantive findings as to frivolous or harassing nature of
litigant's actions, though record indicated that many of litigant's filings were difficult to
understand and often procedurally improper; litigant's allegations in current action
against State relating to his arrest were not without arguable merit, and a preliminary
evidentiary hearing, after litigant had been granted in forma pauperis status and
complaint had been filed but before issuance of summonses, could have helped prevent
confusion regarding the filings.
18. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, ordering that
litigant would not be allowed to proceed as proper-person litigant with waiver of fees in
any new actions and would be required to obtain leave of court before filing any new
action, was unconstitutionally overbroad, given that order failed to set any standard
against which a future court-access determination would be made; order contained
apparent blanket prohibition on filing of any new actions in forma pauperis, despite
litigant's indigence and regardless of whether the future action involved a fundamental
right.
19. Constitutional Law; Injunction.
Proper-person civil litigant's due process rights to notice and opportunity to be
heard, before entry of vexatious-litigant order, were not violated where litigant was
warned of district court's intention to issue the order and he was given three weeks in
which to file an opposition, and hearing was held before order was filed, although
litigant did not attend the hearing. U.S. Const. amend. 14.
20. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant satisfied
requirement of creating adequate record for appellate review, though order did not
specifically identify filings that district court found unmeritorious, repetitive, and
contradictory, where district court's findings were easily substantiated in record of
current civil action against alleged con artist and motel owner, and litigant's pattern of
abusiveness could be gleaned from published opinion of another state's court declaring
the litigant a vexatious litigant.
21. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant satisfied
requirement of containing substantive findings as to frivolous or harassing nature of
litigant's actions, though district court could have made additional substantive findings,
where district court specifically found that litigant filed numerous unmeritorious and
contradictory documents and documents in which he merely reasserted allegations
under changed captions, record demonstrated that litigant repeatedly submitted
meritless, legally improper and contradictory filings, and litigant's repeated attacks on
opposing counsel and district judge demonstrated pattern of intent to harass defendants
and the court.
........................................
121 Nev. 44, 48 (2005) Jordan v. State, Dep't of Motor Vehicles
22. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, which was
issued by district court, prohibited litigant from filing any new litigation in Nevada state
courts in forma pauperis without first obtaining leave of the presiding judge of the
court, and required litigant to notify district court of any new litigation he filed in
Nevada, was narrowly drawn to curb widespread abuses noted by court but improperly
omitted standard against which presiding judge should measure potential new filings.
23. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, which was
issued by district court, prohibited litigant from filing any new litigation in Nevada state
courts in forma pauperis without first obtaining leave of the presiding judge of the
court, and required litigant to notify district court of any new litigation he filed in
Nevada, was based on court's inherent powers involving exercise of its jurisdiction, so
court could not implicate other courts' powers to prevent litigant from filing new
litigation in courts of this state without permission; rather, order could only apply to
the district of the court that entered the order.
24. Appeal and Error.
The appellate court reviews orders granting summary judgment de novo. NRCP
56(c).
25. Judgment.
Summary judgment should not have been granted for State as defendant, in arrestee's
action as proper person alleging oppression while using physical force, malicious
prosecution, false imprisonment, and false lawsuit, based on arrestee's claims
allegedly being indecipherable, where lack of clarity in arrestee's pleadings could be
overcome without excessive difficulty; complaint and other papers were typewritten
and demonstrated an obvious attempt to organize and base claims on legally
recognizable causes of action, arrestee attached to complaint the statutes under which
he purported to derive his causes of action, and State was able, for the most part, to
appropriately respond to arrestee's allegations. NRS 197.200, 199.320.
26. Torts.
Arrestee could not sue State for perjury, even assuming a civil cause of action
existed for perjury, where arrestee's perjury allegations were subsumed within his other
causes of action for malicious prosecution and false imprisonment or false arrest.
27. Libel and Slander.
In order to maintain a claim of libel, a plaintiff must show a false and defamatory
statement, its unprivileged publication, fault, and damages.
28. Libel and Slander.
A statement is defamatory when it would tend to lower the subject in the
estimation of the community, excite derogatory opinions about the subject, and hold the
subject up to contempt.
29. Libel and Slander.
Generally, whether a statement is defamatory is a question of law.
30. Libel and Slander.
Only false statements of fact, as opposed to opinion, are actionable as being
defamatory.
31. Libel and Slander.
State police officer's statement, in declaration of probable cause arrest form
relating to arrest for trespassing outside of supreme court building, that arrestee had
been uncooperative, was a mere opinion, which was not actionable as being
defamatory.
........................................
121 Nev. 44, 49 (2005) Jordan v. State, Dep't of Motor Vehicles
building, that arrestee had been uncooperative, was a mere opinion, which was not
actionable as being defamatory.
32. Libel and Slander.
Statements made in good faith furtherance of one's official duties as a public official
are generally privileged from defamation claims.
33. Action.
Statute making it a criminal offense for a police officer to unlawfully and
maliciously, under pretense or color of official authority, commit oppression by
arresting or detaining another against his will does not create a civil cause of action.
NRS 197.200.
34. Malicious Prosecution.
Malicious prosecution consists of a prior criminal action being filed against the
claimant, plus lack of probable cause to commence the prior action, malice, a favorable
termination of the prior criminal action, and damages.
35. Malicious Prosecution.
Proof of lack of probable cause may denote malice, as element of malicious
prosecution.
36. False Imprisonment.
To establish false arrest, a claimant must show that the actor instigated or effected an
unlawful arrest.
37. False Imprisonment.
False imprisonment arising from a false arrest occurs when the claimant's liberty is
restrained under the probable imminence of force without any legal cause or
justification.
38. False Imprisonment.
An actor is subject to liability to another for false imprisonment if: (1) he acts
intending to confine the other or a third person within boundaries fixed by the actor; (2)
his act directly or indirectly results in such a confinement of the other; and (3) the other
is conscious of the confinement or is harmed by it.
39. Judgment.
Plaintiff arrestee did not fail to provide, in response to defendant State's motion for
summary judgment, documentation setting forth specific facts of genuine triable issue
which would preclude summary judgment for State on arrestee's claims of malicious
prosecution, false arrest, and false imprisonment relating to his arrest for trespassing
outside of supreme court building, though arrestee's documentation was not by
affidavit, where arrestee had attached police reports to his complaint, and he later
submitted letter from Administrator of State Buildings and Grounds Division stating
that supreme court building's grounds were continuously open to the public. NRCP
56(e).
40. States.
Justice of the peace's initial determination to hold arrestee for trial for trespassing on
supreme court building grounds did not constitute irrebuttable evidence of probable
cause to arrest, as would preclude arrestee from suing State for malicious prosecution,
false arrest, and false imprisonment; arrestee alleged that justice of the peace's
determination was procured through perjury.
41. Judgment.
Genuine issue of material fact as to state police officer's basis for believing that
citizen's refusal to leave supreme court building grounds constituted a crime precluded
summary judgment for State, as to citizen's claims for malicious prosecution, false
arrest, and false imprisonment.
........................................
121 Nev. 44, 50 (2005) Jordan v. State, Dep't of Motor Vehicles
42. Judgment.
Genuine issue of material fact as to whether police officer had been acting in bad
faith when he arrested citizen for trespassing on supreme court building grounds
precluded summary judgment for State based on discretionary act immunity, in citizen's
action for malicious prosecution, false arrest, and false imprisonment. NRS 41.032.
43. Appeal and Error.
A dismissal of a nonresident plaintiff's civil action, based on failure to post security
for costs, will be overturned only upon the finding of an abuse of discretion. NRS
18.130.
44. Costs.
Neither the statute permitting a district court to allow an indigent plaintiff to
commence a civil action without costs, nor any other statute, clearly and manifestly
removed district court's inherent power to waive, upon finding of indigency, statutory
requirement that nonresident plaintiff post security for costs. NRS 12.015, 18.130.
45. Costs.
Nonresident plaintiff was not required to post security for costs in civil action, where
trial court entered in forma pauperis order which included language effectively
excusing security requirement, though later oral and written orders addressed security
requirement; oral orders were never reduced to writing and they did not vacate in forma
pauperis order, and to extent that any written orders addressed security requirement,
they did not expressly vacate in forma pauperis order and no order was entered at a time
early enough in proceedings to effectively give plaintiff any opportunity to respond by
posting security. NRS 12.015, 18.130.
46. Appeal and Error.
The appellate court will affirm an order of the district court if it reached the correct
result, albeit for different reasons.
47. Appeal and Error; Pretrial Procedure.
The appellate court rigorously reviews the dismissal of an action for failure to state a
claim, and a complaint should only be dismissed if it appears beyond a reasonable
doubt that the plaintiff could prove no facts entitling him to relief. NRCP 12(b)(5).
48. Attorney and Client.
Nevada has not yet recognized a private cause of action for the unauthorized practice
of law.
49. Attorney and Client.
Even assuming Nevada recognized private cause of action for unauthorized practice
of law, plaintiff did not state a claim for such cause of action, which alleged defendant
gave plaintiff legal advice about pending case in Nevada court. Plaintiff did not allege
defendant was not an attorney or that he falsely claimed to be licensed in Nevada and
instead alleged only that California State Bar had no record of defendant as
California-licensed attorney, plaintiff later stated that defendant was California-licensed
attorney, and plaintiff did not allege that any legal advice given by defendant
proximately caused, or was likely to cause, any damage to plaintiff.
50. Negligence.
A claim for negligence must be based on: (1) an existing duty of care, (2) breach, (3)
legal causation, and (4) damages.
51. Torts.
Under the economic loss doctrine, there can be no recovery in tort for purely
economic loss.
........................................
121 Nev. 44, 51 (2005) Jordan v. State, Dep't of Motor Vehicles
52. Innkeepers.
Even assuming motel owner had duty to inform plaintiff that motel guest was a scam
artist, economic loss rule precluded plaintiff from bringing negligence claim against
motel owner. Plaintiff did not allege that he was physically harmed or injured in any
way other than through guest's appropriation of sum of money.
53. Conspiracy.
An actionable civil conspiracy-to-defraud claim exists when there is: (1) a
conspiracy agreement, i.e., a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of
harming another; (2) an overt act of fraud in furtherance of the conspiracy; and (3)
resulting damages to the plaintiff.
54. Conspiracy.
An underlying cause of action for fraud is a necessary predicate to a cause of action
for conspiracy to defraud.
55. Fraud.
Fraudulent misrepresentation occurs when a false representation is made with
knowledge or belief that it is false, or with an insufficient basis of information for
making the representation, and with intent to induce the plaintiff to act, and the plaintiff
relies on the misrepresentation with resulting damages.
56. Fraud.
Intent to induce the plaintiff to act must be specifically alleged, in an action for
fraudulent misrepresentation.
57. Conspiracy.
Allegation that motel owner knew of motel guest's tendency to scam yet let him
live at motel rent-free without warning potential victims did not establish motel owner
conspired with guest, in alleged victim's action against motel owner for conspiracy to
defraud.
58. Conspiracy.
Even assuming motel owner conspired with motel guest, plaintiff's allegations that
motel guest told plaintiff he had a hot tip, that plaintiff gave money to motel guest to
wager with, and that plaintiff never heard from motel guest again, did not establish the
underlying fraud, in action against motel owner for conspiracy to defraud; plaintiff did
not specifically allege that motel guest intended for plaintiff to act on the hot tip or
even that motel guest offered to place the wager.
59. Damages.
To establish a cause of action for intentional infliction of emotional distress, a
complaint must allege the following: (1) extreme and outrageous conduct with either
the intention of, or reckless disregard for, causing emotional distress; (2) severe or
extreme emotional distress suffered by the plaintiff; and (3) actual or proximate
causation.
60. Damages.
A complaint for intentional infliction of emotional distress must specifically allege
intent to cause emotional distress.
61. Damages.
Plaintiff's allegation that motel owner knew of motel guest's intent to scam the
plaintiff did not state a claim for intentional infliction of emotional distress; plaintiff
did not allege that motel owner intended for motel guest to scam the plaintiff or that
plaintiff actually suffered any emotional distress as a result.
........................................
121 Nev. 44, 52 (2005) Jordan v. State, Dep't of Motor Vehicles
Before the Court En Banc.
OPINION
Per Curiam:
In addition to challenging district court dispositions, these proper person appeals involve
first impression issues regarding orders that place permanent restrictions on the ability of
proper person litigants with in forma pauperis status to access the Nevada state courts. As
both appeals raise similar questions of substantial importance, we considered them together.
We conclude that the district court has authority to limit the court access of a litigant
proceeding in proper person with in forma pauperis status when certain guidelines, designed
to protect important constitutional rights, are followed.
FACTS AND PROCEDURAL HISTORIES
Docket No. 38189 (Jordan)
On a Sunday afternoon, respondent Capitol Police Officer Jimmie W. Jones arrested
proper person appellant James Jacob Jordan outside of the Nevada Supreme Court building
for trespassing on state property in violation of NRS 207.200(1)(b), which prohibits people
from willfully remaining on land after having been warned not to trespass. According to
Officer Jones' arrest report, he and a Carson City Sheriff's Deputy were investigating
complaints of a suspicious person when they located Jordan sitting on a bench within the
building's grounds. Determining that Jordan matched the description of the person for whom
they were looking, Officer Jones then identified himself, questioned Jordan's reason for being
on state property, and told him to return on Monday if he had business with the State. After
asking for identification, Officer Jones told Jordan that he was trespassing on state property
and requested that he leave. Jordan refused and Officer Jones informed him that he would be
arrested if he did not leave. Jordan again refused to move and was consequently arrested and
booked at the Carson City Sheriff's Department's jail on one count of trespass.
The next morning, a justice of the peace reviewed the arrest and found probable cause to
hold Jordan for trial. However, Jordan was apparently released the next day, and the trespass
charge was dropped.
Jordan, in proper person, subsequently sued respondents Officer Jones and the Capitol
Police Division of the Nevada State Department of Motor Vehicles and Public Safety
(collectively, the State) for {1) oppression while using physical force, {2) malicious
prosecution, {3) false imprisonment, {4) false lawsuit, {5) libel, and {6) perjury.
........................................
121 Nev. 44, 53 (2005) Jordan v. State, Dep't of Motor Vehicles
for (1) oppression while using physical force, (2) malicious prosecution, (3) false
imprisonment, (4) false lawsuit, (5) libel, and (6) perjury. To his complaint, Jordan attached
copies of the arrest report and criminal complaint, the declaration of probable cause arrest
form, and the Nevada criminal statutes from which he purported to derive his claims. Jordan
was granted leave to proceed in forma pauperis.
Jordan then obtained and submitted a letter from the State Buildings and Grounds Division
administrator, stating that the supreme court building's grounds are continuously open to the
public. During the suit's pendency, Jordan also filed numerous other papers, including various
motions, requests for rulings and other actions. The purposes behind many of these papers are
difficult to decipher or understand, and the papers are in many instances procedurally
improper.
The district court issued an order reciting its difficulties in comprehending and responding
to Jordan's filings and declaring that Jordan should not be allowed to abuse his proper person
status to file meritless ramblings. Further, the court found that another of Jordan's
complaints was so long and incomprehensible as to be incapable of legal resolution.
Consequently, the court restricted Jordan's court access, ordering that Jordan will not be
allowed to proceed in pro per' with a waiver of fees in any new actions, and that Jordan
must obtain leave of the court before filing any new action.
A few months later, a joint case conference report, apparently typed by Jordan but signed
by both parties, was filed. The joint report acknowledges that Jordan's complaint essentially
alleged that he was unjustly arrested and that Officer Jones lied about the alleged unjust arrest
in the police report. The State then moved for summary judgment, which the district court
granted based solely on its inability to decipher the meaning of Jordan's claims. Jordan timely
appealed.
Docket No. 39052 (Luckett)
Proper person appellant John Luckett, a California resident, met M.L., an alleged con
artist, during a trip to Las Vegas. Luckett alleged that M.L. made him multiple promises,
including that he would give Luckett tickets to various casinos' shows and make a bet for him
based on a hot tip that M.L. had received. Luckett then handed M.L. money to wager with.
Luckett apparently never saw or heard from M.L. again.
According to Luckett, M.L. also introduced him to respondent Edward Doumani, owner of
respondent the La Concha Motel, so that Doumani could counsel Luckett on a legal matter.
Luckett alleged that Doumani falsely asserted his status as a practicing California lawyer
and gave him legal advice in connection with a different Nevada case that Luckett was
involved in.
........................................
121 Nev. 44, 54 (2005) Jordan v. State, Dep't of Motor Vehicles
leged that Doumani falsely asserted his status as a practicing California lawyer and gave him
legal advice in connection with a different Nevada case that Luckett was involved in.
Moreover, Luckett asserted that Doumani allowed M.L. to live at the motel rent-free, despite
being aware of M.L.'s alleged criminal record and having received many complaints from
people whom M.L. had defrauded. Luckett asserted that the La Concha Motel serves as a
front for M.L.'s scams, from which Doumani and the La Concha Motel are profiting.
Luckett filed a complaint in the district court, in proper person, against M.L.,
1
Doumani,
and the La Concha Motel. In it, he asserted that Doumani had a duty to warn him of M.L.'s
tendencies to scam and, since Doumani did not warn him, that both Doumani and the La
Concha Motel are responsible for M.L.'s injurious acts. The complaint asserted claims against
Doumani and the La Concha Motel for the unlawful practice of law, negligence, conspiracy to
commit and aid a fraud, and intentional infliction of emotional distress. In a district court
order that expressly allowed him to proceed without payment or fees or security therefor,
Luckett was granted in forma pauperis status.
Doumani and the La Concha Motel then served Luckett with a demand for security for
costs under NRS 18.130, which requires an out-of-state plaintiff to post security for any
future adverse award of costs and charges. They later moved to dismiss the action based on
Luckett's failure to post the requested security. The court orally advised Luckett that he had
thirty days in which to post a security bond, or the case would be dismissed. Thereafter,
Doumani and the La Concha Motel again moved to dismiss for Luckett's failure to post
security costs and also moved to dismiss for his failure to state a claim. They did not,
however, seek at that point to set aside the in forma pauperis order waiving security
requirements.
The court conducted a hearing on the pending motions. During the hearing, the court
notified Luckett of its intent to grant the dismissal motions. The court also indicated its intent
to issue a restrictive order declaring Luckett a vexatious litigant. Luckett was granted three
weeks in which to file an opposition and to provide the court with information as to any
lawsuits he had filed in Nevada and California within the past five years. The next hearing
was scheduled for December 20, 2001.
Luckett responded by filing two motions explaining his involvement in other cases and
pointing out the previous district court order granting him in forma pauperis status and
waiving security requirements.
____________________

1
M.L. was never properly served and never appeared in the district court proceedings, and he is not a party to
this appeal.
........................................
121 Nev. 44, 55 (2005) Jordan v. State, Dep't of Motor Vehicles
requirements. However, Luckett did not attend the December 20 hearing,
2
and the district
court subsequently entered a written order declaring Luckett a vexatious litigant and
restricting his court access. In it, the court noted that Luckett was previously declared a
vexatious litigant in California
3
and that Luckett had filed at least five cases in the Eighth
Judicial District Court, each with in forma pauperis status. Further, the court stated that he
had repeatedly filed unmeritorious and often contradictory pleadings and papers in each of
those cases, including several documents in which he simply deleted an original caption and
inserted a new one in its place. Finally, the court noted that Luckett frequently referred to his
ability to travel and gamble. Accordingly, the court declared that Luckett is not indigent, that
he is a vexatious litigant, and that he may not file any new litigation in Nevada state courts in
forma pauperis without first obtaining leave of the presiding judge of the court. In addition,
the court directed Luckett to notify the Eighth Judicial District Court of any new litigation
that he files in Nevada. Finally, the court admonished that any violation of the order could
result in contempt of court punishable by fine or imprisonment.
A few days later, the district court entered a written order granting Doumani's and the La
Concha Motel's motions to dismiss for failure to post security for costs. Thereafter, the
district court entered an amended restrictive order. The amended order is almost identical to
the original order; however, it additionally prohibits Luckett from proceeding in his action
against Doumani and the La Concha Motel without paying appropriate costs. Luckett timely
appealed.
DISCUSSION
Nevada has long recognized the importance of maintaining direct access to its state courts.
4
Accordingly, Nevada Supreme Court Rule 44 generally allows for self-representation in all
lower courts, and NRS 12.015 permits an indigent person to proceed in forma pauperis,
without the payment of court costs and fees.
5
Such rules and statutes help to ensure that
every person in Nevada is afforded meaningful access to the courts, regardless of that
person's financial status.
____________________

2
Luckett asserts that he attempted to attend the hearing but was initially unable to locate the correct
courtroom and then locked out of the room.

3
See In re Luckett, 283 Cal. Rptr. 312 (Ct. App. 1991).

4
See, e.g., Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995) (recognizing citizens', whether or
not indigent, constitutional right to access to the courts with the protection of due process of law); Hollis v.
State, 95 Nev. 664, 601 P.2d 62 (1979) (recognizing prisoners' court access rights).

5
See also Wilkie v. State, 98 Nev. 192, 194, 644 P.2d 508, 509 (1982) (recognizing that a prisoner's right to
represent himself is guaranteed by the United States Constitution).
........................................
121 Nev. 44, 56 (2005) Jordan v. State, Dep't of Motor Vehicles
meaningful access to the courts, regardless of that person's financial status. At the same time,
however, notions of unlimited free court access have led to a plethora of frivolous litigation:
the threat of monetary sanctions or professional discipline is ineffective to deter abusive
litigation practices when those practices are carried out by proper person litigants proceeding
in forma pauperis.
6

As a result, this court has recognized that a litigant's right to access the courts in proper
person and with in forma pauperis status is not without limits.
7
Like courts in other
jurisdictions that deal with an overabundance of frivolous or abusive proper person and in
forma pauperis litigation, Nevada courts have available multiple methods of reducing misuse
of the legal system. Pre-service complaint review and restriction of court access constitute
two methods of particular pertinence in the instant cases.
Pre-service review of complaints with in forma pauperis status
In Nevada, a district court is authorized under NRCP 11(c)(2) to impose sanctions
sufficient to deter repetition of a party's conduct in frivolously or vexatiously pursuing an
action or defense, even when that party is proceeding in proper person. As perhaps one of the
most extreme NRCP 11 sanctions, the court may sua sponte dismiss a completely
unwarranted action or claim in order to prevent an in forma pauperis litigant from continuing
in a course of completely baseless litigation or harassment.
8
Of course, a party against whom
an NRCP 11 sanction is proposed must first be afforded notice and an opportunity to oppose
the sanction's imposition.
9

Other jurisdictions similarly permit a complaint to be dismissed if, upon holding an
abbreviated evidentiary hearing before service of process to determine whether an
accompanying application for in forma pauperis status should be granted, the court
determines that the applicant is not indigent or that the action is frivolous.
____________________

6
See Barnes v. District Court, 103 Nev. 679, 683, 748 P.2d 483, 486 (1987) (noting that plaintiffs who are
allowed to proceed in forma pauperis are not affected by economic deterrents to filing frivolous lawsuits).

7
Id.; see also Wilkie, 98 Nev. 192, 644 P.2d 508 (concluding that, under the circumstances, a prisoner's
confinement without access to an adequate law library did not violate his constitutional right of
self-representation).

8
See NRCP 11(c)(1)(B); Trustees v. Developers Surety, 120 Nev. 56, 63, 84 P.3d 59, 63 (2004) (recognizing
the legislative intent to deter frivolous or vexatious claims and defenses[, which] overburden limited judicial
resources, hinder the timely resolution of meritorious claims and increase the costs of engaging in business and
providing professional services to the public,' through the courts' imposition of sanctions under Rule 11
(quoting S.B. 250, 72d Leg. (Nev. 2003); 2003 Nev. Stat., ch. 508, 153, at 3478)); see also Blanks v. State,
594 So. 2d 25, 28 (Miss. 1992), abrogated in part by Bilbo v. Thigpen, 647 So. 2d 678 (Miss. 1994).

9
See NRCP 11(c)(1)(A), (B).
........................................
121 Nev. 44, 57 (2005) Jordan v. State, Dep't of Motor Vehicles
mines that the applicant is not indigent or that the action is frivolous.
10
These courts have
followed the United States Court of Appeals for the Fifth Circuit's lead in Spears v.
McCotter.
11
In Spears, the court recognized that preliminary evidentiary hearings regarding
the specificity of a trial court complaint and accompanying application to proceed in forma
pauperis may be held in order to dig beneath the conclusional allegations; to reduce the level
of abstraction upon which the claims rest; to ascertain exactly what scenario the . . . claims
occurred, as well as the legal basis for the claim.
12
The court concluded that if, at the
hearing, the complaint is determined frivolous, the action may be dismissed under the federal
in forma pauperis statute.
13

[Headnote 1]
Although we generally approve of the Spears approach, we do not adopt it completely.
Unlike the federal statute, Nevada's in forma pauperis statute, NRS 12.015, does not
authorize the district court to review a complaint (or a petition) for frivolity when considering
a litigant's application to proceed without paying court fees and costs.
14
Accordingly, upon
receiving a complaint and an application to proceed in forma pauperis, the district court must
first consider the application's merits and determine whether the accompanying affidavit and
any additional investigation
15
demonstrate that the applicant is unable to pay the costs of
proceeding with the action. If the court so finds, the court must grant the applicant leave to
proceed without the payment of costs and file the complaint.
[Headnotes 2, 3]
Nevertheless, once the complaint is filed, the court is free to review the complaint's merits
for apparent defects. If the complaint appears completely frivolous on its face, meaning
that it appears to lack "an arguable basis either in law or in fact," then the court may
direct the clerk to defer issuing the summons{es) pending the completion of its review.
____________________

10
Blanks, 594 So. 2d at 27; see also Brown v. Diaz, 361 S.E.2d 490 (Ga. Ct. App. 1987) (dismissing an in
forma pauperis inmate's complaint for frivolity after holding a preliminary hearing); Evans v. Green, 391 S.E.2d
11 (Ga. Ct. App. 1990) (same, at least when prisoner complaints alleging violations of federal law are involved).

11
766 F.2d 179 (5th Cir. 1985), abrogated in part by Neitzke v. Williams, 490 U.S. 319, 323 (1989),
modified in part by statute as recognized in Christiansen v. Clarke, 147 F.3d 655 (8th Cir. 1998).

12
Id. at 180.

13
Id.; 28 U.S.C. 1915(e)(2).

14
Compare NRS 12.015, with 28 U.S.C. 1915(e)(2), Del. Code Ann. tit. 10, 8803(b) (1999), Ga. Code
Ann. 9-15-2(d) (1993), Neb. Rev. Stat. 25-2301 (1995), and 42 Pa. Cons. Stat. Ann. 240(j) (West 2002).

15
See Sullivan v. District Court, 111 Nev. 1367, 1371, 904 P.2d 1039, 1042 (1995) (If, on subsequent
review of the application, the district court determines that petitioner has not shown he is indigent, the district
court may order petitioner to provide further information or may deny the application in an appropriately filed
written order.).
........................................
121 Nev. 44, 58 (2005) Jordan v. State, Dep't of Motor Vehicles
appears completely frivolous on its face, meaning that it appears to lack an arguable basis
either in law or in fact,
16
then the court may direct the clerk to defer issuing the
summons(es) pending the completion of its review. The court may then hold a preliminary
evidentiary hearing with the litigant to determine whether the action should be allowed to
proceed. If the district court determines that the action or a specific claim is indeed frivolous,
the court can dismiss the action or claim, as the case may be, in accordance with NRCP 11.
17
We emphasize that, although this procedure is constitutionally permissible,
18
the dismissal of
a complaint based on information obtained in a Spears-type hearing is an extreme action, and
if the complaint can be amended to cure any apparent defects, the litigant should be permitted
to do so. This pre-service review process will not only spare prospective defendants the
inconvenience and expense of answering frivolous or incoherent complaints,
19
but will also
assist the court in deciphering the litigant's basic allegations and aid the litigant in presenting
a more legally viable complaint, if possible.
Court-access restrictions
[Headnotes 4, 5]
Unlike some states, Nevada does not have a court rule or statute authorizing a court to
declare an individual a vexatious litigant and to limit accordingly that individual's access to
the courts.
20

____________________

16
Neitzke, 490 U.S. at 325. This definition comports with our explanation in Bergmann v. Boyce, 109 Nev.
670, 676, 856 P.2d 560, 564 (1993). In Bergmann, we defined a frivolous claim under NRCP 11, when made
by attorneys, as one that is both baseless and made without a reasonable and competent inquiry.' Id. (quoting
Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990)). We noted that the baseless
prong requires examination of whether the pleading is well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification or reversal of existing law.' Id. The second prong of
the Bergmann definition, whether the attorney made a reasonable and competent inquiry, is inapplicable to
nonattorney litigants proceeding in proper person. Id. We note that the NRCP 11 frivolous standard is different
from the standard pertaining to dismissals under NRCP 12(b)(5) for failure to state a claim. Id. at 676-77, 856
P.2d at 564; see also Neitzke, 490 U.S. at 326-28.

17
See NRCP 11(c)(2), (3).

18
See Christiansen v. Clarke, 147 F.3d 655, 657-58 (8th Cir. 1998); accord Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001); see also Coppedge v. United States, 369 U.S. 438 (1962); Stephen M.
Feldman, Indigents in the Federal Courts: The In Forma Pauperis StatuteEquality and Frivolity, 54 Fordham
L. Rev. 413, 432-36 (1985).

19
Neitzke, 490 U.S. at 324.

20
See, e.g., Cal. Civ. Proc. Code 391-391.7 (West 2004); Del. Code Ann. tit. 10, 8803(e) (1999); Fla.
Stat. Ann. 68.093 (West Supp. 2005); Haw. Rev. Stat. Ann. 634J (Michie 1993); Tex. Civ. Prac. & Rem.
Code Ann. 11.051 (Vernon 2002).
........................................
121 Nev. 44, 59 (2005) Jordan v. State, Dep't of Motor Vehicles
Nonetheless, Nevada's courts are constitutionally authorized to issue all writs proper and
necessary to the complete exercise of their jurisdiction.
21
In addition, as discussed above,
NRCP 11 permits a district court to impose appropriate deterrent sanctions on a party who
violates that rule by signing court documents that are frivolous or presented for an improper
purpose. Finally, Nevada courts also possess inherent powers of equity and of control over
the exercise of their jurisdiction.
22
We recognize that these authorities bestow upon Nevada
courts the power to permanently restrict a litigant's right to access the courts.
23

____________________

21
Nev. Const. art. 6, 6(1); see also id. 4.

22
See Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir. 1982) (The equity power of a court to
give injunctive relief against vexatious litigation is an ancient one . . . .).

23
See De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) (recognizing that the federal courts' inherent
power to regulate abusive litigation activities includes enjoining a litigant's right to access the courts under the
All Writs Act, 28 U.S.C. 1651); accord Hartford Textile, 681 F.2d at 897; see People v. Dunlap, 623 P.2d
408, 410-11 (Colo. 1981) (noting that the administration of justice for other litigants is hampered when frivolous
lawsuits create unwarranted taxpayer expenses and interfere with the court's functioning by increasing court
costs, crowding dockets, and causing delay, disruption, and confusion and basing its power to issue restrictive
orders, in part, on state constitutional clauses granting the Colorado Supreme Court superintending control over
inferior courts and the power to issue writs); In re Lawsuits of Carter, 510 S.E.2d 91 (Ga. Ct. App. 1998)
(recognizing a trial court's authority to issue vexatious litigant orders restricting proper person litigants' court
access); Eismann v. Miller, 619 P.2d 1145, 1149-50 (Idaho 1980) (recognizing that, although every individual
in our society has a right of access to the courts[,] . . . the exercise of that right cannot be allowed to rise to the
level of abuse, impeding the normal and essential functioning of the judicial process, and basing the Idaho
Supreme Court's fundamental power to order restrictive orders on state constitutional clauses granting the court
supervisory powers over the judicial system); Hooker v. Sundquist, 150 S.W.3d 406 (Tenn. Ct. App. 2004)
(upholding a trial court's imposition of temporary prefiling restrictions based on a Tennessee rule substantially
similar to NRCP 11); Minniecheske v. Griesbach, 468 N.W.2d 760 (Wis. Ct. App. 1991) (noting that frivolous
claims and appeals statutes would be ineffective against an indigent proper person litigant and basing its decision
to uphold the trial court's restrictive order on federal law, taxpayers' rights, and the public's interest in
maintaining the judicial system's integrity); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991)
(discussing the control necessarily vested in courts to police themselves and administer the judicial process
in an orderly and effective manner, in a case involving a court's sua sponte imposition of sanctions (internal
quotations omitted)); Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (noting a problematic prisoner litigant's
right to meaningful court access, but upholding a habeas court's order enjoining him from filing suits in forma
pauperis without prior approval); Town of Brookline v. Goldstein, 447 N.E.2d 641, 645 n.6 (Mass. 1983)
(recognizing that a preliminary injunction prohibiting certain future legal actions might be appropriate if it could
be shown that the party is unable to pay sanctions or is otherwise undeterred).
........................................
121 Nev. 44, 60 (2005) Jordan v. State, Dep't of Motor Vehicles
[Headnotes 6, 7]
A court may impose such restrictions either after a party so moves, or, in appropriate
circumstances, sua sponte.
24
Nonetheless, because restrictive orders implicate an individual's
constitutional right to access the courts, such orders must be narrowly tailored.
25
Further, we
note a general reluctance to impose restrictive orders when standard remedies like sanctions
are available and adequate to address the abusive litigation.
26

[Headnote 8]
We have not previously addressed what approach courts should take when imposing
vexatious litigant restrictive orders. The Ninth Circuit, however, has developed a four-factor
analysis to guide courts in balancing the various interests implicated by court-access
restrictions.
27

First, the litigant must be provided reasonable notice of and an opportunity to oppose a
restrictive order's issuance. This requirement protects the litigant's due process rights.
28

[Headnotes 9, 10]
Second, the district court must create an adequate record for review, including a list of all
the cases and documents, or an explanation of the reasons, that led it to conclude that a
restrictive order was needed to curb repetitive or abusive activities.
29
In regard to this factor,
we recognize that the district court's access to documents filed and proceedings taken in other
courts is often limited.
____________________

24
See NRCP 11(c)(1); In re Oliver, 682 F.2d 443, 445-46 n.5 (3d Cir. 1982); Pavilonis v. King, 626 F.2d
1075, 1079 (1st Cir. 1980) (Generally, this kind of order should not be considered absent a request by the
harassed defendants.).

25
Chambers, 501 U.S. at 44 (Because of their very potency, inherent powers must be exercised with
restraint and discretion.); Moy v. U.S., 906 F.2d 467, 470 (9th Cir. 1990) ([A]n injunction . . . restrict[ing] an
individual's access to the court system . . . is an extraordinary remedy that should be narrowly tailored and rarely
used.); accord De Long, 912 F.2d at 1147; Pavilonis, 626 F.2d at 1079 (We expect that injunctions against
litigants will remain very much the exception to the general rule of free access to the courts.); Hooper v. Harris,
512 S.E.2d 312, 315 (Ga. Ct. App. 1999) (recognizing that order restricting an inmate's right to access the courts
must be clearly warranted by the particular circumstances); Minniecheske, 468 N.W.2d at 762.

26
See, e.g., Goldstein, 447 N.E.2d at 645 n.6.

27
De Long, 912 F.2d at 1147-48; see also Morgan Cty. Com'rs Bd. v. Winslow, 862 P.2d 921, 924 (Colo.
1993) ( [A] litigant's right of access to the courts must be balanced against and, in a proper case, must yield to
the interests of other litigants and of the public in general in protecting judicial resources from the deleterious
impact of repetitious, baseless pro se litigation.' (quoting Bd. of County Com'rs v. Winslow, 706 P.2d 792, 794
(Colo. 1985))).

28
De Long, 912 F.2d at 1147; see also NRCP 11(c).

29
De Long, 912 F.2d at 1147.
........................................
121 Nev. 44, 61 (2005) Jordan v. State, Dep't of Motor Vehicles
ited. Moreover, filings that have not been deemed frivolous or vexatious or otherwise
resolved remain pending on the merits before the court to which they are assigned. Therefore,
a court considering a restrictive order must use caution in reviewing filings in other cases, so
as not to interfere with other judges' pending assignments.
30
The judge issuing the restrictive
order should rely only on observations obtained from cases to which he or she is assigned,
and on actual rulings in other cases.
31
Further, while a restrictive order may be warranted
based solely on documents before the court in that particular case, the district court must
identify those documents and explain how, by filing them, the litigant abused the court
system.
32

[Headnote 11]
Third, the district court must make substantive findings as to the frivolous or harassing
nature of the litigant's actions.'
33
Thus, the restrictive order cannot issue merely upon a
showing of litigiousness.
34
The litigant's filings must not only be repetitive or abusive, but
also be without an arguable factual or legal basis, or filed with the intent to harass.
35

[Headnotes 12, 13]
Finally, the order must be narrowly drawn to address the specific problem encountered.
36
We note that when a litigant's misuse of the legal system is pervasive, a restrictive order
that broadly restricts a litigant from filing any new actions without permission from the
court might nonetheless be narrowly drawn.
____________________

30
See, e.g., DCR 18(2) (No judge except a judge of the district where the cause or proceeding is pending
shall . . . do any act or thing required to be done in any cause or proceeding unless [certain requirements are
met].); Rohlfing v. District Court, 106 Nev. 902, 803 P.2d 659 (1990) (recognizing that, generally, a district
judge has no authority to review another judge's order).

31
See generally Cal. Civ. Proc. Code 391(b) (West 2004) (describing frivolous litigation sufficient to
warrant a restrictive order as, among other things, the final determination, adverse to the litigant, of five out of
seven proceedings within the past seven years; litigation unjustifiably permitted to remain pending for two years;
proceedings repeatedly brought to re-litigate previous determinations or previously determined claims; the
repeated proper person filing of unmeritorious papers within a proceeding; and actions based upon
circumstances substantially similar to those upon which another jurisdiction has based a vexatious litigant
determination); accord Haw. Rev. Stat. Ann. 634J-1 (Michie 1993); Tex. Civ. Prac. & Rem. Code 11.054
(Vernon 2002).

32
For example, abuse could be found not only when the litigant violates NRCP 11, but also when the litigant
persistently files documents that are unintelligible, redundant, immaterial, impertinent, or scandalous. See NRCP
12(f).

33
De Long, 912 F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)).

34
Moy v. U.S., 906 F.2d 467, 470 (9th Cir. 1990).

35
See id.; De Long, 912 F.2d at 1148 n.3.

36
De Long, 912 F.2d at 1148.
........................................
121 Nev. 44, 62 (2005) Jordan v. State, Dep't of Motor Vehicles
legal system is pervasive, a restrictive order that broadly restricts a litigant from filing any
new actions without permission from the court might nonetheless be narrowly drawn.
However, even though courts may, as a general rule, restrict vexatious litigants' access,
constitutional considerations prohibit a complete ban on filings by indigent proper person
litigants if the ban prevents the litigant from proceeding in criminal cases and in original civil
actions that sufficiently implicate a fundamental right; such orders are impermissible.
37
Since restrictive orders necessarily implicate future filings, which may involve criminal cases
or fundamental rights, even broad restrictive orders should set an appropriate standard against
which any future filings will be measured.
38
For example, depending on the specific
problems encountered, a restrictive order might bar a litigant from filing any new actions
involving a specific defendant or a specific claim, or it might bar a litigant from filing any
new actions unless the court first determines that the proposed action is not frivolous or
brought for an improper purpose and/or implicates a fundamental right.
[Headnote 14]
As these guidelines adequately protect a litigant's constitutional rights, provide appropriate
guidance to courts issuing vexatious litigant orders, and set forth suitable factors for review of
such orders, we adopt the Ninth Circuit's four-part analysis, as modified, for Nevada courts
issuing restrictive orders. On review, this court examines restrictive orders under an abuse of
discretion standard.
39

We now turn to the restrictive orders at issue in these appeals.
____________________

37
See, e.g., Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995); Barnes v. District Court, 103
Nev. 679, 683-84, 748 P.2d 483, 487 (1987); Procup v. Strickland, 792 F.2d 1069, 1072-73 n.6 (11th Cir. 1986)
(listing several cases in which courts have vacated or modified orders broadly prohibiting a prisoner from
obtaining meaningful access to the courts without paying court fees, including: Abdullah v. Gatto, 773 F.2d 487
(2d Cir. 1985); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984); Carter v. United States, 733 F.2d 735 (10th
Cir. 1984) (noting also that such orders improperly disallow district courts from appropriately exercising their
statutory discretion to grant in forma pauperis status); and In re Green, 669 F.2d 779 (D.C. Cir. 1981) (same));
Ali v. Moore, 984 S.W.2d 224 (Tenn. Ct. App. 1998) (holding that an order permanently barring the litigants
from filing any new actions in proper person unconstitutionally violated their right to access the courts).

38
See, e.g., Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (requiring the litigant to certify that the claims are
novel); Town of Brookline v. Goldstein, 447 N.E.2d 641, 645 (Mass. 1983) (recognizing that an order restricting
a litigant's right to file actions against the town without prior court approval failed to identify a standard against
which any future pleadings would be recognized, e.g., as having merit or being sufficiently plain and definite to
warrant a response).

39
Minniecheske v. Griesbach, 468 N.W.2d 760, 762 (Wis. Ct. App. 1991); see also Chambers v. NASCO,
Inc., 501 U.S. 32, 55 (1991).
........................................
121 Nev. 44, 63 (2005) Jordan v. State, Dep't of Motor Vehicles
Docket No. 38189 (Jordan)
[Headnote 15]
The restrictive order in Docket No. 38189 runs afoul of our guidelines for several reasons.
First, although the district court's previous orders hinted at its displeasure with Jordan's
improper filings, the court never expressly warned Jordan that it was considering issuing a
restrictive order affecting his right to access the court. While much of Jordan's conduct in the
district court was inappropriate, the sua sponte order, entered without first providing Jordan
with notice or an opportunity to respond, violated Jordan's due process rights.
40

[Headnote 16]
Second, although the order appears to include at least a partial explanation of the reason
for its issuance, i.e., that Jordan repeatedly wasted the State's resources with meritless and
unintelligible filings that do not conform with court rules, in that case and others, and
includes two examples of such filings, the order does not otherwise contain a list of the
filings and rulings that led the court to impose its broad filing restriction. Moreover, the order
does not sufficiently indicate that Jordan had previously instituted other suits that were
determined meritless or otherwise resulted in an adverse resolution.
41
In this instance, it is
unclear from the order whether the district judge based his explanation on observations
obtained in cases to which he was assigned, on rulings in other cases, or elsewhere.
[Headnote 17]
Third, the court made no substantive findings as to the frivolous or harassing nature of
Jordan's actions. Even though the record indicates that many of Jordan's filings were difficult
to understand and often procedurally improper, Jordan's allegations were not without arguable
merit. Given the district court's difficulties in comprehending Jordan's complaint, this matter
was particularly suitable for a Spears-type hearing. Such a preliminary hearing could have
helped to prevent, at the outset, the ensuing confusion presented by Jordan's filings.
[Headnote 18]
Finally, and perhaps most importantly, the restrictive order fails to set any standard against
which a future court-access determination should be made.
____________________

40
See In re Oliver, 682 F.2d 443 (3d Cir. 1982) (vacating a restrictive order because the litigant was not
provided an opportunity to oppose its issuance).

41
See Speleos v. McCarthy, 201 B.R. 325 (D.D.C. 1996) (vacating a restrictive order for which no evidence
supported a finding that the litigant had repeatedly filed frivolous suits).
........................................
121 Nev. 44, 64 (2005) Jordan v. State, Dep't of Motor Vehicles
tion should be made. Indeed, the order contains an apparent blanket prohibition on the filing
of any new actions in forma pauperis, despite Jordan's indigence, and regardless of whether
the future action involves a fundamental right. Accordingly, the order is unconstitutionally
overbroad.
42
For the above reasons, we conclude that the district court abused its discretion
when it issued the order restricting Jordan's access to state courts.
Docket No. 39052 (Luckett)
[Headnote 19]
In contrast, the restrictive order in Docket No. 39052, declaring Luckett a vexatious
litigant, prohibiting him from filing any new litigation in Nevada state courts in forma
pauperis without first obtaining leave of the presiding judge of the court, and requiring him to
notify the Eighth Judicial District Court of any new litigation he files in Nevada, is less
problematic. First, Luckett was warned of the court's intention to issue the order, and he was
given three weeks in which to file an opposition. Further, a hearing was held regarding the
matter before the order was filed, although Luckett did not attend. Accordingly, Luckett was
provided with sufficient notice and opportunity to be heard.
[Headnote 20]
Second, although the district court does not specifically identify the filings it found
unmeritorious, repetitive, and contradictory, its findings are easily substantiated in the record.
For instance, despite material allegations in his complaint that Doumani is not a
California-licensed attorney, Luckett later claimed that Doumani is a California-licensed
attorney. Also, Luckett repeatedly asserted the same losing arguments in motions to
reconsider matters that had already been determined against him; the court's order pointed out
that Luckett filed several documents in which he simply delete[d] an original caption and
insert[ed] a new one. Further, Luckett continually badgered opposing counsel in repeated
filings and motions for sanctions, an inappropriate forum for many of his comments. He often
continued to assert unmeritorious arguments even after the error in their legal analysis had
been brought to his attention. And the record is replete with other examples. Further, as the
district court recognized, the pattern of abusiveness can additionally be gleaned from the
California published opinion that declares Luckett a vexatious litigant.
____________________

42
See Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995); Barnes v. District Court, 103 Nev.
679, 683-84, 748 P.2d 483, 487 (1987); see also Hooper v. Harris, 512 S.E.2d 312 (Ga. Ct. App. 1999)
(vacating for overbreadth a restrictive order that purported to declare all of an individual's filings null and
void).
........................................
121 Nev. 44, 65 (2005) Jordan v. State, Dep't of Motor Vehicles
clares Luckett a vexatious litigant. Accordingly, even though restrictive orders are often
issued only after the instigation of an exorbitant number of meritless filings,
43
and even
though such orders should make ample inventory of the observations and rulings on which
the need for a restriction is based, Luckett's filings in the instant matter were both repetitive
and abusive and provide a sufficient basis for restricting subsequent filings.
44

We point out, however, that the court's finding regarding motions, pleadings, and other
papers filed in the other district court cases does not support the vexatious litigant
determination under these circumstances. In transcripts of the two hearings, the court
mentioned that it had reviewed six suits previously instituted or attempted in the district
court. However, these cases were ongoing at the time the court issued its restrictive order; the
record does not include findings of frivolity or abuse made by the judges presiding over those
cases, and it appears that those cases were assigned to other judges. Accordingly, those cases
could not be used to support the restrictive order.
[Headnote 21]
Third, the district court did make at least some substantive findings as to the frivolous
nature of Luckett's filings in this case. Specifically, as noted above, the court found that
Luckett filed numerous unmeritorious and contradictory documents, and documents in which
he merely reasserted allegations under changed captions. Although the court could have made
more substantive findings, the record demonstrates that Luckett repeatedly submitted
meritless legally improper, and contradictory filings. In addition, those documents' repeated
attacks on opposing counsel and the district judge demonstrate a pattern of intent to harass the
defendants and the court.
____________________

43
See, e.g., In re Green, 669 F.2d 779 (D.C. Cir. 1981) (noting between 600 and 700 repetitious complaints);
Morgan Cty. Com'rs Bd. v. Winslow, 862 P.2d 921 (Colo. 1993) (noting 162 separate proceedings); People v.
Dunlap, 623 P.2d 408 (Colo. 1981) (noting at least nine complaints filed against at least thirty-five state officials
or their spouses); Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (noting over forty civil lawsuits); Eismann v.
Miller, 619 P.2d 1145 (Idaho 1980) (noting over forty criminal and civil complaints, notices of lis pendens, and
common law liens).

44
Cf. Tex. Civ. Prac. & Rem. Code 11.054(1) (Vernon 2002) (permitting a vexatious litigant order to be
entered if the litigant is unlikely to prevail and has instigated at least five suits within seven years that were lost,
permitted to remain pending for two or more years, or determined to be frivolous or groundless); Mehdipour v.
State Dept. of Corrections, 90 P.3d 546 (Okla. 2004) (upholding a statute barring prisoners from filing civil
actions absent payment of the filing fee if at least three previously filed actions were dismissed on the grounds
that the complaint was frivolous, malicious, or failed to state a claim, with certain exceptions).
........................................
121 Nev. 44, 66 (2005) Jordan v. State, Dep't of Motor Vehicles
[Headnotes 22, 23]
Fourth, Luckett's misuse of the legal system is not confined to any particular person or
process. Accordingly, the order is narrowly drawn to curb the widespread abuses noted by the
district court. In particular, the order limits the possibility that Luckett will continue to file
meritless suits, because it requires him to first obtain the presiding judge's permission.
Nevertheless, an order broadly restricting future court filings must explicitly set a standard
against which the presiding judge should measure potential new filings, for example, as
having merit and/or potential impact on constitutional rights.
45
And because the authority to
issue such an order is based on a court's inherent powers involving the exercise of its
jurisdiction, the district court may not implicate other courts' powers by attempting to
prevent Luckett from filing any new litigation in the courts of this state without permission.
Accordingly, although the district court did not abuse its discretion when it declared Luckett a
vexatious litigant and limited his court access accordingly, the order should be modified to
include an appropriate standard and to apply only to the Eighth Judicial District Court.
Final judgments
Docket No. 38189 (Jordan)
[Headnote 24]
The final judgment in Docket No. 38189 granted the State's motion for summary judgment
on all of Jordan's claims. This court reviews orders granting summary judgment de novo.
46
Summary judgment is appropriate when, after an examination of the record, no genuine
issues of material fact remain and the moving party is entitled to judgment as a matter of law.
47

[Headnote 25]
Preliminarily, we note that the district court's order, based on its inability to decipher
Jordan's basic claims, was unwarranted. Jordan's complaint and other papers were typewritten
and demonstrate an obvious attempt to organize and base his claims on legally recognizable
causes of action.
____________________

45
Although the original restrictive order did not specifically address the problems that the district court was
encountering in the instant matter, it appears that the court had already decided to dismiss the case, and therefore
likely did not expect the problems to continue. Further, the amended restrictive order appears to address this
issue by requiring Luckett to pay appropriate costs before proceeding.

46
Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713, 57 P.3d 82, 87 (2002).

47
NRCP 56(c); Pegasus, 118 Nev. at 713, 57 P.3d at 87.
........................................
121 Nev. 44, 67 (2005) Jordan v. State, Dep't of Motor Vehicles
ognizable causes of action. He also attached to the complaint the statutes under which he
purported to derive his causes of action. Moreover, the State was able, for the most part, to
appropriately respond to Jordan's allegations. Accordingly, since the lack of clarity in Jordan's
pleadings can be overcome without excessive difficulty, the court should not have granted
summary judgment based on Jordan's claims being indecipherable.
Jordan was arrested for violating NRS 207.200(1)(b), which provides:
1. Any person who, under circumstances not amounting to a burglary:
. . . .
(b) Willfully goes or remains upon any land or in any building after having been
warned by the owner or occupant thereof not to trespass,
is guilty of a misdemeanor.
In Scott v. Justice's Court,
48
a 1968 decision, this court considered whether a criminal
complaint charging the petitioner with disturbing the peace and willfully remaining on hotel
grounds after having been asked to leave by hotel employees was sufficient to try the
petitioner for trespass under NRS 207.200(1)(b). After concluding that the statute makes
punishable either entering or remaining, we noted that the petitioner was charged with
trespassing upon premises to which the public was invited.
49
Therefore, we stated, a
revocation of the general invitation would seem necessary before one could be considered a
trespasser.
50
In this instance, Jordan submitted evidence indicating that the building's
grounds were continuously open to the public, but the affidavits and papers documenting
Jordan's arrest do not address why Officer Jones ordered Jordan off the building's public
grounds. Officer Jones' report stated only that he advised Jordan that he was trespassing and
asked him to leave. It did not reveal what Jordan was doing that would have authorized
Officer Jones to exclude him from the property. Jordan therefore claims that his arrest was
unlawful.
____________________

48
84 Nev. 9, 435 P.2d 747 (1968).

49
Id. at 12, 435 P.2d at 749.

50
Id. (citing People v. Goduto, 174 N.E.2d 385 (Ill. 1961); State v. Carriker, 214 N.E.2d 809 (Ohio Ct. App.
1964)). In Scott, the petitioner had been permanently barred from the premises because of prior misconduct and,
at the time, was alleged to have been using loud language. Id. at 10-11, 435 P.2d at 748. Scott, however,
involved the revocation of a general invitation to enter on private land; we note that the standard for revoking a
general invitation to be on private land may differ from the standard for revoking a general invitation to be on
public land.
........................................
121 Nev. 44, 68 (2005) Jordan v. State, Dep't of Motor Vehicles
[Headnote 26]
Jordan's complaint does allege some wrongs for which civil remedies might be available.
Jordan's independent claims for libel, oppression while using physical force and perjury
damages must fail;
51
however, his remaining claims for malicious prosecution and false
imprisonment/false arrest (false lawsuit) present genuine issues of material fact precluding
summary judgment, as discussed below.
Libel
[Headnotes 27-30]
In order to maintain a claim of libel, a plaintiff must show a false and defamatory
statement, its unprivileged publication, fault, and damages.
52
A statement is defamatory
when it would tend to lower the subject in the estimation of the community, excite derogatory
opinions about the subject, and hold the subject up to contempt.'
53
Generally, whether a
statement is defamatory is a question of law.
54
Only false statements of fact, as opposed to
opinion, are actionable.
55

[Headnote 31]
Jordan's libel claim appears to arise from Officer Jones' statements on the declaration of
probable cause arrest form that Jordan was uncooperative, had no business being there (on the
building's grounds), and was arrested for trespass on state property. On appeal, the State notes
that Officer Jones submitted his statements in a sworn affidavit averring that the stated events
reflect what occurred at the time of Jordan's arrest. Further, the State argues that Jordan has
provided no admissible evidence or argument demonstrating an issue as to the falseness of
these statements.
[Headnote 32]
We agree. Although Jordan repeatedly asserted to the district court that Officer Jones made
false statements, he did not submit any other discernable account of relevant events,
admissible or otherwise, demonstrating the falseness of the above statements.
____________________

51
See Droppleman v. Horsley, 372 F.2d 249 (10th Cir. 1967) (recognizing that no independent civil
conspiracy to commit perjury cause of action exists); Hokanson v. Lichtor, 626 P.2d 214, 218 (Kan. Ct. App.
1981) (recognizing that the majority of authority from other jurisdictions holds that no civil cause of action for
damages exists for . . . perjury). In any case, Jordan's perjury allegations appear to be subsumed within his other
causes of action.

52
Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 57 P.3d 82 (2002).

53
Lubin v. Kunin, 117 Nev. 107, 111, 17 P.3d 422, 425 (2001) (quoting K-Mart Corporation v. Washington,
109 Nev. 1180, 1191, 866 P.2d 274, 281-82 (1993)).

54
See Miller v. Jones, 114 Nev. 1291, 1296, 970 P.2d 571, 575 (1998).

55
Id.
........................................
121 Nev. 44, 69 (2005) Jordan v. State, Dep't of Motor Vehicles
any other discernable account of relevant events, admissible or otherwise, demonstrating the
falseness of the above statements. Further, the only statements that might be defamatory, that
Jordan was uncooperative and was arrested, are mere opinion and admitted fact, respectively.
56
Therefore, the district court properly granted summary judgment on Jordan's libel claim.
Oppression while using physical force
[Headnote 33]
This claim was purportedly made under NRS 197.200, which makes it a criminal offense
for an officer to unlawfully and maliciously, under pretense or color of official authority,
commit oppression by arresting or detaining another against his will. The State correctly
notes that NRS 197.200 does not create a civil cause of action.
57
Accordingly, the district
court properly granted summary judgment on this claim.
Malicious prosecution, false arrest,
58
and false imprisonment
[Headnotes 34, 35]
Malicious prosecution consists of a prior criminal action being filed against the claimant,
plus lack of probable cause to commence the prior action, malice, a favorable termination of
the prior criminal action, and damages.
59
Proof of lack of probable cause may denote malice.
60

[Headnotes 36-38]
As for false arrest, we have held that a claimant must show that the actor instigated or
effected an unlawful arrest.
61
Similarly, we have pointed out that false imprisonment arising
from a false arrest occurs when the claimant's liberty is restrained under the probable
imminence of force without any legal cause or justification."
____________________

56
We note that statements made in good faith furtherance of one's official duties are generally privileged. See
Towne v. Cope, 233 S.E.2d 624, 626-27 (N.C. Ct. App. 1977); 50 Am. Jur. 2d Libel & Slander 276, at 545
(1995); see also K-Mart Corporation v. Washington, 109 Nev. 1180, 1191, 866 P.2d 274, 282 (1993); cf.
Sahara Gaming v. Culinary Workers, 115 Nev. 212, 984 P.2d 164 (1999). Accordingly, Officer Jones'
statements might constitute privileged communication.

57
See Collins v. Palczewski, 841 F. Supp. 333, 340 (D. Nev. 1993).

58
Presumably, by citing NRS 199.320, false lawsuit, Jordan was alleging false arrest.

59
LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

60
Chapman v. City of Reno, 85 Nev. 365, 369, 455 P.2d 618, 620 (1969).

61
Nau v. Sellman, 104 Nev. 248, 251, 757 P.2d 358, 360 (1988).
........................................
121 Nev. 44, 70 (2005) Jordan v. State, Dep't of Motor Vehicles
fication. '
62
Thus, in Hernandez v. City of Reno,
63
we held that an actor is subject to
liability to another for false imprisonment if (a) he acts intending to confine the other or a
third person within boundaries fixed by the actor, and (b) his act directly or indirectly results
in such a confinement of the other, and (c) the other is conscious of the confinement or is
harmed by it.'
[Headnotes 39-42]
In response, the State primarily contends that Jordan is unable to show the existence of any
issue of material fact as to lack of probable cause or legal justification for the arrest because
the justice of the peace's probable cause determination, attached to Jordan's complaint,
constitutes conclusive evidence of probable cause.
64
However, the justice of the peace's
initial determination to hold Jordan for trial does not constitute irrebuttable evidence of
probable cause to arrest.
65
In this case, Jordan has alleged that the finding was procured
through perjury. Moreover, Officer Jones' affidavits do not answer material questions
regarding his basis for believing that Jordan's refusal to leave constituted a crime. Thus, at
this point, genuine issues of material fact exist as to whether the State committed malicious
prosecution andJor false arrestJfalse imprisonment, and the district court improperly
granted summary judgment on those claims.
____________________

62
Garton v. City of Reno, 102 Nev. 313, 314-15, 720 P.2d 1227, 1228 (1986) (quoting Marschall v. City of
Carson, 86 Nev. 107, 110, 464 P.2d 494, 497 (1970) (quoting Hernandez v. City of Reno, 97 Nev. 429, 433,
634 P.2d 668, 671 (1981))).

63
97 Nev. at 433, 634 P.2d at 671 (quoting Restatement (Second) of Torts 35 (1965)).

64
The State also suggests that summary judgment on all claims was proper because Jordan failed to present
any further evidence once the State moved for summary judgment, as required by NRCP 56(e). NRCP 56(e)
permits a court, when appropriate, to enter summary judgment against an adverse party who fails to respond to
such motion by going beyond the pleadings and supplying the court with documentation setting forth specific
facts of a genuine triable issue. But Jordan did not rely merely on his pleadings. He attached the police reports to
his complaint and later submitted the letter from the grounds division. Based on the above discussions, Jordan's
documentation, although not by affidavit, sufficiently demonstrates triable issues of fact. Therefore, NRCP 56(e)
does not provide grounds for summary judgment in this instance. See Garvey v. Clark County, 91 Nev. 127, 532
P.2d 269 (1975).

65
See Ricord v. C. P. R. R. Co., 15 Nev. 167, 180 (1880) (recognizing that, in a malicious prosecution case,
the commitment and indictment of a defendant constitutes prima facie evidence that probable cause for criminal
prosecution existed but noting that the prima facie evidence could be rebutted with a relevant showing of false
testimony or suppressed facts); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (recognizing
that a decision by a judge or magistrate to hold a defendant to answer after a preliminary hearing constitutes
prima faciebut not conclusiveevidence of probable cause, and stating that a prima facie finding can be
rebutted with evidence that the criminal prosecution was induced by fraud, corruption, perjury, fabricated
evidence, or other wrongful conduct undertaken in bad faith).
........................................
121 Nev. 44, 71 (2005) Jordan v. State, Dep't of Motor Vehicles
State committed malicious prosecution and/or false arrest/false imprisonment, and the district
court improperly granted summary judgment on those claims.
66

Docket No. 39052 (Luckett)
[Headnote 43]
The final judgment in this matter dismissed Luckett's complaint based on his failure to
post security under NRS 18.130. NRS 18.130 permits a defendant in an action instituted by
an out-of-state plaintiff to make a demand for security for the costs and charges that the
defendant might be awarded.
67
The district court may dismiss the action if the security is not
posted within thirty days from the date that the demand's notice is served or from the date of
an order for new or additional security.
68
A dismissal for failure to post security will be
overturned only upon the finding of an abuse of discretion.
69

[Headnote 44]
The district court's in forma pauperis order granted Luckett leave to proceed in forma
pauperis, without payment or fees or security therefor. Doumani and the La Concha Motel
argue that the district court is not authorized by NRS 12.015 to exempt security requirements
upon a finding of indigence.
70
However, because neither NRS 12.015 nor any other statute
clearly and manifestly removes a district court's inherent power to waive a security bond
requirement upon a finding of indigence, the district court appropriately waived the
security requirement in this case even without express statutory authority.
____________________

66
We note that, to the extent that the State asserts immunity under NRS 41.032, there exist unresolved
questions as to whether Officer Jones' acts were made in bad faith and, accordingly, whether the State is entitled
to immunity. Compare Ortega v. Reyna, 114 Nev. 55, 62, 953 P.2d 18, 23 (1998), Maturi v. Las Vegas Metro.
Police Dep't, 110 Nev. 307, 871 P.2d 932 (1994), Carey v. Nevada Gaming Control Bd., 279 F.3d 873 (9th Cir.
2002), and Herrera v. Las Vegas Metropolitan Police Dept., 298 F. Supp. 2d 1043, 1054 (D. Nev. 2004), with
Falline v. GNLV Corp., 107 Nev. 1004, 1009-10, 823 P.2d 888, 891-92 (1991) (applying the bad-faith
exception to insurance-claim processors' discretionary-act immunity), and Ex Parte City of Montgomery, 758
So. 2d 565 (Ala. 1999) (recognizing that discretionary official-act immunity does not attach to an officer who
acts in bad faith, or willfully or maliciously, since that act would not be considered discretionary); accord Long
v. Seabrook, 197 S.E.2d 659 (S.C. 1973); Powell v. Foxall, 65 S.W.3d 756 (Tex. Civ. App. 2001).

67
NRS 18.130(1).

68
NRS 18.130(2), (4); see also Brion v. Union Plaza, 104 Nev. 553, 763 P.2d 64 (1988).

69
Brion, 104 Nev. 553, 763 P.2d 64.

70
NRS 12.015(1)(a)(1) authorizes a district court to, upon determining that a person is unable to pay, allow
the person to commence or defend the action without costs.
........................................
121 Nev. 44, 72 (2005) Jordan v. State, Dep't of Motor Vehicles
rity bond requirement upon a finding of indigence, the district court appropriately waived the
security requirement in this case even without express statutory authority.
71
In this instance,
language included in the district court's in forma pauperis order effectively excused the
security requirement.
72

[Headnote 45]
Respondents appear to argue that, despite the in forma pauperis order, several subsequent
district court oral orders and findings directing Luckett to provide the required security were
effective to give Luckett notice that he was nonetheless required to post a bond. The oral
orders, however, were never reduced to writing and did not vacate the in forma pauperis
order.
73
To the extent that any written orders address the security requirement, the record
contains no order expressly vacating the in forma pauperis order and no order was entered at
a time early enough in the proceedings to effectively give Luckett any opportunity to respond
by posting security.
74
Therefore, the district court abused its discretion when it dismissed
Luckett's action based on his failure to post security.
Respondents alternatively claim that the district court properly dismissed the action,
because it also granted respondents' motion to dismiss for failure to state a claim. However,
although the district court minutes suggest that the court intended to grant the NRCP
12{b){5) motion, the written order did not mention Luckett's purported failure to state a
claim, but instead dismissed the action based solely on Luckett's failure to post security.
____________________

71
See, e.g., Bank of America Nat. Trust & Sav. Assn. v. Superior Court, 63 Cal. Rptr. 366, 367 (Ct. App.
1967) (upholding the trial court's decision to waive out-of-state security requirements for an indigent plaintiff
under the court's inherent power) (citing County of Sutter v. Superior Court for Sutter, 53 Cal. Rptr. 424 (Ct.
App. 1966)); see also Baltayan v. Estate of Getemyan, 110 Cal. Rptr. 2d 72 (Ct. App. 2001) (Johnson, J.,
concurring) (discussing the effects of in forma pauperis status on security requirements, especially in light of
constitutional equal protection clauses); Bolden v. City of Shreveport, 278 So. 2d 138, 144 (La. Ct. App. 1973).

72
See Arrambide v. St. Mary's Hosp., Inc., 647 F. Supp. 1148 (D. Nev. 1986) (noting that similar language in
the federal in forma pauperis statute, authorizing a district court to waive fees and costs or security therefor,
includes NRS 18.130's security requirement).

73
See State, Div. Child & Fam. Servs. v. Dist. Ct., 120 Nev. 445, 454, 92 P.3d 1239, 1245 (2004)
([D]ispositional court orders that are not administrative in nature, but deal with the procedural posture or merits
of the underlying controversy, must be written, signed, and filed before they become effective.). During the
November 20 hearing, the district court indicated that it had previously entered an order directing Luckett to post
security. Further, the court indicated that it would request the then-Chief Judge to strike the in forma pauperis
order. However, no such written orders appear in the record. See also DCR 18(1) (governing when a district
judge may act upon a matter already ruled upon by a different judge); State v. Babayan, 106 Nev. 155, 165, 787
P.2d 805, 812-13 (1990) (determining that a judge violated DCR 18(1) when making a ruling that conflicted
with a different judge's previous ruling in the same case).

74
See NRS 18.130's thirty-days' notice requirements.
........................................
121 Nev. 44, 73 (2005) Jordan v. State, Dep't of Motor Vehicles
trict court minutes suggest that the court intended to grant the NRCP 12(b)(5) motion, the
written order did not mention Luckett's purported failure to state a claim, but instead
dismissed the action based solely on Luckett's failure to post security. Consequently, NRCP
12(b)(5) was not a basis for the district court's dismissal order.
[Headnotes 46, 47]
Nevertheless, this court will affirm [an] order of the district court if it reached the correct
result, albeit for different reasons.
75
And we held in Hampe v. Foote
76
that [d]ismissal is
proper where the allegations are insufficient to establish the elements of a claim for relief.
Although we rigorously review the dismissal of an action under NRCP 12(b)(5) for failure to
state a claim, and a complaint should only be dismissed if it appears beyond a reasonable
doubt that the plaintiff could prove no facts entitling him to relief,
77
Luckett's complaint
clearly failed to demonstrate any basis for his requested relief.
[Headnotes 48, 49]
Luckett's complaint asserted claims against respondents for (1) the unlawful practice of
law, (2) negligence, (3) conspiracy to commit and aid a fraud, and (4) intentional infliction of
emotional distress. First, although Nevada has not yet recognized a private cause of action for
the unauthorized practice of law, other jurisdictions have recognized such a claim.
78
Luckett's complaint alleges that Doumani (lied) to me in telling me that he is a (CA)
practicing lawyer, and also gave Luckett legal advice concerning a pending Nevada Eighth
Judicial District Court case. Luckett did not, however, assert that Doumani is not an attorney
or that he falsely claimed to be licensed in Nevada, but only that the California State Bar has
no record of Doumani as a California-licensed attorney.
____________________

75
Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987).

76
118 Nev. 405, 408, 47 P.3d 438, 439 (2002).

77
Id.

78
See, e.g., McMahon v. Advanced Title Services Co., 607 S.E.2d 519, 524 (W. Va. 2004) (noting that many
jurisdictions recognize a private right of action for the unauthorized practice of law, and holding that a party
who has suffered or may likely suffer a legally cognizable injury, wrong, or other actionable violation of his or
her personal legal rights and interests as a proximate result of the unlawful and unauthorized practice of law by
another has standing to assert a claim alleging such actual or threatened unlawful and unauthorized practice and
seeking relief appropriate to the injury, wrong, or violation); see also Paso Builders, Inc. v. Hebard, 83 Nev.
165, 172, 426 P.2d 731, 736 (1967) (recognizing that whether or not a claim for negligence per se based on the
unauthorized practice of law is viable in Nevada was of no import when the conduct complained of did not
proximately cause any damage).
........................................
121 Nev. 44, 74 (2005) Jordan v. State, Dep't of Motor Vehicles
And as noted above, he later stated that Doumani is a California-licensed attorney. Further,
Luckett did not allege that any legal advice given by Doumani proximately caused, or was
likely to cause, any damage to Luckett. In addition, although Luckett asserted that the advice
was given on the La Concha Motel's premises, and that the Motel served as a front . . . for
this scam, the Motel could be held liable directly for the unauthorized practice of law only
under a theory of respondeat superior, in which case the underlying cause of action must
exist.
79
Thus, whether or not Doumani is a licensed attorney, Luckett failed to state a claim
for the unlawful practice of law.
[Headnotes 50-52]
Second, a claim for negligence must be based on (1) an existing duty of care, (2) breach,
(3) legal causation, and (4) damages.
80
However, in Calloway v. City of Reno,
81
we held that
under the economic loss doctrine there can be no recovery in tort for purely economic loss.
Luckett appears to have based his claim for negligence on the assertion that Doumani allowed
M.L. to scam Luckett at the motel. But he did not allege that he was physically harmed or
injured in any way other than through M.L.'s appropriation of a sum of money. Therefore,
even assuming that Doumani and the La Concha Motel had a reasonable duty to inform
[Luckett] that [M.L.] was a scam artist, Luckett has failed to sufficiently state any cause of
action for negligence.
[Headnotes 53-56]
Third, we recognize that an actionable civil conspiracy-to-defraud claim exists when there
is (1) a conspiracy agreement, i.e., a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of harming
another' ;
82
(2) an overt act of fraud in furtherance of the conspiracy; and {3) resulting
damages to the plaintiff.
____________________

79
See, e.g., Kornton v. Conrad, Inc., 119 Nev. 123, 125, 67 P.3d 316, 317 (2003) (Generally, the trier of
fact determines whether an employee was acting within the scope of his or her employment' when the tortious
act occurred. (emphasis added) (quoting Evans v. Southwest Gas, 108 Nev. 1002, 1005, 842 P.2d 719, 721
(1992))).

80
Riley v. OPP IX L.P., 112 Nev. 826, 830, 919 P.2d 1071, 1074 (1996) (quoting Sims v. General Telephone
& Electric, 107 Nev. 516, 521, 815 P.2d 151, 154 (1991), overruled on other grounds by Tucker v. Action
Equip. and Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997)).

81
116 Nev. 250, 267, 993 P.2d 1259, 1270 (2000), overruled on other grounds by Olson v. Richard, 120
Nev. 240, 89 P.3d 31 (2004).

82
Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998) (quoting
Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993)).
........................................
121 Nev. 44, 75 (2005) Jordan v. State, Dep't of Motor Vehicles
the conspiracy; and (3) resulting damages to the plaintiff.
83
Thus, an underlying cause of
action for fraud is a necessary predicate to a cause of action for conspiracy to defraud.
84
In
Nevada, fraudulent misrepresentation occurs when a false representation is made with
knowledge or belief that it is false, or with an insufficient basis of information for making the
representation, and with intent to induce the plaintiff to act, and the plaintiff relies on the
misrepresentation with resulting damages.
85
Intent must be specifically alleged.
86

[Headnotes 57, 58]
It is unclear from the complaint what representation Luckett believed was fraudulent. The
only alleged misrepresentation from which Luckett appears to have claimed actual damages is
the purported statement by M.L. that he had a hot tip. Yet Luckett did not assert that
Doumani or the La Concha Motel agreed with M.L. to scam him; he only complained that
Doumani knew of M.L.'s tendency to scam yet let him live at the motel rent-free without
warning potential victims. Further, even if Luckett had adequately asserted that Doumani and
the La Concha Motel conspired with M.L. regarding the hot tip, no underlying cause of
action for fraud exists; Luckett did not specifically allege that M.L. intended for Luckett to
act on the hot tip or even that M.L. offered to place the wager. Accordingly, Luckett failed
to sufficiently state a claim for fraud and, consequently, for conspiracy to defraud.
[Headnotes 59-61]
Finally, to establish a cause of action for intentional infliction of emotional distress, a
complaint must allege the following: (1) extreme and outrageous conduct with either the
intention of, or reckless disregard for, causing emotional distress; (2) severe or extreme
emotional distress suffered by the plaintiff; and (3) actual or proximate causation.
87
Again,
the plaintiff's complaint must specifically allege intent.
88
In this instance, Luckett failed to
allege any of the above elements of intentionally tortious conduct. He merely asserted that
Doumani knew of M.L.
____________________

83
16 Am. Jur. 2d Conspiracy 63 (1998); see also Flowers v. Carville, 266 F. Supp. 2d 1245, 1249 (D. Nev.
2003).

84
Id.

85
Barmettler v. Reno Air, Inc., 114 Nev. 441, 446-47, 956 P.2d 1382, 1386 (1998).

86
Tahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 663, 799 P.2d 556, 558 (1990) (upholding the
dismissal of an intentional tort complaint that failed to allege intent).

87
Barmettler, 114 Nev. at 447, 956 P.2d at 1386.

88
See generally Tahoe Village Homeowners, 106 Nev. at 663, 799 P.2d at 558.
........................................
121 Nev. 44, 76 (2005) Jordan v. State, Dep't of Motor Vehicles
serted that Doumani knew of M.L.'s likely intentions and should have so warned him. He did
not claim that Doumani intended for M.L. to scam him or that he actually suffered any
emotional distress as a result. Accordingly, Luckett failed to state a claim for intentional
infliction of emotional distress.
While we recognize that the district court abused its discretion in dismissing Luckett's
complaint for failure to post security, the complaint clearly failed to state a claim upon which
relief could be granted. Accordingly, the complaint's dismissal was warranted.
CONCLUSION
Nevada courts have at least two viable methods of preventing litigation abuse by proper
person litigants with in forma pauperis status: pre-service complaint review and restrictions
on court access. Even so, society's right to meaningful court access is significant, and such
right should not be lightly constrained. Accordingly, Nevada courts, when considering
restricting that right, should follow the guidelines discussed in this opinion.
Docket No. 38189 (Jordan)
The district court abused its discretion when it granted summary judgment on Jordan's
action based on its inability to decipher his claims. Further, while Jordan's claims for perjury,
libel, and oppression while using physical force are unsupportable, material facts preclude
summary judgment on Jordan's claims for malicious prosecution and false imprisonment/false
arrest. Accordingly, we affirm that portion of the district court's judgment pertaining to
perjury, libel and oppression while using physical force, and we reverse that portion of the
judgment relating to Jordan's claims for malicious prosecution and false imprisonment/false
arrest. As the district court also abused its discretion when it entered the restrictive order,
broadly prohibiting Jordan from proceeding in forma pauperis in any future actions and
requiring him to obtain leave of the court before filing any new actions, we direct the district
court to vacate its restrictive order on remand. Any subsequent restrictive order must comply
with the guidelines discussed in this opinion.
89

Docket No. 39052 (Luckett)
Although the district court abused its discretion when it dismissed Luckett's action for his
failure to post security, Luckett's complaint nevertheless fails to state an actionable claim.
____________________

89
Although Jordan was not granted leave to file papers in proper person, see NRAP 46(b), we have
considered the proper person documents received from Jordan. In light of this opinion, we deny his proper
person requests as moot. Jordan's request to remand this matter to a different department is denied.
........................................
121 Nev. 44, 77 (2005) Jordan v. State, Dep't of Motor Vehicles
complaint nevertheless fails to state an actionable claim. Accordingly, we affirm the district
court's order dismissing Luckett's complaint. In addition, we conclude that the vexatious
litigant order restricting Luckett's access to the court was warranted by the circumstances of
this case. The district court's restrictive order, however, lacks a complaint-review standard
and improperly attempts to apply to all Nevada courts. Accordingly, we remand this matter to
the district court with instructions that it modify its restrictive order in accordance with this
opinion.
90

____________
121 Nev. 77, 77 (2005) State, Dep't of Conservation v. Foley
DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, DIVISION OF
WATER RESOURCES, a Political Subdivision of the State of Nevada, Appellant, v.
DENISE C. FOLEY; CHARLES F. FOLEY; and LOUIS C. FOSTER, Respondents.
No. 40940
April 14, 2005 109 P.3d 760
Appeal from a district court order granting a preliminary injunction that reinstated a
disputed water permit. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Purchasers of subdivision lot brought action against state Department of Conservation and
Natural Resources, Division of Water Resources, seeking issuance of preliminary injunction
to reinstate permit for well service. The district court issued preliminary injunction. Division
appealed. The supreme court, Hardesty, J., held that: (1) Division was not required to provide
notice of cancellation of water rights to persons who obtained their water rights before
amendment of applicable statute, but had not reported the fact of their interest to the Division;
(2) purchasers were not entitled to notice from Division regarding cancellation of water
rights; and (3) purchasers and subsequent purchaser were not entitled to issuance of
preliminary injunction.
Reversed.
Brian Sandoval, Attorney General, and Michael L. Wolz, Deputy Attorney General, Carson
City, for Appellant.
R. Nathan Gibbs, Las Vegas; Kelleher & Kelleher, LLC, and John T. Kelleher, Las Vegas,
for Respondents.
____________________

90
Although Luckett was not granted leave to file papers in proper person, see NRAP 46(b), we have
considered the proper person documents received from Luckett. In light of this opinion, we deny his proper
person motions as moot.
........................................
121 Nev. 77, 78 (2005) State, Dep't of Conservation v. Foley
1. Injunction.
For a preliminary injunction to issue, the moving party must show that there is a
likelihood of success on the merits and that the nonmoving party's conduct, should it
continue, would cause irreparable harm for which there is no adequate remedy at law.
2. Injunction.
Injunctive relief is extraordinary relief, and the irreparable harm supporting issuance
of preliminary injunction must be articulated in specific terms by the issuing order or be
sufficiently apparent elsewhere in the record.
3. Appeal and Error.
Supreme court reviews preliminary injunctions for abuse of discretion.
4. Waters and Water Courses.
State Department of Conservation and Natural Resources, Division of Water
Resources, was not required to provide notice of cancellation of water rights to persons
who obtained their water rights before October 1, 1995, which was effective date of
statutes requiring transferee to file report with State Engineer, but who had not reported
the fact of their interest to the Division. NRS 533.384(1)(a), 533.386(4).
5. Waters and Water Courses.
Purchasers of subdivision lot were not entitled to notice from state Department of
Conservation and Natural Resources, Division of Water Resources, regarding
cancellation of water rights for lot; purchasers failed to file report of conveyance with
State Engineer. NRS 533.384(1)(a), 533.386(4).
6. Waters and Water Courses.
Water rights holders of record with the state Department of Conservation and
Natural Resources, Division of Water Resources, remain the only interested parties
entitled to notice of cancellation of water rights permits. NRS 533.384(1)(a),
533.386(4).
7. Waters and Water Courses.
Purchasers and subsequent purchaser of subdivision lot were not entitled to issuance
of preliminary injunction requiring state Department of Conservation and Natural
Resources, Division of Water Resources, to reinstate water permit for well service after
Division had canceled water rights without providing notice to purchasers and
subsequent purchaser because purchasers and subsequent purchaser failed to advise
State Engineer of their interest in water permit and made no showing that water was put
to beneficial use before any deadline for submission of proof thereof. NRS
533.384(1)(a), 533.386(4).
Before Rose, Gibbons and Hardesty, JJ.
OPINION
By the Court, Hardesty, J.:
This appeal raises questions of interpretation of the statutory scheme under which the
appellant, the Nevada Department of Conservation and Natural Resources, Division of Water
Resources {the Division), regulates water rights held by Nevada landowners.
........................................
121 Nev. 77, 79 (2005) State, Dep't of Conservation v. Foley
(the Division),
1
regulates water rights held by Nevada landowners. Because of Nevada's arid
geography, vital public policy considerations dictate that the Division, through the State
Engineer, monitor the beneficial use of water rights. This oversight occasionally requires
cancellation of water rights due to forfeiture from lack of use or development. In this case, we
resolve whether the Division must provide notice of cancellation of water rights to permit
owners whose interests do not appear of record in the files of the State Engineer. We
conclude that such notice is not required.
FACTS AND PROCEDURAL HISTORY
David Baal acquired a piece of real estate situated in Clark County, Nevada. In 1990, Baal
applied for a water permit, and in 1991 he subdivided the property into four separate lots.
The State Engineer granted permit number 53454 (the permit) for well service to the four
parcels. The permit required that the holder file certain certificates with the Division,
including a Proof of Completion of Work and a Proof of Water to Beneficial Use. Baal filed a
Proof of Completion of Work in April 1992 but failed to provide a Proof of Water to
Beneficial Use. The Division notified Baal in 1995 that his permit would be canceled unless
he provided such proof within thirty days. Over the next several years, the Division granted
several extensions of time for Baal to comply. In 1999, Baal failed to respond to additional
notices requesting proof of beneficial use. The State Engineer ultimately gave final notice to
Baal and canceled the permit on August 5, 1999.
This case involves two of the subdivided parcels, both of which Baal conveyed to
respondents Denise and Charles Foley. The Foleys first purchased one of the lots from Baal in
1994 and have resided on it ever since.
2
They purchased the other lot in 1996 and resold it to
respondent Louis Foster in 2001. Although records of the transactions were apparently filed
with the Clark County Recorder, none of these individuals filed a report or record of the
transactions with the State Engineer.
The Foleys first learned of the permit cancellation when they sold the second parcel to
Foster. The parties to this appeal agree that the Foleys never received any of the Division's
notices.
The Foleys filed a complaint for a preliminary injunction seeking reinstatement of the
permit. Foster intervened in the action. Upon application, the district court concluded that the
Foleys were entitled to notice of cancellation and issued an injunction directing that the
permit be reinstated.
____________________

1
The Division and the State Engineer are referred to interchangeably in this opinion.

2
Because the record is silent as to the transfer of water rights, we presume that the real property conveyances
included the water rights. See Margrave v. Dermody Properties, 110 Nev. 824, 828, 878 P.2d 291, 293 (1994).
........................................
121 Nev. 77, 80 (2005) State, Dep't of Conservation v. Foley
entitled to notice of cancellation and issued an injunction directing that the permit be
reinstated.
3
In this, the district court found and concluded that the Foleys and Foster would
suffer irreparable harm if the permit was canceled, were without an adequate remedy at law,
and had a reasonable probability of success on the merits. The Division filed its timely notice
of appeal.
DISCUSSION
[Headnotes 1-3]
For a preliminary injunction to issue, the moving party must show that there is a likelihood
of success on the merits and that the nonmoving party's conduct, should it continue, would
cause irreparable harm for which there is no adequate remedy at law.
4
Injunctive relief is
extraordinary relief, and the irreparable harm must be articulated in specific terms by the
issuing order or be sufficiently apparent elsewhere in the record.
5
This court reviews
preliminary injunctions for abuse of discretion.
6

Chapter 533 of the Nevada Revised Statutes contains the legislative scheme governing
water rights in Nevada. In part to resolve a lack of clarity in the statutory notice and filing
requirements concerning water rights matters, the 1995 Nevada Legislature comprehensively
amended Chapter 533. Pertinent to this appeal are the additions of NRS 533.384(1) and NRS
533.386(4), both of which became effective October 1, 1995. Under NRS 533.384(1)(a),
transferees of water rights must file a report of the conveyance with the State Engineer.
7
Additionally, under the amendments to NRS 533.386(4), the Division may only consider
persons mentioned in a report of conveyance, filed with the Division, as interested parties
to water rights permits.
____________________

3
Foster did not acquire his interest in the property until after the State Engineer canceled the permit. Thus,
the notice issue only relates to him as a subsequent purchaser from the Foleys.

4
Dangberg Holdings v. Douglas Co., 115 Nev. 129, 142, 978 P.2d 311, 319 (1999); Pickett v. Comanche
Construction, Inc., 108 Nev. 422, 426, 836 P.2d 42, 44 (1992).

5
Dangberg, 115 Nev. at 144, 978 P.2d at 320.

6
S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 407, 23 P.3d 243, 246 (2001).

7
NRS 533.384(1), as amended, states in pertinent part:
1. A person to whom is conveyed an application or permit to appropriate any of the public waters, a
certificate of appropriation, an adjudicated or unadjudicated water right or an application or permit to
change the place of diversion, manner of use or place of use of water, shall:
(a) File with the State Engineer, together with the prescribed fee, a report of conveyance which
includes the following information on a form to be provided by the State Engineer:
(1) An abstract of title;
........................................
121 Nev. 77, 81 (2005) State, Dep't of Conservation v. Foley
a report of conveyance, filed with the Division, as interested parties to water rights permits.
8

Prior to October 1, 1995, nothing in NRS Chapter 533 explicitly imposed a duty upon the
State Engineer to conduct title searches in connection with permit approvals or cancellations.
Division personnel, however, routinely performed a degree of title work in connection with
water rights applications and cancellations.
9
Because these employees were not necessarily
experts in title disputes, and because of a need to clearly define the Division's responsibilities,
the amendments to Chapter 533 now specifically place the duty to memorialize conveyance
transactions concerning water rights upon the person to whom the right is conveyed. Thus,
the 1995 amendments relieve the Division of any affirmative duty to seek information from
the county recorders when acting upon permit applications and expired water rights.
10
In
this, the legislature sought to clarify the process of water rights registration and minimize
potential ambiguities concerning water rights ownership. By implication, the statute limits the
persons who are entitled to statutory notice of water right cancellations.
Notice requirements concerning the pre-October 1, 1995, transactions
[Headnote 4]
The first Baal/Foley transaction was completed before the effective date of the
amendments to Chapter 533. Nevertheless, as noted, the State was under no obligation
under the pre-October 1, 1995, version of NRS Chapter 533 to give notice to parties
whose interests were not of record with the Division.
____________________
(2) Except as otherwise provided in subsection 2, a copy of any deed, written agreement or
other document pertaining to the conveyance; and
(3) Any other information requested by the State Engineer.
(Emphasis added.)

8
NRS 533.386(4) now provides:
The State Engineer shall not consider or treat the person to whom:
(a) An application or permit to appropriate any of the public waters;
(b) A certificate of appropriation;
(c) An adjudicated or unadjudicated water right; or
(d) An application or permit to change the place of diversion, manner of use or place of use of water,
is conveyed as the owner or holder of the application, right, certificate or permit for the purposes of this
chapter, including, without limitation, all advisements and other notices required of the State Engineer
and the granting of permits to change the place of diversion, manner of use or place of use of water, until
a report of the conveyance is confirmed pursuant to subsection 1.
(Emphases added.)

9
Hearing on S.B. 93 Before the Assembly Government Affairs Comm., 68th Leg. (Nev., June 13, 1995)
(statement of R. Michael Turnipseed, State Engineer).

10
NRS Chapter 533 (as amended 1995).
........................................
121 Nev. 77, 82 (2005) State, Dep't of Conservation v. Foley
noted, the State was under no obligation under the pre-October 1, 1995, version of NRS
Chapter 533 to give notice to parties whose interests were not of record with the Division.
The State Engineer's compliance with the former statutory notice requirements concerning
permit cancellation satisfies due process. This holds true unless there is a defect in the notice
or the State Engineer has been negligent in the notice process.
11

Neither Baal nor the Foleys reported the initial conveyance to the State Engineer.
Consequently, the Foleys' interest in the water rights remained unknown to the Division.
Moreover, the permit application remained in Baal's name during all relevant time periods,
and Baal sought extensions to file the proof of beneficial use even after the first lot was
conveyed to the Foleys in 1994. These factors underscore the propriety of the permit
cancellation in this instancewith notice to Baal rather than the Foleys.
As the Division was not required to provide notice of cancellation to persons who obtained
their water rights before October 1, 1995, but had not reported the fact of their interest to the
Division, the Foleys were not entitled to any notice of cancellation with respect to the first lot
that they purchased.
Application of notice requirements under the amended statutory scheme
[Headnote 5]
As noted, NRS 533.384(1)(a) was amended in 1995 and imposes an affirmative duty on
the recipient of a water right to file a report of conveyance information with the State
Engineer. In this case, the transfers of the second parcel to the Foleys in 1996 and to Foster in
2001 clearly fall within the amended statutory mandate. Accordingly, the Foleys' and Foster's
12
failure to file reports with the Division of the 1996 and 2001 conveyances of the second lot
constitute direct failures of compliance with NRS 533.384(1)(a).
[Headnote 6]
Going further, as noted above, effective October 1, 1995, the Division may only consider
persons mentioned in a report of a conveyance as interested parties in water rights permits.
13
Nothing in this statutory scheme requires the Division to give notice of cancellation to any
person whose interest in the water rights is not on file with the State Engineer.
____________________

11
Bailey v. State of Nevada, 95 Nev. 378, 381, 594 P.2d 734, 736 (1979).

12
Foster could not comply with the statutory requirement to file a report of water right conveyance in any
event because the water permit was canceled before he acquired the real property. See supra note 3.

13
NRS 533.386(4).
........................................
121 Nev. 77, 83 (2005) State, Dep't of Conservation v. Foley
file with the State Engineer. Therefore, under the 1995 amendments to Chapter 533, water
rights holders of record with the Division remain the only interested parties entitled to notice
of cancellation of water rights permits.
We conclude that the Division properly revoked the permit as it related to the Foley/Foster
parcel without notice to the Foleys. Thus, the district court abused its discretion when it
provided the injunctive relief in connection with the parcel purchased from Baal and
transferred to Foster.
Equitable relief
[Headnote 7]
Notwithstanding the failures to advise the State Engineer of their interest in the water
permit, the Foleys and Foster argue that the district court properly granted equitable relief.
We disagree.
In State Engineer v. American National Insurance Co.,
14
Bailey v. State of Nevada,
15
and
Engelmann v. Westergard,
16
this court embraced the principle that the district court may
grant extraordinary equitable relief in some instances. We note, however, that the water rights
in State Engineer, Bailey and Engelmann were of record with the Division,
17
and that we
have restricted such equitable relief to situations where the holders of water rights either
exercised diligence in the placement of water to beneficial use or sought relief in response to
defects in the cancellation notice.
18

In State Engineer, this court upheld an order granting equitable relief where the record
owner diligently pursued his water rights and demonstrated that he had in fact put the water to
beneficial use before the deadline for filing proofs.
19
In Bailey, equitable relief was
warranted in a situation where the State Engineer failed to serve notice of the final decision to
cancel.
20
In Engelmann, the record reflected a defect in the notice process.
21

As noted, the Division was not required to provide cancellation notice to unknown water
rights holders. Additionally, the Foleys and Foster made no showing that the water was put to
beneficial use before any deadline for submission of proof thereof. Thus, State Engineer,
Bailey and Engelmann are inapposite to the present case.
____________________

14
88 Nev. 424, 426, 498 P.2d 1329, 1330 (1972).

15
95 Nev. 378, 382, 594 P.2d 734, 736-37 (1979).

16
98 Nev. 348, 352, 647 P.2d 385, 388 (1982).

17
See Engelmann, 98 Nev. 348, 647 P.2d 385; see also Bailey, 95 Nev. 378, 594 P.2d 734.

18
Bailey, 95 Nev. at 384, 549 P.2d at 738; State Engineer, 88 Nev. at 426, 498 P.2d at 1330.

19
88 Nev. at 426-27, 498 P.2d at 1330.

20
95 Nev. at 381-82, 594 P.2d at 736-37.

21
98 Nev. at 351-52, 647 P.2d at 387-88.
........................................
121 Nev. 77, 84 (2005) State, Dep't of Conservation v. Foley
Engineer, Bailey and Engelmann are inapposite to the present case. We therefore conclude
that the Foleys and Foster failed to provide the district court with an appropriate basis for
equitable relief.
CONCLUSION
The Division is not statutorily required to provide notice of cancellation of water rights
permits to persons whose interest in the rights has not been reported to the State Engineer.
This conclusion applies to transfers of water rights before and after October 1, 1995.
We note in passing that the Foleys and Foster have available to them a partial, albeit not
totally adequate, remedy at law. State Engineer Order 1054, issued April 15, 1992, provides
that [a]pplications filed for the purpose of reinstating a permit that has been cancelled and
where some use has been made of the water will be processed according to NRS Chapter 533,
but only for the uses that are existing. The State has acknowledged that this language
provides the Foleys and Foster with an administrative remedy to reinstate at least some water
usage to their land.
In light of the above, we reverse the district court's order issuing the preliminary
injunction.
Rose and Gibbons, JJ., concur.
____________
121 Nev. 84, 84 (2005) Nevada Gold & Casinos v. American Heritage
NEVADA GOLD & CASINOS, INC., a Corporation; and ROUTE 66 CASINOS, LLC, a
Limited Liability Company, Appellants, v. AMERICAN HERITAGE, INC., dba THE
GILLMANN GROUP, a Corporation; and FRED GILLMANN, an Individual,
Respondents.
No. 40757
April 28, 2005 110 P.3d 481
Motion to dismiss appeal from a district court order denying appellants' motion to compel
arbitration. Eighth Judicial District Court, Clark County; Allan R. Earl, Judge.
Majority partner in a limited liability company (LLC) that was organized to operate a
casino on tribal land brought an action in Texas against corporation that was minority partner
in LLC and that corporation's shareholder, seeking to collect on promissory note and
guaranty, which were apparently related to LLC's operating agreement. Thereafter, LLC's
minority partner and that partner's shareholder brought action in Nevada against majority
partner and LLC, seeking rescission of LLC's operating agreement, dissolution of LLC, and
damages for defamation and for tortious interference with minority partner's relationship
with Indian tribe.
........................................
121 Nev. 84, 85 (2005) Nevada Gold & Casinos v. American Heritage
dissolution of LLC, and damages for defamation and for tortious interference with minority
partner's relationship with Indian tribe. The district court denied LLC's and majority partner's
motion to compel arbitration pursuant to LLC's operating agreement. They appealed. While
the appeal was pending, the Texas court denied minority partner's and shareholder's motion to
abate the Texas proceedings, and depositions were taken and written discovery was
conducted in the Texas case. Minority partner brought motion to dismiss the Nevada appeal.
The supreme court held that: (1) supreme court could consider relevant facts outside the
record on appeal to determine whether appellants had waived their appeal; and (2) majority
partner waived the right to arbitration, by amending its Texas complaint to add claims it had
asserted were arbitrable and vigorously litigating those claims for eighteen months without
moving Texas court to compel arbitration.
Dismissed.
Lionel Sawyer & Collins and Rodney M. Jean, Las Vegas; J. Mark Brewer, Houston,
Texas, for Appellants.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno; Schreck Brignone Godfrey
and Todd L. Bice and Rebecca S. Levine, Las Vegas, for Respondents.
1. Arbitration.
Supreme court could consider relevant facts outside the record on appeal to
determine whether appellants had waived their right to arbitration under limited liability
company's (LLC) operating agreement by litigating the dispute in a Texas court while
the Nevada appeal was pending; there were no Nevada trial court factual findings to
review on the issue of waiver because respondents' motion to dismiss the appeal, which
alleged waiver, was brought in supreme court in first instance, and waiver issue rested
on legal implications of essentially uncontested facts.
2. Appeal and Error.
While as a general rule the supreme court cannot consider matters outside the record
on appeal, the supreme court may consider relevant facts outside the record in
determining whether appellants have waived their appeal.
3. Estoppel.
Waiver is generally a question of fact, but when the determination rests on the legal
implications of essentially uncontested facts, then it may be determined as a matter of
law.
4. Arbitration.
A waiver of the right to arbitrate may be shown when the party seeking to arbitrate:
(1) knew of his right to arbitrate, (2) acted inconsistently with that right, and (3)
prejudiced the other party by his inconsistent acts.
5. Arbitration.
Prejudice to the party opposing arbitration, as element for finding waiver of right to
arbitration, may be shown: (1) when the parties use discovery not available in
arbitration, {2) when they litigate substantial issues on the merits, or {3) when
compelling arbitration would require a duplication of efforts.
........................................
121 Nev. 84, 86 (2005) Nevada Gold & Casinos v. American Heritage
covery not available in arbitration, (2) when they litigate substantial issues on the
merits, or (3) when compelling arbitration would require a duplication of efforts.
6. Arbitration.
Majority partner in limited liability company (LLC) waived its right to arbitration
under LLC's operating agreement, in dispute with minority partner, though majority
partner, as defendant in minority partner's Nevada action, initially demanded
arbitration, where majority partner had filed an action in Texas, which apparently
related to the operating agreement, before minority partner filed the Nevada action, and
after Nevada trial court denied majority partner's motion to compel arbitration, majority
partner amended its Texas complaint to add claims it had asserted were arbitrable and
vigorously litigated those claims for eighteen months without moving Texas court to
compel arbitration; majority partner, knowing of its arbitration right, acted
inconsistently with that right and thereby prejudiced minority partner because
substantial issues were litigated on the merits in Texas and arbitration would require
parties to duplicate their efforts.
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
In this appeal from a district court order denying appellants' motion to compel arbitration,
we consider whether appellants have waived any right to demand arbitration by vigorously
litigating the dispute in a Texas court. Applying an analytical framework crafted by the
Eighth Circuit Court of Appeals, we conclude that appellants, knowing of their arbitration
right, have acted inconsistently with an intent to arbitrate, and that they have thereby
prejudiced respondents. We determine that appellants have waived arbitration, and so we
grant respondents' motion to dismiss this appeal.
FACTS
Appellant Nevada Gold & Casinos, Inc., (Nevada Gold) develops gaming properties and
has real estate interests in several states. Respondent American Heritage, Inc., has business
arrangements with Native American tribes to open and operate casinos on tribal land.
American Heritage's principal is respondent Fred Gillmann. Nevada Gold and American
Heritage own, respectively, 51% and 49% of appellant Route 66 Casinos, LLC (Route 66), a
limited liability company that was organized to operate a casino on tribal land in New
Mexico.
The specifics concerning Route 66's formation are disputed. According to appellants,
American Heritage was to run the casino and was to assign its rights under its agreement
with the tribe to Route 66.
........................................
121 Nev. 84, 87 (2005) Nevada Gold & Casinos v. American Heritage
and was to assign its rights under its agreement with the tribe to Route 66. Nevada Gold was
to obtain financing of $8 million initially, for the temporary facility, and later was to obtain
financing of $40 million for a permanent facility. All receipts from the casino were to be
placed in a Route 66 account. Appellants claim that these core obligations were memorialized
in an April 2002 letter agreement, and that the arrangement was then finalized in a June 3,
2002 operating agreement for Route 66. The temporary casino opened on June 1, 2002.
Appellants claim that shortly after the agreement was signed, Gillmann, acting for American
Heritage, stopped returning calls, and eventually maintained that he was defrauded into
signing the agreement, and that it contained terms to which he did not agree. Appellants
assert that in actuality, the tribe agreed to provide financing, and so Gillmann wanted to
withdraw from the agreement so that he would not be obliged to share the casino's proceeds
with appellants in exchange for appellants' financing of the project.
Respondents dispute several key points. According to them, American Heritage had an
arrangement with the Pueblo of Laguna Tribe in New Mexico (Laguna) to open and operate
the casino. Gillmann, on behalf of American Heritage, began negotiations with Nevada Gold
to finance the casino and asserts that Nevada Gold represented that it could provide the $8
million initial financing itself. In the course of negotiations, a draft operating agreement was
prepared by Nevada Gold. According to Gillmann, he believed that certain terms in the
agreement were incorrect but signed the draft at the urging of Thomas Winn, Nevada Gold's
president, on the understanding that the agreement could later be amended to reflect the
corrections Gillmann wanted. Later, he found that the draft operating agreement had been
filed with the Nevada Secretary of State to establish Route 66 as a Nevada LLC. According to
Gillmann, Nevada Gold refused to make the changes he wanted. Gillmann claims that the
agreement is therefore not enforceable, and that Route 66 must be dissolved.
The operating agreement contains a dispute resolution provision, which provides for
mediation of any disputes under the agreement. If mediation is unsuccessful, then the
agreement calls for binding arbitration.
By September 2002, Gillmann had ceased responding to Nevada Gold's inquiries. On
September 27, 2002, Nevada Gold demanded arbitration, without first attempting mediation.
It sent a copy of the demand to Laguna. On October 2, 2002, Nevada Gold filed a complaint
in Harris County, Texas, to collect on a promissory note executed by American Heritage and
guaranteed by Gillmann, but it did not immediately serve the complaint. The note and
guaranty, which do not contain arbitration provisions, are apparently related to the Route
66 agreement.
........................................
121 Nev. 84, 88 (2005) Nevada Gold & Casinos v. American Heritage
anty, which do not contain arbitration provisions, are apparently related to the Route 66
agreement. On October 4, 2002, American Heritage and Gillman filed a complaint in Nevada
district court, seeking rescission of the agreement and/or a declaration that it was void,
dissolution of Route 66, and damages for defamation and interference with American
Heritage's relationship with Laguna.
Nevada Gold then moved the Nevada district court to compel arbitration and to stay the
Nevada litigation. American Heritage opposed the motion, arguing that a claim for
dissolution could not be the subject of arbitration, that it had never agreed to the operating
agreement's terms and was fraudulently induced into signing the draft agreement, and that
Gillman could not be bound by the arbitration clause because he had signed solely in his
representative capacity. The district court denied the motion. As permitted under NRS
38.247, Nevada Gold appealed from the district court's order.
After the district court denied its stay motion, Nevada Gold moved this court for a stay on
March 31, 2003. On April 10, 2003, Nevada Gold and Route 66 amended their Texas
complaint to include additional claims, including several based on American Heritage's
alleged breach of the operating agreement. This court granted Nevada Gold's motion for a
stay pending appeal on August 19, 2003. Also, as the district court denied American
Heritage's motion to stay the arbitration, this court enjoined Nevada Gold from proceeding
with the arbitration on September 26, 2003.
After this court entered its September 26, 2003 order, American Heritage attempted to
abate the Texas proceedings pending this court's ruling; the Texas court denied the motion.
The parties then continued to vigorously litigate the Texas case. They engaged in discovery,
including depositions and written discovery, and Nevada Gold filed at least one motion to
compel discovery. Trial had originally been set for late October 2003, but was continued,
over Nevada Gold's objection, to February 2004.
According to American Heritage's Texas counsel, several pretrial motions were heard
during the weeks before trial, including motions in limine. Counsel avers that the Texas court
made several rulings adverse to Nevada Gold. Nevada Gold does not dispute the substance of
counsel's affidavit. Following the adverse rulings, Nevada Gold moved to compel arbitration.
American Heritage opposed the motion, arguing that Nevada Gold had waived any right to
arbitrate by participating in the Texas litigation. The Texas court took the matter under
submission, and then entered a minute order abating the Texas proceedings pending this
court's disposition of the appeal.
After the Texas court abated the Texas proceedings, American Heritage filed a motion to
dismiss this appeal, contending that Nevada Gold had waived its right to appeal because it
had waived any right to arbitrate.
........................................
121 Nev. 84, 89 (2005) Nevada Gold & Casinos v. American Heritage
any right to arbitrate. Nevada Gold opposes the motion, arguing that it has always
demonstrated an intent to arbitrate and that American Heritage has not shown sufficient
prejudice for a waiver.
DISCUSSION
[Headnotes 1, 2]
Appellants first argue that this court cannot consider matters outside the record on appeal,
and thus the issue of waiver is not properly before us. In support, appellants rely on Carson
Ready Mix v. First National Bank.
1
While Carson Ready Mix recites the general rule, it is
not without exception. In particular, we may consider relevant facts outside the record in
determining whether appellants have waived their appeal.
2

[Headnote 3]
Next, because the motion to dismiss the appeal was filed in this court in the first instance,
we have no district court factual findings to review on the issue of waiver. Waiver is
generally a question of fact.
3
But when the determination rests on the legal implications of
essentially uncontested facts, then it may be determined as a matter of law.
4

Here, the pertinent facts are not contested. Nevada Gold does not dispute that it engaged in
litigation in Texas, and American Heritage does not dispute that Nevada Gold initially sought
arbitration. Also, American Heritage has alleged prejudice in the form of litigation expenses
and disclosure of its strategy. While Nevada Gold disputes the significance of American
Heritage's claimed prejudice, it does not dispute that American Heritage incurred costs and
necessarily disclosed some of its strategies in the Texas litigation. Factual determinations are
thus unnecessary to resolve the waiver issue. As noted by the Fifth Circuit:
As it comes before this court, this case presents few, if any, important factual
disputes. . . .
. . . Of course, the parties are in disagreement as to the legal implications that should
be drawn from the facts. But in these circumstances an appellate tribunal has broad
authority to substitute its own conclusions of law for those of the trial court.
____________________

1
97 Nev. 474, 635 P.2d 276 (1981).

2
See Rosen v. Rae, 647 P.2d 640 (Ariz. Ct. App. 1982) (determining that appellate court may receive
evidence outside the record to establish whether appellant waived right to appeal); accord Bolen v. Cumby, 14
S.W. 926 (Ark. 1890); Ehrman v. Astoria & P. Ry. Co., 38 P. 306 (Or. 1894); Ward v. Charlton, 12 S.E.2d 791
(Va. 1941).

3
See Merrill v. DeMott, 113 Nev. 1390, 1399, 951 P.2d 1040, 1045-46 (1997).

4
See id.
........................................
121 Nev. 84, 90 (2005) Nevada Gold & Casinos v. American Heritage
these circumstances an appellate tribunal has broad authority to substitute its own
conclusions of law for those of the trial court.
5

Respondents argue that appellants have waived their right to demand arbitration by their
actions in the related Texas litigation, including: (1) amending their Texas complaint to
include claims that they assert are arbitrable, (2) pursuing discovery, (3) seeking a preferential
trial setting, and (4) delaying their motion to compel arbitration until the week before trial,
after several adverse pretrial rulings. Respondents also maintain that they have suffered
prejudice because they have necessarily disclosed some of their strategy in the Texas
litigation and because they have incurred significant fees and costs.
Appellants contend that their participation in the Texas case does not rise to the level of
waiving their right to arbitrate, because: (1) they initially demanded arbitration, before filing a
complaint with the Texas court, (2) they only added the allegedly arbitrable claims to their
Texas complaint after the Nevada district court entered the order appealed from here, refusing
to compel arbitration, (3) they continued to pursue arbitration until this court's September 26,
2003 stay, and (4) their conduct as a whole evidences an intent to arbitrate. Appellants also
argue that respondents cannot show sufficient prejudice to support waiver and that any
disadvantage they may have suffered is the result of their own actions in resisting appellants'
efforts to arbitrate this case.
[Headnotes 4, 5]
We have previously held that the primary focus in determining whether arbitration has
been waived is the resulting prejudice to the party opposing arbitration.
6
We take this
opportunity to further refine the test for determining when a waiver has been demonstrated
and adopt the test set forth in a recent Eighth Circuit case, Kelly v. Golden.
7
Under this test, a
waiver may be shown when the party seeking to arbitrate (1) knew of his right to arbitrate, (2)
acted inconsistently with that right, and (3) prejudiced the other party by his inconsistent acts.
8
Prejudice may be shown (1) when the parties use discovery not available in arbitration, {2)
when they litigate substantial issues on the merits, or {3) when compelling arbitration
would require a duplication of efforts.
____________________

5
Miller Brewing Co. v. Fort Worth Distributing Co., 781 F.2d 494, 496 (5th Cir. 1986).

6
See Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988); County of Clark v.
Blanchard Constr. Co., 98 Nev. 488, 653 P.2d 1217 (1982).

7
352 F.3d 344 (8th Cir. 2003).

8
Id. at 349.
........................................
121 Nev. 84, 91 (2005) Nevada Gold & Casinos v. American Heritage
(2) when they litigate substantial issues on the merits, or (3) when compelling arbitration
would require a duplication of efforts.
9

[Headnote 6]
Here, Nevada Gold initially sought to arbitrate its dispute with American Heritage. But
when the Nevada district court denied its motion to compel arbitration, it immediately
amended its Texas complaint to add the claims that it previously asserted were arbitrable.
Nevada Gold proceeded to vigorously litigate the matter in the Texas court for eighteen
months without moving the Texas court to compel arbitration. Only on the eve of trial, and
after litigating substantial issues, did Nevada Gold belatedly seek an order from the Texas
court compelling arbitration. Consequently, Nevada Gold, knowing of its arbitration right,
acted inconsistently with that right and thereby prejudiced American Heritage. Here,
American Heritage has shown prejudice because Nevada Gold litigated substantial issues on
the merits and because compelling arbitration would require the parties to duplicate their
efforts. As an Ohio federal district court aptly observed in Uwaydah v. Van Wert County
Hospital:
10

If plaintiff's demand for arbitration were to be upheld, there would be nothing to
keep any litigant with an arbitration clause from testing the judicial waters, and to do so
for as long as he liked, even to the point where the case has arrived on the brink of
resolution, and then nullifying all that has gone before by demanding arbitration.
11

We conclude that, as a matter of law, Nevada Gold has waived its right to arbitrate its dispute
with American Heritage. Accordingly, we grant respondents' motion and dismiss this appeal.
____________________

9
Id.

10
246 F. Supp. 2d 808 (N.D. Ohio 2002).

11
Id. at 814.
____________
........................................
121 Nev. 92, 92 (2005) Miller v. State
RICHARD WILLIAM MILLER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 43192
April 28, 2005 110 P.3d 53
Appeal from a judgment of conviction, upon a jury verdict, of one count of larceny from
the person. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
The supreme court held that: (1) defense of entrapment encompasses two elements, i.e., an
opportunity to commit a crime is presented by the state, and it is presented to a person not
predisposed to commit the act, overruling Shrader v. State, 101 Nev. 499, 706 P.2d 834
(1985); Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985); Oliver v. State, 101 Nev. 308,
703 P.2d 869 (1985); Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977); and In re Wright, 68
Nev. 324, 232 P.2d 398 (1951); (2) defendant was not entrapped by undercover police
detective who had disguised himself as an intoxicated vagrant, from whom defendant stole
twenty dollars; (3) defendant failed to meet his burden to show that prosecutor's statement
constituted improper comment on his right not to testify, as necessary to establish plain error;
and (4) any error in prosecutor's statement during closing argument that defendant had preyed
on others was harmless.
Affirmed.
Philip J. Kohn, Public Defender, and Lynn Avants, Howard S. Brooks, and Gary H.
Lieberman, Deputy Public Defenders, Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Frank M. Ponticello, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
The entrapment defense is made available to defendants not to excuse their criminal
wrongdoing but as a prophylactic device designed to prevent police misconduct.
2. Criminal Law.
The defense of entrapment encompasses two elements: (1) an opportunity to commit
a crime is presented by the state, (2) to a person not predisposed to commit the act;
overruling Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985); Moreland v. State, 101
Nev. 455, 705 P.2d 160 (1985); Oliver v. State, 101 Nev. 308, 703 P.2d 869 (1985);
Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977); and In re Wright, 68 Nev. 324, 232
P.2d 398 (1951).
3. Criminal Law.
The government may use undercover agents to enforce the law; nevertheless,
undercover agents may not originate a criminal design, implant in an innocent person's
mind the disposition to commit a criminal act, and then induce commission of the
crime so that the government may prosecute.
........................................
121 Nev. 92, 93 (2005) Miller v. State
in an innocent person's mind the disposition to commit a criminal act, and then induce
commission of the crime so that the government may prosecute.
4. Criminal Law.
There is a clear line between a realistic decoy who poses as an alternative victim of
potential crime, and the helpless, intoxicated, and unconscious decoy with money
hanging out of a pocket; the former is permissible undercover police work, whereas the
latter is entrapment.
5. Criminal Law.
Defendant was not entrapped by undercover police detective who had disguised
himself as intoxicated vagrant, from whom defendant stole twenty dollars; opportunity
that was presented to commit crime was not improper, in that detective did not feign
unconsciousness nor was his money readily accessible, only the tips of one-dollar bills
were exposed, to extent that passerby could see edges of currency but not
denominations, and detective did not entice defendant into stealing money, but rather
defendant approached detective and asked him for money, and when detective refused,
defendant picked his pocket, indicating that defendant was predisposed to commit
larceny from the person.
6. Criminal Law.
Factors relevant in determining predisposition to commit the crime, for purposes of
an entrapment defense, include: (1) defendant's character, (2) who first suggested
criminal activity, (3) whether defendant engaged in activity for profit, (4) whether
defendant demonstrated reluctance, and (5) nature of government's inducement. Of
these five factors, the most important is whether defendant demonstrated reluctance
which was overcome by government's inducement.
7. Criminal Law.
Defendant waived on appeal issue of whether prosecutor had improperly commented
on defendant's right not to testify, as defense counsel failed to object to prosecutor's
statement.
8. Criminal Law.
Appellate review of only objected-to misconduct ensures the accuracy of appellate
court's decisions in two ways; first, such review properly restricts appellate court to
deciding actual controversies, and second, judicial resources are conserved by
encouraging trial counsel to take issue with inappropriate conduct at a time when the
conduct can be corrected.
9. Criminal Law.
Timely objections enable the trial court to instruct the jury to disregard improper
statements by counsel, thus remedying any potential for prejudice.
10. Criminal Law.
Judicial economy requires that appellate courts encourage good trial practice, and
granting new trials for error that could have been corrected with a simple objection by
an alert attorney does not encourage good trial practice.
11. Criminal Law.
Defendant failed to meet his burden to show that prosecutor's statement constituted
improper comment on his right not to testify, as necessary to establish plain error, in
prosecution for larceny from the person, as defendant merely asserted that prosecutor's
statements were error, but did not demonstrate that alleged error was prejudicial to him.
12. Criminal Law.
A plain error affects substantial rights if it had a prejudicial impact on the verdict
when viewed in context of the trial as a whole. NRS 178.602.
........................................
121 Nev. 92, 94 (2005) Miller v. State
13. Criminal Law.
A criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context;
only by so doing can it be determined whether the prosecutor's conduct affected the
fairness of the trial.
14. Criminal Law.
Supreme court will not order a new trial on the grounds of prosecutorial misconduct
unless the misconduct is clearly demonstrated to be substantial and prejudicial.
15. Criminal Law.
Defendant waived on appeal issue of whether prosecutor's comment during opening
statement improperly referred to him as dangerous, as defendant failed to object to
statement at trial.
16. Criminal Law.
Any error in prosecutor's statement during closing argument that defendant had
preyed on others was harmless, in prosecution for larceny from the person, as evidence
supported prosecutor's characterization of defendant as someone who preyed upon
others by stealing from them.
17. Criminal Law.
A prosecutor may not argue facts or inferences not supported by the evidence;
nevertheless, the prosecutor may argue inferences from the evidence and offer
conclusions on contested issues.
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
This appeal arises out of an undercover decoy program initiated by the Las Vegas
Metropolitan Police Department (LVMPD). The decoy program was designed to combat an
increase in street-level robberies occurring in downtown Las Vegas. A street-level robbery is
a person-to-person crime where one person walks up to another and either robs them or picks
their pocket.
As part of the decoy operation, Detective Jason Leavitt disguised himself as an intoxicated
vagrant to blend in with transient persons that reside in certain areas of Las Vegas. Detective
Leavitt carried twenty one-dollar bills in a pocket and left a small portion of the bills exposed.
This allowed someone standing close to him to see the money, but the bills were hidden well
enough that they did not attract the attention of every passerby. Detective Leavitt wore a
monitoring device that allowed surveillance and arrest teams to hear what Detective Leavitt
heard and said. When Detective Leavitt gave a predetermined signal, arrest teams would
approach the scene and apprehend the suspect.
On July 29, 2003, Detective Leavitt was dressed in black jeans, a dirty t-shirt, a
short-sleeved flannel shirt, and a baseball cap.
........................................
121 Nev. 92, 95 (2005) Miller v. State
Twenty one-dollar bills were folded inside the breast pocket of the flannel shirt so that only
the tips of the bills were exposed. Detective Leavitt rubbed charcoal on his face to appear
dirty and wiped beer on his neck to give off the odor of alcohol. He also walked with a limp
and carried a can of beer to appear intoxicated.
Detective Leavitt positioned himself on the 200 block of Main Street across from the
Greyhound Bus Station and leaned against a chain link fence. Appellant Richard Miller, who
was walking southbound on Main Street, approached Detective Leavitt and asked him for
money. When Detective Leavitt told Miller that he would not give him any money, Miller put
his arm around Detective Leavitt and invited him to get a drink.
Miller stood to the left of Detective Leavitt with his right arm around Detective Leavitt's
shoulders. Miller then pulled Detective Leavitt closer to him, quickly reached his hand into
Detective Leavitt's pocket, and took the twenty dollars. Miller then loosened his grip on
Detective Leavitt and again asked for money. Detective Leavitt said that he could not give
Miller any money because his money was gone. The undercover arrest team then converged
on the location and took Miller into custody.
The State charged Miller, by information, with larceny from the person. After a two-day
trial, the jury convicted Miller, and the district court sentenced him to a maximum of 32
months and a minimum of 12 months imprisonment. On appeal, Miller argues that he was
entrapped, that the prosecutor impermissibly commented on his decision not to testify, and
that the prosecutor committed other misconduct.
DISCUSSION
Miller was not entrapped
Miller argues that police officers entrapped him by improperly tempting him with exposed
money and a helpless victim. We disagree.
[Headnotes 1-3]
The entrapment defense is made available to defendants not to excuse their criminal
wrongdoing but as a prophylactic device designed to prevent police misconduct.'
1

[E]ntrapment encompasses two elements: (1) an opportunity to commit a crime is presented
by the state (2) to a person not predisposed to commit the act.'
2
[T]he Government may
use undercover agents to enforce the law."
____________________

1
Foster v. State, 116 Nev. 1088, 1092, 13 P.3d 61, 64 (2000) (quoting Shrader v. State, 101 Nev. 499, 501,
706 P.2d 834, 835 (1985)).

2
DePasquale v. State, 104 Nev. 338, 340, 757 P.2d 367, 368 (1988) (quoting Shrader, 101 Nev. at 504, 706
P.2d at 837). We note that there has been
........................................
121 Nev. 92, 96 (2005) Miller v. State
the law.
3
Nevertheless, undercover agents may not originate a criminal design, implant in
an innocent person's mind the disposition to commit a criminal act, and then induce
commission of the crime so that the Government may prosecute.
4

In DePasquale v. State, we discussed our prior entrapment jurisprudence where an
undercover officer posed as a decoy.
5
We cited three earlier cases that collectively held that
the defendant was entrapped where the undercover decoy was apparently helpless,
intoxicated, and feigned unconsciousness with cash hanging from his pocket.
6
Specifically,
we noted that the degree of vulnerability, exemplified in [those prior cases] by the decoy's
feigned lack of consciousness, . . . cloaks any suggestion of the defendant's predisposition.
7

[Headnote 4]
However, in DePasquale, we held that the defendant was not entrapped when he stole
from a female undercover police officer who was walking along open sidewalks around a
casino with money zipped into her purse.
8
Thus, we have drawn a clear line between a
realistic decoy who poses as an alternative victim of potential crime
9
and the helpless,
intoxicated, and unconscious decoy with money hanging out of a pocket.
10
The former is
permissible undercover police work, whereas the latter is entrapment.
The opportunity presented to commit a crime was not improper
[Headnote 5]
The theft in this case occurred across from the Greyhound Bus Station at the 200 block of
South Main Street in Las Vegas. Twenty one-dollar bills were folded inside the breast pocket
of Detective Leavitt's flannel shirt so that only the tips of the bills were exposed.
____________________
some inconsistency in the elements of entrapment in our prior jurisprudence. To correct that inconsistency, we
reaffirm the two-part entrapment test as clarified by DePasquale and Foster, 116 Nev. at 1091, 13 P.3d at 64.
To the extent that our opinions in Shrader, Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985), Oliver v.
State, 101 Nev. 308, 703 P.2d 869 (1985), Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977), and In re Wright,
68 Nev. 324, 232 P.2d 398 (1951), are inconsistent with the entrapment standard set forth in this opinion, they
are overruled.

3
Jacobson v. United States, 503 U.S. 540, 548 (1992).

4
Id.

5
104 Nev. at 340-41, 757 P.2d at 368-69.

6
Id.

7
Id.

8
Id. at 341, 757 P.2d at 369.

9
Id.

10
Sheriff v. Hawkins, 104 Nev. 70, 73, 752 P.2d 769, 771 (1988).
........................................
121 Nev. 92, 97 (2005) Miller v. State
Leavitt's flannel shirt so that only the tips of the bills were exposed. Miller, who was walking
southbound on Main Street, approached Detective Leavitt and asked him for money. When
Detective Leavitt told Miller that he would not give him any money, Miller put his arm
around Detective Leavitt and invited him to get a drink. Miller stood to the left of Detective
Leavitt with his right arm around Detective Leavitt's shoulders. Miller then pulled Detective
Leavitt closer to him, quickly reached his hand into Detective Leavitt's pocket, and took the
twenty dollars.
The police committed no misconduct in this operation. The opportunity presented was
sufficient to lead to a criminal act only by a person predisposed to commit a crime. Though a
suspect is entrapped when the decoy officer poses as an unconscious vagrant with exposed
money hanging from his pockets,
11
Detective Leavitt did not feign unconsciousness nor was
his money readily accessible. Only a portion of the bills were exposed; a passerby could see
the edges of currency, but not the denominations.
12
Detective Leavitt did not entice Miller
into stealing the money. Rather, Miller approached Detective Leavitt and asked him for
money. When Detective Leavitt refused to give him money, Miller picked his pocket.
Miller was predisposed to commit larceny from the person
[Headnote 6]
It is clear that Miller was predisposed to commit larceny from the person. We have
recognized five factors that, though not exhaustive, are helpful to determine whether the
defendant was predisposed: (1) the defendant's character, (2) who first suggested the criminal
activity, (3) whether the defendant engaged in the activity for profit, (4) whether the
defendant demonstrated reluctance, and (5) the nature of the government's inducement.
13
Of
these five factors, the most important is whether the defendant demonstrated reluctance
which was overcome by the government's inducement.
14

Miller's character is unclear from the record, but it is clear that Miller initiated the
conversation and engaged in the larceny for profit. Furthermore, Miller exhibited no
reluctance about his actions. Finally, the critical balance between government inducement and
Miller's reluctance weighs in favor of predisposition here.
____________________

11
DePasquale, 104 Nev. at 340-41, 757 P.2d at 368-69.

12
See id. at 341, 757 P.2d at 369 (noting that exposed money was insufficient to entrap the suspect because
exposed money merely provided an alternative victim for potential crime).

13
Foster, 116 Nev. at 1093, 13 P.3d at 64.

14
Id. (emphasis added) (quoting, with approval, language from jury instruction).
........................................
121 Nev. 92, 98 (2005) Miller v. State
here. Miller approached Detective Leavitt, initiated a conversation, and asked for money.
When Detective Leavitt told Miller he would not give him any money, Miller picked his
pocket. These facts demonstrate a predisposition to commit the crime of larceny from the
person. Since Miller was predisposed to commit the crime, he was not entrapped.
15

The State did not improperly comment on Miller's failure to testify
Miller argues that he is entitled to a new trial because the State improperly commented on
his right not to testify. We disagree.
During opening statements, the prosecutor told the jury that the defense was not obligated
to present evidence at trial: [T]he State has the burden beyond a reasonable doubt, and the
Defendant is presumed innocent, they don't have to put on any case. They could sit there
entirely, and you would be left to judge whether we have met our burden based only on the
State's case. Defense counsel did not object to the statement.
On appeal, Miller argues that the statement detrimentally minimized the State's burden to
subsequently prove Mr. Miller's predisposition to commit [a] crime prior to contact with
government agents. We disagree.
[Headnote 7]
Initially, we note that Miller has waived the opportunity to challenge the prosecutor's
statement on appeal. In Gallego v. State, we reiterated that [f]ailure to object during trial
generally precludes appellate consideration of an issue.
16
Miller concedes that trial counsel
did not object to the allegedly improper statements. Thus, Miller has waived appellate review.
[Headnote 8]
In Ringle v. Bruton, we held that reviewing only objected-to misconduct ensures the
accuracy of our decisions in two ways.
17
First, such review restricts us, properly, to deciding
actual controversies.
18
Second, judicial resources are conserved by encouraging trial counsel
to take issue with inappropriate conduct at a time when the conduct can be corrected.
19

____________________

15
Id. at 1094-95, 13 P.3d at 65-66.

16
117 Nev. 348, 365, 23 P.3d 227, 239 (2001).

17
120 Nev. 82, 94-95, 86 P.3d 1032, 1040 (2004).

18
Id.; see also Beccard v. Nevada National Bank, 99 Nev. 63, 65-66, 657 P.2d 1154, 1156 (1983) (The
failure to object to allegedly prejudicial remarks at the time an argument is made, and for a considerable time
afterwards, strongly indicates that the party . . . did not consider the arguments objectionable at the time they
were delivered, but made that claim as an afterthought.).

19
Ringle, 120 Nev. at 95, 86 P.3d at 1040.
........................................
121 Nev. 92, 99 (2005) Miller v. State
[Headnotes 9, 10]
Timely objections enable the district court to instruct the jury to disregard improper
statements, thus remedying any potential for prejudice.
20
Judicial economy requires that this
court encourage good trial practice, and granting new trials for error that could have been
corrected with a simple objection by an alert attorney does not encourage good trial practice.
As in Ringle, judicial economy militates against finding prejudice in a statement so
inconsequential as to warrant no objection below.
[Headnotes 11, 12]
Nevertheless, we may still review plain error affecting [the defendant's] substantial
rights.
21
A plain error affects substantial rights if it had a prejudicial impact on the
verdict when viewed in context of the trial as a whole.'
22
Miller bears the burden to prove
that the error was prejudicial.
23
Miller merely asserts that the prosecutor's statements were
error; he fails to demonstrate that the error was prejudicial. Thus, Miller has failed to meet his
burden.
The State did not commit prosecutorial misconduct by implying that Miller was dangerous
and that he preyed upon vulnerable persons
Miller argues that the State committed prosecutorial misconduct by referring to him as
dangerous during opening statements and by suggesting during closing argument that he was
a predator. We disagree.
[Headnotes 13, 14]
[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial.'
24
We will not order a new trial on the grounds of prosecutorial misconduct unless the
misconduct is clearly demonstrated to be substantial and prejudicial.
25

____________________

20
Id.

21
NRS 178.602; Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118 (2002).

22
Rowland, 118 Nev. at 38, 39 P.3d at 118 (quoting Libby v. State, 109 Nev. 905, 911, 859 P.2d 1050, 1054
(1993), vacated on other grounds, 516 U.S. 1037 (1996)).

23
Gallego, 117 Nev. at 365, 23 P.3d at 239.

24
Evans v. State, 112 Nev. 1172, 1204-05, 926 P.2d 265, 286 (1996) (quoting United States v. Young, 470
U.S. 1, 11 (1985)).

25
Sheriff v. Fullerton, 112 Nev. 1084, 1098, 924 P.2d 702, 711 (1996).
........................................
121 Nev. 92, 100 (2005) Miller v. State
Opening statement
[Headnote 15]
During his opening statement, the prosecutor told the jury that the surveillance team
watched the decoy constantly because the officer's safety is of paramount importance . . .
because it's dangerous. An officer can get shot or stabbed. Miller argues that the statement
was improper because it argued facts not in evidence and improperly appealed to juror
emotion. We decline to consider this issue because Miller failed to object below and therefore
waived his right to appellate review. Further, Miller has made no showing that the statement
constituted plain error.
Closing argument
[Headnote 16]
During his closing argument, the prosecutor told the jury that this man was preying on the
citizens of Nevada, and maybe people who are tourists and visitors. He was across from the
Greyhound Bus Station looking for people to prey upon. Defense counsel objected, and the
following argument ensued:
[DEFENSE COUNSEL]: Objection, there wasn't any evidence as to whether or not he
was looking around for people to prey upon.
THE COURT: I don't recall hearing any.
[PROSECUTOR]: This is argument, Your Honor.
The district court neither sustained nor overruled the objection and the prosecutor continued
his closing argument.
[Headnote 17]
We conclude that this statement does not constitute prejudicial error. A prosecutor may
not argue facts or inferences not supported by the evidence.
26
Nevertheless, the prosecutor
may argue inferences from the evidence and offer conclusions on contested issues.
27
Furthermore, other jurisdictions have held that unflattering characterizations of a defendant
will not provoke a reversal when such descriptions are supported by the evidence.'
28

In this case, Miller was charged with larceny from the person, and the evidence supported
the State's characterization of Miller as someone who preyed upon others by stealing from
them. Thus, we conclude that any error in the statement was harmless.
____________________

26
Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).

27
Jones v. State, 113 Nev. 454, 467, 937 P.2d 55, 63 (1997).

28
U.S. v. Tisdale, 817 F.2d 1552, 1555 (11th Cir. 1987) (quoting United States v. Windom, 510 F.2d 989,
994 (5th Cir. 1975)).
........................................
121 Nev. 92, 101 (2005) Miller v. State
CONCLUSION
We conclude that Miller was not entrapped because he was predisposed to commit the
crime of larceny from the person. Furthermore, the State did not improperly comment on
Miller's failure to testify, nor did the State commit prosecutorial misconduct by implying that
Miller was dangerous and preyed upon vulnerable persons. Accordingly, we affirm the
conviction.
____________
121 Nev. 101, 101 (2005) Daniels v. State
RUFUS LANE DANIELS, aka DANIEL RUFUS,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 42545
April 28, 2005 110 P.3d 477
Appeal from a judgment of conviction, upon a jury verdict, of one count of robbery.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
The supreme court held that: (1) defendant was not entrapped into robbing officer, (2)
defendant's prior burglary conviction was admissible, and (3) evidence supported conviction.
Affirmed.
Philip J. Kohn, Public Defender, and Kedric A. Bassett, Deputy Public Defender, Clark
County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Martin W. Hart, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Defendant was not entrapped into robbing officer, who posed as transient, although
approximately 1 inches of officer's wallet was exposed and edges of currency were
showing because denominations of currency were not exposed, officer did not feign
unconsciousness, money was not readily available, and defendant initiated contact and
engaged in robbery for profit. NRS 200.380(1).
2. Criminal Law.
Entrapment defense represents the necessary balance between the permissible use of
undercover officers to investigate crimes and the prohibition against inducing an
innocent person to commit a crime.
3. Criminal Law.
Suspect is entrapped where the decoy officer poses as an unconscious vagrant with
exposed money hanging from his pockets.
4. Criminal Law.
Most important factor in determining whether defendant who is claiming entrapment
was predisposed to commit criminal offense is whether the defendant demonstrated
reluctance that was overcome by the government's inducement.
........................................
121 Nev. 101, 102 (2005) Daniels v. State
whether the defendant demonstrated reluctance that was overcome by the government's
inducement.
5. Criminal Law.
Defendant's prior burglary conviction was admissible in prosecution for robbery
because prior conviction was relevant to defendant's assertion in connection with
entrapment defense that he was not predisposed to commit robbery and less than ten
years had elapsed since termination of sentence for burglary conviction. NRS 50.095,
200.380(1).
6. Criminal Law.
Decision to admit or exclude evidence of prior offenses is within the discretion of
the trial court.
7. Criminal Law.
Trial court's determination whether to admit or exclude evidence of prior offenses
will be reversed only upon a clear showing of abuse.
8. Robbery.
Evidence supported robbery conviction where evidence indicated that defendant
forced his hand into undercover officer's face, contact caused officer to be in
apprehension of violence, and defendant took wallet from officer's breast pocket while
defendant's hand was in officer's face. NRS 200.380(1).
9. Criminal Law.
In determining the sufficiency of the evidence, supreme court considers whether the
jury, acting reasonably, could have been convinced beyond a reasonable doubt of the
defendant's guilt.
10. Criminal Law.
Critical question when deciding sufficiency-of-the-evidence claim is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
This appeal arises out of an undercover decoy program initiated by the Las Vegas
Metropolitan Police Department (LVMPD). As part of the decoy operation, Detective Jason
Leavitt disguised himself as an intoxicated vagrant to blend in with transient persons that
reside in certain areas of Las Vegas.
On July 1, 2003, Detective Leavitt dressed in tan pants, a white t-shirt, a sports coat, and a
baseball cap. He carried a single-fold wallet in the breast pocket of his sports coat. The wallet
contained twenty one-dollar bills. Detective Leavitt testified that the wallet extended from his
pocket approximately 1 inches and that someone standing close to him could see the edges
of the money.
As part of his disguise, Detective Leavitt rubbed charcoal on his face to appear dirty and
wiped beer on his neck to give off the odor of alcohol.
........................................
121 Nev. 101, 103 (2005) Daniels v. State
odor of alcohol. He also walked with a limp and carried a can of beer to appear intoxicated.
Detective Leavitt positioned himself on the corner of 7th and Fremont Streets and leaned
against a power box at that intersection.
Appellant Rufus Daniels approached Detective Leavitt and showed him a silver charm
necklace. Daniels told Detective Leavitt to take a look at the necklace. Detective Leavitt
responded that he did not want to look at the necklace and pushed Daniels' arm away. Daniels
then thrust his hand back into Detective Leavitt's face, using more force than before. Daniels
reiterated that he should take a look at the necklace. Detective Leavitt testified that Daniels
was using enough force to push his head back and that Detective Leavitt's own hands were
against his face as he attempted to push Daniels away. Detective Leavitt testified that the
altercation made him nervous because he had been attacked on prior undercover
investigations.
While Daniels pushed the necklace into Detective Leavitt's face with one hand, he grabbed
the wallet with the other and hid the wallet on his person. Detective Leavitt accused Daniels
of taking his money, but Daniels replied that he did not know what Leavitt was talking about.
Daniels then crossed the street where the arrest team apprehended him in a motel parking lot.
Daniels told the officers that he had hidden the wallet under his shirt and that he knew what
he did was wrong.
The State charged Daniels, by information, with robbery and a lesser-included charge of
larceny from the person. After a two-day trial, the jury convicted Daniels of robbery, and the
district court sentenced him to 120 months imprisonment with the possibility of parole after
24 months. On appeal, Daniels argues that he was entrapped and that there was insufficient
evidence presented at trial to convict him of robbery.
DISCUSSION
Daniels was not entrapped
[Headnote 1]
Daniels argues that police officers entrapped him by improperly tempting him with
exposed money and a helpless victim. We disagree.
[Headnote 2]
We addressed a similar entrapment claim in Miller v. State.
1
In Miller, we reiterated that
the entrapment defense requires proof of two elements: (1) the State presented the
opportunity to commit a crime, and {2) the defendant was not otherwise predisposed to
commit the crime.
____________________

1
121 Nev. 92, 95, 110 P.3d 53, 56 (2005).
........................................
121 Nev. 101, 104 (2005) Daniels v. State
crime, and (2) the defendant was not otherwise predisposed to commit the crime.
2
The
entrapment defense represents the necessary balance between the permissible use of
undercover officers to investigate crimes and the prohibition against inducing an innocent
person to commit a crime.
3
Where the State uses undercover officers as decoys, we have
drawn a clear line between a realistic decoy who poses as an alternative victim of potential
crime and the helpless, intoxicated, and unconscious decoy with money hanging out of a
pocket. The former is permissible undercover police work, whereas the latter is entrapment.
4

The opportunity presented to commit a crime was not improper
The altercation in this case occurred at the corner of 7th and Fremont Streets in Las Vegas.
Detective Leavitt posed as a transient to blend into the transient community that lived in that
area. Daniels approached Leavitt and showed him a silver charm necklace. Daniels told
Leavitt to take a look at the necklace. Leavitt responded that he did not want to look at the
necklace and pushed Daniels' arm away. Daniels then thrust his hand back into Detective
Leavitt's face and grabbed the wallet with his other hand.
[Headnote 3]
The police committed no misconduct in this operation. The opportunity presented was
sufficient to lead to a criminal act only by a person predisposed to commit a crime. Though a
suspect is entrapped where the decoy officer poses as an unconscious vagrant with exposed
money hanging from his pockets,
5
Detective Leavitt did not feign unconsciousness and his
money was not readily accessible. Approximately 1 inches of his wallet was exposed and
showed the edges of currency, but not the denominations.
6
Detective Leavitt did not entice
Daniels into stealing the money. Rather, Daniels approached Detective Leavitt on his own
accord, shoved a necklace in Detective Leavitt's face, and grabbed Detective Leavitt's wallet.
This case is closely analogous to both Miller
7
and DePasquale v. State.
8
Here, the decoy
disguised himself to blend into the community that he was patrolling.
____________________

2
Id.

3
Jacobson v. United States, 503 U.S. 540, 548 (1992).

4
Miller, 121 Nev. at 96, 110 P.3d at 56 (footnotes omitted).

5
DePasquale v. State, 104 Nev. 338, 340-41, 757 P.2d 367, 368-69 (1988).

6
See id. at 341, 757 P.2d at 369 (noting that exposed money was insufficient, standing alone, to entrap the
suspect because exposed money merely provided an alternative victim for potential crime).

7
121 Nev. at 96-97, 110 P.3d at 56-57.

8
104 Nev. at 341, 757 P.2d at 369.
........................................
121 Nev. 101, 105 (2005) Daniels v. State
nity that he was patrolling. The decoy presented an alternative target for potential thieves
without posing as a helpless victim. Daniels decided on his own to approach the decoy and to
steal his money. Thus, there was no entrapment.
Daniels was predisposed to commit robbery
[Headnote 4]
It is clear that Daniels was predisposed to commit robbery. We have recognized five
factors that, though not exhaustive, are helpful to determine whether the defendant was
predisposed: (1) the defendant's character, (2) who first suggested the criminal activity, (3)
whether the defendant engaged in the activity for profit, (4) whether the defendant
demonstrated reluctance, and (5) the nature of the government's inducement.
9
Of these five
factors, the most important is whether the defendant demonstrated reluctance which was
overcome by the government's inducement.
10

Daniels' character is unclear from the record, but it is clear that Daniels initiated contact
with Detective Leavitt and engaged in the robbery for profit. Furthermore, Daniels exhibited
no reluctance about his actions until after he had been apprehended. Finally, the critical
balance between government inducement and Daniels' reluctance weighs in favor of
predisposition here. Daniels approached Detective Leavitt, initiated a conversation about the
silver necklace, refused to leave when asked, shoved one hand into Detective Leavitt's face to
distract him, and took Detective Leavitt's wallet with his other hand. These facts demonstrate
a predisposition to commit the crime of robbery. Since Daniels was predisposed to commit
the crime, he was not entrapped.
11

The district court properly admitted prior conviction evidence to show predisposition
[Headnote 5]
Daniels argues that the trial court abused its discretion by admitting a judgment of
conviction from a 1993 burglary he committed in California. Daniels argues that the
conviction was insufficient to indicate a predisposition to commit robbery. We disagree.
[Headnotes 6, 7]
The decision to admit or exclude evidence of prior offenses is within the discretion of the
trial court.
12
[T]hat determination will be reversed only upon a clear showing of abuse."
____________________

9
Foster v. State, 116 Nev. 1088, 1093, 13 P.3d 61, 64 (2000).

10
Id. (emphasis added) (quoting, with approval, language from jury instruction).

11
Id. at 1094-95, 13 P.3d at 65-66.

12
Owens v. State, 96 Nev. 880, 884, 620 P.2d 1236, 1239 (1980).
........................................
121 Nev. 101, 106 (2005) Daniels v. State
will be reversed only upon a clear showing of abuse.
13
The judgment of conviction was
relevant to Daniels' assertion that he was not predisposed to commit robbery. Daniels put his
predisposition to commit robbery in issue when he raised the affirmative defense of
entrapment.
14

Furthermore, the judgment of conviction was not too stale to impeach Daniels' credibility.
NRS 50.095 allows for the impeachment of a witness with evidence of a felony conviction if
10 years or less have elapsed since the termination of his confinement, parole, probation, or
sentence for that conviction. In using that statute as a guide, we conclude that the district
court properly admitted the judgment of conviction because it was used to attack Daniels'
credibility and less than 10 years had elapsed since the termination of Daniels' sentence for
that crime.
The State presented sufficient evidence to convict Daniels of robbery
[Headnote 8]
Daniels argues that there was insufficient evidence presented at trial to show that he used
force or the threat of force to take Detective Leavitt's wallet. Thus, Daniels argues that he
could not have been guilty of robbery. We disagree.
In relevant part, NRS 200.380(1) defines robbery as the unlawful taking of personal
property . . . by means of force or violence or fear of injury, immediate or future, to his person
or property. A taking is by means of force or fear if force or fear is used to: (a) Obtain or
retain possession of the property; (b) Prevent or overcome resistance to the taking; or (c)
Facilitate escape.
15
Daniels argues that he did not commit robbery because he did not attack
Detective Leavitt with his hands or fists. This argument is without merit.
The degree of force used is immaterial if it is used to compel acquiescence to the taking
of or escaping with the property.
16
Here, Daniels shoved his hand into Detective Leavitt's
face in order to show him the necklace. Detective Leavitt testified that Daniels used such
force that Detective Leavitt's own hands were pressed against his face as he attempted to push
Daniels away. Detective Leavitt further testified that the altercation made him nervous
because he had been attacked numerous times in similar altercations while acting in an
undercover capacity.
We conclude that Daniels' actions fit within the definition of robbery. Daniels used force
and the threat of force to prevent Detective Leavitt from noticing or resisting the taking.
____________________

13
Yates v. State, 95 Nev. 446, 450, 596 P.2d 239, 242 (1979).

14
Foster, 116 Nev. at 1094, 13 P.3d at 65.

15
NRS 200.380(1).

16
Id.
........................................
121 Nev. 101, 107 (2005) Daniels v. State
tective Leavitt from noticing or resisting the taking. Having determined that Daniels' actions
fit within the statute, the next question is whether sufficient evidence was presented at trial to
find Daniels guilty of robbery.
[Headnotes 9, 10]
In determining the sufficiency of the evidence below, we consider whether the jury,
acting reasonably, could have been convinced beyond a reasonable doubt of the defendant's
guilt.
17
The critical question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'
18

Sufficient evidence was presented at trial to convict Daniels of robbery. The jury heard
Detective Leavitt testify that Daniels forced his hand into Detective Leavitt's face and that the
contact caused Detective Leavitt to be in apprehension of violence. The jury also heard that
while his hand was in Detective Leavitt's face, Daniels took the wallet from Detective
Leavitt's breast pocket. Under the above test, this evidence was sufficient to sustain a robbery
conviction.
CONCLUSION
We conclude that Daniels was not entrapped because he was predisposed to commit
robbery. Furthermore, the State presented sufficient evidence at trial to convict Daniels of
robbery. Accordingly, we affirm the conviction.
____________
121 Nev. 107, 107 (2005) Sparks v. State
JASON ROBERT SPARKS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 43593
April 28, 2005 110 P.3d 486
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
possession of a controlled substance. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
The supreme court held that: (1) failure to appear (FTA) clause contained in parties'
written plea agreement was not rendered invalid due to fact that no FTA clause was included
in standard form agreement set forth in statute, and {2) FTA clause was not an
unconscionable contractual provision.
____________________

17
Braunstein v. State, 118 Nev. 68, 79, 40 P.3d 413, 421 (2002).

18
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
........................................
121 Nev. 107, 108 (2005) Sparks v. State
dard form agreement set forth in statute, and (2) FTA clause was not an unconscionable
contractual provision.
Affirmed.
Philip J. Kohn, Public Defender, and Danny A. Silverstein, Deputy Public Defender, Clark
County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
When the State enters into a plea agreement, it is held to the most meticulous
standards of both promise and performance with respect to both the terms and the spirit
of the plea bargain.
2. Criminal Law.
Failure to appear (FTA) clause contained in parties' written plea agreement, which
released the State from its promise to recommend, or refrain from recommending, a
particular sentence if the defendant failed to appear for scheduled sentencing
proceeding or committed an additional criminal offense before sentencing, was not
rendered invalid simply because no FTA clause was included in standard form
agreement set forth in statute. Under statute's plain language, written plea agreement
only had to substantially comply with statutory form, and statute's legislative history
indicated that statute had been specifically crafted so that parties retained some
discretion as to form of written agreement. NRS 174.063.
3. Statutes.
Where legislative intent can be clearly discerned from the plain language of the
statute, it is the duty of the supreme court to give effect to that intent and to effectuate,
rather than nullify, the legislative purpose.
4. Criminal Law.
The supreme court will enforce unique terms of a plea agreement even in cases
where there has not been substantial compliance with statute setting forth written form
for plea agreements, provided that the totality of the circumstances indicates that the
guilty plea was knowing, voluntary and intelligent. NRS 174.063.
5. Criminal Law.
Failure to appear (FTA) clause contained in written plea agreement, which
released the State from its promise to recommend, or refrain from recommending, a
particular sentence if the defendant failed to appear for scheduled sentencing
proceeding or committed an additional criminal offense before sentencing, was not an
unconscionable contractual provision where the defendant consented to FTA clause, he
signed written plea agreement containing FTA clause and acknowledged that he had
read it, he admitted that he committed charged offense and made admission under terms
of agreement, and the State's conditional promise was reasonable because contingency
involved the defendant's ability to abide by the law and follow the court's orders.
6. Criminal Law.
It is the district court's acceptance of the parties' bargain that gives the written plea
agreement legal effect, not the defendant's waiver of the preliminary examination.
Before Rose, Gibbons and Hardesty, JJ.
........................................
121 Nev. 107, 109 (2005) Sparks v. State
OPINION
Per Curiam:
In this appeal, we consider whether a provision of the written plea agreement known as the
failure to appear (FTA) clause is legally enforceable. The FTA clause releases the State
from its promise to recommend, or refrain from recommending, a particular sentence if the
defendant fails to appear for a scheduled sentencing proceeding or commits an additional
criminal offense prior to sentencing. We conclude that the FTA clause is valid under Nevada
law. Accordingly, in this case, the State did not breach the plea agreement by exercising its
right under that provision to argue for the imposition of consecutive sentences.
FACTS
While on probation for a theft offense, appellant Jason Robert Sparks was arrested and
charged by way of a criminal complaint with one count each of possession of a controlled
substance with intent to sell and transport of a controlled substance.
At his initial appearance in justice's court, Sparks waived his right to a preliminary hearing
and agreed to enter into a plea bargain with the State. Under the plea agreement, Sparks
would plead guilty to the reduced charge of possession of a controlled substance and the State
would agree to make no recommendation at sentencing.
On March 4, 2004, Sparks entered his guilty plea. The written plea agreement, prepared by
the State and signed by Sparks, contained the following FTA clause:
I understand that if the State of Nevada has agreed to recommend or stipulate to a
particular sentence or has agreed not to present argument regarding the sentence, or
agreed not to oppose a particular sentence, such agreement is contingent upon my
appearance in court on the initial sentencing date (and any subsequent if the sentencing
is continued). I understand that if I fail to appear for the scheduled sentencing date or I
commit a new criminal offense prior to sentencing the State of Nevada would regain
the full right to argue for any lawful sentence.
(Emphases added.) Thereafter, Sparks failed to appear for his scheduled sentencing hearing
and, later, was arrested on additional criminal charges. At a subsequent sentencing hearing,
the State asserted its right under the FTA clause and argued that the sentence imposed should
run consecutively to the sentence imposed in a case in which Sparks was charged with theft.
After hearing arguments from counsel, the district court sentenced Sparks to serve a
prison term of 12 to 30 months to run consecutively to the sentence imposed in the theft
case.
........................................
121 Nev. 107, 110 (2005) Sparks v. State
guments from counsel, the district court sentenced Sparks to serve a prison term of 12 to 30
months to run consecutively to the sentence imposed in the theft case. Sparks filed this timely
appeal.
DISCUSSION
Sparks argues that the State breached the plea agreement at the sentencing hearing by
arguing for consecutive prison terms because, under the terms of the plea bargain, the State
promised it would make no sentencing recommendation. We conclude that Sparks' contention
lacks merit.
[Headnote 1]
When the State enters into a plea agreement, it is held to the most meticulous standards
of both promise and performance' with respect to both the terms and the spirit of the plea
bargain.
1
In this case, the State did not breach the plea agreement by arguing for consecutive
sentences because, pursuant to the FTA clause, Sparks' failure to appear for his first
scheduled sentencing hearing or commission of a subsequent criminal offense released the
State from its obligation to make no sentencing recommendation.
Although Sparks acknowledges that the FTA clause includes language releasing the State
from its promise to make no sentencing recommendation, he argues that the FTA clause is
unenforceable because it is contrary to Nevada law. We disagree.
[Headnote 2]
Sparks first argues that the FTA clause is not valid because it is not included in the
standard form agreement set forth in NRS 174.063. Sparks contends that the Legislature,
mindful of the superior bargaining power of the State and seeking to protect the rights of
criminal defendants throughout the plea bargaining process, has mandated that guilty plea
agreements comply with the written statutory form.
[Headnote 3]
NRS 174.063 sets forth a written statutory form for plea agreements. Technical preciseness
is not necessary, however, and under the plain language of NRS 174.063, a written plea
agreement must only substantially comply with the statutory form.
2
By requiring only
substantial compliance, the Legislature clearly contemplated modifications to the form
agreement. Where legislative intent can be clearly discerned from the plain language of the
statute, it is the duty of this court to give effect to that intent and to effectuate, rather
than nullify, the legislative purpose.
____________________

1
Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986) (quoting Kluttz v. Warden, 99 Nev.
681, 683-84, 669 P.2d 244, 245 (1983)).

2
See also NRS 174.035(2) (If a plea of guilty is made in a written plea agreement, the agreement must be in
substantially the form prescribed in NRS 174.063.).
........................................
121 Nev. 107, 111 (2005) Sparks v. State
statute, it is the duty of this court to give effect to that intent and to effectuate, rather than
nullify, the legislative purpose.
3

Although it is unnecessary to review the legislative history under circumstances where, as
here, the plain language of the statute reveals an unambiguous legislative intent, we note that
one of the proponents of NRS 174.063 explained at a legislative hearing on the provision that
the bill was specifically crafted so that the parties retain some discretion as to the form of the
written agreement, to facilitate the various fact patterns' that arise in criminal law.
4
That
type of flexibility is important to further the key purpose of NRS 174.063: ensuring that
unique terms of a plea bargain are adequately memorialized in order to facilitate the speedy
resolution of collateral attacks on the validity of the plea.
5
Accordingly, we reject Sparks'
contention that the FTA clause is contrary to Nevada law merely because it is not included in
the statutory form agreement set forth in NRS 174.063.
Sparks also argues that the FTA clause is void under Nevada law because it contravenes
this court's holdings in Gamble v. State
6
and Villalpando v. State.
7
We conclude that those
cases are inapposite.
In Gamble, this court held that, where the State alleges that it is released from a promise
made in a plea agreement because of a criminal defendant's alleged breach, the district court
must conduct an evidentiary hearing to determine whether a material breach occurred.
8
Later,
in Villalpando, this court clarified Gamble and concluded that an evidentiary hearing is
unnecessary in instances where the defendant is obviously to blame for breach of the plea
agreement.
9
Both Gamble and Villalpando are inapplicable here because neither case
involved a plea agreement containing an FTA clause or other similar clause conditionally
releasing the State from a particular promise.
[Headnote 4]
This court has, however, implicitly approved of a plea agreement containing an explicit
reservation of a conditional right to argue by the State.
10
In Citti v. State, this court stated:
____________________

3
See Sheriff v. Luqman, 101 Nev. 149, 155, 697 P.2d 107, 111 (1985).

4
Hearing on S.B. 549 Before the Senate Judiciary Comm., 68th Leg. (Nev., June 9, 1995) (summarizing
statement of Clark County Chief Deputy District Attorney Ben Graham).

5
Id.; see also State v. Freese, 116 Nev. 1097, 1106, 13 P.3d 442, 448 (2000).

6
95 Nev. 904, 604 P.2d 335 (1979).

7
107 Nev. 465, 814 P.2d 78 (1991).

8
95 Nev. at 907, 604 P.2d at 337.

9
107 Nev. at 467-68, 814 P.2d at 80.

10
Citti v. State, 107 Nev. 89, 92, 807 P.2d 724, 726 (1991).
........................................
121 Nev. 107, 112 (2005) Sparks v. State
[I]f the State intends to enter into a plea agreement on the basis of an understanding that
the defendant has committed no additional offenses up to the date of the agreement,
such a reservation or condition should be clearly specified in the agreement along with
the specific reservations of right in the State if other such offenses come to light.
11

This court has also recognized that a defendant is entitled to enter into a plea agreement
affecting fundamental rights.
12
For example, this court has upheld a plea agreement
containing an unequivocal waiver of the right to appeal, rather than the conditional waiver
contained in the statutory form and also set forth in NRS 177.015(4).
13
This court will
enforce unique terms of the parties' plea agreement even in cases where there has not been
substantial compliance with NRS 174.063, provided that the totality of the circumstances
indicates that the guilty plea was knowing, voluntary and intelligent.
14
Accordingly, we
reject Sparks' contention that the FTA clause is prohibited by this court's case law.
[Headnote 5]
Sparks last argues that the FTA clause is void because it is an unconscionable contractual
provision surreptitiously included in the agreement by the State without his consent.
Specifically, Sparks argues that, because he was not informed of the FTA clause before
waiving his right to a preliminary hearing, the unfavorable term should not have been
subsequently added to the plea agreement without his express consent, or at the very least,
without additional consideration for his waiver of a valuable right. We disagree.
Our review of the record on appeal indicates that Sparks consented to the FTA clause. He
signed the written plea agreement containing the FTA clause and acknowledged that he had
read it. Also, Sparks solemnly admitted that he committed the charged offense and made that
admission pursuant to the terms of the written plea agreement. By doing so, he should have
reasonably expected that his failure to appear at the first sentencing hearing or commission of
another criminal offense prior to sentencing would cause the State to invoke the right to
argue.
[Headnote 6]
Additionally, we note that the proper time for Sparks to object to a particular term in the
written plea agreement was prior to signing the agreement and entering his guilty plea in the
district court.
____________________

11
Id.

12
Krauss v. State, 116 Nev. 307, 310, 998 P.2d 163, 165 (2000).

13
Cruzado v. State, 110 Nev. 745, 879 P.2d 1195 (1994), overruled on other grounds by Lee v. State, 115
Nev. 207, 985 P.2d 164 (1999).

14
Ochoa-Lopez v. Warden, 116 Nev. 448, 451, 997 P.2d 136, 138 (2000).
........................................
121 Nev. 107, 113 (2005) Sparks v. State
It is the district court's acceptance of the parties' bargain that gives the written plea agreement
legal effect, not the defendant's waiver of the preliminary examination.
15

Finally, we disagree with Sparks that the substance of the FTA provision is
unconscionable because it gives the State the unilateral right to withdraw. In practice, it is the
criminal defendant, not the State, who actually controls whether the State will be allowed to
argue for a particular sentence. Provided the defendant appears at the scheduled sentencing
hearings and refrains from engaging in additional criminal activities before those
proceedings, the State's promise with respect to the sentencing recommendation will be
strictly enforced. Moreover, we conclude that the conditional promise is reasonable because
the contingency involves the defendant's ability to abide by the law and follow the court's
orders, which are relevant considerations for a prosecutor in deciding whether to enter into a
particular plea bargain in the first place. Accordingly, we conclude that the FTA clause is not
unconscionable and is, therefore, enforceable.
16

CONCLUSION
The FTA clause in the plea agreement was lawful and enforceable. Because Sparks
violated the terms of the clause, the State properly argued for consecutive sentences.
Accordingly, we conclude that the State did not breach the plea agreement. We therefore
affirm the judgment of conviction.
____________
121 Nev. 113, 113 (2005) Aviation Ventures v. Joan Morris, Inc.
AVIATION VENTURES, INC., dba VISION AIR, a Nevada Corporation, Appellant, v.
JOAN MORRIS, INC., dba LAS VEGAS TOURIST BUREAU, a Nevada Corporation,
Respondent.
No. 39253
April 28, 2005 110 P.3d 59
Appeal from a district court order granting summary judgment in an action to recover on a
promissory note. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
____________________

15
See Sturrock v. State, 95 Nev. 938, 942-43, 604 P.2d 341, 344-45 (1979) (when a plea agreement is not
consummated, the validity of the defendant's waiver of preliminary hearing is vitiated, and thus the defendant has
a clear right to a preliminary examination).

16
On October 8, 2004, Sparks filed a motion for leave to file a reply to the fast track response. Cause
appearing, we grant the motion and direct the clerk of this court to file the response. We have considered the
argument in the reply in resolving this appeal.
........................................
121 Nev. 113, 114 (2005) Aviation Ventures v. Joan Morris, Inc.
Creditor brought action to collect on promissory note, and debtor alleged that note was to
be repaid from profits of creditor and debtor's joint venture. The district court denied debtor's
motion for continuance for discovery before summary judgment and granted summary
judgment for creditor. Debtor appealed. The supreme court, Rose, J., held that: (1) debtor was
entitled to continuance for discovery before summary judgment, and (2) insolvency of one of
the parties is not necessary to obtain a setoff between two mutually indebted parties,
overruling Campbell v. Lake Terrace, Inc., 111 Nev. 1329, 905 P.2d 163 (1995).
Reversed and remanded.
Lemons Grundy & Eisenberg and Alice G. Campos Mercado, Reno; Eric L. Zubel, Las
Vegas, for Appellant.
Deaner, Deaner, Scann, Malan & Larsen and Susan Williams Scann, Las Vegas, for
Respondent.
1. Judgment.
A district court may grant a continuance for additional discovery before summary
judgment when a party opposing a motion for summary judgment is unable to marshal
facts in support of its opposition. NRCP 56(f).
2. Appeal and Error.
A district court's decision to refuse a request for a continuance for additional
discovery before summary judgment is reviewed for abuse of discretion. NRCP 56(f).
3. Judgment.
A motion for a continuance for additional discovery before summary judgment is
appropriate only when the movant expresses how further discovery will lead to the
creation of a genuine issue of material fact that would preclude summary judgment.
NRCP 56(f).
4. Judgment.
Debtor was entitled to continuance for discovery before summary judgment, in
creditor's action to recover on promissory note; discovery had not yet begun because
parties had not filed joint case conference report, less than eight months passed between
filing of complaint and granting of summary judgment, debtor's motion for continuance
alleged that creditor had refused to give debtor financial information regarding debtor
and creditor's joint venture and that such information was required to determine full
amount of indebtedness because note allegedly was to have been paid from profits of
joint venture, and discovery regarding circumstances surrounding execution of
promissory note was necessary to determine whether parol evidence rule barred
admission of alleged separate agreement that profits from joint venture would be used
to repay promissory note. NRCP 16.1, 56(f).
5. Set-Off and Counterclaim.
Setoff is an equitable remedy that should be granted when justice so requires to
prevent inequity.
........................................
121 Nev. 113, 115 (2005) Aviation Ventures v. Joan Morris, Inc.
6. Set-Off and Counterclaim.
Setoff is a form of counterclaim that a defendant may urge by way of defense or to
obtain a judgment for whatever balance is due.
7. Set-Off and Counterclaim.
Setoff is a doctrine used to extinguish the mutual indebtedness of parties who each
owe a debt to one another.
8. Set-Off and Counterclaim.
The claims that give rise to a setoff need not arise out of the same transaction; they
may be entirely unrelated.
9. Set-Off and Counterclaim.
Insolvency of one of the parties is not necessary to obtain a setoff between two
mutually indebted parties; overruling Campbell v. Lake Terrace, Inc., 111 Nev. 1329,
905 P.2d 163 (1995).
10. Set-Off and Counterclaim.
The purpose behind the doctrine of setoff is to allow mutually indebted parties to
apply the debts of the other so that by mutual reduction everything but the difference is
extinguished.
11. Set-Off and Counterclaim.
Setoff serves the interests of efficiency by allowing two parties with mutual claims
of indebtedness to extinguish their debts against one another in a single proceeding.
Before Rose, Gibbons and Hardesty, JJ.
OPINION
By the Court, Rose, J.:
This is an appeal from a district court order granting respondent's motion for summary
judgment in an action to recover on a promissory note. We conclude that the district court
improperly granted respondent's motion for summary judgment before the development of the
record through discovery. We also conclude that insolvency is not a requirement to obtain a
setoff. Inasmuch as our decision in Campbell v. Lake Terrace, Inc.
1
requires the insolvency
of one of the parties to assert a setoff, that case is overruled.
FACTS AND PROCEDURAL HISTORY
In the early summer of 1996, Aviation Ventures, Inc., d/b/a Vision Air (Vision), a Nevada
corporation, and the Las Vegas Tourist Bureau (LVTB) allegedly formed a joint venture
agreement to set up a wholesale tour company in Las Vegas called Las Vegas Tour and
Travel (LVT&T). Vision admits that both parties failed to document the existence of the joint
venture agreement. Vision's president and chief executive officer is William Acor. Robert
Morris, a friend of Acor's, owned and operated LVTB with his wife Joan Morris {Ms.
____________________

1
111 Nev. 1329, 905 P.2d 163 (1995).
........................................
121 Nev. 113, 116 (2005) Aviation Ventures v. Joan Morris, Inc.
ris, a friend of Acor's, owned and operated LVTB with his wife Joan Morris (Ms. Morris).
Vision avers that under the joint venture agreement, Vision and LVTB agreed to share
ownership and profits equally and, as a result, the two companies divided LVT&T's profits
equally, at least until June or July 1999. To improve profits, Vision charged a discounted rate
to LVT&T for all customers booked on Vision tours and also provided LVT&T with office
space at its own facilities at no extra charge.
According to Vision, this joint venture continued to expand into other aspects of the
parties' businesses and in 1997, the companies entered into a business association under
which Vision and LVTB would then form other businesses. To achieve that purpose, the
companies formed Vision Holidays, Inc., and Tour Coach Leasing, LLC, in 1998.
Subsequently, Vision asserts that it purchased three tour buses at a cost of $400,000 per bus,
paid exclusively by Vision. Ms. Morris, Mr. Morris, William Acor and other Vision officers
signed personal guarantees on the notes for the buses, which Vision maintains is further
evidence of the joint venture agreement. The parties supposedly agreed to share equally in the
profits of the two new companies.
As a new company, Vision needed start-up capital and as a result, Mr. Morris, acting on
behalf of LVTB, agreed to lend Vision $150,000. On or about December 4, 1998, Vision's
chief financial officer executed and delivered a promissory note to LVTB in the amount of
$150,000, which Robert Morris signed on behalf of LVTB. Ms. Morris did not sign the first
note. However, the note was re-executed six times, each time extending the date of maturity,
and Ms. Morris signed the sixth and seventh promissory notes. The final note gave Vision
until December 31, 2000, to make payment.
The loan provided Vision with a line of credit under which it could take advances against
the principal. The note did not discuss a means of repayment. LVTB contends that Vision has
paid nothing on the loan. Acor admitted in his deposition that as of May 2000, Vision had
paid nothing on the loan. Vision contends, however, that Acor and Mr. Morris agreed that
LVTB would be paid with Vision's share of the profits from LVT&T.
Vision alleges that after Mr. Morris' death in November 1999, the business relationship
between Vision and LVTB deteriorated. As a result, LVT&T vacated the offices located at
Vision's facilities on February 15, 2001. While Vision and LVTB divided LVT&T's profits
equally until June or July 1999, LVTB ceased distributing profits from LVT&T to Vision
after 1999. Vision complains that LVTB also declined Vision's requests for financial
information about LVT&T, despite Vision's repeated requests for such information for the
calendar years 2000 and 2001.
........................................
121 Nev. 113, 117 (2005) Aviation Ventures v. Joan Morris, Inc.
such information for the calendar years 2000 and 2001. Vision also sought an accounting to
determine the amount of its profits to be applied to the promissory note.
On July 24, 2001, approximately six months after the maturity date of the promissory note,
Joan Morris, Inc., d/b/a LVTB, a Nevada corporation, filed a lawsuit against Vision and
asserted claims of unjust enrichment and breach of the promissory note. In response, on
September 18, 2001, Vision filed an answer and alleged various defenses including the
defense of setoff. Vision contended that because LVTB owed it money pursuant to other
business transactions between the parties, that amount should be offset against the amount
due on the note.
In December 2001, before the parties had held the early case conference required under
NRCP 16.1, LVTB moved for summary judgment, basing the motion on the terms of the
promissory note and Acor's admission of nonpayment. Discovery had not yet begun at this
time. In opposition, Vision requested a continuance under NRCP 56(f) to allow it to engage
in discovery in order to marshal facts to oppose the motion.
To support its opposition, Vision presented affidavits from Acor, and Gary Acquavella,
Vision's chief financial officer, both of whom attested to the business association plan, the
creation of the promissory note, and the terms under which the note would be repaid. Vision
maintained that it demonstrated a genuine issue of material fact as to Vision's right to set off
amounts owed by Ms. Morris and LVTB. Vision argued that further discovery was necessary
on these issues.
The district court denied Vision's request for an NRCP 56(f) continuance and granted
LVTB's motion for summary judgment, with judgment entered in favor of LVTB in the
amount of $202,959.41, including interest and costs. The district court entered the order and
judgment in February 2002, approximately seven months after LVTB filed its complaint and
before the initiation of discovery. Vision appeals the district court's order.
DISCUSSION
NRCP 56(f) motion for a continuance
Vision contends that the district court erred in granting summary judgment because it
improperly denied Vision's NRCP 56(f) request for a continuance to allow it to conduct
discovery to oppose the summary judgment motion. We agree.
[Headnotes 1-3]
NRCP 56(f) permits a district court to grant a continuance when a party opposing a motion
for summary judgment is unable to marshal facts in support of its opposition.
........................................
121 Nev. 113, 118 (2005) Aviation Ventures v. Joan Morris, Inc.
shal facts in support of its opposition.
2
A district court's decision to refuse such a
continuance is reviewed for abuse of discretion.
3
Furthermore, a motion for a continuance
under NRCP 56(f) is appropriate only when the movant expresses how further discovery will
lead to the creation of a genuine issue of material fact.
4

In Halimi v. Blacketor, this court concluded that a district court had abused its discretion
when it denied an NRCP 56(f) motion for a continuance and granted summary judgment in a
case where the complaint had been filed only a year before summary judgment was granted.
5
This court noted that summary judgment is improper when a party seeks additional time to
conduct discovery to compile facts to oppose the motion.
6
Furthermore, this court held that
when no dilatory motive was shown, it was an abuse of discretion to refuse a request for
further discovery at such an early stage in the proceedings.
7

[Headnote 4]
In its opposition to the motion for summary judgment, Vision informed the district court
that the parties had yet to file a joint case conference report as required under NRCP 16.1
and that, as a result, discovery had not yet begun.
____________________

2
Ameritrade, Inc. v. First Interstate Bank, 105 Nev. 696, 699, 782 P.2d 1318, 1320 (1989). NRCP 56(f)
provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as is just.

3
Harrison v. Falcon Products, 103 Nev. 558, 560, 746 P.2d 642, 643 (1987).

4
Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 431, 581 P.2d 9, 11 (1978) (Rule 56(f), NRCP,
provides that a court may, in its discretion, refuse an application for summary judgment or order a continuance,
[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition. . . .' There is nothing in the record before this court which would
support a finding that the district court abused its discretion in this instance. Appellant made no attempt to
identify in his affidavit what facts might be obtained, in addition to the records, depositions, and affidavits
already on file, that were essential to justify his opposition.).

5
105 Nev. 105, 106, 770 P.2d 531, 531-32 (1989).

6
Id. at 106, 770 P.2d at 531; see also Ameritrade, 105 Nev. at 699-700, 782 P.2d at 1320 (concluding that
the district court abused its discretion when summary judgment was granted only eight months after the filing of
the complaint).

7
Halimi, 105 Nev. at 106, 770 P.2d at 531-32; see also Ameritrade, 105 Nev. at 700, 782 P.2d at 1320;
Summerfield v. Coca Cola Bottling Co., 113 Nev. 1291, 1294-95, 948 P.2d 704, 705-06 (1997) (holding that
district court abused its discretion by denying an NRCP 56(f) motion for continuance when complaint had been
filed two years previous and party was not dilatory in conducting discovery).
........................................
121 Nev. 113, 119 (2005) Aviation Ventures v. Joan Morris, Inc.
case conference report as required under NRCP 16.1 and that, as a result, discovery had not
yet begun. In order to obtain discovery, Vision filed a motion for a continuance and attached
affidavits from Vision's president and from its chief financial officer that detailed LVTB's
refusal to give Vision financial information regarding LVT&T. Vision argued that this
information was required to determine the full amount of Vision's indebtedness on the note.
We agree with Vision that the district court should have granted its motion for a
continuance to allow it to engage in discovery. Vision clearly enunciated how discovery
would allow it to develop the record in order to properly oppose LVTB's motion.
8
Furthermore, less than eight months had passed between the complaint and the granting of
summary judgment. There is no evidence in the record that Vision lacked diligence in
conducting discovery. More importantly, Vision requested a continuance before either party
had filed a joint case conference report, which must precede discovery.
In this case, discovery was necessary for the court to appropriately consider the
circumstances surrounding the agreement on the note, a necessary corollary to properly
determining whether evidence of a separate agreement to pay the note with LVT&T's profits
violates the parol evidence rule. Because it is unclear whether genuine issues of material fact
exist as to the circumstances surrounding the making of the note and its terms, we conclude
that the district court should have granted Vision's motion for a continuance to allow for
proper development of the record. As a result, we further conclude that LVTB's motion for
summary judgment was improperly granted.
9

The defense of setoff
In its answer, Vision asserted the defense of setoff, arguing that it was entitled to such
relief due to the parties' mutual indebtedness. Vision opposed LVTB's motion for summary
judgment, arguing that genuine issues of material fact exist as to Vision's affirmative defense
of setoff. We agree.
[Headnotes 5-8]
Setoff is an equitable remedy that should be granted when justice so requires to prevent
inequity.
10
Setoff is a form of counterclaim which a defendant may urge by way of
defense or to obtain a judgment for whatever balance is due."
____________________

8
Cf. Bakerink, 94 Nev. 428, 581 P.2d 9 (concluding that district court did not abuse its discretion in denying
request for continuance where party failed to identify how discovery was necessary to oppose motion for
summary judgment).

9
We decline to address the issue of whether evidence of a separate agreement to pay the note with LVT&T's
profits is barred by the parol evidence rule because we conclude that further discovery is necessary to properly
address that issue.

10
Campbell, 111 Nev. at 1333, 905 P.2d at 165.
........................................
121 Nev. 113, 120 (2005) Aviation Ventures v. Joan Morris, Inc.
claim which a defendant may urge by way of defense or to obtain a judgment for whatever
balance is due.
11
Setoff is a doctrine used to extinguish the mutual indebtedness of parties
who each owe a debt to one another.
12
In fact, the claims that give rise to a setoff need not
arise out of the same transaction; they may be entirely unrelated.
13
At least one court has
allowed a defendant to assert the defense of setoff in an action between original parties to a
note.
14

In Campbell, this court set forth two requirements that must be met under Nevada law to
successfully assert the defense of setoff: (1) each party must have a valid and enforceable debt
against the other party, and (2) one of the parties must be insolvent.
15
This court concluded
that a setoff was improper because the parties were not mutually indebted to one another.
16
The Campbell case therefore did not discuss the insolvency requirement.
In Campbell,
17
and the subsequent Nevada cases addressing the issue of setoff, the
insolvency requirement was based on the reasoning of an Oregon case, Korlann v. E-Z Pay
Plan, Inc.,
18
which dealt with the issue in the context of a debtor-creditor relationship. In that
case, the Oregon Supreme Court stated:
Setoff is usually allowed where, through a course of separate transactions, two
parties become indebted to each other. If one of the parties becomes insolvent, the
other, instead of paying his debt in full and receiving a dividend on what is owed him,
is held only for the difference, if any, between his debt and the insolvent's. The reason
for such a rule is said to lie in the injustice of a contrary rule.
19

From this language, we imported the requirement of insolvency. However, the Oregon
Supreme Court stated further that [b]etween solvent merchants, setoffs are a matter of
routine bookkeeping.
20
In Paul B. Emerick Co. v. Wm. Bohnenkamp & Associates, Inc., the
Oregon Supreme Court noted that:
Williston says that Where both parties to a controversy are solvent, the right of set-off
has merely procedural importance.
____________________

11
Trueheart v. Braselton, 875 S.W.2d 412, 415 (Tex. App. 1994).

12
Id.

13
Campbell, 111 Nev. at 1332, 905 P.2d at 165.

14
Trueheart, 875 S.W.2d at 415-16.

15
111 Nev. at 1333, 905 P.2d at 165.

16
Id.

17
Id.

18
428 P.2d 172 (Or. 1967).

19
Id. at 175.

20
Id.
........................................
121 Nev. 113, 121 (2005) Aviation Ventures v. Joan Morris, Inc.
tance. . . . But if one of them is insolvent, it is a substantial disadvantage to the solvent
party if he is compelled to discharge in full the debt which he owes and recover only a
fraction of the debt which is owing to him.
21

Therefore, setoff should be allowed in cases where both parties are solvent, but is especially
necessary in cases where one party is insolvent to protect the interests of the solvent party.
[Headnotes 9-11]
We now conclude that insolvency is not necessary to obtain a setoff between two mutually
indebted parties. This conclusion coheres with the purpose behind the doctrine of setoff,
which allows mutually indebted parties to apply the debts of the other so that by mutual
reduction everything but the difference is extinguished.
22
It also serves the interests of
efficiency by allowing two parties with mutual claims of indebtedness to extinguish their
debts against one another in a single proceeding. Therefore, we overrule that portion of
Campbell that requires insolvency for the claim to apply.
As a result, Vision is entitled to assert setoff as a defense in the instant case. We also
conclude that it is unclear whether genuine issues of material fact exist regarding the issue of
the amount of Vision's indebtedness. Further discovery will clarify whether summary
judgment is appropriate in this case. Therefore, we reverse the district court's order granting
summary judgment and remand for further proceedings consistent with this opinion.
Motion to amend
Vision also contends that the district court erred in denying its motion to amend its answer
to add a counterclaim. This court has stated that the determination to grant leave to amend to
add a counterclaim is within the sound discretion of the trial court, and is not to be disturbed
on appeal in the absence of a gross abuse thereof.
23
At this time, we cannot conclude that
the district court committed such an abuse. However, we note that once further discovery has
been conducted, leave to amend may be appropriate to allow for the efficient disposal of the
claims and counterclaims between Vision and LVTB.
____________________

21
409 P.2d 332, 334 (Or. 1965) (quoting 6 Williston on Contracts 1998, at 5602 (rev. ed. 1938)) ([I]f this
had been a contest between Emerick and a solvent Bohnenkamp there would have been no doubt as to Emerick's
right to a set-off.).

22
Campbell, 111 Nev. at 1332, 905 P.2d at 165.

23
Nev. Bank Commerce v. Edgewater, Inc., 84 Nev. 651, 653, 446 P.2d 990, 992 (1968).
........................................
121 Nev. 113, 122 (2005) Aviation Ventures v. Joan Morris, Inc.
CONCLUSION
The district court improperly denied Vision's motion for a continuance under NRCP 56(f).
That continuance should have been granted to allow development of the record through
discovery. Consequently, we conclude that the district court erred by granting LVTB's motion
for summary judgment at such an early stage in the proceedings. We further conclude that it
is not necessary for a party to demonstrate the insolvency of one of the parties to
appropriately assert a claim of setoff and inasmuch as Campbell requires one of the parties to
be insolvent to achieve setoff, that case is overruled.
Accordingly, we reverse the district court's order granting summary judgment and remand
this case to the district court for further proceedings consistent with this opinion.
Gibbons and Hardesty, JJ., concur.
____________
121 Nev. 122, 122 (2005) Wright v. State, Dep't of Motor Vehicles
JOHN KEVIN WRIGHT, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES, Respondent.
No. 41427
May 12, 2005 110 P.3d 1066
Appeal from a district court order affirming the Department of Motor Vehicles' revocation
of appellant's driver's license. Eighth Judicial District Court, Clark County; David Wall,
Judge.
The supreme court held that: (1) factors for requesting evidentiary test for blood alcohol
concentration, under implied consent law, are not limited to an officer smelling alcohol on the
motorist's breath and the officer observing that the motorist has bloodshot eyes; (2) officer
had reasonable grounds for requesting evidentiary test; and (3) officer's certification of cause
for revocation was sufficient.
Affirmed.
Law Offices of John G. Watkins and John Glenn Watkins, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, and Brent D. Michaels, Deputy Attorney General,
Carson City, for Respondent.
1. Administrative Law and Procedure.
The supreme court's role in reviewing an administrative decision is identical to that
of the district court: to review the evidence presented to the agency in order to
determine whether the agency's decision was arbitrary or capricious and was thus an
abuse of the agency's discretion.
........................................
121 Nev. 122, 123 (2005) Wright v. State, Dep't of Motor Vehicles
trary or capricious and was thus an abuse of the agency's discretion. NRS 233B.135.
2. Administrative Law and Procedure.
The court's review of an administrative agency's decision is limited to the record,
and the court may not substitute its judgment for that of the agency regarding questions
of fact.
3. Administrative Law and Procedure.
The question the court must address when reviewing an administrative agency's
decision is whether substantial evidence supports the agency's decision.
4. Administrative Law and Procedure.
Substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion.
5. Administrative Law and Procedure.
Substantial evidence need not be voluminous and may even be inferentially shown
by a lack of certain evidence.
6. Automobiles.
The factors for establishing reasonable grounds to believe that the motorist is under
the influence of alcohol, as required under implied consent law to request that motorist
submit to evidentiary test for blood alcohol concentration, are not limited to an officer
smelling alcohol on the motorist's breath and the officer observing that the motorist has
bloodshot eyes. The officer may consider many other factors, even when the motorist
does not have bloodshot eyes or smell of alcohol. NRS 484.383(1).
7. Automobiles.
Officer had reasonable grounds, as was required under implied consent law, to
believe that motorist was under the influence of alcohol and therefore to request that
motorist submit to evidentiary test for blood alcohol concentration where motorist
rear-ended another vehicle, officer smelled moderate odor of alcohol on motorist,
motorist admitted that he had consumed about four drinks that day, motorist's gait was
unsteady and he had to place his hands on car several times to steady himself, and
motorist failed all field sobriety tests, including horizontal gaze nystagmus test. NRS
484.383(1).
8. Automobiles.
Officer's certification of cause for revocation, by Department of Motor Vehicles
(DMV), of motorist's license to drive supported license revocation, though certification
referred to blood alcohol concentration by weight, and license revocation statute had
been amended to omit the reference to by weight in the standard for revocation; the
old and new standards had the same meaning, and officer's certification was based on
evidentiary test result, which met the new standard, i.e., officer did not submit, or even
sign, certification of cause until he received evidentiary test result from laboratory.
NRS 484.038, 484.385(2), (3).
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
Per Curiam:
In this appeal, we clarify that the decision in State, Department of Motor Vehicles v.
McLeod
1
does not limit the factors that an officer may consider when determining whether
reasonable grounds exist for an evidentiary test.
____________________

1
106 Nev. 852, 801 P.2d 1390 (1990).
........................................
121 Nev. 122, 124 (2005) Wright v. State, Dep't of Motor Vehicles
ficer may consider when determining whether reasonable grounds exist for an evidentiary
test. Substantial evidence supports the Department of Motor Vehicles' (DMV) revocation of
appellant's driver's license. We, therefore, affirm the district court's order denying appellant's
petition for judicial review of the determination.
FACTS
In January 2002, Officer Lewis of the Henderson Police Department proceeded to the
scene of a rear-end motor vehicle accident in Henderson, Nevada. Upon arrival, Officer
Lewis observed appellant John Kevin Wright, the owner of the rear vehicle, standing in the
way of oncoming traffic. Officer Lewis instructed Wright to proceed toward the patrol unit.
Officer Lewis noted that Wright's gait was unsteady, as if he was unsure of his next step,
and that Wright needed to steady himself by placing one hand on a vehicle. In response to
Officer Lewis's inquiry as to what happened, Wright turned and moved away. Officer Lewis
then instructed him to come back to the patrol unit, after which Officer Lewis, at some point,
noted a moderate smell of alcohol. Wright admitted to having consumed about four drinks.
Wright then submitted to, and failed, a series of standardized field sobriety tests. During the
tests, Wright informed Officer Lewis that he had knee problems and had undergone several
knee surgeries. Officer Lewis took that information into account when administering the field
sobriety tests. During a horizontal gaze nystagmus test, Officer Lewis observed six indicators
of intoxication that would not be affected by knee problems. After confirming that Wright
had been in physical control of the rear vehicle, Officer Lewis placed Wright under arrest for
driving under the influence of intoxicating liquor and for following the front vehicle too
closely, which resulted in the accident.
Officer Lewis transported Wright to the Henderson Detention Center, where a nurse
obtained a blood sample from Wright's arm. Subsequent laboratory testing confirmed that on
the night in question Wright's blood alcohol content was 0.23 gram per 100 milliliters of
blood.
Under NRS 484.385(2), Officer Lewis submitted a certificate of cause, with the
evidentiary test result attached, to the DMV, requesting that Wright's driver's license be
revoked. The DMV accordingly revoked Wright's license.
After conducting an administrative hearing, a DMV hearing officer upheld the revocation
of Wright's driving privileges. The DMV hearing officer concluded that Officer Lewis had
reasonable grounds to believe that Wright was driving while under the influence of
intoxicating liquor and that the evidentiary test revealed a concentration of 0.10 or more of
alcohol in Wright's blood.
........................................
121 Nev. 122, 125 (2005) Wright v. State, Dep't of Motor Vehicles
The district court denied Wright's subsequent petition for judicial review. Wright appeals.
DISCUSSION
[Headnotes 1-5]
This court's role in reviewing an administrative decision is identical to that of the district
court: to review the evidence presented to the agency in order to determine whether the
agency's decision was arbitrary or capricious and was thus an abuse of the agency's
discretion.
2
In our review, we are limited to the record and may not substitute our judgment
for that of the agency regarding questions of fact.
3
The question this court must address is
whether substantial evidence supports the agency's decision.
4
Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.
5
Additionally,
[s]ubstantial evidence need not be voluminous and may even be inferentially shown by [a]
lack of [certain] evidence.
6
The burden on appeal is on the party opposing the
administrative decision.
7

Reasonable grounds for sobriety testing
Wright first contends that the officer ordered the evidentiary blood test without reasonable
grounds. We disagree.
[Headnote 6]
A person is deemed to have consented to an evidentiary test of blood, urine, or breath
under NRS 484.383(1) if an officer has reasonable grounds to believe that the person is under
the influence of alcohol.
8
Wright contends that this court, in McLeod,
9
held that the
reasonable-grounds requirement is satisfied only when an officer smells alcohol on an
individual's breath and the individual has bloodshot eyes. Wright argues that, because he did
not have bloodshot eyes, Officer Lewis did not have reasonable grounds to request that he
submit to an evidentiary test.
____________________

2
United Exposition Service Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d 423, 424 (1993); see also NRS
233B.135 (setting forth standard for judicial review of an administrative agency's decision).

3
United Exposition, 109 Nev. at 423-24, 851 P.2d at 424.

4
Id. at 424, 851 P.2d at 424.

5
Id. at 424, 851 P.2d at 424-25.

6
City of Reno v. Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545, 548 (1994).

7
NRS 233B.135(2).

8
NRS 484.383(1).

9
106 Nev. at 855, 801 P.2d at 1392.
........................................
121 Nev. 122, 126 (2005) Wright v. State, Dep't of Motor Vehicles
Wright, however, misperceives this court's holding in McLeod. The indications of
intoxication discussed in McLeod serve only as examples of the factors that may establish
reasonable grounds to require that a person submit to an evidentiary test. An officer may
consider many other factors when determining whether reasonable grounds exist for an
evidentiary test, even when a person does not have bloodshot eyes or smell of alcohol.
McLeod did not in any way limit the factors that officers may use to determine whether there
are reasonable grounds to believe that a person is impaired.
[Headnote 7]
Substantial evidence supports Officer Lewis's decision to require an evidentiary test. First,
although Wright contends that he did not have bloodshot eyes, there was no testimony to this
effect. Second, Wright was involved in a car accident in which he rear-ended another vehicle.
Third, Officer Lewis smelled a moderate odor of alcohol on Wright, and Wright admitted that
he had consumed about four drinks that day. Fourth, Officer Lewis testified that Wright's gait
was unsteady, as if he was unsure of his next step, and that Wright had to place his hands on
the car several times to steady himself. Finally, Wright performed a series of field sobriety
tests, including a horizontal gaze nystagmus test, all of which he failed. Accordingly, we
conclude that Officer Lewis had adequate grounds to require that Wright submit to an
evidentiary test.
Reliability of field sobriety tests
Wright next argues that the field sobriety tests, as administered, were unreliable indicators
of intoxication and, therefore, Officer Lewis improperly relied on them to establish
reasonable grounds for evidentiary testing. Central to Wright's argument is the National
Highway Transportation Safety Administration's (NHTSA) recognition that persons with
physical disabilities will have difficulty performing tests that are designed to evaluate a
person's balance. Wright, however, informed Officer Lewis of his knee problems before
submitting to the field sobriety tests, and Officer Lewis considered Wright's knee problems
when he administered the tests.
Wright asserts that the NHTSA Student Manual requires that officers administer tests in a
standardized manner, and that the validity of the test results is compromised if any element
of the test is changed. Wright further asserts that the student manual does not permit an
officer to modify a field sobriety test by considering physical disabilities. Wright, however,
fails to provide a copy of the manual in the record, nor is there any evidence that Officer
Lewis modified any of the tests. Wright did not cross-examine Officer Lewis at the hearing
on the type of tests that were administered or how Wright's knee problems were taken into
consideration.
........................................
121 Nev. 122, 127 (2005) Wright v. State, Dep't of Motor Vehicles
how Wright's knee problems were taken into consideration. Moreover, Officer Lewis testified
that he administered several tests that did not depend on Wright's ability to balance, including
the horizontal gaze nystagmus test, which Wright failed.
On appeal, Wright contends for the first time that no evidence suggested that Officer
Lewis had been properly trained to administer field sobriety tests and that, therefore, the tests
do not constitute reliable evidence of Wright's intoxication. Even if Wright had properly
preserved his argument, which he did not, Wright fails to provide any facts or law supporting
his contention.
10
Accordingly, we reject Wright's challenges to the field sobriety tests
conducted in this case.
DMV's revocation authority
[Headnote 8]
Wright contends that the DMV lacked jurisdiction to initiate a driver's license revocation
proceeding because the DMV had insufficient information. We view this as a separate
challenge to whether substantial evidence supported the revocation decision. Wright also
contends that the DMV did not receive valid documentation pertaining to his arrest and,
therefore, there was insufficient evidence supporting revocation. Wright further argues that
the officer's certification of cause and the evidentiary test result were contradictory.
Specifically, Wright notes that Officer Lewis signed the certification of cause, stating that
Wright had an alcohol content of 0.10 percent or more by weight in his blood, while NRS
484.385(2) required that the person charged have a concentration of alcohol of [0.10] or
more in his blood.
11
The term by weight was deleted from the statute in 1999.
12

The DMV counters that the previous standard, 0.10 percent or more by weight, has the
same meaning as the new standard, concentration of alcohol of [0.10] or more in his blood.
We agree.
NRS 484.038 defines the new standard as [0.10] gram or more of alcohol per 100
milliliters of the blood.
13
The previous standard was defined as a concentration of alcohol
in the blood . . . of a person of 0.10 gram or more by weight of alcohol .
____________________

10
See SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984) (declining to consider assignments of
error not supported by citation to relevant authority); see also NRAP 28(a)(4) (requiring that appellant provide
argument in opening brief that includes reasons for contentions with citations to the authorities, statutes, and
parts of the record relied on).

11
In 2003, the Nevada Legislature amended NRS 484.385, replacing 0.10 with 0.08. See 2003 Nev. Stat., ch.
421, 9, at 2562.

12
See 1999 Nev. Stat., ch. 480, 6, at 2451; id. 13, at 2455.

13
In 2003, the Nevada Legislature amended NRS 484.038, replacing 0.10 with 0.08. See 2003 Nev. Stat., ch.
421, 5, at 2559.
........................................
121 Nev. 122, 128 (2005) Wright v. State, Dep't of Motor Vehicles
person of 0.10 gram or more by weight of alcohol . . . [p]er 100 milliliters of his blood.
14
The DMV also suggests that, because gram is a measurement of weight, the term by
weight in the previous standard was merely redundant wording that has since been removed.
The DMV, therefore, contends that the two standards are similarly defined and have the same
meaning.
Nevada law directs the DMV to revoke a driver's license in certain situations. Under NRS
484.385(2), when an evidentiary test reveals that an individual had a concentration of
alcohol of [0.10] or more in his blood while driving a motor vehicle, the police officer must
submit to the DMV a copy of the evidentiary test result and a written certificate that he had
reasonable grounds to believe that the person had been driving or in actual physical control of
a vehicle with a concentration of alcohol of [0.10] or more in his blood. The DMV, upon
receiving the certificate, and after examining the certificate and copy of the result of the
chemical test, and finding that revocation is proper, must revoke the person's driving
privileges.
15
That is what occurred here.
To explain, the record demonstrates that Officer Lewis relied on the evidentiary test result,
which meets the applicable standard, to complete the certification of cause. Indeed, at the
hearing, Officer Lewis testified that he did not submit, or even sign, the certification of cause
until he received the evidentiary test result from the laboratory. Thus, the certification of
cause is based on the evidentiary test result, which established that Wright was significantly
over the legal alcohol limit. Accordingly, because there is substantial evidence in the record
supporting the DMV's revocation decision, Wright's argument is without merit.
CONCLUSION
For the foregoing reasons, we affirm the district court's order upholding the DMV's
revocation of appellant's driver's license.
____________________

14
NRS 484.0135 (1989) (amended 1999), replaced in revision by NRS 484.038.

15
NRS 484.385(3).
____________
........................................
121 Nev. 129, 129 (2005) Jezdik v. State
MICHAEL JEZDIK, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41876
May 12, 2005 110 P.3d 1058
Appeal from a judgment of conviction entered upon jury verdicts finding appellant guilty
on one count of obtaining and using the personal identification of another, three counts of
fraudulent use of a credit or debit card and two counts of burglary. Eighth Judicial District
Court, Clark County; Nancy M. Saitta, Judge.
The supreme court, Maupin, J., held that: (1) defendant placed his character at issue
through testimony that he had never been accused of anything prior to these current
charges; (2) the rules of evidence do not prohibit a party from introducing extrinsic evidence
specifically rebutting the adversary's proffered evidence of good character, overruling
Rowbottom v. State, 105 Nev. 472, 779 P.2d 934 (1989); (3) witness's testimony was
admissible under limited exception to the collateral-fact rule to rebut defendant's proffered
character testimony; (4) court would decline to consider whether it was plain error to allow
detective to testify as a lay witness that signatures on store receipts matched the signature on
defendant's voluntary statement; and (5) there was no evidence to support finding that
defendant fraudulently used credit card at particular grocery store named in amended
information.
Affirmed in part and reversed in part.
Carmine J. Colucci & Associates and Carmine J. Colucci, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
The supreme court reviews a district court's decision to admit or exclude evidence
for an abuse of discretion.
2. Criminal Law.
Defendant placed his character at issue through testimony that he had never been
accused of anything prior to these current charges, such that detective and defendant's
father-in-law could testify to defendant's character. NRS 48.045(1)(a), 48.055.
3. Criminal Law.
As a general matter, when a defendant chooses to introduce character evidence in the
form of reputation or opinion evidence, the prosecution is similarly limited in its
rebuttal evidence and can only inquire into specific acts of conduct on
cross-examination. NRS 48.045(1)(a).
........................................
121 Nev. 129, 130 (2005) Jezdik v. State
4. Witnesses.
Under the collateral-fact rule, it is error to allow the State to impeach a witness's
credibility with extrinsic evidence relating to a collateral matter; facts are collateral if
they are outside the controversy, or are not directly connected with the principal matter
or issue in dispute.
5. Witnesses.
The collateral-fact rule, which prohibits the State from impeaching a witness's
credibility with extrinsic evidence relating to a collateral matter, has limited
application.
6. Witnesses.
The collateral-fact rule, which prohibits the State from impeaching a witness's
credibility with extrinsic evidence relating to a collateral matter, does not limit the
scope of cross-examination; an examiner can question a witness on practically any
aspect of the witness's direct testimony.
7. Witnesses.
The core prohibition of the collateral-fact rule, which prohibits the State from
impeaching a witness's credibility with extrinsic evidence relating to a collateral matter,
applies when the witness to be impeached has already left the stand and the former
cross-examiner later calls a second witness or proffers an exhibit to impeach the earlier
witness's credibility.
8. Witnesses.
The policy behind the collateral-fact rule, which prohibits the State from impeaching
a witness's credibility with extrinsic evidence relating to a collateral matter, is to
prevent the cross-examiner from injecting collateral matters into the trial by setting the
witness up and then allowing the very party that injected the matter into the trial to
impeach the witness's credibility with extrinsic evidence relating to those collateral
matters.
9. Witnesses.
Most methods of impeachment are exempt from the collateral-fact rule, which
prohibits the State from impeaching a witness's credibility with extrinsic evidence
relating to a collateral matter.
10. Witnesses.
The collateral-fact rule, which prohibits the State from impeaching a witness's
credibility with extrinsic evidence relating to a collateral matter, does not apply to
attacks on a witness's ulterior motive for testifying, attacks on a witness's capacity or
personal knowledge, or impeachment using criminal convictions.
11. Witnesses.
The collateral-fact rule, which prohibits the State from impeaching a witness's
credibility with extrinsic evidence relating to a collateral matter, only truly applies
when a specific contradiction is coupled with impeachment by a prior inconsistent
statement or impeachment using extrinsic prior bad acts not resulting in a conviction.
12. Witnesses.
A specific contradiction involving extrinsic evidence of a prior bad act generally
implicates the collateral-fact rule, which prohibits the State from impeaching a
witness's credibility with extrinsic evidence relating to a collateral matter. NRS
50.085(3).
13. Criminal Law; Witnesses.
The rules of evidence do not prohibit a party from introducing extrinsic evidence
specifically rebutting the adversary's proffered evidence of good character; however,
when a party resorts to extrinsic evidence to show a specific contradiction with the
adversary's proffered testimony, the evidence should squarely contradict the
adverse testimony; overruling Rowbottom v.
........................................
121 Nev. 129, 131 (2005) Jezdik v. State
show a specific contradiction with the adversary's proffered testimony, the evidence
should squarely contradict the adverse testimony; overruling Rowbottom v. State, 105
Nev. 472, 779 P.2d 934 (1989). NRS 50.085(3).
14. Criminal Law.
Witness's explicit testimony that defendant admitted to wrongfully obtaining a credit
card in witness's name, and that defendant attempted to persuade witness to conceal the
fraud after the authorities discovered the card in defendant's home, was admissible
under limited exception to the collateral-fact rule to rebut defendant's proffered
character testimony that he had never been accused of anything prior to charges of
fraudulent use of a credit card and other charges, even though witness's testimony did
not explicitly establish that defendant was aware that accusations had been lodged
against him. NRS 50.085(3).
15. Criminal Law.
Supreme court would decline to consider whether it was plain error in credit card
fraud trial to allow detective to testify as a lay witness that signatures on store receipts
matched the signature on defendant's voluntary statement, as defense counsel's reason
for not objecting to the testimony was not apparent on the record. NRS 50.265(2).
16. False Pretenses.
There was no evidence to support finding that defendant fraudulently used credit
card at particular grocery store named in amended information; store receipt admitted
into evidence at trial was from a store that was not named in information, and receipt
was only evidence that placed defendant at store at time of alleged fraudulent use.
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
By the Court, Maupin, J.:
In this appeal we consider the extent to which the State may rebut character evidence
introduced by the defendant in a criminal case.
This matter involves allegations of identity theft and fraudulent use of a credit card. The
State initially filed charges against appellant Michael Jezdik
1
relating to numerous purchases
made in Nevada and California in late April and early May of 2001. However, unable to
obtain receipts supporting many of the charges, the State ultimately only pursued charges
concerning purchases at three Las Vegas grocery stores on May 6, 2001: Vons, Albertsons,
and Raley's. A jury convicted Jezdik on a single count of obtaining and using identification
of another, three counts of fraudulent use of a credit card, and two counts of burglary.
____________________

1
We note that the district court documents reflect different spellings of appellant's name: Michal and
Michael. Because the judgment of conviction spells appellant's first name as Michael, that is the spelling we will
use in this opinion.
........................................
121 Nev. 129, 132 (2005) Jezdik v. State
ing and using identification of another,
2
three counts of fraudulent use of a credit card,
3
and
two counts of burglary.
4

Jezdik contends on appeal that: (1) the district court erred in allowing the State to
introduce prior bad act evidence in rebuttal to Jezdik's character testimony on direct
examination, (2) the district court's admission of lay witness testimony regarding handwriting
comparisons constitutes plain error, (3) insufficient evidence supports the verdicts, (4) his
trial counsel rendered ineffective assistance, and (5) cumulative error warrants reversal. We
conclude that the district court properly allowed admission of rebuttal evidence in response to
improper evidence of character either intentionally or inadvertently introduced during defense
counsel's direct examination of Jezdik. Further, with the exception of one count of fraudulent
use and one count of burglary, we conclude that sufficient evidence supports the verdicts.
Finally, we decline to reach Jezdik's claims of ineffective assistance of counsel
5
and
conclude that Jezdik's remaining assignments of error are without merit.
FACTS AND PROCEDURAL HISTORY
Jezdik and the victim in this case, Anna Behran, are both Czechoslovakian immigrants
who met in Las Vegas in early 1997. They became romantically involved for a brief period
but soon parted ways. Near the end of 2000, they renewed their friendship. Shortly thereafter,
Behran informed Jezdik that she was interested in purchasing a home but was uncertain of the
process. Jezdik, who had just completed a mortgage application himself, informed Behran
that she could complete a mortgage application online and save money. According to her trial
testimony, Jezdik offered to help her with the transaction with the aid of his personal home
computer.
In February or March 2001, Behran and Jezdik completed an online mortgage application
from Jezdik's residence, located at 3400 Termination Court in Las Vegas. During the
application process, Jezdik gained access to Behran's social security number, her mother's
maiden name and other confidential information. Behran testified at trial that Jezdik and her
estranged husband were the only people with access to this information. Behran further
testified that she never gave Jezdik permission to use her personal information to obtain
a credit card and that she never went to Jezdik's Termination Court address for any
purpose other than to generate the mortgage application.
____________________

2
NRS 205.463.

3
NRS 205.760.

4
NRS 205.060.

5
See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995) (stating that claims of ineffective
assistance of counsel may not be raised on direct appeal, unless there has already been an evidentiary hearing).
........................................
121 Nev. 129, 133 (2005) Jezdik v. State
ther testified that she never gave Jezdik permission to use her personal information to obtain
a credit card and that she never went to Jezdik's Termination Court address for any purpose
other than to generate the mortgage application.
Terry Chodosh, a fraud investigator for Citibank, testified that, on April 2, 2001, Citibank
received an online application for a MasterCard listing Anna Behran as the primary
cardholder and Michael Jezdik as the secondary cardholder. The application required
Behran's social security number and date of birth, provided an address of 3400 Termination
Court, and stated that Behran worked for a firm known as Southwest Advertising, Jezdik's
employer. Because the application listed Jezdik as a secondary cardholder, Citibank did not
require his personal information. Although previously a Citibank cardholder, Behran
disclaimed any responsibility for the April 2, 2001, application. She also denied at trial that
she had used Jezdik's address for the purpose of receiving mail and denied ever working for
Southwest Advertising.
Citibank approved the application on April 19, 2001, and sent two cards to 3400
Termination Court. Subsequent bills went unpaid. Behran testified that she became aware of
the second account after receiving Citibank correspondence regarding a recent change of her
account address from Termination Court to another Las Vegas address on Flaming Coral
Lane. Other testimony at trial established that Jezdik moved from Termination Court to
Flaming Coral Lane in May 2001. Citibank's security operations department closed the
account in August 2001 at Behran's request.
As part of the subsequent fraud investigation, Detective John Woosnam of the Las Vegas
Metropolitan Police Department (LVMPD) contacted a Citibank investigator, learned that
Citibank suffered losses in connection with the account, and obtained copies of three receipts
and the billing statements. The statements revealed seventeen purchases made between April
25 and May 6, 2001. Four of the transactions occurred in California between April 26 and
April 28, 2001. The State ultimately argued that Behran could not have made the California
charges because she was in Hawaii at the time.
6
Behran's personal bank statements, admitted
at trial, confirmed transactions in Hawaii on April 23, 25, and 26, 2001.
At trial, Detective Woosnam conducted a lay comparison of Jezdik's signature with the
Citibank receipts. While Detective Woosnam admitted he was not an expert, he testified that
based on general experience .
____________________

6
The California transactions were not the subject of the charges below. However, the State admitted evidence
relating to these transactions without objection.
........................................
121 Nev. 129, 134 (2005) Jezdik v. State
on general experience . . . [t]he signature on the receipts [is] similar in appearance with the
signature that appeared on the copy of the voluntary statement . . . obtained from [Michael]
Jezdik. Based on this similarity, Woosnam testified that it was his opinion that the
signatures are from the same person, [Michael] Jezdik.
Gene Olewinski, a detective in the LVMPD financial crimes unit, also participated in the
investigation concerning Jezdik. Olewinski testified at trial that, as part of the investigation,
he required Jezdik to execute exemplar signatures for expert handwriting analysis. Attempts
to make comparisons failed due to the type and quality of the signatures on the receipt copies.
The defense theorized that Behran herself opened the Citibank account and was motivated
financially to deny ownership of the account. Jezdik testified in his own defense that he and
Behran had renewed a romantic relationship at the time of the events in question, that Behran
enjoyed unrestricted access to the Termination Court residence, and that she could have used
his computer to complete the credit card application in his absence. Jezdik further testified
that Behran received mail at both Termination Court and Flaming Coral Lane even after he
instructed her to change her mailing address, and that he and Behran were in fact coworkers
at Southwest Advertising. The defense also attempted to establish that Jezdik could not have
made several of the alleged charges in Nevada because he was in California on some of the
days of the alleged transactions on the Citibank card, and that Jezdik originally gained access
to Behran's personal information during their first relationship but had never made use of it.
In an apparent attempt to establish Jezdik's good character, defense counsel asked Jezdik
on direct examination, Have you ever been accused of anything prior to these current
charges? Jezdik responded, No. The prosecutor then asked to approach the bench and a
brief conference occurred off the record. When testimony resumed, defense counsel
proceeded to a different line of questioning. Later, outside the jury's presence, the State
argued that the no accusation evidence opened the door to specific rebuttal concerning
misconduct similar to that charged in the case. After reviewing a tape-recorded transcript
provided by the State, the district court ultimately allowed the testimony of two rebuttal
witnesses.
Pursuant to the ruling, Detective Olewinski testified concerning another ongoing
investigation of Jezdik. The record does not reveal the nature of this alleged offense or
whether Jezdik was aware that he was under investigation, but the record clearly shows that
the State had not formally charged Jezdik with any offense relating to it.
Karel Kothera, Jezdik's father-in-law, additionally testified for the State that Jezdik and
Kothera's daughter, Monica, approached him sometime during 2001 asking for his assistance
in purchasing a home.
........................................
121 Nev. 129, 135 (2005) Jezdik v. State
a home. Kothera agreed to help and provided Monica a power of attorney with his personal
information to complete the loan paperwork. Kothera further testified that he became aware
that an unauthorized credit card had been opened under his name when Jezdik and Monica
told him that the authorities found a credit card in Kothera's name at their residence. Kothera
testified that he never gave Jezdik or Monica permission to use a credit card issued in his
name, that Jezdik admitted to opening the account, that the unauthorized card carried a
balance over $5,000, and that Jezdik and Monica asked him to cover it up to protect Jezdik.
Kothera further testified that he did not immediately become aware of the alleged fraud
because the credit card company sent the billing statements to Jezdik who, in turn, made
payments on the account.
The jury returned verdicts of guilty on all charges. The district court sentenced Jezdik to
12 to 48 months imprisonment on a single count of identity theft, and concurrent sentences of
12 to 30 months on the remaining charges. The court suspended these sentences and placed
him on probation for an indeterminate period, not to exceed four years.
7
Jezdik timely filed
his notice of appeal.
DISCUSSION
Rebuttal evidence specifically contradicting a defendant's proffered character evidence
Jezdik argues that the testimony of Detective Olewinski and Karl Kothera constitutes
improper character evidence under NRS 48.045 and improper impeachment under NRS
50.085. The State argues that neither of these provisions applies because the State introduced
the testimony to rebut Jezdik's own testimony on direct examination.
[Headnote 1]
This court reviews a district court's decision to admit or exclude evidence for an abuse of
discretion.
8
NRS 48.045(1) states the general rule regarding the admissibility of character
evidence in a criminal trial:
1. Evidence of a person's character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion,
except:
(a) Evidence of his character or a trait of his character offered by an accused, and
similar evidence offered by the prosecution to rebut such evidence . . . .
____________________

7
The court also ordered Jezdik to pay $3,361.70 in restitution, a $150.00 DNA analysis fee, and a $25.00
administrative assessment.

8
E.g., Collman v. State, 116 Nev. 687, 704, 7 P.3d 426, 437 (2000).
........................................
121 Nev. 129, 136 (2005) Jezdik v. State
(Emphasis added.) Thus, NRS 48.045(1)(a) gives the defendant the sole election to place his
character in issue. NRS 48.055 provides the general mechanism for proving character under
NRS 48.045:
1. In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or in the form of an
opinion. On cross-examination, inquiry may be made into specific instances of conduct.
(Emphasis added.)
[Headnotes 2, 3]
As a general matter, when a defendant chooses to introduce character evidence in the form
of reputation or opinion evidence, the prosecution is similarly limited in its rebuttal evidence
and can only inquire into specific acts of conduct on cross-examination. Here, however,
Jezdik did not place his character in issue as specified by one of the exclusive means
provided in NRS 48.055: reputation or opinion evidence. Rather, he placed his character in
issue through testimony that he had never been accused of anything prior to these current
charges. As such, we reject Jezdik's assertion that counsel's question was an over-vague
non-specific question [which] had no real impact on the State's case. Quite to the contrary,
this statement in effect denies any prior specific instances of criminal misconduct.
We also reject Jezdik's contention that Detective Olewinski's testimony improperly
exposed the jury to testimony about other alleged uncharged crimes.
9
First, under these
discrete circumstances, we conclude that NRS 48.045(1)(a) permits rebuttal of Jezdik's
testimony of good character with similar evidence offered by the prosecution. Second, as
discussed below, we conclude that such evidence is also admissible to impeach Jezdik's
credibility.
[Headnote 4]
At common law, a party could attack an opposing witness's credibility by offering
contradictory testimony.
10
Over time, courts developed restrictions to specific contradiction
evidence, the foremost of which is the collateral fact rule.
11
Under this doctrine, "[i]t is
error to allow the State to impeach a defendant's credibility with extrinsic evidence
relating to a collateral matter."
____________________

9
See NRS 48.045(2).

10
Francis A. Gilligan & Edward J. Imwinkelried, Bringing the Opening the Door Theory to a Close: The
Tendency to Overlook the Specific Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev. 807, 810
(2001) (citing 3A John Henry Wigmore, Evidence in Trials at Common Law 1000-1007 (Chadbourn rev.
1970)).

11
See id. at 811.
........................................
121 Nev. 129, 137 (2005) Jezdik v. State
[i]t is error to allow the State to impeach a defendant's credibility with extrinsic evidence
relating to a collateral matter.
12
Facts are collateral if they are outside the controversy, or
are not directly connected with the principal matter or issue in dispute.'
13
Yet, under NRS
50.085(3), a party can impeach a witness on collateral matters during cross-examination
with questions about specific acts as long as the impeachment pertains to truthfulness or
untruthfulness and no extrinsic evidence is used.
14

[Headnotes 5-11]
As this court recently noted in Lobato v. State, the collateral-fact rule has limited
application.
15
The rule does not limit the scope of cross-examination; an examiner can
question a witness on practically any aspect of the witness's direct testimony.
16
Thus, the
core prohibition [of the collateral-fact rule] applies when the witness to be impeached has
already left the stand and the former cross-examiner later calls a second witness or proffers an
exhibit to impeach the earlier witness's credibility.
17
The policy behind this rule is to
prevent the cross-examiner from injecting collateral matters into the trial by setting the
witness up and then allowing the very party that injected the matter into the trial to impeach
the witness's credibility with extrinsic evidence relating to those collateral matters.
18
Even
so, most methods of impeachment are exempt from the collateral-fact rule.
19
For example,
the rule does not apply to attacks on a witness's ulterior motive for testifying, attacks on a
witness's capacity or personal knowledge, or impeachment using criminal convictions.
____________________

12
McKee v. State, 112 Nev. 642, 646, 917 P.2d 940, 943 (1996).

13
Lobato v. State, 120 Nev. 512, 518, 96 P.3d 765, 770 (2004) (quoting Black's Law Dictionary 262 (6th ed.
1990)).

14
Collman, 116 Nev. at 703, 7 P.3d at 436; see also NRS 50.085(3) (Specific instances of the conduct of a
witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be
proved by extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on
cross-examination of the witness himself or on cross-examination of a witness who testifies to an opinion of his
character for truthfulness or untruthfulness, subject to the general limitations upon relevant evidence and the
limitations upon interrogation and subject to the provisions of NRS 50.090.).

15
120 Nev. at 518, 96 P.3d at 770 ([i]mpeachment by use of extrinsic evidence is prohibited when collateral
to the proceedings).

16
See NRS 50.085(3); see also 1 John W. Strong, et al., McCormick on Evidence 49, at 200 (5th ed. 1999)
(hereinafter McCormick).

17
McCormick, supra note 16, 49, at 201 (footnote omitted); see also McKee, 112 Nev. at 646-47, 917 P.2d
at 942-43.

18
Cf. McKee, 112 Nev. at 646, 917 P.2d at 942-43.

19
McCormick, supra note 16, 49, at 201.
........................................
121 Nev. 129, 138 (2005) Jezdik v. State
criminal convictions.
20
As noted in Lobato, the collateral-fact rule only truly applies when a
specific contradiction is coupled with impeachment by a prior inconsistent statement or
impeachment using extrinsic prior bad acts not resulting in a conviction.
21

[Headnote 12]
A specific contradiction involving extrinsic evidence of a prior bad act generally
implicates the collateral-fact rule embodied in NRS 50.085(3).
22
However, authorities have
noted an exception to the collateral-fact rule when the State seeks to introduce evidence on
rebuttal to contradict specific factual assertions raised during the accused's direct
examination.
23
Under this exception, the defendant's false statements on direct examination
trigger or open the door to the curative admissibility of specific contradiction evidence.
24
The example in McCormick is illustrative:
Suppose, for example, that on direct examination, an accused witness made a sweeping,
superlative assertion that he had never committed a deceitful act. That assertion is
such a serious violation of the rules limiting bolstering evidence that on a curative
admissibility theory, many courts allow the opposing counsel to both cross-examine
about the assertion and later introduce extrinsic evidence rebutting the assertion.
25

We have never explicitly embraced the modern doctrine of specific contradiction.
26
However, a review of our case law reveals implicit acceptance on previous occasions. For
example, in Allen v. State, we affirmed the State's use of collateral act testimony to impeach
the defendant's own testimony on direct examination.
27
We reasoned that the impeachment
provided a valuable aid to the jury in assessing [appellant's] credibility.
____________________

20
See Lobato, 120 Nev. at 518-19, 96 P.3d at 770 (citing McCormick, supra note 16, 49; 4 Jack B.
Weinstein & Margaret A Berger, Weinstein's Federal Evidence 608.20[3][b] (Joseph M. McLaughlin ed., 2d
ed. 2004)).

21
Id.

22
See id.

23
McCormick, supra note 16, 49, at 202.

24
Id.

25
Id.; see also U.S. v. Beltran-Rios, 878 F.2d 1208, 1212-13 (9th Cir. 1989) (allowing government to
introduce otherwise excludable testimony when the defendant opens the door' by introducing potentially
misleading testimony).

26
See Roever v. State, 114 Nev. 867, 878 n.11, 963 P.2d 503, 510 n.11 (1998) (Maupin, J., concurring)
(noting that this court should address the modern doctrine of specific contradiction' in an appropriate future
case).

27
94 Nev. 285, 286-87, 579 P.2d 771, 772 (1978).
........................................
121 Nev. 129, 139 (2005) Jezdik v. State
jury in assessing [appellant's] credibility.'
28
Thus, we held the evidence properly admissible
as being more probative than prejudicial.
29
Of particular note, we quoted Chief Justice
Burger's rationale in Harris v. New York:
Every criminal defendant is privileged to testify in his own defense, or to refuse to
do so. But that privilege cannot be construed to include the right to commit perjury.
Having voluntarily taken the stand, [appellant] was under an obligation to speak
truthfully and accurately, and the prosecution here did no more than utilize the
traditional truth-testing devices of the adversary process.
30

Similarly, in Bostic v. State, we held the admission of specific contradiction evidence proper
when the defendant testified in his own defense.
31
We stated in Bostic that testimony for the
purpose of contradicting [the defendant's] testimony is clearly distinguishable from the use of
specific acts of misconduct to impeach the accused's character or credibility.
32

[Headnote 13]
We cannot pervert the shield provided by NRS 50.085(3) into a license for a defendant to
purposefully, or even inadvertently, introduce evidence giving the jury a false impression
through an absolute denial of misconduct and then frustrate the State's attempt to contradict
this evidence through proof of specific acts.
33
As a result, we adopt a limited exception to the
collateral-fact rule and hold that our statutory rules of evidence do not prohibit a party from
introducing extrinsic evidence specifically rebutting the adversary's proffered evidence of
good character.
34

[Headnote 14]
However, when a party resorts to extrinsic evidence to show a specific contradiction with
the adversary's proffered testimony, the evidence should squarely contradict the adverse
testimony.
35
In this respect, Jezdik asserts that Kothera's "vague and unclear" testimony
did not directly contradict Jezdik's denial of prior accusations.
____________________

28
Id. at 286, 579 P.2d at 772 (quoting Harris v. New York, 401 U.S. 222, 225 (1971) (alteration in original)).

29
Id. (citing NRS 50.085 and NRS 48.035).

30
Id. at 287, 579 P.2d at 772 (quoting Harris, 401 U.S. at 225 (alteration in original) (citations omitted)).

31
104 Nev. 367, 371-72, 760 P.2d 1241, 1244 (1988).

32
Id.

33
Cf. Harris, 401 U.S. at 226.

34
To the extent that Rowbottom v. State, 105 Nev. 472, 483-85, 779 P.2d 934, 941-42 (1989), is inconsistent
with this opinion, it is overruled.

35
See Gilligan & Imwinkelried, supra note 10, at 829-30.
........................................
121 Nev. 129, 140 (2005) Jezdik v. State
this respect, Jezdik asserts that Kothera's vague and unclear testimony did not directly
contradict Jezdik's denial of prior accusations. We disagree. Kothera explicitly testified that
Jezdik admitted to wrongfully obtaining a credit card in Kothera's name, and that Jezdik
attempted to persuade Kothera to conceal the fraud after the authorities discovered the card in
Jezdik's home. Further, while neither Kothera's nor Olewinksi's testimony explicitly
established that Jezdik was aware that accusations had been lodged against him, we
conclude that the State's rebuttal testimony squarely contradicted the potentially false
impression that Jezdik's testimony left in the eyes of the jurors. Thus, the district court did not
abuse its discretion in permitting the State to rebut Jezdik's misleading testimony.
Lay opinion on signature
[Headnote 15]
Jezdik next argues that it was plain error to allow Detective Woosnam to testify as a lay
witness that the signatures on the store receipts matched the signature on Jezdik's voluntary
statement. Testimony at trial established Woosnam had no training in handwriting analysis.
Thus, it appears at first blush that his testimony that the signatures matched was improper
under NRS 50.265(2) as being unhelpful to the jury.
36
However, defense counsel's reason for
not objecting to the testimony is not apparent on this record. As a result, we decline to reach
this issue under a plain error analysis,
37
and like Jezdik's other claims of ineffective
assistance of counsel, we reserve decision on the merits of any related ineffective-assistance
claim for future post-conviction review.
38

Insufficiency of evidence/incorrect information
[Headnote 16]
While not raised on appeal, we sua sponte address a problem with the State's proof of facts
alleged in the amended information below.
39
As noted above, the amended information
charges Jezdik with burglary and fraudulent use of a credit card in connection with three
May 6, 2001, purchases made at three separate grocery stores: Vons, Albertsons, and
Raley's.
____________________

36
See Collins v. State, 113 Nev. 1177, 1184, 946 P.2d 1055, 1060 (1997) (holding an officer's opinion, based
on experience, was helpful to determination of a fact at issue); see also Hall v. United Ins. Co. of America, 367
F.3d 1255, 1259 (11th Cir. 2004) (explaining the interplay between FRE 901 and 701 in the context of
documents containing handwriting and holding both must be satisfied before lay witness testimony concerning
handwriting is admissible); accord U.S. v. Scott, 270 F.3d 30, 48-50 (1st Cir. 2001).

37
Cf. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 94-95 (2003).

38
See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995).

39
See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).
........................................
121 Nev. 129, 141 (2005) Jezdik v. State
with burglary and fraudulent use of a credit card in connection with three May 6, 2001,
purchases made at three separate grocery stores: Vons, Albertsons, and Raley's.
At trial, the State produced receipts from three grocery stores. Two of these receipts
concerned purchases made at Albertsons and Raley's on May 6, 2001. However, the other
receipt admitted at trial concerned a purchase made on April 27, 2001, at Smith's grocery
store. The Vons' allegations did not relate to that purchase.
This defect of proof is not harmless because the State otherwise failed to place Jezdik at
Vons on May 6, 2001, a fact crucial to proving fraudulent use of a credit card and burglary.
40
Accordingly, we conclude that insufficient evidence supports the counts the State alleged
involving the Vons' transaction on May 6, 2001.
41
However, with respect to the remaining
charges, we conclude that adequate circumstantial evidence supports Jezdik's convictions.
42

CONCLUSION
We conclude that the district court did not err in permitting the State to rebut Jezdik's
denial of prior accusations on direct examination. Further, we decline to reach Jezdik's claims
of ineffective assistance of counsel during this direct appeal, and with the exception of the
two counts related to the alleged Vons' transaction, we conclude that sufficient evidence
supports the jury's verdict. Accordingly, we reverse the burglary and fraudulent use
convictions related to the May 6, 2001, Vons' transaction, and affirm the remainder of the
judgment of conviction.
Douglas and Parraguirre, JJ., concur.
____________________

40
See Evans v. State, 117 Nev. 609, 641, 28 P.3d 498, 520 (2001) (the defendant must show prejudice as a
result of an information that does not provide proper notice of the charges against him).

41
See Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002) (In reviewing the sufficiency of
the evidence, this court must determine whether the jury, acting reasonably, could have been convinced by the
competent evidence of the defendant's guilt beyond a reasonable doubt.).

42
See id. (stating that circumstantial evidence alone may support a conviction).
____________
........................................
121 Nev. 142, 142 (2005) Langon v. Matamoros
JOHN LANGON, Appellant, v. JULIA MATAMOROS,
an Individual, Respondent.
No. 42153
May 26, 2005 111 P.3d 1077
Appeal from a final judgment, pursuant to a jury verdict, in a personal injury action and
from an order denying new trial. Second Judicial District Court, Washoe County; James W.
Hardesty, Judge.
Motorist brought personal injury action arising from automobile accident. Following a jury
trial, the district court entered judgment in favor of alleged tortfeasor and denied motorist's
motion for new trial. Motorist appealed. The supreme court, Maupin, J., held that statute
mandating that conviction of a crime resulting in injury to the victim is conclusive evidence
of civil liability for the injury does not apply to misdemeanor traffic offenses.
Affirmed.
E. Sue Saunders, Reno, for Appellant.
Turner & Riddle and Karl H. Smith, Reno, for Respondent.
1. Appeal and Error.
Construction of a statute is a question of law, which supreme court reviews de novo.
2. Appeal and Error.
Supreme court reviews an order denying a motion for a new trial for abuse of
discretion.
3. Appeal and Error.
Order denying judgment notwithstanding the verdict (JNOV) is not appealable.
4. Judgment.
Statute mandating that conviction of a crime resulting in injury to the victim is
conclusive evidence of civil liability for the injury does not apply to misdemeanor
traffic offenses. NRS 41.133.
5. Statutes.
Supreme court ascribes the plain meaning to a statute that is not ambiguous.
6. Statutes.
When the statutory language fails to address an issue impliedly affected by the
statute, legislative intent controls.
7. Statutes.
Supreme court looks to reason and public policy to discern legislative intent.
Before Maupin, Douglas and Parraguirre, JJ.
........................................
121 Nev. 142, 143 (2005) Langon v. Matamoros
OPINION
By the Court, Maupin, J.:
In this appeal, we consider whether NRS 41.133, which mandates that conviction of a
crime resulting in injury to the victim is conclusive evidence of civil liability for the injury,
applies to misdemeanor traffic violations.
FACTS AND PROCEDURAL HISTORY
Appellant John Langon and respondent Julia Matamoros were involved in an automobile
accident, as a result of which police issued Matamoros a citation for failure to yield the right
of way. Matamoros ultimately pleaded no contest, forfeited bail and paid a fine in connection
with the citation.
Langon sued Matamoros for personal injuries under a negligence theory of recovery and
proceeded to trial. The jury returned a verdict in favor of Matamoros, and the district court
entered judgment accordingly. The district court then denied Langon's motion for judgment
notwithstanding the verdict and in the alternative for a new trial. Langon appeals from the
judgment and order denying his post-trial motions.
DISCUSSION
[Headnotes 1-3]
The construction of a statute is a question of law, which we review de novo.
1
We review
an order denying a motion for a new trial for abuse of discretion.
2

NRS 41.133 civil liability
[Headnote 4]
Langon argues that, under NRS 41.133, Matamoros' conviction pursuant to a no contest
plea and forfeiture of bail for failure to yield is admissible as conclusive evidence that she is
liable for his injuries. Accordingly, Langon argues that the district court erred in denying his
post-trial motions. Matamoros asserts that her plea of no contest did not result in a judgment
of conviction of a "crime" for the purposes of NRS 41.133.
____________________

1
White v. Continental Ins. Co., 119 Nev. 114, 116, 65 P.3d 1090, 1091 (2003).

2
Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001). The order denying judgment
notwithstanding the verdict is not appealable. Id.
........................................
121 Nev. 142, 144 (2005) Langon v. Matamoros
crime for the purposes of NRS 41.133. We agree with Matamoros and hold that NRS
41.133 does not apply to misdemeanor traffic offenses.
3

[Headnotes 5-7]
We ascribe the plain meaning to a statute that is not ambiguous.
4
When the statutory
language . . . fails to address [an] issue [impliedly affected by the statute],' legislative intent
controls.
5
We look to reason and public policy to discern legislative intent.
6
Because the
scope of NRS 41.133 is inherently unclear, particularly in relation with other statutory
measures governing tort liability, and because a literal reading of the measure would result in
consequences unintended by the Legislature, we must undertake an examination of the
Legislature's intent with regard to its enactment.
NRS 41.133 states: If an offender has been convicted of the crime which resulted in the
injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary
to impose civil liability for the injury.
The Legislature enacted NRS 41.133 from a group of victims' rights bills, which included
a companion measure that prohibited a convicted offender from suing victims for injuries
sustained during the commission of sexual assault, kidnapping, arson, robbery, burglary,
sexual molestation and criminal homicide.
7
The bill was approved and signed by the
Governor, and the companion provision became NRS 41.135.
8
The separation of the
companion provision as NRS 41.135, from the text of the bill that eventually became NRS
41.133, resulted from an administrative act of revision not performed by the Legislature. The
crimes of violence originally enumerated in the bill draft that became NRS 41.135 reflected
malum in se offenses that legislators clearly intended NRS 41.133 to include; nothing in
the legislative history indicates that legislators contemplated that malum in prohibitum
offenses such as traffic violations would be considered crimes for the purposes of the
overall measure.
____________________

3
In Mendez v. Brinkerhoff, 105 Nev. 157, 771 P.2d 163 (1989), this court held that forfeiture of bail in
connection with a traffic citation was not admissible in a civil proceeding as an admission that the cited party
committed the charged traffic offense. Although Mendez was decided after the enactment of NRS 41.133, we did
not determine whether the statute applied because, at least ostensibly, the events in question pre-dated the
statute's effective date.

4
Crestline Inv. Group v. Lewis, 119 Nev. 365, 368, 75 P.3d 363, 365 (2003).

5
Id. (quoting A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002)).

6
State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004).

7
See A.B. 268, 63d Leg. (Nev. 1985).

8
The Legislature amended NRS 41.135 in 1997 to state that a person who is convicted of committing or
attempting to commit a felony, an act that would have been a felony if committed by an adult, or a misdemeanor
or gross misdemeanor that constitutes domestic violence, may not bring an action against the victim for injuries
or property damage the offender suffered. 1997 Nev. Stat., ch. 476, 17, at 1811.
........................................
121 Nev. 142, 145 (2005) Langon v. Matamoros
malum in se offenses that legislators clearly intended NRS 41.133 to include; nothing in the
legislative history indicates that legislators contemplated that malum in prohibitum offenses
such as traffic violations would be considered crimes for the purposes of the overall measure.
9
We therefore conclude that NRS 41.133 does not apply to misdemeanor violations of state
and local traffic codes.
Moreover, the application of NRS 41.133 to misdemeanor traffic violations would directly
conflict with NRS 41.141, Nevada's comparative negligence statute, thus thwarting a more
specific legislative purpose.
10
First, NRS 41.141 insulates a defendant from liability in cases
in which a plaintiff's comparative negligence exceeds that of the parties to the action against
whom recovery is sought.
11
Second, NRS 41.141 reduces the extent of the defendant's
liability when the comparative negligence of the plaintiff is found to be less than 51 percent
of the total causal negligence. If NRS 41.133 were applied as Langon suggests, discretionary
police decisions to issue traffic citations, regardless of potential evidence of comparative
negligence, would serve to conclusively override the basic statutory construct governing the
law of negligence. Such an approach would render the comparative negligence scheme of
NRS 41.141 meaningless in this context.
Remaining assignments of error
Langon asserts that the district court erred in rejecting his proposed jury instruction on
negligence per se. He further contends that the district court abused its discretion in refusing
to allow the police officer who responded to the scene to testify as an expert, admitting a
letter by Langon's treating chiropractor, and admitting Langon's employment records. We
have considered these arguments and conclude that they lack merit.
CONCLUSION
Because NRS 41.133 does not apply to misdemeanor traffic offenses, convictions entered
upon traffic citations may not be used to conclusively establish civil liability. We therefore
affirm the judgment below and the order denying post-trial motions.
Douglas and Parraguirre, JJ., concur.
____________________

9
See, e.g., State, Div. of Insurance v. State Farm, 116 Nev. 290, 293-94, 995 P.2d 482, 485 (2000) (noting
that when a statute is ambiguous, the court should examine legislative history and intent); Nunez v. Sahara
Nevada Corp., 677 F. Supp. 1471, 1473 (D. Nev. 1988) (considering a statute's meaning in the context of a
larger statutory scheme).

10
See SIIS v. Surman, 103 Nev. 366, 367-68, 741 P.2d 1357, 1359 (1987).

11
See also Buck v. Greyhound Lines, 105 Nev. 756, 783 P.2d 437 (1989).
____________
........................................
121 Nev. 146, 146 (2005) Seino v. Employers Ins. Co. of Nevada
SANDRA SEINO, Appellant, v. EMPLOYERS INSURANCE COMPANY OF NEVADA, a
Mutual Company, Respondent.
No. 41521
May 26, 2005 111 P.3d 1107
Appeal from a district court order denying a petition for judicial review in a workers'
compensation case. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
The supreme court held that: (1) a request for a workers' compensation hearing is filed
when the hearing officer receives it, not when it is mailed; (2) claimant's request for hearing
was untimely, even if it was mailed within seventy-day period; (3) claimant's benefits denial
letter was not a unique circumstance which saved her late-filed application for hearing; and
(4) doctrine of equitable tolling did not apply.
Affirmed.
Beckley Singleton, Chtd., and James L. Edwards and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Beckett & Yott, Ltd., and Kevin L. Johnson, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
The role of the supreme court in reviewing an administrative decision is identical to
that of the district court: to review the evidence before the agency so that a
determination can be made as to whether the agency decision was arbitrary, capricious,
or an abuse of discretion.
2. Administrative Law and Procedure; Statutes.
Agency decisions based upon questions of statutory construction are purely legal
issues, and the supreme court reviews pure questions of law de novo.
3. Administrative Law and Procedure.
The supreme court reviews an agency's fact-based conclusions of law for substantial
evidentiary support in the record.
4. Workers' Compensation.
Typically, a Nevada Department of Administration Hearings Division (NDAHD)
hearing officer has jurisdiction over a workers' compensation claim only if the claimant
files a timely request for a hearing. NRS 616C.315(3).
5. Workers' Compensation.
Statutory periods for requesting administrative review of workers' compensation
determinations are mandatory and jurisdictional.
6. Workers' Compensation.
Purpose of statute stating that a request for a workers' compensation hearing is
timely when it is filed with the Nevada Department of Administration Hearings
Division (NDAHD) within seventy days of the date that the insurer mailed notice of its
determination is to shorten the overall administrative process of a workers'
compensation claim.
........................................
121 Nev. 146, 147 (2005) Seino v. Employers Ins. Co. of Nevada
7. Workers' Compensation.
A request for a workers' compensation hearing is filed when the hearing officer
receives it, not when it is mailed. NRS 616C.315(3).
8. Workers' Compensation.
Failure to file a request for a workers' compensation hearing within the statutory
period is excused only if the claimant proves by a preponderance of evidence that he or
she did not receive the notice of determination and the forms necessary to request a
hearing. NRS 616C.315(3).
9. Workers' Compensation.
Workers' compensation claimant's request for hearing after denial of benefits was
untimely, even if it was mailed within seventy-day period, where Nevada Department
of Administration Hearings Division (NDAHD) received request after seventy-day
period had expired, and claimant had promptly received both the denial letter and the
request for hearing form. NRS 616C.315(3).
10. Workers' Compensation.
Workers' compensation claimant's benefits denial letter, in which insurer stated that
she may lose right to appeal if Nevada Department of Administration Hearings
Division (NDAHD) did not receive request for hearing within seventy days, was not a
unique circumstance which saved her late-filed application for hearing, assuming that
court recognized the unique circumstances exception to the timely filing requirement;
use of word may was legally and technically correct, and insurer never made any
assurances that claimant's appeal would be perfected by mailing within the seventy-day
period. NRS 616C.315(3).
11. Limitation of Actions.
Generally, the purpose of statutory time limitations for judicial review is to prevent
stale issues from being raised against a party; nevertheless, in situations where the
danger of prejudice to the defendant is absent, and the interests of justice so require,
equitable tolling of the limitations period may be appropriate.
12. Workers' Compensation.
Doctrine of equitable tolling did not apply to mandatory and jurisdictional statutory
seventy-day time period in which the Nevada Department of Administration Hearings
Division (NDAHD) must receive an appeal from the denial of workers' compensation
benefits. NRS 616C.315(3).
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
This is an appeal from a district court order denying appellant Sandra Seino's petition for
judicial review in a workers' compensation matter. In this appeal, we examine whether Seino
satisfied the jurisdictional requirements of NRS 616C.315, which requires that a hearing
request be filed within seventy days of the date that the industrial insurer's notice of
determination is mailed. Although Seino mailed a notice of appeal to the Nevada Department
of Administration Hearings Division {NDAHD), it was never received.
........................................
121 Nev. 146, 148 (2005) Seino v. Employers Ins. Co. of Nevada
ministration Hearings Division (NDAHD), it was never received. Seino contends that we
should reexamine our holding in SIIS v. Partlow-Hursh,
1
which recognized that a workers'
compensation administrative appeal is filed upon the appeals officer's receipt of the appeal
request form, not upon mailing. Further, Seino asserts that the doctrines of exceptional
circumstances and equitable tolling merit setting aside the jurisdictional deadlines in this
instance. We decline to retreat from our holding in Partlow-Hursh and conclude that the
doctrines of exceptional circumstances and equitable tolling do not apply. Consequently, we
affirm the district court's order.
FACTS
Seino alleges that in January 2000, she burned her hands with chemical solvent during the
course of her employment. Seino, however, did not notify her employer of the injury until
several weeks later. In March 2000, two months after the injury, Seino completed and filed a
claim for workers' compensation with respondent Employers Insurance Company of Nevada
(EICN).
On March 22, 2000, EICN sent Seino a letter denying her claim on two grounds: (1) EICN
could not determine if Seino's injury arose out of and in the course of employment; and (2)
Seino, in violation of NRS 616C.015, failed to notify her employer within seven days of the
injury. Additionally, EICN informed Seino of her right to administratively appeal its decision.
For this purpose, the letter stated:
If you or your employer disagree with this decision, you have the right to file an appeal
and mail it directly to the [NDAHD] . . . . If your request does not reach the Hearings
Division within seventy (70) days from the date of this letter, you may lose your right to
appeal the decision.
In addition to the denial letter, Seino also received a request for hearing form. This form
stated:
If you are appealing the determination rendered above, complete, date, sign and FILE
THE FORM AND ANY ATTACHMENTS WITH THE . . . HEARINGS
DIVISION . . . . For your appeal to be heard, this form must be received by the
Hearings Division within 70 days of the determination date shown at the top of this
form.
On March 24, 2000, two days after EICN's denial letter, Seino mailed the appeal form to
the NDAHD. The NDAHD, however, never received Seino's mailed form. In addition, the
record contains no evidence that Seino, during the seventy-day period, contacted the NDAHD
concerning her appeal.
____________________

1
101 Nev. 122, 125, 696 P.2d 462, 464 (1985).
........................................
121 Nev. 146, 149 (2005) Seino v. Employers Ins. Co. of Nevada
tacted the NDAHD concerning her appeal. Rather, on November 9, 2000, over seven months
later, Seino faxed the appeal form to the NDAHD.
After receiving the faxed form, the NDAHD set and held a hearing concerning Seino's
claim. Upon hearing the parties' arguments, the hearing officer dismissed the appeal as
untimely under NRS 616C.315(3). On February 8, 2001, Seino filed a timely notice of appeal
of the hearing officer's decision with the Nevada Department of Administration Appeals
Office. The appeals officer believed that Seino mailed the appeal form on March 24, 2000,
but affirmed the hearing officer's decision because the NDAHD did not receive the form
within the seventy-day period.
Seino then filed a petition for judicial review in the district court. The district court
concluded that the appeals officer's decision was supported by substantial evidence. As a
result, the district court denied Seino's petition for judicial review and affirmed the appeals
officer's decision. Seino timely appealed the district court's order.
DISCUSSION
Standard of review
[Headnotes 1-3]
The role of this court in reviewing an administrative decision is identical to that of the
district court: to review the evidence before the agency so that a determination can be made
as to whether the agency decision was arbitrary, capricious, or an abuse of discretion.
2
Agency decisions based upon questions of statutory construction are purely legal issues,
3
and
this court reviews pure questions of law de novo.
4
In contrast, this court reviews an agency's
fact-based conclusions of law for substantial evidentiary support in the record.
5

Jurisdiction
[Headnotes 4-6]
Typically, an NDAHD hearing officer has jurisdiction over a workers' compensation claim
only if the claimant files a timely request for a hearing.
____________________

2
Ruggles v. Public Service Comm'n, 109 Nev. 36, 40, 846 P.2d 299, 301 (1993).

3
Manke Truck Lines v. Public Service Comm'n, 109 Nev. 1034, 1036, 862 P.2d 1201, 1203 (1993).

4
State, Dep't Mtr. Veh. v. Jones-West Ford, 114 Nev. 766, 772, 962 P.2d 624, 628 (1998); Nyberg v. Nev.
Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).

5
Beavers v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993).
........................................
121 Nev. 146, 150 (2005) Seino v. Employers Ins. Co. of Nevada
quest for a hearing.
6
Statutory periods for requesting administrative review of workers'
compensation determinations are mandatory and jurisdictional.
7
Under NRS 616C.315(3)(b),
a request for a hearing is timely when it is filed with the NDAHD within seventy days of the
date that the insurer mailed notice of its determination.
8
The Legislature included this
provision to shorten the overall administrative process of a workers' compensation claim.
9

[Headnotes 7, 8]
In Partlow-Hursh, this court held that a notice of appeal from a hearing officer's decision
is filed when the appeals officer receives it, not when it is mailed.
10
The language in the
statute addressed in Partlow-Hursh is similar to that in NRS 616C.315(3); both statutes
provide that the required document be filed within a specified time period. Moreover, we
have previously relied on Partlow-Hursh in concluding that the filing requirement under NRS
616C.315(3) is mandatory and jurisdictional.
11
We see no reason to interpret the filing
requirements under the two statutes differently; a request for a hearing is filed when the
hearing officer receives it, not when it is mailed. Failure to file a request for a hearing within
the statutory period is excused only if the claimant proves by a preponderance of evidence
that he or she did not receive the notice of determination and the forms necessary to request a
hearing.
12

Seino argues that our interpretation of NRS 616C.315 should be similar to the filing
requirements of NRAP 25, which provides that documents filed in this court are filed when
mailed. In Partlow-Hursh, this court stated that former NRAP 25 was analogous to
administrative filing requirements.
13
At that time, NRAP 25(a) specifically stated that filing
was timely when received by the clerk. NRAP 25 was amended in 1988 and currently deems
a filing timely when mailed to the clerk. Consequently, NRAP 25 is no longer analogous to
administrative filing requirements. Furthermore, the NRAP is not applicable to
administrative proceedings.
____________________

6
NRS 616C.315(3).

7
SIIS v. Partlow-Hursh, 101 Nev. 122, 125, 696 P.2d 462, 464 (1985).

8
See also id. at 124, 696 P.2d at 463-64.

9
A.B. 84, 60th Leg. (Nev. 1979).

10
101 Nev. at 124, 696 P.2d at 463 (discussing former NRS 616.5422(1) (replaced in revision by NRS
616C.345(1)).

11
Reno Sparks Visitors Auth. v. Jackson, 112 Nev. 62, 66-67, 910 P.2d 267, 270 (1996) (discussing NRS
616.5412 (replaced in revision by NRS 616C.315)).

12
NRS 616C.315(4); Jackson, 112 Nev. at 66, 910 P.2d at 270.

13
101 Nev. at 124, 696 P.2d at 463.
........................................
121 Nev. 146, 151 (2005) Seino v. Employers Ins. Co. of Nevada
more, the NRAP is not applicable to administrative proceedings.
14
Accordingly, we decline
to overrule Partlow-Hursh's rule that administrative workers' compensation appeals are filed
when received, not mailed.
[Headnote 9]
In this case, the NDAHD did not receive Seino's request for a hearing within the
seventy-day period, and Seino conceded that she promptly received both the denial letter and
the request for hearing form. Therefore, the appeals officer's conclusion that Seino's request
was untimely under NRS 616C.315 is based on substantial evidence.
Unique circumstances
[Headnote 10]
To save her untimely request, Seino urges us to adopt and apply the unique
circumstances doctrine. The United States Supreme Court has explained that unique
circumstances exist only when a party has performed an act which, if properly done, would
postpone the deadline for filing his appeal and has received specific assurance by a judicial
officer that this act has been properly done.
15
We have not applied the doctrine of unique
circumstances to Nevada administrative appeal periods or private insurance providers. Even
if we were to adopt the unique circumstances doctrine and expand its scope to include
assurances by administrators, the facts in this case fail to meet the doctrine's requirements.
Seino argues that unique circumstances exist because EICN's March 22 denial letter states
that an employee has the right to file an appeal and mail it directly to the [NDAHD]. The
next line of the letter, however, expressly cautions that if the request is not received by the
NDAHD within seventy (70) days from the date of this letter, you may lose your right to
appeal. (Emphasis added.)
Seino suggests that the word may makes the notice provision inadequate since it implies
that the statutory period is flexible. The use of the word may, however, is legally and
technically correct. First, in Nyberg v. Nevada Industrial Commission,
16
we extended
statutory periods, such as NRS 616C.315(3)(b), by three days to account for the mailing of
decisions to injured employees. Second, NRS 616C.315(4) excuses the failure to file a
request for hearing within the statutory period if the claimant proves that he or she did not
receive the determination and necessary appeal form.
____________________

14
NRAP 1(a) (These rules govern procedure in appeals to the Supreme Court of Nevada from the district
courts of Nevada and in applications for writs or other relief which the Supreme Court or a justice thereof is
competent to give.).

15
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989).

16
100 Nev. 322, 324-25, 683 P.2d 3, 5 (1984).
........................................
121 Nev. 146, 152 (2005) Seino v. Employers Ins. Co. of Nevada
within the statutory period if the claimant proves that he or she did not receive the
determination and necessary appeal form. Accordingly, EICN's use of the word may in its
denial letter does not make the notice provision inadequate since some employees may have
longer than seventy days to file their appeals.
Furthermore, EICN never made any assurances that Seino's appeal would be perfected by
mailing. Accordingly, since the letter's notice provision was adequate and Seino was not
assured that mailing would perfect an administrative appeal, no unique circumstances exist
in this instance.
Equitable tolling
[Headnotes 11, 12]
Generally, the purpose of statutory time limitations for judicial review is to prevent stale
issues from being raised against a party.
17
Nevertheless, in situations [w]here the danger of
prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of
the limitations period may be appropriate.
18
Originally, we adopted the doctrine of equitable
tolling for Nevada's antidiscrimination statutes.
19
Since then, however, the doctrine has been
expanded to operate in other areas of law.
20
Without limiting the doctrine's application, we
have set forth several factors to determine when equitable tolling is appropriately applied.
21
These factors include
the diligence of the claimant; the claimant's knowledge of the relevant facts; the
claimant's reliance on authoritative statements by the administrative agency that misled
the claimant about the nature of the claimant's rights; any deception or false assurances
on the part of the employer against whom the claim is made; the prejudice to the
employer that would actually result from delay during the time that the limitations
period is tolled; and any other equitable considerations appropriate in the particular
case.
22

____________________

17
Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 (9th Cir. 2001).

18
Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002).

19
Copeland v. Desert Inn Hotel, 99 Nev. 823, 826, 673 P.2d 490, 492 (1983).

20
O'Lane v. Spinney, 110 Nev. 496, 501, 874 P.2d 754, 757 (1994) (recognizing that the doctrine of
equitable tolling might apply to toll the deadline for enforcing judgments).

21
Copeland, 99 Nev. at 826, 673 P.2d at 492.

22
Id.
........................................
121 Nev. 146, 153 (2005) Seino v. Employers Ins. Co. of Nevada
This court, however, has never applied the doctrine of equitable tolling to statutory periods
that are mandatory and jurisdictional.
23

Thus, since NRS 616C.315 is mandatory and jurisdictional, the doctrine of equitable
tolling does not apply.
CONCLUSION
We conclude that the district court properly denied Seino's petition for judicial review.
Substantial evidence supports the appeals officer's determination that Seino failed to file her
request for a hearing within the required period and that conclusion will not be disturbed. In
addition, since EICN did not expressly state that Seino's request for hearing was perfected by
mailing, no unique circumstances exist to excuse her untimely workers' compensation appeal.
Further, because NRS 616C.315 is mandatory and jurisdictional, the doctrine of equitable
tolling does not apply. We therefore affirm the district court's order denying Seino's petition
for judicial review.
____________
121 Nev. 153, 153 (2005) Morsicato v. Sav-On Drug Stores, Inc.
ANDREW MORSICATO and CONCETTA MORSICATO, Husband and Wife, Appellants,
v. SAV-ON DRUG STORES, INC., a Delaware Corporation, Respondent.
No. 41879
May 26, 2005 111 P.3d 1112
Appeal from a district court judgment in a pharmacy malpractice action and an order
denying a motion for new trial. Eighth Judicial District Court, Clark County; Allan R. Earl,
Judge.
Patient and wife brought pharmacy malpractice action, claiming that wife's mislabeled
prescription bottle, which directed lindane application every 12 hours in order to combat
scabies, caused patient permanent injuries. The district court granted directed verdict on issue
of negligence but entered judgment on jury verdict as to lack of causation and denied motions
for new trial and judgment notwithstanding the verdict (JNOV). Patient and wife appealed.
The supreme court held that expert's causation testimony was speculative and inadmissible.
Reversed and remanded.
[Rehearing denied August 3, 2005]
[En banc reconsideration denied September 8, 2005]
____________________

23
Id.; see also O'Lane, 110 Nev. at 501, 874 P.2d at 757.
........................................
121 Nev. 153, 154 (2005) Morsicato v. Sav-On Drug Stores, Inc.
Harrison Kemp & Jones, LLP, and Artemus W. Ham IV and J. Randall Jones, Las Vegas,
for Appellants.
Beckley Singleton, Chtd., and Joel D. Henriod and Daniel F. Polsenberg, Las Vegas, for
Respondent.
1. Appeal and Error.
Supreme court would not address trial court order denying patient's motion for
judgment notwithstanding the verdict (JNOV), as order was not appealable.
2. Jury; New Trial.
Use of a lottery selection system to select alternate jurors did not warrant new trial
for patient and wife in pharmacy malpractice action, as patient's counsel acquiesced to
the process, and nothing precluded counsel from stipulating to the use of a lottery
system for selecting alternate jurors. NRCP 47(b).
3. Appeal and Error.
Any error by trial court in failure to follow rules regarding selection of alternate
jurors and using lottery system did not prejudice patient in pharmacy malpractice action
and thus did not warrant new trial. NRCP 47(b).
4. Evidence.
Medical expert's testimony on causation in pharmacy malpractice action was
speculation and conjecture and thus was inadmissible; expert was not certain what
caused patient's injuries, stated that he could offer a theory that was just as plausible as
the theory that lindane from improperly labeled prescription bottle caused the injury,
and testified that he ranked an autoimmune response as the most likely cause of the
injury, but stated that it was more likely than not that an autoimmune response was the
most likely cause of the injuries only after the court explained that his testimony would
be stricken unless he testified in accordance with Nevada law. NRS 50.275.
5. Appeal and Error.
A district court's decision to admit expert testimony is reviewed for an abuse of
discretion.
6. Appeal and Error.
A district court's decision to admit expert testimony will not be overturned absent a
clear abuse of discretion.
7. Evidence.
Not all medical expert testimony must be stated with a reasonable degree of medical
probability; the standard for admissibility varies depending upon the expert opinion's
nature and purpose. NRS 50.275.
8. Evidence.
Medical expert testimony regarding standard of care and causation must be stated to
a reasonable degree of medical probability. NRS 50.275.
Before Rose, Gibbons and Hardesty, JJ.
........................................
121 Nev. 153, 155 (2005) Morsicato v. Sav-On Drug Stores, Inc.
OPINION
Per Curiam:
Andrew Morsicato and Concetta Morsicato appeal from a final judgment of the district
court, following a jury verdict, of no liability in a pharmacy malpractice action. The
Morsicatos challenge the district court's admission of expert testimony that failed to conform
to the reasonable degree of medical probability standard. We take this opportunity to clarify
our holding in Banks v. Sunrise Hospital
1
and confirm that medical expert testimony on the
issue of causation must be stated to a reasonable degree of medical probability. Because, in
this case, the testimony did not conform to this standard, we reverse the district court's
judgment.
FACTS
After suffering rash-like symptoms, Andrew Morsicato was diagnosed with scabies. His
dermatologist prescribed lindane lotion, an extremely potent neurotoxin lotion used as an
insecticide to treat scabies. The dermatologist wrote two prescriptions for the lotion, one for
Mr. Morsicato and one for his wife, as scabies is highly contagious to members of the same
household.
Morsicato presented both prescriptions to Sav-On Drug Stores for filling and received two
bottles of lindane, each with different application instructions. Morsicato's prescription
correctly indicated the lotion should be applied at bedtime and washed off after 12 hours. The
label on his wife's prescription displayed flawed instructions, directing application of the
lotion every 12 hours. Sav-On's pharmacy expert admitted that Sav-On improperly labeled the
wife's prescription bottle by directing lindane application every 12 hours.
Morsicato used his wife's prescription, applying the lotion every 12 hours for several days.
Following multiple applications of the lotion, Morsicato began experiencing pain and
significant skin irritation. Morsicato returned to his primary treating physician with boils,
blisters, redness, and extreme pain on those areas where he had applied the lotion. Several
physicians evaluated Morsicato and concluded that his injuries were linked to overexposure
to lindane.
The Morsicatos sued Sav-On claiming that multiple applications of lindane caused
Morsicato's permanent injuries. Because Sav-On admitted to improperly labeling the bottle,
the district court granted a directed verdict in favor of the Morsicatos on the issue of Sav-On's
negligence.
____________________

1
120 Nev. 822, 834-35, 102 P.3d 52, 60-61 (2004).
........................................
121 Nev. 153, 156 (2005) Morsicato v. Sav-On Drug Stores, Inc.
Sav-On's negligence. The issues of causation, comparative negligence, and damages remained
for the jury.
Prior to jury selection, the district court informed all parties that it was using a lottery
system to select alternate jurors. In the lottery system, a total of ten jurors were seated in the
jury box for the trial, and after closing argument but before deliberation, two alternate jurors
were chosen by random drawing. Under this selection process, any two of the ten jurors could
have been selected to be the alternate jurors. The record reveals the Morsicatos' counsel
acquiesced in the district court's suggested process.
During trial, the jurors considered causation evidence. The Morsicatos presented several
experts, who testified to a reasonable degree of medical probability that Morsicato's injuries
were caused by the lindane lotion. Sav-On offered only the testimony of a neurologist, Dr.
Michael Schneck. Dr. Schneck acknowledged the theory that lindane exposure caused
Morsicato's injuries, but he opined that other theories, including an autoimmune response,
could explain the injury. After counsel objected to the speculative nature of Dr. Schneck's
testimony, the court explained that medical opinions regarding causation must state that the
particular form of causation was more likely than not, or more than 50 percent likely. Dr.
Schneck then testified that his autoimmune theory was not more likely than other causes but
that he would rank that theory as the most likely medical cause. Dr. Schneck acknowledged
that his ranking of possible causes was inconsistent with Nevada's evidentiary standard.
Again, the court explained the standard, clarifying that the opinion must be more than 50
percent likely or the court would strike the testimony. Dr. Schneck then stated that the
autoimmune phenomenon was the most likely cause.
[Headnotes 1-3]
The jury returned a unanimous verdict, finding that Sav-On's negligence did not cause
Morsicato's skin condition. The judgment was then entered based on this verdict. The
Morsicatos filed a motion for new trial and a motion for judgment notwithstanding the verdict
(JNOV), which the district court denied in a subsequent order.
2

____________________

2
The Morsicatos raise on appeal the denial of these motions. The order denying the JNOV is not appealable;
therefore, we do not address it now. Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001). The
Morsicatos also argue that a new trial is warranted, given the use of a lottery selection system to select alternate
jurors. The Morsicatos' counsel, however, acquiesced to the process used in this trial, and nothing precludes
counsel from stipulating to the use of a lottery system for selecting alternate jurors. Further, even if counsel had
not acquiesced, so that the lottery system violated NRCP 47(b), we would conclude that any failure to follow
NRCP 47(b) did not result in prejudice that would warrant a new trial. City of Elko v. Zillich, 100 Nev. 366, 371,
683 P.2d 5, 8 (1984).
........................................
121 Nev. 153, 157 (2005) Morsicato v. Sav-On Drug Stores, Inc.
DISCUSSION
Admissibility of expert testimony
[Headnote 4]
The Morsicatos argue Dr. Schneck's expert testimony on causation was speculation and
conjecture that failed to meet the requisite standard for expert testimony and therefore should
have been stricken. We agree.
[Headnotes 5, 6]
A district court's decision to admit expert testimony is reviewed for an abuse of discretion.
3
The district court's decision will not be overturned absent a clear abuse of discretion.
4

NRS 50.275 provides that a witness qualified as an expert by special knowledge, skill,
experience, training or education may testify to matters within the scope of such knowledge.
In United Exposition Service Co. v. SIIS, we concluded that an award of compensation
cannot be based solely upon possibilities and speculative testimony.
5
In that case, which
involved the payment of workers' compensation benefits after an industrial injury, we held
that physician[s] must state to a degree of reasonable medical probability that the condition
in question was caused by the industrial injury, or sufficient facts must be shown so that the
trier of fact can make the reasonable conclusion that the condition was caused by the
industrial injury.
6
The speculative nature of an opinion that an injury possibly could have
been a precipitating factor was insufficient to support a finding of causation; specifically, we
stated, A possibility is not the same as a probability.
7

Sav-On argues that even though Dr. Schneck's testimony was not made to a reasonable
degree of medical probability, it was nevertheless admissible under the general standard of
NRS 50.275 because it did not address an ultimate finding of fact.
[Headnote 7]
Not all medical expert testimony must be stated with a reasonable degree of medical
probability. The standard for admissibility varies depending upon the expert opinion's nature
and purpose.
In Banks v. Sunrise Hospital, this court considered the contention that the district court
erred in admitting expert medical opinion testimony.
8
During trial, the medical expert
testified regarding possible ways anesthesia equipment could fail and admitted that,
because he could not examine the actual machine used, he could not determine whether
the equipment contributed to the victim's injury.
____________________

3
Krause, 117 Nev. at 933-34, 34 P.3d at 569.

4
Id. at 934, 34 P.3d at 569.

5
109 Nev. 421, 424, 851 P.2d 423, 425 (1993).

6
Id. at 424-25, 851 P.2d at 425.

7
Id. at 425, 851 P.2d at 425.

8
120 Nev. 822, 834-35, 102 P.3d 52, 60-61 (2004).
........................................
121 Nev. 153, 158 (2005) Morsicato v. Sav-On Drug Stores, Inc.
garding possible ways anesthesia equipment could fail and admitted that, because he could
not examine the actual machine used, he could not determine whether the equipment
contributed to the victim's injury.
9
Although the expert opinion testimony was based on less
than a reasonable degree of medical probability, we concluded that the district court did not
abuse its discretion in admitting the evidence.
10
The medical opinion testimony related to the
operation of equipment and not to any medical standard of care. However, the holding in
Banks was not intended to modify or change in any way the requirement that medical expert
testimony, regarding the standard of care and causation in a medical malpractice case, must
be based on testimony made to a reasonable degree of medical probability.
Since 1989, this court has held that a medical expert is expected to testify only to matters
that conform to the reasonable degree of medical probability standard.
11
Furthermore, in
dictum, this court has observed that expert testimony regarding causation must also rise to
this level of certainty.
12
As the Pennsylvania Supreme Court has recognized, one rationale
for requiring such specificity with expert opinions is that if the plaintiff's medical expert
cannot form an opinion with sufficient certainty so as to make a medical judgment, there is
nothing on the record with which a jury can make a decision with sufficient certainty so as to
make a legal judgment.
13

[Headnote 8]
We conclude that medical expert testimony regarding standard of care and causation must
be stated to a reasonable degree of medical probability. In this case, Dr. Schneck testified
concerning an ultimate issue in the case, causation. He was not certain what caused
Morsicato's injuries; however, he stated that he could offer a theory that was just as plausible
as the theory that lindane caused the injury. He further testified that he ranked an autoimmune
response as the most likely cause of the injury and recognized that this was inconsistent with
Nevada's evidentiary standard. Only after the court explained that Dr.
____________________

9
Id. at 835, 102 P.3d at 61.

10
Id.

11
Brown v. Capanna, 105 Nev. 665, 671-72, 782 P.2d 1299, 1304 (1989).

12
See, e.g., id. at 671-72, 782 P.2d at 1304 (recognizing that testimony regarding causation must conform to
the reasonable degree of medical probability standard); accord Fitzgerald v. Manning, 679 F.2d 341, 350 (4th
Cir. 1982) (in order to qualify on causation, the medical expert opinion cannot be stated in general terms but
must be stated in terms of a reasonable degree of medical certainty).

13
McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971).
........................................
121 Nev. 153, 159 (2005) Morsicato v. Sav-On Drug Stores, Inc.
after the court explained that Dr. Schneck's testimony would be stricken unless he testified in
accordance with Nevada law, did he state that more likely than not an autoimmune response
was the most likely cause of the injuries. Dr. Schneck never stated his medical opinion to a
reasonable degree of medical probability, however.
Dr. Schneck's testimony was highly speculative and failed to meet the admissibility
standard. Therefore, we conclude that the district court abused its discretion in failing to
strike the testimony, and we reverse the district court's judgment and remand for a new trial
on the issues of causation, contributory negligence, and damages, if any.
____________
121 Nev. 159, 159 (2005) Viray v. State
BENJARDI BATUCAN VIRAY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42325
May 26, 2005 111 P.3d 1079
Appeal from a judgment of conviction, pursuant to a jury verdict, of six counts of
lewdness with a minor under the age of fourteen, four counts of sexual assault of a minor
under the age of fourteen, and two counts of preventing or dissuading a person from testifying
or producing evidence. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
The supreme court, Hardesty, J., held that: (1) defendant's substantial rights were not
prejudiced by trial court's decision to allow the State to amend information; (2) trial court has
discretion to remove a juror mid-trial for violation of the court's admonishment to jurors not
to talk among themselves or with anyone else on any subject connected with trial, rather than
declaring a mistrial; and (3) trial court did not abuse its discretion in removing and replacing
juror mid-trial who had admitted to violating admonishment given to jurors not to talk among
themselves or with anyone else on any subject connected with trial.
Affirmed.
Philip J. Kohn, Public Defender, and Craig F. Jorgenson, Chief Deputy Public Defender,
Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
........................................
121 Nev. 159, 160 (2005) Viray v. State
1. Indictment and Information.
Decision to permit an indictment or information to be amended is within the trial
court's discretion. NRS 173.095(1).
2. Indictment and Information.
A criminal defendant has a substantial and fundamental right to be informed of the
charges against him so that he can prepare an adequate defense.
3. Indictment and Information.
An information must properly include a statement of the acts constituting the offense
in ordinary and concise language.
4. Criminal Law.
An inaccurate information does not prejudice defendant's substantial rights if the
defendant had notice of the State's theory of prosecution.
5. Criminal Law.
Defendant's substantial rights were not prejudiced by trial court's decision to allow
State to amend information, which charged defendant with numerous sexual offenses
involving a minor; original information alleged that victim sat on defendant's lap while
he massaged her legs and/or feet, but victim testified at preliminary hearing that
defendant forced her to massage his legs and feet, and information was amended to
conform to victim's testimony at hearing. NRS 173.095(1).
6. Jury.
A trial court has discretion to remove a juror mid-trial for violation of the court's
admonishment to jurors not to talk among themselves or with anyone else on any
subject connected with trial, rather than declaring a mistrial. NRS 175.401(1).
7. Jury.
In exercising its discretion to remove a juror mid-trial for violation of the court's
admonishment to jurors not to converse among themselves or with anyone else on
subject connected with trial, a trial court must conduct a hearing to determine if the
violation of the admonishment occurred and whether the misconduct is prejudicial to
the defendant. Prejudice requires an evaluation of the quality and character of the
misconduct, whether other jurors have been influenced by the discussion, and the extent
to which a juror who has committed misconduct can withhold any opinion until
deliberation. NRS 175.401(1).
8. Jury.
Trial court did not abuse its discretion in removing and replacing juror mid-trial who
had admitted to violating admonishment given to jurors not to talk among themselves
or with anyone else on any subject connected with trial, rather than declaring a mistrial;
trial court conducted hearing for each of two jurors involved in violating admonishment
outside presence of the other jurors, misconduct was established as to juror four when
he violated admonishment in his discussion of case with juror five, but juror five was
not influenced by discussion and could withhold any opinion until deliberations, and
thus mistrial was not warranted. NRS 16.080, 175.401(1).
Before Rose, Gibbons and Hardesty, JJ.
........................................
121 Nev. 159, 161 (2005) Viray v. State
OPINION
By the Court, Hardesty, J.:
Although it is clear that a district court must grant a mistrial in cases of prejudicial juror
misconduct,
1
on appeal we consider whether a juror can be removed mid-trial and
substituted by an alternate for violating the court's admonishment not to discuss the case
before deliberations.
Appellant Benjardi Batucan Viray contends that the district court erred by refusing to: (1)
grant a continuance when the State amended the information on the first day of trial, and (2)
order a mistrial instead of substituting an alternate juror mid-trial for a juror who violated the
court's admonishment not to discuss the case. Because we conclude the amendment to the
information simply corrected a transposition of peripheral facts and the district court utilized
the proper procedure for dismissing a juror during trial and appointing an alternate, we affirm
the judgment of conviction.
FACTS
The State filed a criminal complaint against Viray, accusing him of performing lewd acts
and sexually assaulting his live-in girlfriend's daughter. At the preliminary hearing, the victim
testified that, among other things, Viray forced her to massage his legs and feet. Following
the preliminary hearing, the State filed an information that alleged that the victim sat on
Viray's lap while he massaged her legs and/or feet. The inconsistency between the
information and the victim's testimony became apparent when Viray filed a pretrial petition
for a writ of habeas corpus. In its response to the writ petition, the State acknowledged the
error and proposed an amendment to conform the information to the victim's testimony at the
preliminary hearing. The writ was denied, but the State failed to amend the information until
the first day of trial. Viray sought a continuance, which the court denied.
On the fourth day of trial, the district court received a note from juror four expressing
reservations about his role as a juror and requesting to be released from his duties. The court
provided copies to both parties and read the note into the record.
Over Viray's objection, the court interviewed juror four. Juror four was escorted into the
courtroom, placed under oath and questioned by the court.
____________________

1
Lane v. State, 110 Nev. 1156, 1162, 881 P.2d 1358, 1363 (1994), vacated on other grounds on rehearing,
114 Nev. 299, 956 P.2d 88 (1998).
........................................
121 Nev. 159, 162 (2005) Viray v. State
tioned by the court. He confirmed the content of the note, expressed doubts about his ability
to participate, and explained that he had awakened in the middle of the night trying to figure
out how to form a solution that would not be disruptive for both parties in the case. During
the colloquy, the court asked if juror four had discussed this issue with anyone else. Juror four
confirmed that he had discussed his concerns with juror five who sat next to him on the jury
panel.
The district court then questioned juror five who confirmed a discussion with juror four;
however, juror five testified that their conversation was limited to juror four's doubts about
serving as a juror and the fact that he had a sleepless night thinking about a solution for the
case. Juror five stated that he had not made up his mind and would withhold personal
opinions about the case until it was finally submitted to the jury for deliberation.
Viray objected to the removal of juror four, or in the alternative, requested a mistrial. The
court excused juror four and replaced him with an alternate. Juror five was allowed to remain.
DISCUSSION
Amendment of information
Viray argues that the district court abused its discretion by allowing the State to amend the
information during the first day of trial, substantially prejudicing his rights. We disagree.
[Headnote 1]
NRS 173.095(1) states, The court may permit an indictment or information to be
amended at any time before verdict or finding if no additional or different offense is charged
and if substantial rights of the defendant are not prejudiced. Such a determination is within
the district court's discretion.
2

[Headnotes 2-4]
A criminal defendant has a substantial and fundamental right to be informed of the charges
against him so that he can prepare an adequate defense.
3
As a result, this court has held that
[t]he State is required to give adequate notice to the accused of the various theories of
prosecution.
4
An information must properly include a statement of the acts constituting the
offense in ordinary and concise language.
5
An inaccurate information does not prejudice a
defendant's substantial rights if the defendant had notice of the State's theory of
prosecution.
____________________

2
Green v. State, 94 Nev. 176, 177, 576 P.2d 1123, 1123 (1978).

3
Jennings v. State, 116 Nev. 488, 490, 998 P.2d 557, 559 (2000).

4
State v. Dist. Ct., 116 Nev. 374, 377, 997 P.2d 126, 129 (2000).

5
Jennings, 116 Nev. at 490, 998 P.2d at 559 (internal quotation marks and citations omitted); NRS
173.075(1).
........................................
121 Nev. 159, 163 (2005) Viray v. State
udice a defendant's substantial rights if the defendant had notice of the State's theory of
prosecution.
6

This court addressed the amendment of a criminal complaint during trial in Shannon v.
State.
7
In that case, the original complaint stated that Shannon had committed sexual assault
by inserting his penis into the mouth of a minor.
8
After the trial commenced, the State
amended the information to allege that the minor's penis was inserted into Shannon's mouth.
9
Despite a change in the factual sequence, this court concluded that the mid-trial amendment
did not affect the defendant's substantial rights and the charged offense remained the same.
10

[Headnote 5]
Here, Viray's substantial rights were not prejudiced, and the charges remained the same.
As the State proposed in its opposition to the pretrial habeas corpus petition, the information
was amended to conform to the victim's testimony at the preliminary hearing. The district
court did not abuse its discretion in allowing the State to amend the information and refusing
to continue the trial.
Juror removal
We take this opportunity to discuss the procedure for removing and replacing a juror who
has violated the district court's admonishment not to discuss the case at hand.
[Headnotes 6, 7]
Juror four was dismissed for violating the district court's admonishment under NRS
175.401(1), which states in pertinent part that at each adjournment, the judge must admonish
the jurors not to [c]onverse among themselves or with anyone else on any subject connected
with the trial. We have previously held that a district court must grant a mistrial in cases of
prejudicial juror misconduct.
11
We conclude today that a district court has discretion to
remove a juror mid-trial for violation of the court's admonishment rather than declaring a
mistrial. In exercising its discretion, a district court must conduct a hearing to determine if the
violation of the admonishment occurred and whether the misconduct is prejudicial to the
defendant. Prejudice requires an evaluation of the quality and character of the misconduct,
whether other jurors have been influenced by the discussion, and the extent to which a
juror who has committed misconduct can withhold any opinion until deliberation.
____________________

6
Dist. Ct., 116 Nev. at 378-79, 997 P.2d at 129; Koza v. State, 104 Nev. 262, 264, 756 P.2d 1184, 1185
(1988).

7
105 Nev. 782, 783 P.2d 942 (1989).

8
Id. at 785 n.2, 783 P.2d at 944 n.2.

9
Id. at 785, 783 P.2d at 944.

10
Id.

11
Lane, 110 Nev. at 1162, 881 P.2d at 1363.
........................................
121 Nev. 159, 164 (2005) Viray v. State
been influenced by the discussion, and the extent to which a juror who has committed
misconduct can withhold any opinion until deliberation.
NRS 16.080 provides for the discharge and replacement of jurors who are disqualified or
unable to perform their duties. The ability to replace a juror with an alternate is particularly
important before the juror's misconduct influences the other jurors or results in prejudice to
the defendant. Further, district courts can, under appropriate circumstances, replace a juror
with an alternate during deliberations instead of declaring a mistrial.
12

The California Supreme Court in People v. Daniels addressed the removal of a juror who
violated the admonishment not to discuss the case with others.
13
That court held removal
was proper because a juror who violates the admonishment to refrain from discussing the
case or reading newspaper accounts of the trial cannot be counted on to follow jury
instructions in the future.
14
A juror is obligated to follow directions, and a juror who is
unable to follow directions is unable to perform his or her duty as a juror.
15

[Headnote 8]
In this case, the district court conducted a hearing for each juror involved in violating the
admonishment outside the presence of the other jurors. Misconduct was established as to
juror four when he violated the admonishment in his discussion of the case with juror five.
However, juror five was not influenced by the discussion and could withhold any opinion
until deliberations. A mistrial was not required and the district court properly exercised its
discretion to remove and replace juror four.
CONCLUSION
We conclude the district court did not abuse its discretion by allowing the amendment to
the information during the first day of trial and refusing to grant a continuance. We further
conclude that the district court did not abuse its discretion by properly rejecting a motion for
mistrial and following the proper procedure to remove and replace a juror mid-trial for failure
to abide by the court's admonishment not to discuss the case with others. Accordingly, we
affirm the judgment of conviction.
Rose and Gibbons, JJ., concur.
____________________

12
Id.; McKenna v. State, 96 Nev. 811, 813, 618 P.2d 348, 349 (1980).

13
802 P.2d 906 (Cal. 1991).

14
Id. at 930.

15
People v. Williams, 21 P.3d 1209, 1213-14 (Cal. 2001).
____________
........................................
121 Nev. 165, 165 (2005) Foster v. State
TROY ANTHONY FOSTER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42749
May 26, 2005 111 P.3d 1083
Appeal from an order of the district court denying a post-conviction petition for a writ of
habeas corpus. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Defendant, convicted of three counts of sexual assault, filed a post-conviction petition for
a writ of habeas corpus. The district court denied the petition. Defendant appealed. The
supreme court held that: (1) trial court did not abuse its discretion in finding that defense
counsel violated Batson, (2) trial court did not abuse its discretion in reseating one of the
women jurors who had been improperly peremptorily challenged by the defense, and (3)
defense counsel's conduct during trial did not constitute ineffective assistance.
Affirmed.
[Rehearing denied July 8, 2005]
Richard F. Cornell, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
A claim of ineffective assistance of counsel presents a mixed question of law and
fact, subject to independent review. U.S. Const. amend. 6.
2. Criminal Law.
The key to evaluating an ineffective assistance of counsel claim is whether the
proper functioning of the adversarial process was so undermined by counsel's conduct
that the reviewing court cannot trust that the trial produced a just result.
3. Criminal Law.
In order to prevail on a claim of ineffective assistance of counsel, a claimant must
make two showings. First, the claimant must show that counsel's performance was
deficient, i.e., that counsel's representation fell below an objective standard of
reasonableness, and second, a claimant must show that counsel's deficient performance
prejudiced the defense. U.S. Const. amend. 6.
4. Criminal Law.
For purposes of deficient performance element of ineffective assistance of counsel
claim, the inquiry on review must be whether, in light of all the circumstances,
counsel's assistance was reasonable. U.S. Const. amend. 6.
5. Criminal Law.
For purposes of prejudice element of ineffective assistance of counsel claim, the
claimant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
........................................
121 Nev. 165, 166 (2005) Foster v. State
bility that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. U.S. Const. amend. 6.
6. Criminal Law.
Judicial review of defense counsel's representation is highly deferential. U.S. Const.
amend. 6.
7. Criminal Law.
To fairly assess defense counsel's performance, the reviewing court must try to avoid
the distorting effects of hindsight and evaluate the conduct under the circumstances and
from counsel's perspective at the time. U.S. Const. amend. 6.
8. Criminal Law.
A district court's purely factual findings regarding a claim of ineffective assistance of
counsel are entitled to deference on subsequent review by the supreme court. U.S.
Const. amend. 6.
9. Criminal Law.
The court need not consider both prongs of the Strickland test for ineffective
assistance of counsel if the petitioner makes an insufficient showing on either prong.
U.S. Const. amend. 6.
10. Criminal Law.
A defendant's constitutional right to effective assistance of counsel extends to a
direct appeal. U.S. Const. amend. 6.
11. Criminal Law.
The supreme court reviews claims of ineffective assistance of appellate counsel
under the Strickland test. In order to establish prejudice based on deficient assistance of
appellate counsel, the petitioner must show that the omitted issue would have had a
reasonable probability of success on appeal. U.S. Const. amend. 6.
12. Criminal Law.
Appellate counsel is not required to raise every non-frivolous or meritless issue to
provide effective assistance. U.S. Const. amend. 6.
13. Criminal Law.
Appellate counsel is entitled to make tactical decisions to limit the scope of an
appeal to issues that counsel feels have the highest probability of success. U.S. Const.
amend. 6.
14. Jury.
Trial court did not abuse its discretion in finding that defense counsel violated
Batson by engaging in a pattern of gender discriminatory strikes; counsel exercised
peremptory challenges to five women in the jury venire.
15. Jury.
It is impermissible to use a peremptory challenge to exclude a potential juror based
on race or gender.
16. Jury.
In determining whether peremptory challenges have been used in a discriminatory
manner, the complaining party must first make a prima facie showing of intentional
discrimination; next, the party accused of discriminatory challenges must offer a gender
or race-neutral explanation for striking the jurors; the trial court must then decide
whether the complaining party has carried his burden of proving purposeful
discrimination.
17. Jury.
Trial court did not abuse its discretion in reseating one of the women jurors who had
been improperly peremptorily challenged by the defense, as a remedy for the Batson
violation; trial court offered counsel the choice of starting over with an entirely new
venire, or of continuing with the same venire with the last woman juror reinstated
to the panel.
........................................
121 Nev. 165, 167 (2005) Foster v. State
as a remedy for the Batson violation; trial court offered counsel the choice of starting
over with an entirely new venire, or of continuing with the same venire with the last
woman juror reinstated to the panel.
18. Jury.
Trial courts should assure that all peremptory challenges during jury selection are
exercised and considered outside the presence of the jury venire.
19. Criminal Law.
Defense counsel's decision not to provide more detailed evidence of the defense of
accidental anal penetration during sexual assault trial did not constitute ineffective
assistance; counsel could have reasonably concluded that the jury would have rejected
as improbable any claim that injuries as severe as the victim's resulted from accidental
contact. U.S. Const. amend. 6.
20. Criminal Law.
Defense counsel's decision not to seek a limiting instruction with respect to evidence
of pimping and prostitution as prior uncharged misconduct did not constitute
ineffective assistance; during a chambers conference at trial, counsel renewed his
objection to the prior uncharged misconduct evidence, but stated that he did not want to
draw the jurors' attention to that evidence by objecting in open court. U.S. Const.
amend. 6.
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
Per Curiam:
In this appeal, we consider whether the district court properly denied appellant Troy
Anthony Foster's post-conviction petition for a writ of habeas corpus. Foster asserts a number
of claims of error in connection with that denial. Primarily, we address Foster's claim that his
Sixth Amendment right to the effective assistance of counsel was violated when his counsel
on direct appeal failed to assign any error with regard to the trial court's finding that defense
counsel violated Batson v. Kentucky.
1
During jury selection, the trial court sustained the
State's Batson objection to peremptory challenges exercised by defense counsel, ruling that
defense counsel had engaged in a pattern of gender discriminatory strikes. As a remedy for
the Batson violation, the trial court reseated one of the women jurors who had been
improperly peremptorily challenged by the defense.
____________________

1
476 U.S. 79 (1986) (holding that it is impermissible to use a peremptory challenge to exclude a potential
juror based on race). The term Batson challenge is often used generically to refer to discriminatory challenges
for gender, as well as race. The Batson decision addressed only race discrimination, but the holding of Batson
was expanded to include gender discrimination in the later case of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994).
........................................
121 Nev. 165, 168 (2005) Foster v. State
We conclude that the district court did not err in rejecting this and other claims presented
in Foster's post-conviction habeas petition below, and we therefore affirm the district court's
order denying Foster's petition. We nonetheless emphasize our strong preference that, in
future cases, the trial courts of this State should follow the American Bar Association
Standard recommending that all peremptory challenges to the jury venire should be exercised
outside the presence of the venire.
2

FACTS AND PROCEDURAL HISTORY
The State charged Foster by information with four counts of sexual assault and one count
of kidnapping. At his jury trial, testimony established that in December of 1997, while
driving the victim from Reno to Carson City, Foster turned off the road, stopped the car, and
sexually assaulted the victim. The victim testified clearly and unequivocally at trial that
Foster ordered her out of her clothes, assaulted her both anally and vaginally, and forced her
to perform oral sex. The victim also testified that Foster told her he was into prostitution
and wanted to pimp her out.
A friend of the victim testified that the victim was noticeably upset when Foster returned
her to her home in Carson City after the assault. The friend also testified that she observed
bite marks and bruises on the victim. A nurse specializing in sexual assault cases testified to
finding bite marks on the victim's breasts, bruises on her legs, neck, and breast, a swollen and
torn rectum, a bruised colon, and tears on the outside of her vagina. At the conclusion of the
trial, the jury found Foster guilty of three counts of sexual assault and acquitted him of one
count of sexual assault and one count of kidnapping.
Foster appealed his conviction to this court, enumerating five assignments of error.
3
This
court rejected those contentions and affirmed his conviction, concluding in part that the
evidence presented at trial was more than sufficient to sustain the jury's verdict.
4
Foster
then filed a timely post-conviction petition for a writ of habeas corpus in the district court,
claiming ineffective assistance of both trial and appellate counsel.
____________________

2
See ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-2.7(a) (3d ed. 1996).

3
On direct appeal, Foster's appellate counsel argued: (1) there was insufficient evidence to support the
conviction, (2) the repeated canvass of Foster as to his right to testify impaired his ability to knowingly and
intentionally waive his right, (3) the trial court erred in not conducting a hearing into an incident where a juror
may have learned of Foster's in-custody status during trial, (4) an improper reasonable doubt jury instruction
impermissibly reduced the State's burden of proof, and (5) the trial court erred in not giving the two jury
instructions proffered by the defense.

4
Foster v. State, Docket No. 32872 (Order Dismissing Appeal, January 26, 2000).
........................................
121 Nev. 165, 169 (2005) Foster v. State
writ of habeas corpus in the district court, claiming ineffective assistance of both trial and
appellate counsel. The district court appointed counsel to represent Foster and conducted an
evidentiary hearing. On January 28, 2004, the district court entered an order rejecting all of
Foster's claims and denying the petition. This appeal follows.
DISCUSSION
Standards of review
[Headnotes 1, 2]
A claim of ineffective assistance of counsel presents a mixed question of law and fact,
subject to independent review.
5
The key to evaluating an ineffectiveness claim is whether
the proper functioning of the adversarial process was so undermined by counsel's conduct that
the reviewing court cannot trust that the trial produced a just result.
6

[Headnotes 3, 4]
Under the test established in Strickland v. Washington,
7
in order to prevail on a claim of
ineffective assistance of counsel, a claimant must make two showings. First, [a claimant]
must show that counsel's performance was deficient,
8
i.e., that counsel's representation fell
below an objective standard of reasonableness.
9
The inquiry on review must be whether, in
light of all the circumstances, counsel's assistance was reasonable.
10
This court has recently
held that a habeas corpus petitioner must prove the disputed factual allegations underlying his
ineffective assistance of counsel claims by a preponderance of the evidence.
11

[Headnote 5]
Second, a claimant must show that counsel's deficient performance prejudiced the
defense.
12
Specifically, the claimant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.
13

____________________

5
Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001).

6
Strickland v. Washington, 466 U.S. 668, 686 (1984).

7
Id. at 687.

8
Id.

9
Evans, 117 Nev. at 622, 28 P.3d at 508.

10
Strickland, 466 U.S. at 688.

11
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).

12
Evans, 117 Nev. at 622, 28 P.3d at 508.

13
Strickland, 466 U.S. at 694.
........................................
121 Nev. 165, 170 (2005) Foster v. State
[Headnotes 6-9]
Judicial review of [counsel's] representation is highly deferential . . . .
14
To fairly assess
counsel's performance, [t]he reviewing court must try to avoid the distorting effects of
hindsight and evaluate the conduct under the circumstances and from counsel's perspective at
the time.
15
A district court's purely factual findings regarding a claim of ineffective
assistance of counsel are entitled to deference on subsequent review by this court.
16
In
addressing ineffective-assistance-of-counsel issues, this court has stated that a tactical
decision . . . is virtually unchallengeable absent extraordinary circumstances.'
17
Additionally, the court need not consider both prongs of the Strickland test if the petitioner
makes an insufficient showing on either prong.
18

[Headnotes 10-13]
A defendant's constitutional right to effective assistance of counsel extends to a direct
appeal.
19
This court reviews claims of ineffective assistance of appellate counsel under the
Strickland test; in order to establish prejudice based on deficient assistance of appellate
counsel, the petitioner must show that the omitted issue would have had a reasonable
probability of success on appeal.
20
Appellate counsel is not required to raise every
non-frivolous or meritless issue to provide effective assistance.
21
Appellate counsel is
entitled to make tactical decisions to limit the scope of an appeal to issues that counsel feels
have the highest probability of success.
22

Batson ruling and remedy
Foster contends that the district court erred in rejecting his claims that his trial counsel was
ineffective for failing to properly object to the trial court's Batson decision and remedy and
that his appellate counsel was ineffective for failing to assert any claims of error on appeal
with respect to the trial court's resolution of the Batson issue. We disagree.
____________________

14
Evans, 117 Nev. at 622, 28 P.3d at 508.

15
Id.

16
Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).

17
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (quoting Howard v. State, 106 Nev.
713, 722, 800 P.2d 175, 180 (1990)).

18
Strickland, 466 U.S. at 697.

19
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996).

20
Lara v. State, 120 Nev. 177, 183-84, 87 P.3d 528, 532 (2004) (citing Kirksey, 112 Nev. at 998, 923 P.2d at
1114).

21
Id. at 184, 87 P.3d at 533.

22
Id.
........................................
121 Nev. 165, 171 (2005) Foster v. State
During jury selection, Foster's counsel exercised peremptory challenges to five women in
the jury venire, prompting a Batson challenge from the prosecutor. A hearing was held in
chambers outside the presence of the jury. After finding a pattern of gender discriminatory
strikes by defense counsel, the trial court considered reseating the last woman juror, the only
one of the challenged women remaining in the courthouse. After a discussion with counsel,
the judge announced that instead she would dismiss the entire venire and start jury selection
over.
Foster's counsel objected, stating he did not think it was fair to Foster to strike a venire that
included an African-American male, which in counsel's opinion was a rarity in that court.
Foster's counsel wanted the same venire, but he also did not want the last woman juror
reinstated, citing possible bias because the juror was aware that the defense had exercised a
peremptory challenge striking her from the panel. The trial court ruled that Foster's counsel
couldn't have it both ways, and gave the defense the option of either choosing an entirely
new venire, or utilizing the same venire with the woman juror at issue reseated with a
curative instruction. After consulting with Foster, defense counsel chose to keep the venire,
but preserved his objection to reinstating the woman juror on the record. The State concurred
with the decision to reinstate the juror instead of selecting an entirely new venire. It is not
clear from the record before this court if a curative instruction was ever given to the reseated
juror.
Counsel's response to the finding of purposeful discrimination
[Headnote 14]
The record clearly establishes that Foster's trial counsel did object to the trial court's
decision and remedy. Thus, Foster's claim that his trial counsel was ineffective for failing to
properly object to the trial court's decision is belied by the record. Moreover, we conclude
that Foster has failed to establish that the district court erred in finding a pattern of gender
discriminatory strikes against women in the venire or in reinstating the last juror as a remedy
for the Batson violation. Thus, Foster has failed to demonstrate prejudice sufficient to
establish that he is entitled to relief on his claims of ineffective assistance of trial counsel.
[Headnotes 15, 16]
It is impermissible to use a peremptory challenge to exclude a potential juror based on race
23
or gender.
24
In determining whether peremptory challenges have been used in a
discriminatory manner, the complaining party "must [first] make a prima facie showing of
intentional discrimination."
____________________

23
Batson v. Kentucky, 476 U.S. 79 (1986).

24
U.S. v. De Gross, 913 F.2d 1417 (9th Cir. 1990); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994);
Libby v. State, 115 Nev. 45, 975 P.2d 833 (1999).
........................................
121 Nev. 165, 172 (2005) Foster v. State
peremptory challenges have been used in a discriminatory manner, the complaining party
must [first] make a prima facie showing of intentional discrimination.
25
Next, the party
accused of discriminatory challenges must offer a gender or race-neutral explanation for
striking the jurors.
26
The trial court must then decide whether the complaining party has
carried his burden of proving purposeful discrimination.
Our review of the record reveals that the trial court properly considered the State's Batson
challenge under this three-step analysis and conducted a thorough canvass of defense
counsel's reasons for striking the challenged women. Such findings are given great deference
on appeal,
27
and we discern no legal error or abuse of discretion in the trial court's finding of
purposeful discrimination. Thus, Foster has not shown the prejudice necessary to establish
any entitlement to relief on his claims relating to his appellate counsel's failure to challenge
the trial court's finding of discrimination; such a challenge would not have had a reasonable
probability of success on appeal.
The decision to reinstate the juror
[Headnote 17]
This court has not previously addressed the appropriate remedy for a Batson violation, and
we decline to engage in a comprehensive analysis of that issue in the context of this
post-conviction appeal. We address the merits of the trial court's decision to reinstate the
juror in question here solely for the purpose of determining whether Foster can demonstrate
the prejudice necessary to establish that he is entitled to relief on his claim of ineffective
assistance of appellate counsel. In so doing, we conclude that, under the singular facts and
circumstances of this case, the trial court did not err in reinstating the challenged juror as an
appropriate remedy. We reserve for another more appropriate case a more definitive decision
of what remedy may best serve to vindicate in Nevada courts the multiple interests that
Batson protects.
28

____________________

25
Walker v. State, 113 Nev. 853, 867, 944 P.2d 762, 771 (1997) (citing Batson, 476 U.S. at 96).

26
Id. (citing Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion) (At this step of the
inquiry, the issue is the facial validity of the [accused party's] explanation.)).

27
Id. at 867-68, 944 P.2d at 771-72.

28
The holding in Batson serves to protect three interests that are threatened by discriminatory jury selection:
(1) the defendant's right to equal protection, (2) the excluded juror's equal protection rights, and (3) the public's
confidence in the fairness of our system of justice. 476 U.S. at 86-87.
........................................
121 Nev. 165, 173 (2005) Foster v. State
The Batson decision expressly left to state courts how best to implement its holding. It
expressed no view:
whether it is more appropriate in a particular case, upon a finding of discrimination . . .
, for the trial court to discharge the venire and select a new jury from a panel not
previously associated with the case, or to disallow the discriminatory challenges and
resume selection with the improperly challenged jurors reinstated on the venire.
29

In implementing Batson, the states have generally followed one of three different approaches.
30
Some jurisdictions require the trial courts to disallow a peremptory strike made in violation
of Batson or to reseat the improperly stricken juror.
31
Other jurisdictions require the trial
courts to discharge the venire and commence jury selection anew from an entirely new venire.
32
The majority of courts, however, have delegated to the discretion of the trial judge the
determination of the appropriate remedy for a Batson violation.
33
Thus, the remedy that the
trial court selected in Foster's case has been held to be an appropriate means of addressing a
Batson violation in other jurisdictions.
34

In the instant case, the trial court offered counsel the choice of starting over with an
entirely new venire, or of continuing with the same venire with the last woman juror
reinstated to the panel. Trial counsel's objection to the first option, made after consultation
with his client, was in the nature of a tactical decision, and this court will not second-guess
counsel's strategic decision. As for the trial court's ultimate decision to reinstate the
challenged juror, Foster failed to demonstrate in the post-conviction proceedings below that
merely because the juror at issue was aware that the defense had exercised a peremptory
challenge against her, she harbored any animus or bias towards the defense.
____________________

29
Id. at 99-100 n.24 (citations omitted).

30
See Jones v. State, 683 A.2d 520, 525 (Md. 1996) (affirming a trial court's decision to reseat jurors
improperly challenged by the defense and providing a comprehensive review of the remedies applied in other
jurisdictions).

31
Id.

32
Id.

33
Id.

34
See, e.g., Jones, 683 A.2d 520 (concluding that reseating improperly challenged jurors was an appropriate
remedy for a Batson violation committed by defense counsel). Notably, in the instant case, the district court
relied on the California Supreme Court decision in People v. Willis, 43 P.3d 130, 137 (Cal. 2002), which held
that such action is a permissible remedy to a successful Batson challenge. Following Willis, the California Court
of Appeals affirmed a trial court's decision to reseat an improperly challenged juror. The court of appeals held
that such an alternative remedy is only proper when the conventional remedy of dismissing the entire venire
serves only to reward the offending party, and when the complaining party assents. People v. Overby, 22 Cal.
Rptr. 3d 233, 236 (Ct. App. 2004).
........................................
121 Nev. 165, 174 (2005) Foster v. State
below that merely because the juror at issue was aware that the defense had exercised a
peremptory challenge against her, she harbored any animus or bias towards the defense.
As the district court found in its order denying Foster's post-conviction claims, [t]here is
nothing in the record to suggest that the female juror who was peremptorily challenged and
ultimately retained on the panel exhibited any bias or prejudice for or against either party.
The district court also observed that the trial court proceedings involving the Batson
challenge were conducted outside the presence of the venire, and the juror at issue was
instructed merely to wait while the court addressed some procedural issues. Further, the
trial court provided general instructions to the venire as to how challenges were made and
subsequently admonished the empanelled jury repeatedly to keep an open mind and to not
form or express any opinion on the case. In sum, we conclude that, under the particular
circumstances of this case, the reinstatement of the juror in question did not offend Foster's
rights under the United States or Nevada Constitutions. Thus, Foster has not established the
prejudice necessary to entitle him to relief on his claim that his appellate counsel was
ineffective for failing to assign error on direct appeal with respect the trial court's resolution
of the Batson issues; such assignments of error would not have had a reasonable chance of
success on appeal.
[Headnote 18]
We emphasize, however, our strong preference that in accordance with the American Bar
Association Standards, the trial courts of this state should assure that all peremptory
challenges during jury selection are exercised and considered outside the presence of the jury
venire.
35
Additionally, if a juror in such a situation is reseated and a curative instruction is
requested, that curative instruction should be given on the record for purposes of review.
Defense theory of accidental anal penetration
[Headnote 19]
Foster claims his trial counsel was ineffective for not investigating and providing more
detailed evidence of the defense of accidental anal penetration.
____________________

35
Standard 15-2.7(a) of the ABA Standards for Criminal Justice: Discovery and Trial by Jury provides:
All challenges . . . should be addressed to the court outside of the presence of the jury, in a manner so that
the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of
the court's ruling on the challenge.
As the commentary to this standard suggests, such a procedure avoids any potential risk that counsel's remarks
may offend the challenged juror.
........................................
121 Nev. 165, 175 (2005) Foster v. State
anal penetration. Foster also claims in this respect that his counsel was deficient for not using
photos of the car, as well as Foster's own testimony, to effectively rebut the victim's version
of events. Foster's arguments are based on the flawed premise that the only reasonable
defense theory was accidental anal penetration. We conclude that defense counsel's tactical,
strategic decisions in these respects were not unreasonable. Defense counsel could have
reasonably concluded that the jury would have rejected as improbable any claim that injuries
as severe as the victim's resulted from accidental contact. Instead, defense counsel reasonably
elected to present evidence supporting the defense theory that the victim consented.
Trial counsel's advice that Foster not testify
Foster asserts that the district court erred in rejecting his claim that trial counsel was
ineffective in urging Foster to waive his Sixth Amendment right to testify. We disagree.
Near the end of the four-day trial, the trial court canvassed Foster to assure that he
understood his constitutional rights to testify or not. Foster asked for more time to decide.
The judge allowed Foster to consider the matter overnight. The following day, outside the
presence of the jury, defense counsel told the court that Foster had decided to testify against
the advice of counsel. The judge once again canvassed Foster, who indicated he understood
his rights. Just before the jury was brought in, Foster's counsel told the judge that Foster had
changed his mind and would not testify. Once again Foster was canvassed. Defense counsel
was granted a five-minute recess to discuss the situation with Foster. After the recess, Foster
advised the court that his decision was not to testify.
In rejecting Foster's claim on direct appeal that the repeated canvassing conducted by the
district court impaired his ability to knowingly and intentionally waive his right to testify, this
court observed that both the district court and defense counsel exhibited patience and
caution in dealing with Foster's decision whether to exercise his right to testify.
36
We
further concluded that neither the district court nor defense counsel influenced Foster's
decision.
37
Our holding in this respect is the law of the case.
38
Foster was fully informed
regarding his rights and his decision not to testify was his and his alone. Under these
circumstances, where Foster elected of his own volition not to testify, he cannot be heard to
complain that his counsel was ineffective in this respect.
____________________

36
Foster v. State, Docket No. 32872 (Order Dismissing Appeal, January 26, 2000).

37
Id.

38
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).
........................................
121 Nev. 165, 176 (2005) Foster v. State
In addition, we note that had Foster testified, he would have been subject to potentially
damaging cross-examination by the State with respect to his prior felony conviction and his
involvement in pimping and prostitution. Moreover, given the implausibility of Foster's claim
of accidental anal penetration, counsel could have reasonably concluded as a tactical matter
that Foster's testimony would have been more harmful than helpful. We therefore conclude
that the district court properly rejected this claim.
Theory of the case jury instruction
Foster claims that his trial counsel was ineffective for failure to seek a proper theory of the
case jury instruction on reasonable mistake of fact as to consent. In fact, Foster's trial
counsel proposed such an instruction.
39
The district court did not accept the instruction,
however, finding instead that other instructions adequately instructed the jury on this issue.
This court affirmed the district court's ruling in Foster's direct appeal, and the decision on that
point is the law of this case.
40
Thus, Foster cannot demonstrate prejudice, i.e., that but for
counsel's alleged error, the result of the trial would have been different. Moreover, the record
demonstrates that Foster's counsel made reasonable efforts to include theory of the case jury
instructions, and as such, his performance did not fall below an objective standard of
reasonableness. Accordingly, the district court did not err in rejecting this claim.
Prior uncharged misconduct
[Headnote 20]
Prior to trial, counsel for Foster moved to have witness statements about Foster's alleged
ties to prostitution excluded. The district court denied the motion, citing to NRS 48.035 and
finding the evidence to be admissible because it was significantly intertwined with the facts
that formed the basis of the alleged crime.
41

In his post-conviction petition, Foster claimed that his trial counsel was ineffective for not
requesting a limiting instruction respecting the evidence of pimping and prostitution as prior
uncharged misconduct.
____________________

39
The tendered instruction read as follows: If you the jury decide that it was reasonable, from the point of
view of Mr. Foster, to conclude that [the victim] had manifested consent, you must find him not guilty.

40
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).

41
NRS 48.035(3) provides:
Evidence of another act or crime which is so closely related to an act in controversy or a crime charged
that an ordinary witness cannot describe the act in controversy or the crime charged without referring to
the other act or crime shall not be excluded, but at the request of an interested party, a cautionary
instruction shall be given explaining the reason for its admission.
........................................
121 Nev. 165, 177 (2005) Foster v. State
charged misconduct. Foster further claimed that his appellate counsel was ineffective for
failing to challenge on appeal the district court's ruling admitting this evidence.
Foster's trial pre-dated our recent decision in Tavares v. State, which held that a limiting
instruction is required unless the defense declines such an instruction for strategic purposes.
42
Prior to Tavares, unless requested by the defense, no limiting instruction was required absent
exceptional circumstances.
43
This court found such exceptional circumstances in Meek v.
State,
44
where the prosecution in a sexual assault trial presented the testimony of the victim
of a prior uncharged sexual assault by the defendant.
45
This court held that the district court
erred by failing to conduct a Petrocelli hearing, erred in admitting the evidence absent clear
and convincing evidence of its veracity, and erred in failing to give a jury instruction as to the
proper, limited use of the testimony.
46

Foster cites Freeman v. Class
47
for the proposition that counsel's failure to request an
appropriate instruction is deficient conduct and is prejudicial where the evidence of guilt is
not overwhelming. But in Freeman, as in Meek, the evidence admitted without a cautionary
instruction was the central evidence in convicting the defendant.
48

Here, the decision of Foster's counsel not to seek a limiting instruction was a tactical one.
The record shows that during a chambers conference at trial, Foster's counsel renewed his
objection to the prior uncharged misconduct evidence and stated that he did not want to draw
the jurors' attention to that evidence by objecting in open court. That objection was made to
preserve Foster's right to appeal the court's decision on the motion in limine. Certainly
defense counsel had a right to request a limiting instruction, but there was no requirement that
such an instruction be given absent a request by counsel.
49
We conclude that declining to
request a limiting instruction here was a reasonable tactical decision by counsel and did
not fall below an objective standard of reasonableness.
____________________

42
117 Nev. 725, 731, 30 P.3d 1128, 1132 (2001).

43
Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971) (plain error to not give limiting instruction, where
testimony by addict-informer was central to case against defendant, even though not requested by defense
counsel).

44
112 Nev. 1288, 930 P.2d 1104 (1996).

45
Id. at 1291-92, 930 P.2d at 1106.

46
Id. at 1295, 930 P.2d at 1109.

47
95 F.3d 639, 641-42 (8th Cir. 1996).

48
In Freeman, the prosecution dropped stolen car charges in exchange for the testimony of a codefendant.
Under state law, such testimony entitled the defendant to instructions on both corroborating evidence and
accomplice testimony. The court found that defense counsel's failure to request such instructions was highly
prejudicial to the petitioner and there was a strong probability that the result of the trial would have been
different had the jury been properly instructed. Id.

49
See NRS 48.035(3).
........................................
121 Nev. 165, 178 (2005) Foster v. State
ing instruction here was a reasonable tactical decision by counsel and did not fall below an
objective standard of reasonableness. Further, Foster has not shown any prejudice from the
lack of a limiting instruction. There was abundant evidence of guilt, apart from the evidence
of Foster's prior uncharged misconduct, and the evidence of prior misconduct was not central
to the jury's finding of guilt. Given all the evidence, there is not a reasonable probability that
the result of the proceeding would have been different even if a limiting instruction had been
given.
Similarly, we conclude that Foster did not demonstrate prejudice resulting from appellate
counsel's decision to omit any issues on appeal relating to the admission of this evidence.
Given the other abundant evidence of Foster's guilt, such issues would not have had a
reasonable probability of establishing reversible error. The district court did not err in
rejecting these claims.
Psychosexual reports
At the sentencing hearing, the trial court acknowledged receipt of a psychosexual
evaluation attached to a presentence investigation report by the Division of Parole and
Probation, as well as a second psychosexual evaluation provided by the defense. Foster told
the court he had asked to participate in the evaluations, against the advice of counsel. Also
against the advice of counsel, Foster had requested the evaluations be provided to the court.
Foster was sentenced to serve three consecutive terms of life with the possibility of parole.
Foster argues his trial counsel was ineffective for failing to move for exclusion of the
psychosexual reports introduced at sentencing. However, Foster himself testified that, against
the advice of counsel, he insisted on participating in both evaluations, and in having both
reports provided to the trial court. Under these circumstances, Foster will not be heard to
complain about his trial counsel's performance. Additionally, at the sentencing hearing,
Foster's counsel attempted to portray Foster's insistence on participating in the evaluations
and having them submitted to the court in a positive light, speaking to Foster's openness and
willingness to cooperate with the court. The district court did not err in rejecting this claim.
CONCLUSION
Foster's contentions that the district court erred in rejecting his claims of ineffective
assistance of trial and appellate counsel are without merit. Therefore, we affirm the order of
the district court denying Foster's post-conviction petition.
____________
........................................
121 Nev. 179, 179 (2005) Mitchell v. Clark County Sch. Dist.
JULIE MITCHELL, Appellant, v. CLARK COUNTY
SCHOOL DISTRICT, Respondent.
No. 40999
May 26, 2005 111 P.3d 1104
Appeal from a district court order denying a petition for judicial review in a workers'
compensation case. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
The supreme court, Parraguirre, J., held that: (1) there was no evidence that staircase
caused claimant's unexplained fall, (2) court declined to adopt positional-risk test, and (3)
claimant could not recover benefits under theory that staircase exacerbated her injuries.
Affirmed.
[Rehearing denied July 8, 2005]
[En banc reconsideration denied September 7, 2005]
James P. Kemp, Las Vegas, for Appellant.
Carrie S. Bourdeau, Assistant General Counsel, and Africa A. Sanchez, Deputy Assistant
General Counsel, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
The supreme court reviews an administrative body's decision for clear error or an
arbitrary abuse of discretion.
2. Administrative Law and Procedure.
The supreme court will not disturb an agency's factual findings that are supported by
substantial evidence.
3. Appeal and Error.
Questions of law are reviewed de novo.
4. Workers' Compensation.
There was no evidence that staircase caused workers' compensation claimant's
unexplained fall down staircase, such that fall arose out of her employment and she
could obtain workers' compensation benefits, even though she did not have any health
problems predisposing her to fall; evidence showed that she started to fall before
reaching staircase and that her momentum carried her forward and down the stairs.
NRS 616C.150(1).
5. Workers' Compensation.
The supreme court declined to adopt positional-risk test, which reduces a workers'
compensation claimant's burden and requires only a showing that the claimant sustained
an injury on the job, as test was incompatible with the Nevada Industrial Insurance Act,
which places the burden on the claimant to show, by a preponderance of the evidence,
that the injury arose out of and in the course of the employment. NRS 616C.150(1).
........................................
121 Nev. 179, 180 (2005) Mitchell v. Clark County Sch. Dist.
6. Workers' Compensation.
Under the positional-risk test, the administrative tribunal must resolve whether the
workers' compensation claimant would have been injured but for the fact that the
conditions and obligations of the employment placed the claimant in the position where
he was injured.
7. Workers' Compensation.
An injury arises out of employment under a positional-risk analysis even if the
only connection of the employment with the injury is that its obligations placed the
employee in the particular place at the particular time when he or she was injured by
some neutral force; the term neutral means that the cause of the injury was not
attributable to some condition personal to the claimant or distinctly associated with the
employment.
8. Workers' Compensation.
Workers' compensation claimant could not recover benefits under theory that
staircase, which was not a dangerous condition that caused claimant's unexplained fall,
exacerbated claimant's injuries from the fall; staircase was not peculiar to claimant's
employment, nor was it related to the cause of the injury. NRS 616C.150.
9. Workers' Compensation.
Noncompensable injuries having no causal connection with the employment do not
become compensable when they are exacerbated by workplace conditions that are
neither peculiar to employment nor related to the cause of the injury in the first place.
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
By the Court, Parraguirre, J.:
In this appeal, we consider whether to modify our holding in Rio Suite Hotel & Casino v.
Gorsky,
1
which requires a workers' compensation claimant to prove a causal connection
between a workplace injury and the workplace environment.
2
In this, appellant urges this
court to adopt a less stringent positional-risk test for compensation under the Nevada
Industrial Insurance Act (NIIA).
3

FACTS AND PROCEDURAL HISTORY
Appellant Julie Mitchell, a Clark County classroom teacher, inexplicably fell down a flight
of stairs while at work. She could not identify any foreign material on the floor that caused
her to fall. Rather, she stated that one moment she was walking toward the staircase, and the
next moment she was falling down the stairs.
____________________

1
113 Nev. 600, 939 P.2d 1043 (1997).

2
See NRS 616C.150(1).

3
NRS Chapters 616A to 616D, inclusive.
........................................
121 Nev. 179, 181 (2005) Mitchell v. Clark County Sch. Dist.
staircase, and the next moment she was falling down the stairs. Mitchell hit her head and
sustained a broken collarbone, abrasions and bruises to her face. A physician concluded that
the injury was work-related and found no evidence of contributing preexisting conditions or
of drug or alcohol use. Nevertheless, respondent Clark County School District denied
Mitchell's subsequent workers' compensation claim. Mitchell administratively appealed, and
ultimately, the appeals officer, based upon Gorsky, upheld the school district's denial of
benefits. The district court denied Mitchell's subsequent petition for judicial review. Mitchell
appeals.
DISCUSSION
[Headnotes 1-3]
This court review[s] an administrative body's decision for clear error or an arbitrary abuse
of discretion.
4
This court will not disturb an agency's factual findings that are supported by
substantial evidence.
5
However, [q]uestions of law are reviewed de novo.
6

[Headnote 4]
NRS 616C.150(1) provides that an injured employee is not entitled to receive workers'
compensation unless the employee . . . establish[es] by a preponderance of the evidence that
the employee's injury arose out of and in the course of his employment. The parties do not
dispute that Mitchell's fall occurred during the course of her employment. Instead, they focus
on whether Mitchell's fall arose out of her employment. Mitchell argues that, because her
fall was unexplained rather than the result of an idiopathic reason personal to her, such as
epilepsy or an irregular gait,
7
and because staircases are inherently dangerous, her fall arose
out of her employment, and she is entitled to workers' compensation benefits.
Rio Suite Hotel & Casino v. Gorsky
8
involved injuries suffered by an employee at work
from a fall that occurred while walking on a flat surface.
____________________

4
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003).

5
Bullock v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1388, 951 P.2d 1036, 1038 (1997).

6
Id.

7
An unexplained fall, originating neither from employment conditions nor from conditions personal to the
claimant, is considered to be caused by a neutral risk, while a fall caused by the claimant's personal condition is
deemed idiopathic. Builders Square, Inc. v. Industrial Com'n, 791 N.E.2d 1308, 1311 (Ill. App. Ct. 2003).

8
113 Nev. 600, 939 P.2d 1043 (1997).
........................................
121 Nev. 179, 182 (2005) Mitchell v. Clark County Sch. Dist.
a flat surface. In that context, we interpreted the phrase arising out of employment as
requiring a causal connection between the injury and the employee's work, in which the
origin of the injury is related to some risk involved within the scope of employment.
9
We
noted that the statute's language made it clear that the Nevada Industrial Insurance Act was
not intended to make employers absolutely liable for any injury that might happen while an
employee was working, but rather required a claimant to establish more than merely being at
work and suffering an injury in order to recover.
10
As the cause of the Gorsky employee's
fall was the employee's medical condition and not any external force or foreign substance in
the hallway, the employee was unable to show that his injuries were in any way related to an
employment risk. Accordingly, as his injuries were not caused by his work and did not arise
out of employment, the Gorsky employee was not entitled to workers' compensation.
11

Mitchell attempts to distinguish Gorsky based upon the fact that Gorsky's injuries resulted
from a preexisting medical condition, whereas Mitchell had no health problems predisposing
her to fall. This argument is misplaced. Our interpretation of NRS 616C.150(1) in Gorsky
does not focus on whether conditions personal to the claimant caused an injury, but on
whether the cause of an injury is sufficiently connected to a risk of employment. Here,
Mitchell could not explain the cause of her fall. Further, the record showed that she started to
fall even before reaching the staircase and that her momentum carried her forward and down
the stairs. Hence, the staircase, while arguably more inherently dangerous than a flat hallway,
did not cause Mitchell's fall. Because Mitchell was unable to show a causal connection
between her fall and workplace conditions, under Gorsky, the appeals officer properly
concluded that Mitchell's injury did not arise from her employment.
[Headnotes 5-7]
Mitchell further argues that we should modify Gorsky by adopting a positional-risk test
for compensability. Under this test, embraced by a growing number of jurisdictions, the
administrative tribunal must resolve whether the claimant would have been injured but for
the fact that the conditions and obligations of the employment placed [the] claimant in the
position where he was injured.
12
An injury arises out of employment under a positional-risk
analysis, even if "the only connection of the employment with the injury is that its
obligations placed the employee in the particular place at the particular time when he or
she was injured by some neutral force."
____________________

9
Id. at 604, 939 P.2d at 1046.

10
Id. at 605, 939 P.2d at 1046.

11
Id.

12
1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law 3.05, at 3-6 (2004).
........................................
121 Nev. 179, 183 (2005) Mitchell v. Clark County Sch. Dist.
sis, even if the only connection of the employment with the injury is that its obligations
placed the employee in the particular place at the particular time when he or she was injured
by some neutral force.
13
The term neutral means that the cause of the injury was not
attributable to some condition personal to the claimant [or] distinctly associated with the
employment.
14

We conclude that a positional-risk test is incompatible with the Nevada Industrial
Insurance Act. As we recognized in Gorsky, NRS 616C.150 imposes the burden on the
claimant to show, by a preponderance of the evidence, that the injury arose out of and in the
course of the employment. Because the positional-risk test reduces the claimant's burden and
requires only a showing that the claimant sustained an injury on the job, it directly
contravenes the language of NRS 616C.150.
Moreover, although the positional-risk test is consistent with a liberal statutory
construction favoring the claimant in workers' compensation claims, NRS 616A.010(2)
specifically abrogates the common-law requirement that workers' compensation statutes be
construed liberally because they are remedial in nature. Instead, NRS 616A.010(4) requires a
neutral interpretation of the workers' compensation laws. Therefore, we decline to adopt the
positional-risk test in Nevada and conclude that the appeals officer and district court properly
applied the Gorsky holding to Mitchell's case.
[Headnotes 8, 9]
Finally, Mitchell argues that, even if the staircase did not cause her fall, her injuries are
compensable if the staircase constituted a dangerous condition that exacerbated her injuries.
Several jurisdictions have held that, when some factor peculiar to the employment
contributed to an injury from a fall, the injury is compensable even if the fall had an
idiopathic origin.
15
When the fall is from neutral causes, rather than from the claimant's own
condition, a stronger argument may be made that employment conditions that contribute to or
aggravate the injury should be compensable.
16
However, many of the jurisdictions that allow
compensation for injuries sustained in an unexplained fall do so by applying a presumption
that the injury arose out of the employment.
____________________

13
Id.

14
Id.

15
See Koehler Elec. v. Wills, 608 N.W.2d 1, 2, 5 (Iowa 2000); Flanner v. Tulsa Public Schools, 41 P.3d 972,
976 (Okla. 2002).

16
See, e.g., Circle K Store No. 1131 v. Indus. Com'n, 796 P.2d 893, 898 (Ariz. 1990); Milledge v. Oaks, 784
N.E.2d 926, 930 (Ind. 2003); Logsdon v. ISCO Co., 618 N.W.2d 667, 674 (Neb. 2000); Rackley v. Coastal
Painting, 570 S.E.2d 121, 124 (N.C. Ct. App. 2002); Turner v. B Sew Inn, 18 P.3d 1070, 1076 (Okla. 2000).
........................................
121 Nev. 179, 184 (2005) Mitchell v. Clark County Sch. Dist.
sumption that the injury arose out of the employment. These jurisdictions also generally have
adopted the positional-risk test.
17
As we reject the positional-risk test, we likewise reject the
proposition that noncompensable injuries having no causal connection with the employment
become compensable when they are exacerbated by workplace conditions that are neither
peculiar to employment nor related to the cause of the injury in the first place. Here,
Mitchell's work environment did not cause her to fall, and the staircase did not make her
workplace conditions any different from or any more dangerous than those a member of the
general public could expect to confront in a non-work setting.
18
A rule allowing her to
obtain compensation for any exacerbation would, in effect, abrogate the causal connection
requirement outlined above.
CONCLUSION
Because we decline Mitchell's invitation to adopt a positional-risk test, we conclude that
the appeals officer's decision to deny compensation was not arbitrary and capricious. We
therefore affirm the judgment below.
Maupin and Douglas, JJ., concur.
____________
121 Nev. 184, 184 (2005) Rosky v. State
JOHN ROSKY, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 41566
May 26, 2005 111 P.3d 690
Appeal from a judgment of conviction, entered upon jury verdicts, of one count of sexual
assault and one count of indecent exposure. Second Judicial District Court, Washoe County;
Steven P. Elliott, Judge.
The supreme court, Maupin, J., held that: (1) review of trial court's determinations as to
whether defendant was in custody for Miranda purposes and voluntariness of defendant's
statements requires two-step analysis, overruling Allan v. State, 118 Nev. 19, 38 P.3d 175
(2002); Proferes v. State, 116 Nev. 1136, 13 P.3d 955 (2000); Mitchell v. State, 114 Nev.
1417, 971 P.2d 813 (1998); and Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996); (2)
defendant was not in custody for Miranda purposes when he admitted to having consensual
sex with minor; {3) defendant's pre-arrest statements to police were voluntarily given;
{4) admission of prior bad acts evidencethat defendant had fondled and digitally
penetrated a 12-year-old girlas evidence of a common scheme or plan, was abuse of
discretion; {5) admission of this prior bad acts evidence as evidence of modus operandi
was abuse of discretion; {6) errors concerning improper admission of prior bad acts
evidence were harmless with respect to conviction for indecent exposure; {7) errors
concerning improper admission of prior bad acts evidence were not harmless with respect
to conviction for sexual assault; and {S) flight instruction was proper.
____________________

17
See Circle K, 796 P.2d at 898; Milledge, 784 N.E.2d at 931-32; Logsdon, 618 N.W.2d at 674; Turner, 18
P.3d at 1076.

18
Abel v. Mike Russell's Standard Service, 924 S.W.2d 502, 504 (Mo. 1996).
........................................
121 Nev. 184, 185 (2005) Rosky v. State
ing consensual sex with minor; (3) defendant's pre-arrest statements to police were
voluntarily given; (4) admission of prior bad acts evidencethat defendant had fondled and
digitally penetrated a 12-year-old girlas evidence of a common scheme or plan, was abuse
of discretion; (5) admission of this prior bad acts evidence as evidence of modus operandi
was abuse of discretion; (6) errors concerning improper admission of prior bad acts evidence
were harmless with respect to conviction for indecent exposure; (7) errors concerning
improper admission of prior bad acts evidence were not harmless with respect to conviction
for sexual assault; and (8) flight instruction was proper.
Affirmed in part, reversed in part and remanded.
Kay Ellen Armstrong, Carson City, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial court's determinations as to whether defendant was in custody for Miranda
purposes and voluntariness of defendant's statements present mixed questions of law
and fact subject to supreme court's de novo review.
2. Criminal Law.
Review of trial court's determinations as to whether defendant was in custody for
Miranda purposes and voluntariness of defendant's statements requires two-step
analysis; trial court's purely historical factual findings pertaining to the scene and
action setting circumstances surrounding an interrogation are entitled to deference and
will be reviewed for clear error, but trial court's ultimate determination of whether a
person was in custody and whether a statement was voluntary will be reviewed de novo,
overruling Allan v. State, 118 Nev. 19, 38 P.3d 175 (2002); Proferes v. State, 116 Nev.
1136, 13 P.3d 955 (2000); Mitchell v. State, 114 Nev. 1417, 971 P.2d 813 (1998); and
Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996).
3. Criminal Law.
Fifth Amendment privilege against self-incrimination provides that a suspect's
statements made during custodial interrogation are inadmissible at trial unless the
police first provide a Miranda warning. U.S. Const. amend. 5.
4. Criminal Law.
Custody for Miranda purposes means a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest; if there is no formal arrest, the
pertinent inquiry is whether a reasonable person in the suspect's position would feel at
liberty to terminate the interrogation and leave, which inquiry must be answered by
taking an objective look at all circumstances surrounding the interrogation.
5. Criminal Law.
Factors pertinent in determining whether defendant was in custody for Miranda
purposes include site of interrogation, whether investigation focused on suspect,
whether objective indicia of arrest were present, and length and form of
questioning; no one factor is dispositive.
........................................
121 Nev. 184, 186 (2005) Rosky v. State
tigation focused on suspect, whether objective indicia of arrest were present, and length
and form of questioning; no one factor is dispositive.
6. Criminal Law.
Defendant was not in custody for Miranda purposes when he admitted to having
consensual sex with minor; defendant was not under formal arrest during interrogation
and detectives informed him that his participation was voluntary, and that he was free
to leave at any time, defendant was not handcuffed, could have moved freely about
during questioning and voluntarily responded to the inquiries, defendant took
unaccompanied ten-minute break outside of station at detective's suggestion, and
review of videotaped statement revealed no use of strong arm or impermissibly
coercive tactics.
7. Criminal Law.
Unlike the objective custody analysis to determine whether accused was in custody
for Miranda purposes, the voluntariness analysis involves a subjective element as it
logically depends on the accused's characteristics; in this context, the prosecution has
the burden of proving by a preponderance of the evidence that the statement was
voluntary, i.e., that defendant's will was not overborne.
8. Criminal Law.
A confession is involuntary if it was coerced by physical intimidation or
psychological pressure.
9. Criminal Law.
Several factors are relevant in deciding whether a suspect's statements are voluntary:
the youth of the accused, his lack of education or his low intelligence, lack of any
advice of constitutional rights, length of detention, repeated and prolonged nature of
questioning, use of physical punishment such as the deprivation of food or sleep, and
suspect's prior experience with law enforcement.
10. Criminal Law.
Defendant's pre-arrest statements to police were voluntarily given based on
circumstances: when asked if he was too intoxicated to be interviewed, defendant
clearly stated, [O]h yeah, I'm coherent, I'm fine; slight subterfuges used to elicit
confession were appropriate; and videotape of interrogation indicated that defendant
tried to deflect accusations, clearly attempted to use semantic dodges to mislead
detectives, and ultimately, albeit reluctantly, voluntarily admitted to consensual sexual
misconduct with minor.
11. Criminal Law.
Videotaped interview of defendant by police was admissible, in prosecution for
sexual assault and indecent exposure, because defendant was not in custody for
Miranda purposes when he gave statement to police, and defendant's confession during
interrogation was voluntary.
12. Criminal Law.
Evidence of prior bad acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith; however, prior bad act evidence
may be admissible for other purposes, such as to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. NRS
48.045(2).
13. Criminal Law.
The improper admission of bad act evidence is common grounds for reversal. NRS
48.045(2).
14. Criminal Law.
A presumption of inadmissibility attaches to all prior bad act evidence. To overcome
the presumption, the prosecutor must request a hearing and establish that {1) prior
bad act is relevant to the crime charged, {2) act is proven by clear and convincing
evidence, and {3) probative value of evidence is not substantially outweighed by
danger of unfair prejudice.
........................................
121 Nev. 184, 187 (2005) Rosky v. State
ing and establish that (1) prior bad act is relevant to the crime charged, (2) act is proven
by clear and convincing evidence, and (3) probative value of evidence is not
substantially outweighed by danger of unfair prejudice. NRS 48.045(2).
15. Criminal Law.
Trial court's determination of whether to admit or exclude prior bad acts evidence
will not be disturbed on appeal absent manifest error.
16. Criminal Law.
The common scheme or plan exception to the rule against the admissibility of prior
bad acts evidence requires that both the prior bad act and the charged crime be an
integral part of an overarching plan explicitly conceived and executed by defendant.
The test is not whether the other offense has certain elements in common with the
crime charged, but whether it tends to establish a preconceived plan that resulted in the
commission of that crime. NRS 48.045(2).
17. Criminal Law.
Admission of prior bad acts evidence, i.e., that defendant had fondled and digitally
penetrated a 12-year-old girl, as evidence of a common scheme or plan, was abuse of
discretion, in prosecution for sexual assault and indecent exposure because charged
offense and prior bad act were not part of single, preconceived overarching plan that
resulted in improper sexual contact with alleged victim in instant case; crimes were
independent of one another, and neither could be planned until each victim came within
reach; and prior bad act had taken place some eight years before instant event. NRS
48.045(2).
18. Criminal Law.
Modus operandi evidence falls within identity exception to rule governing
admissibility of prior bad acts evidence; generally, modus operandi evidence is proper
in situations where a positive identification of the perpetrator has not been made, and
the offered evidence establishes a signature crime so clear as to establish the identity of
the person on trial. NRS 48.045(2).
19. Criminal Law.
Admission of prior bad acts evidence, i.e., that defendant had fondled and digitally
penetrated a 12-year-old girl, as evidence of modus operandi, was abuse of discretion,
in prosecution for sexual assault and indecent exposure, because defendant's identity
was not at issue during trial, given that alleged victim clearly identified him in court on
multiple occasions and police had no doubt that defendant was proper suspect, and
defendant admitted to his interactions with victim, so that probative value of evidence
was not substantially outweighed by danger of unfair prejudice. NRS 48.045(2).
20. Criminal Law.
Prior bad acts evidence, i.e., that defendant had fondled and digitally penetrated a
12-year-old girl, was not admissible to prove intent or motive under rule governing
admissibility of prior bad acts evidence, in prosecution for sexual assault and indecent
exposure, because probative value of evidence was substantially outweighed by danger
of unfair prejudice. NRS 48.045(2).
21. Criminal Law.
Trial court's limiting instructions concerning prior bad acts evidence, i.e., that
defendant had fondled and digitally penetrated a 12-year-old girl, were deficient, in that
two instructions given during trial failed to mention modus operandi as one of the
other uses of the evidence under rule governing admissibility of prior bad acts
evidence, in prosecution for sexual assault and indecent exposure.
........................................
121 Nev. 184, 188 (2005) Rosky v. State
governing admissibility of prior bad acts evidence, in prosecution for sexual assault and
indecent exposure. NRS 48.045(2).
22. Criminal Law.
Error in admitting prior bad acts evidence, i.e., that defendant had fondled and
digitally penetrated a 12-year-old girl, combined with State's opening statement that
evidence against defendant would show that case concerned two victims separated by
time and distance, and deficient limiting instruction concerning prior bad acts
evidence, improperly placed defendant's character at issue by suggesting that defendant
had acted in conformity with a propensity to molest young women, in prosecution for
sexual assault and indecent exposure. NRS 48.045(2).
23. Criminal Law.
Errors in admitting prior bad acts evidence, i.e., that defendant had fondled and
digitally penetrated a 12-year-old girl, combined with State's opening statement that
evidence against defendant would show that case concerned two victims separated by
time and distance, and deficient limiting instruction concerning prior bad acts
evidence were harmless with respect to conviction for indecent exposure, as review of
defendant's videotaped statement revealed that defendant essentially confessed to
indecent exposure. NRS 48.045(2).
24. Criminal Law.
Errors in the admission of evidence under statute governing admissibility of prior
bad acts evidence are subject to a harmless error review. NRS 48.045(2).
25. Criminal Law.
Errors in admitting prior bad acts evidence, i.e., that defendant had fondled and
digitally penetrated a 12-year-old girl, combined with State's opening statement that
evidence against defendant would show that case concerned two victims separated by
time and distance, and deficient limiting instruction concerning prior bad acts
evidence, were not harmless with respect to conviction for sexual assault because
although defendant effectively confessed to commission of a statutory sexual seduction,
which included consensual sexual congress between an adult and a minor under the age
of 16 years, he did not confess to nonconsensual sexual assault, consent issue had been
litigated through defendant's videotaped statement and alleged victim's testimony, and
defendant's statement was in clear conflict with victim's testimony on that very point.
NRS 48.045(2).
26. Criminal Law.
Court may properly give a flight instruction if the State presents evidence of flight
and the record supports the conclusion that the defendant fled with consciousness of
guilt and to evade arrest.
27. Criminal Law.
Flight instruction was proper, in prosecution for sexual assault and indecent
exposure, because testimony of court personnel concerning defendant's failure to
appear, the bench warrant transcripts, and several of defendant's post-extradition taped
jailhouse telephone conversations provided substantial evidence that defendant fled to
Mexico to avoid prosecution, and taped telephone conversations indicated that, while
he was in Mexico, defendant considered assuming a different identity and planned to
abscond to Brazil where he could not be extradited.
Before Maupin, Douglas and Parraguirre, JJ.
........................................
121 Nev. 184, 189 (2005) Rosky v. State
OPINION
By the Court, Maupin, J.:
Appellant John Rosky was convicted in district court of sexual assault and indecent
exposure.
1
On appeal, Rosky asserts that the district court committed reversible error by
denying his motion to suppress a pre-arrest videotaped statement he made to investigators, by
admitting prior bad act testimony, and by instructing the jury on flight. We conclude that the
district court committed no error in the admission of Rosky's videotaped statement to
detectives and in the giving of its flight instruction. However, we conclude that the admission
of prior bad act testimony as proof of a common plan or scheme or modus operandi under
NRS 48.045(2), combined with improper limiting instructions and the State's improper
remarks during its opening statement, compels reversal of Rosky's sexual assault conviction.
These errors, however, are harmless with respect to the conviction for indecent exposure. We
therefore affirm the judgment of conviction of indecent exposure, but we reverse the
judgment of conviction of sexual assault and remand for a new trial on that charge.
DISCUSSION
Admission of videotaped statement
In January 2000, as part of a sexual assault investigation concerning a 13-year-old female,
CJW, five police officers executed a search warrant at Rosky's apartment. Two of the officers
eventually drove Rosky to a police substation for questioning, but did not formally place him
under arrest. Approximately 1 hours into a videotaped interview, Rosky admitted to a brief
consensual act of sexual intercourse with CJW. Rosky moved to suppress the interview
because the officers failed to administer Miranda
2
warnings. The district court concluded
that Miranda did not apply because the statements were elicited in a noncustodial setting. It
further concluded that the statements were voluntary.
____________________

1
The district court sentenced Rosky to the Nevada State Prison for life with the possibility of parole after a
minimum of 20 years on the sexual assault count and a concurrent term of 1 year in the Washoe County Jail on
the indecent exposure count. Rosky received credit for 53 days of time served, and the district court ordered
Rosky to pay a $25 administrative assessment, a $150 DNA testing fee and reimbursement to the Washoe
County Public Defender's Office in the amount of $500 for legal fees. The court also imposed a special condition
of lifetime supervision in the event of parole.

2
Miranda v. Arizona, 384 U.S. 436 (1966).
........................................
121 Nev. 184, 190 (2005) Rosky v. State
concluded that the statements were voluntary. Rosky argues on appeal that these
determinations are erroneous and require reversal.
Standards of review
[Headnote 1]
Our prior cases have not consistently stated this court's standard of review of a district
court's in custody determination for purposes of Miranda.
3
Further, we have previously
applied a highly deferential substantial evidence standard in reviewing the ultimate
question of the voluntariness of a defendant's confession.
4
Following the United States
Supreme Court's pronouncements in Thompson v. Keohane
5
and Miller v. Fenton
6
on these
issues, we clarify that a trial court's custody and voluntariness determinations present mixed
questions of law and fact subject to this court's de novo review.
7

[Headnote 2]
The proper inquiry requires a two-step analysis. The district court's purely historical
factual findings pertaining to the scene- and action-setting circumstances surrounding an
interrogation is entitled to deference and will be reviewed for clear error. However, the
district court's ultimate determination of whether a person was in custody and whether a
statement was voluntary will be reviewed de novo. Under Thompson and Miller, these
decisions retain a uniquely legal dimension,'
8
requiring the application of the
controlling legal standard to the historical facts.
9
We therefore overrule our prior case law
to the extent that it has applied more deferential standards of direct appellate review
than the Supreme Court's pronouncements in these contexts.
____________________

3
Compare Proferes v. State, 116 Nev. 1136, 1138, 13 P.3d 955, 956 (2000) (the district court's findings in a
suppression hearing will be upheld unless this court is definitely and firmly convinced that the district court
erred), with Mitchell v. State, 114 Nev. 1417, 1423, 971 P.2d 813, 817 (1998) (a defendant's constitutional
entitlement to Miranda warnings is a question of law reviewed de novo; however, a district court's determination
of whether a defendant is in custody will not be disturbed where substantial evidence supports the
determination). See also Alward v. State, 112 Nev. 141, 154, 912 P.2d 243, 252 (1996).

4
See, e.g., Allan v. State, 118 Nev. 19, 23-24, 38 P.3d 175, 178 (2002) (A district court's determination that
a confession is voluntary will not be disturbed on appeal if it is supported by substantial evidence.).

5
516 U.S. 99 (1995).

6
474 U.S. 104 (1985).

7
Thompson, 516 U.S. at 112-13; Miller, 474 U.S. at 112-18; see also U.S. v. Axsom, 289 F.3d 496, 499-500
(8th Cir. 2002); U.S. v. Kim, 292 F.3d 969, 973 (9th Cir. 2002); U.S. v. Huerta, 239 F.3d 865, 871 (7th Cir.
2001); McMorran v. State, 118 Nev. 379, 383, 46 P.3d 81, 84 (2002) (stating this court reviews the lawfulness
of a search de novo because such a review requires consideration of both factual circumstances and legal
issues).

8
Thompson, 516 U.S. at 112 (quoting Miller, 474 U.S. at 116).

9
Id.
........................................
121 Nev. 184, 191 (2005) Rosky v. State
overrule our prior case law to the extent that it has applied more deferential standards of
direct appellate review than the Supreme Court's pronouncements in these contexts.
10

For this standard of review to function properly, trial courts must exercise their
responsibility to make factual findings when ruling on motions to suppress.
11
As one state
court has explained:
Reviewing courts should not be required to surmise what factual findings that the trial
court made. Instead, the trial court should make clear any factual findings upon which it
is relying. It is only through this synergy between the trial and reviewing courts that
appellate courts can develop a uniform body of precedent to guide law enforcement
officers in their determination of whether their actions may violate the constitution.
12

To facilitate proper appellate review, we advise district courts to clearly set forth the factual
findings relied upon in resolving suppression motions.
Custody under Miranda
[Headnotes 3, 4]
The Fifth Amendment privilege against self-incrimination provides that a suspect's
statements made during custodial interrogation are inadmissible at trial unless the police first
provide a Miranda warning.
13
Custody for Miranda purposes means a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.
14
If there is
no formal arrest, the pertinent inquiry is whether a reasonable person in the suspect's position
would feel at liberty to terminate the interrogation and leave.
15
A court must answer this
question by taking an objective look at all of the circumstances surrounding the
interrogation.
16
The United States Supreme Court has recently indicated that a suspect's
prior history with law enforcement has no bearing on the objective determination of
whether the suspect is in custody for Miranda purposes, although this factor may be
relevant in deciding whether a confession is voluntary.
____________________

10
See, e.g., Allan, 118 Nev. at 23-24, 38 P.3d at 178; Proferes, 116 Nev. at 1138, 13 P.3d at 956; Mitchell,
114 Nev. at 1423, 971 P.2d at 817; Alward, 112 Nev. at 154, 912 P.2d at 252.

11
In re G.O., 727 N.E.2d 1003, 1010 (Ill. 2000).

12
Id.

13
State v. Taylor, 114 Nev. 1071, 1081, 968 P.2d 315, 323 (1998).

14
Alward, 112 Nev. at 154, 912 P.2d at 252.

15
Thompson, 516 U.S. at 112; see also Alward, 112 Nev. at 154, 912 P.2d at 252 (stating the pertinent
inquiry focuses on how a reasonable man in the suspect's position would have understood his situation'
(quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984))).

16
Stansbury v. California, 511 U.S. 318, 322 (1994).
........................................
121 Nev. 184, 192 (2005) Rosky v. State
jective determination of whether the suspect is in custody for Miranda purposes,
17
although
this factor may be relevant in deciding whether a confession is voluntary.
18

[Headnote 5]
In Alward v. State, this court listed several factors pertinent to the objective custody
determination: (1) the site of the interrogation, (2) whether the investigation has focused on
the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form
of questioning.
19
Here, it is undisputed that the detectives interrogated Rosky in a police
substation and that the investigation was focused solely upon him. However, as the State
correctly notes, this court has previously found interrogations to be noncustodial when
suspects voluntarily accompanied officers to the police station, understood that they were not
under arrest and voluntarily responded to police questioning.
20
But, because no one factor is
dispositive,
21
we turn to an independent analysis of Alward's third and fourth factors, indicia
of arrest and length and form of questioning.
In State v. Taylor, this court provided several objective indicia of arrest:
(1) whether the suspect was told that the questioning was voluntary or that he was free
to leave; (2) whether the suspect was not formally under arrest; (3) whether the suspect
could move about freely during questioning; (4) whether the suspect voluntarily
responded to questions; (5) whether the atmosphere of questioning was
police-dominated; (6) whether the police used strong-arm tactics or deception during
questioning; and (7) whether the police arrested the suspect at the termination of
questioning.
22

The district court determined that the objective indicia of arrest leaned toward noncustodial
interrogation. We agree.
____________________

17
Yarborough v. Alvarado, 541 U.S. 642, 666 (2004) (decided in the context of habeas corpus review).

18
See Lynumn v. Illinois, 372 U.S. 528, 534 (1963).

19
112 Nev. at 155, 912 P.2d at 252.

20
See Silva v. State, 113 Nev. 1365, 1369-70, 951 P.2d 591, 594 (1997); accord Rowbottom v. State, 105
Nev. 472, 480, 779 P.2d 934, 939 (1989).

21
Alward, 112 Nev. at 154, 912 P.2d at 252.

22
114 Nev. at 1082 n.1, 968 P.2d at 323 n.1. Rosky also argues that the district court should have considered
his alleged intoxication as part of the objective custody analysis. However, his briefs cite no authority for this
proposition, and our research reveals none.
........................................
121 Nev. 184, 193 (2005) Rosky v. State
[Headnote 6]
Rosky was not under formal arrest and the detectives informed him that his participation
was voluntary. They also advised him that he was free to leave at any time. Rosky was not
handcuffed, could have moved freely about during questioning and voluntarily responded to
the inquiries. Further, while the interview lasted over two hours, Rosky could have called a
break during the questioning and in fact did take an unaccompanied ten-minute break outside
of the station at the suggestion of one of the detectives. Upon returning from the break,
detectives once again informed Rosky that he was not under arrest and asked if he still
wanted to talk to them. Rosky continued talking to detectives and eventually admitted to
consensual intercourse with CJW, involving only slight penetration. While the detectives
used mild forms of deception during the taped statement, confronted Rosky with their belief
that he was guilty and arrested Rosky after the interview, our review of the videotaped
statement reveals no use of strong arm or impermissibly coercive tactics. In fact, the
interrogation techniques used were highly professional in their execution. These facts militate
against indicia of arrest.
We also conclude that the length and form of questioning depicted on the tape confirm that
Rosky was not in custody when he ultimately admitted to consensual sex with CJW.
Voluntariness
[Headnotes 7-9]
Rosky also contends that, due to his intoxication and deception used by the detectives, his
statement was involuntarily given. Unlike the objective custody analysis, the voluntariness
analysis involves a subjective element as it logically depends on the accused's characteristics.
23
In this context, the prosecution has the burden of proving by a preponderance of the
evidence that the statement was voluntary,
24
i.e., that the defendant's will was [not]
overborne.
25
[A] confession is involuntary if it was coerced by physical intimidation or
psychological pressure.
26
Several factors are relevant in deciding whether a suspect's
statements are voluntary: [t]he youth of the accused; his lack of education or his low
intelligence; the lack of any advice of constitutional rights; the length of detention; the
repeated and prolonged nature of questioning; and the use of physical punishment such
as the deprivation of food or sleep.
____________________

23
See Yarborough, 541 U.S. at 667-68 (recognizing that subjective inquiry that applies to voluntariness
determination does not apply to custody determination).

24
See Lego v. Twomey, 404 U.S. 477, 489 (1972).

25
Lynumn, 372 U.S. at 534.

26
Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301 (1992).
........................................
121 Nev. 184, 194 (2005) Rosky v. State
intelligence; the lack of any advice of constitutional rights; the length of detention; the
repeated and prolonged nature of questioning; and the use of physical punishment such as the
deprivation of food or sleep.'
27
A suspect's prior experience with law enforcement is also a
relevant consideration.
28

[Headnote 10]
We conclude that Rosky's pre-arrest statements to police were voluntarily given. First,
when asked if he was too intoxicated to be interviewed, Rosky clearly stated that oh yeah,
I'm coherent, I'm fine.
29
Second, the slight subterfuges used to elicit Rosky's confession
were appropriate. Third, in its totality, the videotape of the interrogation indicates that Rosky
tried to deflect the accusations, clearly attempted to use semantical dodges to mislead the
detectives, and ultimately, albeit reluctantly, voluntarily admitted to consensual sexual
misconduct with CJW. Accordingly, we conclude that the interrogating officers did not
overbear Rosky's will.
[Headnote 11]
In light of the above, and applying the standards of review set forth in Thompson v.
Keohane
30
and Miller v. Fenton,
31
we conclude that Rosky was not in custody for Miranda
purposes when he gave his statement to police and that the resulting confession was
voluntarily given. Accordingly, the district court properly admitted the videotaped interview
into evidence.
Prior bad acts
[Headnotes 12, 13]
Evidence of prior bad acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith.
32
However, prior bad act evidence may be
admissible for other purposes, such as to show motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
33
The improper admission of bad
act evidence is common grounds for reversal.
____________________

27
Alward, 112 Nev. at 155, 912 P.2d at 252 (quoting Passama v. State, 103 Nev. 212, 214, 735 P.2d 321,
323 (1987)).

28
See Lynumn, 372 U.S. at 534 (considering defendant's lack of experience with the criminal law in
determining voluntariness of confession).

29
See Kirksey v. State, 112 Nev. 980, 992, 923 P.2d 1102, 1110 (1996) (stating that a confession is
inadmissible based upon intoxication only if the accused is intoxicated to the extent of being incapable of
understanding the meaning of his or her comments).

30
516 U.S. 99 (1995).

31
474 U.S. 104 (1985).

32
NRS 48.045(2).

33
Id.; see Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002).
........................................
121 Nev. 184, 195 (2005) Rosky v. State
grounds for reversal.
34
As we stated in Braunstein v. State, [p]rior bad act evidence forces
the accused to defend himself against vague and unsubstantiated charges and may result in a
conviction because the jury believes the defendant to be a bad person.
35

[Headnotes 14, 15]
A presumption of inadmissibility attaches to all prior bad act evidence.
36
In order to
overcome the presumption, the prosecutor must request a hearing
37
and establish, under
Tinch v. State, that (1) the [prior bad act] is relevant to the crime charged; (2) the act is
proven by clear and convincing evidence; and (3) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.
38
The trial court's
determination of whether to admit or exclude such evidence will not be disturbed on appeal
absent manifest error.
39
However, [t]his court has generally held inadmissible prior acts
that are remote in time and involve conduct different from the charged conduct.
40

As a result of two separate Petrocelli hearings, the district court ultimately admitted
evidence that, some 10 years previous, Rosky fondled and digitally penetrated a 12-year-old
girl, JLB, in California. The district court ruled the prior bad act admissible as proof of a
common scheme or plan and modus operandi. At trial, the district court gave limiting
instructions to the jury concerning the limited use of the bad act evidence on 3 occasions: (1)
after JLB's mother testified on direct examination, (2) after JLB testified on direct
examination, and (3) during jury instructions. These instructions, however, did not mirror the
Petrocelli rulings because, after both JLB and her mother testified on direct examination, the
district court instructed the jury that the evidence was only relevant to show a common
scheme or plan.
41
On neither occasion did the district court mention the use of such
evidence to show modus operandi.
____________________

34
Braunstein v. State, 118 Nev. 68, 73, 40 P.3d 413, 417 (2002).

35
Id.

36
Tavares v. State, 117 Nev. 725, 731, 30 P.3d 1128, 1131 (2001).

37
See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507 (1985).

38
113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997); see also Tavares, 117 Nev. at 731, 30 P.3d at 1131
( It is as much [a prosecutor's] 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.' (quoting Berger v. United States,
295 U.S. 78, 88 (1935))).

39
Walker v. State, 116 Nev. 442, 446, 997 P.2d 803, 806 (2000).

40
Braunstein, 118 Nev. at 73, 40 P.3d at 417.

41
After JLB's mother testified on direct examination, the district court stated:
[T]his is not testimony elicited to prove Mr. Rosky's character or that he acted consistent with any part of
this type of character, but it is admitted solely for the purpose of the state attempting to prove a common
scheme or plan, so it's for a limited purpose.
........................................
121 Nev. 184, 196 (2005) Rosky v. State
district court mention the use of such evidence to show modus operandi. Ultimately, jury
instruction 37 directed the jury to consider the bad act evidence for the purpose of proving
the defendant's common scheme or plan or his modus operandi and for no other purpose[s].
Common scheme or plan
[Headnote 16]
The common scheme or plan exception to the rule against the admissibility of
character/propensity evidence requires that both the prior bad act and the charged crime be an
integral part of an overarching plan explicitly conceived and executed by the defendant.'
42
The test is not whether the other offense has certain elements in common with the
crime charged, but whether it tends to establish a preconceived plan which resulted in the
commission of that crime. '
43
In fact, as this court noted in Richmond v. State, even a
sexual assault perpetrated in the same location and manner a month before the assault at issue
may not establish a common plan.
44

[Headnote 17]
We cannot conclude that the instant offense and the prior bad acts were part of a single
preconceived overarching plan that resulted in improper sexual contact with CJW. These
crimes were independent of one another, and neither could be planned until each victim came
within reach. Finally, the prior bad act took place some eight years before the instant event.
We therefore conclude that the district court abused its discretion in admitting evidence of
Rosky's prior bad acts as evidence of a common scheme or plan.
Modus operandi
[Headnote 18]
As this court explained in Mortensen v. State, modus operandi evidence falls within the
identity exception to NRS 48.045(2).
45

____________________
After JLB testified on direct examination, the district judge stated:
You may not consider this testimony as proof of Mr. Rosky's character or that he acted in
conformance therewith with regard to the incidents allegedly occurring in Reno. The State is only
allowed to bring in this testimony to establish a common scheme or plan.

42
Richmond, 118 Nev. at 933, 59 P.3d at 1255 (quoting 1 McCormick on Evidence 190, at 661 (John W.
Strong ed., 5th ed. 1999)).

43
Id. (quoting Nester v. State of Nevada, 75 Nev. 41, 47, 334 P.2d 524, 527 (1959) (quoting 1 John Henry
Wigmore, Wigmore on Evidence 300 (2d ed. 1923))).

44
Id. at 934, 59 P.3d at 1255.

45
115 Nev. 273, 280-81, 986 P.2d 1105, 1110 (1999).
........................................
121 Nev. 184, 197 (2005) Rosky v. State
Generally, modus operandi evidence is proper in situations where a positive identification of
the perpetrator has not been made, and the offered evidence establishes a signature crime so
clear as to establish the identity of the person on trial.
46

[Headnote 19]
Rosky's identity was not at issue during the trial. CJW clearly identified him in court on
multiple occasions and the police had no doubt that Rosky was the proper suspect. Going
further, Rosky admitted in his statement to his interactions with CJW. Thus, under the third
prejudice/probative value prong of Tinch, we conclude that the district court abused its
discretion in allowing the jury to consider the prior bad act with JLB as evidence of modus
operandi.
[Headnotes 20-22]
As discussed above, the prior bad act was not relevant under either the common scheme or
plan or the modus operandi exceptions to NRS 48.045(2). We further note that the prior bad
act evidence was not admissible to prove intent or motive under NRS 48.045(2) because the
evidence likewise did not satisfy the third prong of Tinch.
47
JLB's testimony improperly
bolstered the prosecution's relatively weak case in support of the sexual assault charges at
issue and involved events remote in time to the allegations involving CJW. As discussed
below, Rosky did not confess to nonconsensual sexual misconduct, i.e., sexual assault, with
CJW. And, as noted, the district court's limiting instructions were deficient in their content.
48

Most importantly, the State argued in its opening statement that the evidence [against
Rosky] will show that this is really a case of two victims separated by time and distance. We
conclude that, when combined with the prosecutor's opening statement, the cautionary
instructions left the evidence with limited probative value, to wit: that Rosky acted in
conformity with a propensity for sexual aberration, here, the molestation of young
women.
____________________

46
Id. at 280, 986 P.2d at 1105.

47
See 113 Nev. at 1176, 946 P.2d at 1064-65.

48
See Tavares, 117 Nev. at 733, 30 P.3d at 1133 (holding that trial court must give the limiting instruction at
least twice: (1) immediately before the introduction of the evidence and (2) at the end of trial). Here, the two
instructions given during the trial failed to mention modus operandi as one of the other uses of the evidence
under NRS 48.045(2).
The State also argues that the prior bad act evidence was relevant to show knowledge. We disagree. See
Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970) (stating that if the prosecution can establish
knowledge without reference to a prior criminal act, the prejudicial effect of the bad act evidence outweighs its
probative value). We further note that the district court never instructed the jury that the JLB evidence was
relevant to show Rosky knew or should have known that CJW was incapable of resisting the nature of Rosky's
conduct. See Tavares, 117 Nev. at 733, 30 P.3d at 1133.
........................................
121 Nev. 184, 198 (2005) Rosky v. State
to wit: that Rosky acted in conformity with a propensity for sexual aberration, here, the
molestation of young women.
49
Thus, the bad act testimony improperly placed Rosky's
character at issue.
[Headnotes 23, 24]
Errors in the admission of evidence under NRS 48.045(2) are subject to a harmless error
review.
50
Our review of the videotaped statement reveals that, among other admissions,
Rosky essentially confessed to indecent exposure. Therefore, we conclude that the above
errors are harmless beyond a reasonable doubt with respect to the conviction of indecent
exposure. We therefore affirm the judgment of conviction of indecent exposure.
[Headnote 25]
We cannot, however, on this record, conclude that the district court's errors were harmless
with regard to Rosky's sexual assault conviction. First, although Rosky also effectively
confessed to the commission of a statutory sexual seduction,
51
which includes consensual
sexual congress between an adult and a minor under the age of 16 years, he did not confess to
forcible or otherwise nonconsensual sexual assault. Second, he was charged with sexual
assault, not statutory sexual seduction. Third, the consent issue was litigated through Rosky's
videotaped statement and CJW's testimony,
52
and Rosky's statement is in clear conflict with
CJW's testimony on that very point. And fourth, the consent issue was central to the State's
prosecution for sexual assault rather than the less severe offense of statutory sexual seduction.
Thus, in this case, overwhelming evidence does not support the sexual assault conviction.
Accordingly, the erroneous introduction of the highly prejudicial evidence concerning JLB
was not harmless beyond a reasonable doubt. We therefore reverse Rosky's sexual assault
conviction and remand for a new trial on that charge.
Flight instruction
Prior to trial, Rosky was released on bail, failed to appear and a bench warrant was issued
for his arrest. Authorities eventually located Rosky in Mexico and successfully obtained
extradition. At trial, the court instructed the jury on flight.
____________________

49
See Braunstein, 118 Nev. at 75, 40 P.3d at 418 (renouncing the legal proposition stated in McMichael v.
State, 94 Nev. 184, 189, 577 P.2d 398, 401 (1978), that evidence showing an accused possesses a propensity for
sexual aberration is relevant to the accused's intent); see also Richmond, 118 Nev. at 936, 59 P.3d at 1257
(Maupin, J., concurring and dissenting).

50
See Richmond, 118 Nev. at 934, 59 P.3d at 1255-56.

51
See NRS 200.364; NRS 200.368.

52
Rosky did not testify at trial.
........................................
121 Nev. 184, 199 (2005) Rosky v. State
trial, the court instructed the jury on flight. Citing no Nevada or federal authority, Rosky
argues that the district court should not have given a flight instruction over the objection of
defense counsel.
[Headnotes 26, 27]
We conclude that Rosky's argument is without merit. First, under Nevada law, a district
court may properly give a flight instruction if the State presents evidence of flight and the
record supports the conclusion that the defendant fled with consciousness of guilt and to
evade arrest.
53
Second, the testimony of court personnel concerning Rosky's failure to
appear, the bench warrant transcripts, and several of Rosky's post-extradition taped jailhouse
telephone conversations provided substantial evidence that Rosky fled to Mexico to avoid
prosecution. Third, the taped telephone conversations indicate that, while he was in Mexico,
Rosky considered assuming a different identity and planned to abscond to Brazil where he
could not be extradited. We find these conversations to be sufficient for a jury to infer
consciousness of guilt, and thus, the district court committed no error in its flight
instructions to the jury.
54
Accordingly, given the proper evidentiary predicate, the district
court may again instruct the jury on remand concerning Rosky's flight to Mexico.
CONCLUSION
The district court erroneously admitted prior bad act evidence to show a common plan or
scheme and as evidence of modus operandi. This error was harmless as to the indecent
exposure conviction. However, overwhelming evidence does not support Rosky's conviction
for sexual assault. Therefore, we affirm the judgment of conviction of indecent exposure,
reverse the judgment of conviction of sexual assault and remand this matter to the district
court for proceedings consistent with this opinion.
Douglas and Parraguirre, JJ., concur.
____________________

53
See Walker v. State, 113 Nev. 853, 870-71, 944 P.2d 762, 773 (1997).

54
Rosky also cites the Oklahoma Criminal Appeals decision in Mitchell v. State, 876 P.2d 682 (Okla. Crim.
App. 1993), and argues that giving a flight instruction is improper if the defendant does not refute the state's
allegation of flight. We reject this argument, noting that subsequent Oklahoma decisions have clarified that the
rule in Mitchell was an interpretation and application of state law and does not relate to any constitutional right.
Richie v. State, 908 P.2d 268, 277 (Okla. Crim. App. 1995).
____________
........................................
121 Nev. 200, 200 (2005) Hymon v. State
RODERICK LAMAR HYMON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 41378
May 26, 2005 111 P.3d 1092
Appeal from a judgment of conviction, upon jury verdict, of robbery with the use of a
deadly weapon, larceny from the person, and assault with a deadly weapon and from an
adjudication of habitual criminality. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
The supreme court, Hardesty, J., held that: (1) district court's failure to hold hearing before
ordering defendant to wear stun belt was harmless error, and (2) district court properly
sentenced defendant as a habitual criminal.
Affirmed.
[Rehearing denied July 26, 2005]
Michael H. Schwarz, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Noreen C. Nyikos, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
District courts are allowed sufficient discretion to determine whether to physically
restrain a defendant during the guilt phase of a trial, but in making that determination,
the district court must carefully balance the defendant's constitutional rights with the
security risk that the defendant poses, and the defendant should not be restrained except
as a last resort.
2. Criminal Law.
A criminal defendant has the right to appear before his jurors clad in the apparel of
an innocent person.
3. Criminal Law.
Use of a stun belt as a security device during a criminal trial poses the risk of
interfering with a defendant's Sixth Amendment right to confer with counsel because
the fear of receiving a painful and humiliating shock for any gesture that could be
perceived as threatening likely chills a defendant's inclination to make any movements
during trial, including those movements necessary for effective communication with
counsel. U.S. Const. amend. 6.
4. Constitutional Law; Criminal Law.
Use of a stun belt as a security device during a criminal trial may have an adverse
impact on a defendant's Sixth Amendment and due process rights to be present at trial
and to participate in his defense because wearing a stun belt is a considerable
impediment to a defendant's ability to follow the proceedings and take an active interest
in the presentation of his case. U.S. Const. amends. 6, 14.
........................................
121 Nev. 200, 201 (2005) Hymon v. State
5. Criminal Law.
Use of a stun belt as a security device during a criminal trial may adversely affect a
defendant's privilege of becoming a competent witness and testifying in his own behalf
because a stun belt likely increases the anxiety that a witness normally feels upon
having to testify, which may affect the defendant's demeanor on the stand.
6. Criminal Law.
Decision to use a stun belt as a security device during a criminal trial is subjected to
close judicial scrutiny.
7. Criminal Law.
A district court must conduct a hearing and determine whether an essential state
interest, such as special security needs relating to the protection of the courtroom and
its occupants or escape risks specific to the defendant on trial, is served by compelling a
defendant to wear a stun belt as a security device during a criminal trial. As part of this
determination, the district court must consider less restrictive means of restraint.
8. Criminal Law.
For purposes of determining whether essential state interest is served by compelling
a defendant to wear a stun belt as a security device during a criminal trial, a district
court must: (1) make factual findings regarding the belt's operation, (2) address the
criteria for activating the stun belt, (3) address the possibility of accidental discharge,
(4) inquire into the belt's potential adverse psychological effects, and (5) consider the
health of the individual defendant.
9. Criminal Law.
A district court's rationale in compelling a defendant to wear a stun belt as a security
device during a criminal trial must be placed on the record to enable the supreme court
to determine if the use of the stun belt was an abuse of discretion.
10. Criminal Law.
Decision to compel a defendant to wear a stun belt as a security device during a
criminal trial must be made by a district court, not by law enforcement officers.
11. Criminal Law.
Use of physical restraints in courtroom is subject to close judicial, not law
enforcement, scrutiny.
12. Criminal Law.
It is the duty of a district court, not correctional officers, to make the affirmative
determination, in conformance with constitutional standards, to order the physical
restraint of a defendant in the courtroom.
13. Criminal Law.
When it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent an error, the error is harmless.
14. Criminal Law.
District court's error in failing to disclose letter in which defendant threatened judge,
which served as reason that court ordered defendant to wear stun belt during guilt phase
of robbery trial, was harmless; defendant's remedy upon being informed of
communication would have been to move to disqualify judge, and defendant did not do
so upon learning of communication, and even if he had, judge was not required to
recuse himself after receiving threat from defendant. NRS 1.235.
........................................
121 Nev. 200, 202 (2005) Hymon v. State
15. Criminal Law.
District court's failure to hold hearing before ordering defendant, as a result of his
threat to kill judge, to wear remote-controlled electronic stun belt during guilt phase of
robbery trial was harmless error; defendant did not claim that belt implicated his
constitutional rights, court instructed jury that belt was standard security procedure, and
any prejudice resulting from jury learning of belt was caused by defendant's own
actions, since jury would not have known that defendant was wearing belt if defendant,
who was representing himself, had not opened his clothing and revealed belt during his
opening statement.
16. Criminal Law.
Federal and Nevada Constitutions guarantee a defendant the right to
self-representation. Const. art. 1, 8; U.S. Const. amend. 6.
17. Criminal Law.
Denial of the right to self-representation is per se reversible error. U.S. Const.
amend. 6.
18. Criminal Law.
Before allowing a defendant to waive counsel and represent himself, a trial court
must ensure that the defendant is competent and that the waiver of counsel is knowing,
voluntary, and intelligent. U.S. Const. amend. 6.
19. Criminal Law.
The competency to stand trial is the same competency needed to waive the right to
counsel. U.S. Const. amend. 6.
20. Criminal Law.
Once a defendant is deemed competent to stand trial and to waive counsel, the next
inquiry is whether the waiver is knowing, voluntary and intelligent. U.S. Const. amend.
6.
21. Criminal Law.
When a defendant seeks to waive his right to counsel, a determination that he is
competent to stand trial is not enough; the waiver must also be intelligent and voluntary
before it can be accepted. U.S. Const. amend. 6.
22. Criminal Law.
A court should conduct a Faretta canvass to apprise a defendant fully of the risks of
self-representation and of the nature of the charged crime so that the defendant's
decision to waive counsel is made with a clear comprehension of the attendant risks.
U.S. Const. amend. 6; SCR 253(3).
23. Criminal Law.
Even the omission of a Faretta canvass is not reversible error if it appears from the
whole record that the defendant knew his rights and insisted upon representing himself.
U.S. Const. amend. 6; SCR 253(3).
24. Criminal Law.
The supreme court will give deference to a district court's decision to allow a
defendant to waive his right to counsel. U.S. Const. amend. 6.
25. Criminal Law.
District court did not abuse its discretion by allowing defendant to exercise his
constitutional right to represent himself after conducting two thorough Faretta
canvasses, in prosecution for robbery, larceny, and assault, because court adequately
inquired into defendant's mental health; record demonstrated that defendant had
significant legal knowledge of crimes with which he was charged and had significant
similar criminal experience; court adequately inquired into defendant's knowledge
regarding elements of offenses; and record indicated that sentences were explained
to defendant and that defendant understood his possible defenses.
........................................
121 Nev. 200, 203 (2005) Hymon v. State
crimes with which he was charged and had significant similar criminal experience;
court adequately inquired into defendant's knowledge regarding elements of offenses;
and record indicated that sentences were explained to defendant and that defendant
understood his possible defenses. U.S. Const. amend. 6; SCR 253(3).
26. Criminal Law.
A defendant may be denied the right to represent himself if a physical or mental
impairment, even if not enough to render the defendant incompetent to stand trial,
renders the defendant unable to abide by rules of procedure or protocol. U.S. Const.
amend. 6; SCR 253(3).
27. Criminal Law.
The right to defend is given directly to the accused; for it is he who suffers the
consequences if the defense fails.
28. Criminal Law.
The standard of competency for a defendant to choose his own defense is the same
level of competency needed to stand trial.
29. Sentencing and Punishment.
District court properly sentenced defendant as a habitual criminal, even though court
did not state that defendant's prior judgments of conviction had been admitted into
evidence, in prosecution for robbery with the use of a deadly weapon, larceny from a
person, and assault with a deadly weapon, because, although it was unclear whether
certified copies of defendant's judgments of conviction were admitted into evidence
since court did not specifically state that they were, documents were received into
evidence; parties argued them; and based on certified copies of defendant's judgments
of conviction, court determined that defendant qualified as habitual criminal. NRS
207.016(3).
30. Sentencing and Punishment.
For defendant to be sentenced as a habitual criminal, State must prove defendant's
prior convictions beyond a reasonable doubt.
Before Rose, Gibbons and Hardesty, JJ.
OPINION
By the Court, Hardesty, J.:
During the guilt phase of the trial, appellant Roderick Lamar Hymon, who was
representing himself, was required to wear an electronic stun belt as a result of his threat to
kill the trial judge. On appeal, we address under what circumstances a defendant in a criminal
trial may be required, as a security measure, to wear a remote-controlled electronic stun belt.
FACTS
On April 8, 2001, Betty Crisman was alone in the lobby area of Chick's Tire & Auto
Repair in Las Vegas when Hymon entered and walked to the counter. Hymon suddenly turned
around and grabbed Crisman's purse.
........................................
121 Nev. 200, 204 (2005) Hymon v. State
grabbed Crisman's purse. Following a brief struggle, Hymon gained control of the purse and
ran out the door. Crisman screamed that Hymon had stolen her purse.
Two of Chick's mechanics, Clyde Estabillo and Stanley Red Turner, were standing in
the garage just on the other side of the lobby door and heard Crisman's scream. They saw
Hymon running from the lobby with a purse under his arm and chased Hymon, catching him
when he fell on the curb. Hymon stood up, swinging a four- to six-inch long pocketknife at
his pursuers. Estabillo and Turner backed away, allowing Hymon to escape over a nearby
fence.
Estabillo located two police officers, who caught and arrested Hymon. Estabillo and
Crisman identified Hymon at the scene.
Hymon requested to represent himself in the district court proceeding. A few days after
Hymon's request, the district court conducted a Faretta
1
canvass. The district court
questioned Hymon on the topics listed in SCR 253 but omitted a question regarding whether
Hymon understood the possible penalties or punishments. Hymon gave appropriate responses
to all of the questions. Subsequently, the district court concluded that Hymon was competent
to waive his right to counsel and he was doing so freely, voluntarily and knowingly. The
district court appointed standby counsel.
A few months later, the prosecutor and standby counsel told the district court that Hymon
was being uncooperative, and they were having problems communicating with him. Hymon
became very agitated, and the district court revoked Hymon's right to represent himself and
appointed new counsel.
Hymon's counsel eventually requested a psychological evaluation to determine Hymon's
competence to stand trial. Hymon was removed from the courtroom after an unruly outburst.
The district court ordered a psychological evaluation, but Hymon refused to see the
psychologist. The psychologist recommended that Hymon be declared incompetent until a
complete evaluation could be performed.
Hymon then moved to dismiss his counsel. The district court ordered another
psychological evaluation. Several months later, Lake's Crossing declared Hymon competent
to stand trial, but it noted that Hymon had an antisocial personality disorder.
At calendar call on November 27, 2002, Hymon claimed that he was being represented
against his will and denied his right to self-representation. Hymon's counsel informed the
court that he had attempted to see Hymon several times, but Hymon refused to meet. The
district court continued the hearing and, upon reconvening, conducted another Faretta
canvass.
____________________

1
Faretta v. California, 422 U.S. 806 (1975).
........................................
121 Nev. 200, 205 (2005) Hymon v. State
The district court again questioned Hymon from the list in SCR 253. Hymon gave
appropriate responses to all of the questions, but the district court was concerned with
Hymon's understanding of his available defenses. Hymon stated that one of the main reasons
he wanted to represent himself was because his counsel would not present the defense that
Hymon wanted. Hymon explained that while the State had sufficient evidence to prove that
he committed the robbery, his rights were violated in the justice court. Hymon argued that the
jury should be informed of his constitutional rights, and he stated that he would argue that he
had been denied due process and should be acquitted. The district court stated that Hymon
was not articulating a viable defense. Finally, after much discussion, the district court stated
that under SCR 253(4), it could not in good conscience rubber-stamp these findings. The
district court stated that it could not allow Hymon to represent himself. However, after an
unrecorded bench conference, the district court stated, on the record, that this court has said
that if the defendant is competent to stand trial, then the defendant must be allowed to
represent himself. Accordingly, the district court allowed Hymon to represent himself but
appointed standby counsel.
The jury was selected without incident on December 2, 2002. At some point during the
day, before the jury returned to the courtroom, the district court sought confirmation that
Hymon was not cuffed or in shackles. The corrections officer responded that Hymon was not,
but he was wearing a stun belt. The district court responded, He's been good. You want to
keep him in the [stun] belt? The corrections officer's reply was not audible, but the district
court responded, All right, and Hymon remained in the belt.
During his opening statements to the jury, Hymon focused on the violation of his rights
during all of the proceedings. He opened his clothes and revealed the stun belt. Hymon told
the jury that the district court placed him in the belt and if he does something that the bailiff
does not like, he will be electrocuted. Hymon claimed that the district court was not impartial
because it would not allow Hymon to present evidence.
At the end of the day and outside the jury's presence, the district court made a record of
why it ordered Hymon to wear the stun belt. The district court stated that it received a copy of
a letter that Hymon had written to the Civil Rights Volunteers of the Nevada Bar Association.
The letter requested that the Civil Rights Volunteers make the district court judge recuse
himself. The letter stated, If I have to, I will murder him. A copy of the letter was provided
to the district court. The district court told Hymon that this direct threat caused the district
court to order Hymon to wear the belt. Hymon complained that the district court did not hold
a hearing before ordering him to wear the belt. The district court responded that it need not
hold a hearing upon receiving such a threat.
........................................
121 Nev. 200, 206 (2005) Hymon v. State
sponded that it need not hold a hearing upon receiving such a threat.
The next day, the State requested that the district court explain the belt to the jury. Hymon
admitted to sending the letter; however, he again complained about the lack of a hearing.
Hymon stated that the district court was not following the rules, and he complained that if he
did anything combative, the belt would blow him up. The district court admitted that it should
have shown Hymon the letter first. When the jury was brought in, the district court instructed
the jury that the stun belt was a standard security procedure and that they should not draw any
inferences from it concerning the defendant's character or propensity for violence.
After the jury returned a guilty verdict, Hymon requested counsel for sentencing, and the
district court appointed the attorney who had served as standby counsel. The State advised the
district court it had certified copies of Hymon's prior convictions. Hymon objected, claiming
that some of the convictions could not be used for habitual criminal status and the State failed
to previously provide him with copies. Hymon became hostile, and the district court had him
removed from the courtroom.
Sentencing was continued two days later. The prosecutor stated, I have in my hand the
certified copies, and for the record, I have a certified copy of [five of Hymon's prior
convictions]. May I approach, Judge, and have them marked? The district court consented.
Hymon questioned the number of prior convictions. The State provided Hymon with another
copy of the convictions, and the district court trailed the proceedings so that Hymon could
review them. Upon resuming the proceedings, Hymon successfully argued that one of the
convictions was not valid for habitual criminal status, leaving four valid convictions. The
district court found Hymon to be a habitual criminal. However, the State never requested to
have the judgments of conviction admitted, and the district court never stated that they were
admitted.
DISCUSSION
On appeal, Hymon argues that the district court: (1) should have promptly disclosed that it
received a copy of Hymon's letter and conducted a hearing before requiring him to wear a
stun belt, (2) abused its discretion by allowing Hymon to represent himself after performing
an inadequate Faretta canvass, and (3) erred by sentencing Hymon as a habitual criminal
when the judgments of conviction were not admitted into evidence.
2

____________________

2
We conclude that Hymon's other arguments are without merit. First, there is sufficient evidence to show that
Hymon committed the assault with a dangerous and deadly weapon. The four- to six-inch pocketknife that
Hymon used against Estabillo and Turner falls within the definition of deadly
........................................
121 Nev. 200, 207 (2005) Hymon v. State
Stun belt
We take this opportunity to explain under what circumstances the district court may
compel a defendant to wear a stun belt during the guilt phase of a trial.
A stun belt is a means of prisoner restraint. It is an electronic device that is secured around
the prisoner's waist, arm or leg. It is generally worn beneath the defendant's shirt or jacket and
is not visible to the jury. The belt, which may be activated remotely, delivers a high voltage
electrical current throughout the defendant's body.
3
The record in this case does not address
how activation of a stun belt, like that Hymon was required to wear, might affect the person
wearing it. However, numerous cases provide a detailed discussion. These cases indicate that
activation may cause incapacitation, severe pain, uncontrolled defecation or urination,
muscular weakness, heartbeat irregularities or seizures.
4
In some cases, accidental activation
has occurred.
5

[Headnote 1]
District courts are allowed sufficient discretion to determine whether to physically restrain
a defendant during the guilt phase of a trial.
6
In making this determination, the district court
must carefully balance the defendant's constitutional rights with the security risk that the
defendant poses. A defendant should not be restrained except as a last resort.
7

[Headnote 2]
Restraining a defendant during trial raises several constitutional concerns. A criminal
defendant clearly has the right . . . to appear before his jurors clad in the apparel of an
innocent person.
8
The sight of physical restraints may have a significant effect on the jury
by eroding the presumption of innocence, which is an integral part of the defendant's
right to a fair trial.
____________________
weapon in NRS 193.165. Second, we conclude that there is sufficient evidence to support Hymon's convictions
for robbery and larceny. Third, we conclude that Hymon's argument regarding ineffective assistance of counsel
must be raised in the district court by a post-conviction petition for a writ of habeas corpus. Feazell v. State, 111
Nev. 1446, 1449, 906 P.2d 727, 729 (1995). Finally, since Hymon never sought relief below for the justice
court's bailiff's alleged threat to tape his mouth shut, we conclude that this issue has not been properly preserved
for appeal.

3
See Gonzalez v. Pliler, 341 F.3d 897, 899 (9th Cir. 2003) (describing how a stun belt works).

4
Id.

5
Id.

6
Illinois v. Allen, 397 U.S. 337, 343 (1970); McGervey v. State, 114 Nev. 460, 463, 958 P.2d 1203, 1205-06
(1998).

7
Allen, 397 U.S. at 344.

8
Grooms v. State, 96 Nev. 142, 144, 605 P.2d 1145, 1146 (1980) (citations omitted).
........................................
121 Nev. 200, 208 (2005) Hymon v. State
on the jury by eroding the presumption of innocence, which is an integral part of the
defendant's right to a fair trial.
9
Notably, the United States Supreme Court recently held that
the Constitution forbids the use of visible shackles during the penalty phase of a capital
proceeding, as well as during the guilt phase, unless the use is justified by an essential state
interest, such as courtroom security that is specific to the defendant on trial.
10
However, this
is less of a concern in the case of stun belts, as opposed to the more traditional forms of
restraint such as handcuffs or shackles, since stun belts can be concealed beneath the
defendant's clothes. Nevertheless, other constitutional concerns may be elevated by the use of
a stun belt.
[Headnote 3]
A stun belt poses the risk of interfering with the defendant's Sixth Amendment right to
confer with counsel.
11
The fear of receiving a painful and humiliating shock for any gesture
that could be perceived as threatening likely chills a defendant's inclination to make any
movements during trialincluding those movements necessary for effective communication
with counsel.
12

[Headnote 4]
Another problem with a stun belt is its potentially adverse effect on the defendant's Sixth
Amendment and due process rights to be present at trial and to participate in his defense.
13
The stun belt is a considerable impediment to a defendant's ability to follow the proceedings
and take an active interest in the presentation of his case.
14
It is reasonable to assume that
much of a defendant's focus and attention when wearing one of these devices is occupied by
anxiety over the possible triggering of the belt.
15

[Headnote 5]
A stun belt may also adversely affect the defendant's privilege of becoming a competent
witness and testifying in his own behalf.
16
A stun belt likely increases the anxiety that a
witness normally feels upon having to testify, which may affect the defendant's demeanor on
the stand.
____________________

9
Gonzalez, 341 F.3d at 899-900; U.S. v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002); Dickson v. State,
108 Nev. 1, 3, 822 P.2d 1122, 1124 (1992).

10
Deck v. Missouri, 544 U.S. 622, 624 (2005).

11
Durham, 287 F.3d at 1305.

12
Id.

13
Id. at 1305-06.

14
Id. at 1306.

15
Id.

16
Gonzalez, 341 F.3d at 900 (quotation marks and citation omitted).
........................................
121 Nev. 200, 209 (2005) Hymon v. State
demeanor on the stand.
17
Since many criminal trials rest on the credibility of the witnesses,
the impact of the stun belt's effect on the defendant's testimony may be significant.
All of these concerns may be elevated in the case of a defendant who is representing
himself. A self-representing defendant must intently focus on the proceedings so that he does
not miss an issue or a possible objection. The stun belt may cause the defendant concern
regarding voicing a vehement objection or actively cross-examining a witness, and it may
distract the defendant's attention from the proceedings. Further, a self-represented defendant
must be afforded the same freedom of movement within the well of the trial court as that
enjoyed by the prosecutor.
[Headnotes 6-12]
It is for these reasons that the decision to use a stun belt is subjected to close judicial
scrutiny.
18
We conclude, therefore, that the district court must conduct a hearing and
determine whether an essential state interest, such as special security needs relating to the
protection of the courtroom and its occupants or escape risks specific to the defendant on
trial, is served by compelling the defendant to wear a stun belt.
19
As part of this
determination, the district court must consider less restrictive means of restraint.
20
Additionally, the district court must: (1) make factual findings regarding the belt's operation,
(2) address the criteria for activating the stun belt, (3) address the possibility of accidental
discharge, (4) inquire into the belt's potential adverse psychological effects, and (5) consider
the health of the individual defendant.
21
The district court's rationale must be placed on the
record to enable this court to determine if the use of the stun belt was an abuse of discretion.
22
Furthermore, the decision must be made by the district court, not by law enforcement
officers.
23
The use of physical restraints is subject to close judicial, not law enforcement,
scrutiny. It is the duty of the [district] court, not correctional officers, to make the affirmative
determination, in conformance with constitutional standards, to order the physical restraint of
a defendant in the courtroom.
24

____________________

17
Id. at 901.

18
Id.; Durham, 287 F.3d at 1304.

19
Gonzalez, 341 F.3d at 901; Durham, 287 F.3d at 1307; see also Deck, 544 U.S. at 633.

20
Gonzalez, 341 F.3d at 901.

21
Durham, 287 F.3d at 1307; People v. Mar, 52 P.3d 95, 97 (Cal. 2002).

22
Durham, 287 F.3d at 1307.

23
Gonzalez, 341 F.3d at 902; Mar, 52 P.3d at 105.

24
Gonzalez, 341 F.3d at 902.
........................................
121 Nev. 200, 210 (2005) Hymon v. State
[Headnote 13]
In order for the error in the trial process alleged by Hymon to be reversible, this court must
conclude that it was not harmless beyond a reasonable doubt.
25
When it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the error,
the error is harmless.
26

[Headnote 14]
On appeal, Hymon focuses on the district court's failure to hold a hearing to disclose that it
received a copy of Hymon's letter. Hymon argues that the district court violated NCJC Canon
3B(7), which prohibits the district court from considering third-party communications
regarding a pending case. Hymon alleges that the district court was prejudiced against him
because of the letter. We note that the district court did have an obligation to promptly
disclose this third-party communication to Hymon and the State. Nevertheless, we conclude
that the district court's error is harmless because Hymon's remedy upon being informed of the
communication would have been to move to disqualify the district court judge, pursuant to
NRS 1.235. Hymon did not do so upon learning of the communication, and even if he had, a
district court judge is not required to recuse himself after receiving a threat from the
defendant.
27

[Headnote 15]
Further, we believe the focus should be, as Hymon argued below, on the district court's
failure to hold a hearing on the potential use of the stun belt. In this case, we conclude that the
district court's failure to hold a hearing before ordering Hymon to wear a stun belt was
harmless. Hymon claims that the jury, upon learning of the belt, must have believed that
Hymon was being forced to wear it because he was dangerous and could not be trusted to
conduct himself properly before the court. Hymon does not claim, however, that the belt
affected his demeanor during the trial or that it implicated his constitutional rights.
____________________

25
Manley v. State, 115 Nev. 114, 122-23, 979 P.2d 703, 708 (1999).

26
Allred v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250 (2004).

27
See Mayberry v. Pennsylvania, 400 U.S. 455, 463 (1971) ([W]e do not say that the more vicious the
attack on the judge the less qualified he is to act. A judge cannot be driven out of a case.); Standing Committee
v. Yagman, 55 F.3d 1430, 1443-44 (9th Cir. 1995) (It has long been established, however, that a party cannot
force a judge to recuse himself by engaging in personal attacks on the judge . . . .); Wilks v. Israel, 627 F.2d 32,
37 (7th Cir. 1980) (To permit [a deliberate attack] to cause a new trial before a new judge would encourage
unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration.);
accord U.S. v. Malmsberry, 222 F. Supp. 2d 1345, 1349-50 (M.D. Fla. 2002); Smith v. District Court for Fourth
Judicial Dist., 629 P.2d 1055, 1057 (Colo. 1981); State v. Brown, 825 P.2d 482, 489 (Idaho 1992); State v.
Prater, 583 So. 2d 520, 527-28 (La. Ct. App. 1991); State v. Bilal, 893 P.2d 674, 675-77 (Wash. Ct. App.
1995).
........................................
121 Nev. 200, 211 (2005) Hymon v. State
however, that the belt affected his demeanor during the trial or that it implicated his
constitutional rights.
Furthermore, the district court instructed the jury that the stun belt was a standard security
procedure and that they should not draw any inferences from it concerning the defendant's
character or propensity for violence. We must presume that the jury followed that instruction.
28
Finally, if any prejudice resulted from the jury learning of the stun belt, it was caused by
Hymon's own actions. If Hymon had not opened his clothing during his opening statement,
the jury would never have known that Hymon was wearing a stun belt.
A review of the trial transcripts indicates that, while the district court sought input from
the corrections officer regarding whether Hymon should continue to wear the belt, the district
court ultimately made the decision to keep Hymon in the belt.
The record also reveals that Hymon posed a substantial security risk in the courtroom. On
several occasions, Hymon had to be removed from the courtroom due to an outburst or
uncontrollable behavior. Furthermore, Hymon's letter, which he admits authoring, contained a
direct threat to the district court judge who was sitting on the case. A direct threat to the life
of the judge or the court's staff constitutes a sufficient state interest to warrant the use of
restraints, such as a stun belt, in the courtroom. Therefore, we conclude that the record
sufficiently demonstrates that an essential state interest was served by compelling Hymon to
wear a stun belt and that the district court's failure to hold a hearing constitutes harmless
error.
Faretta canvass
Hymon contends that the district court abused its discretion by failing to conduct a
specific, penetrating and comprehensive Faretta canvass before granting Hymon the right to
represent himself. Hymon argues that the district court failed to adequately inquire into four
of the areas mentioned in SCR 253(3): Hymon's mental health, his understanding of the
elements of the crimes, his understanding of the punishments and total possible sentence, and
his understanding of the possible pleas and defenses available. The State counters that the
district court conducted two complete and detailed Faretta canvasses, after which the district
court found that Hymon was competent to stand trial and that he was waiving his right to
counsel freely and voluntarily.
____________________

28
See Lisle v. State, 113 Nev. 540, 558, 937 P.2d 473, 484 (1997) (There is a presumption that jurors follow
jury instructions.), clarified on other grounds, 114 Nev. 221, 954 P.2d 744 (1998).
........................................
121 Nev. 200, 212 (2005) Hymon v. State
[Headnotes 16-21]
The United States and Nevada Constitutions guarantee a defendant the right to
self-representation.
29
Denial of that right is per se reversible error.
30
However, before
allowing a defendant to waive counsel and represent himself, the trial court must ensure that
the defendant is competent and that the waiver of counsel is knowing, voluntary, and
intelligent.
31
The competency to stand trial is the same competency needed to waive the right
to counsel.
32
Once a defendant is deemed competent, the next inquiry is whether the waiver
of counsel is knowing, voluntary and intelligent.
33
[W]hen a defendant seeks to waive his
right to counsel, a determination that he is competent to stand trial is not enough; the waiver
must also be intelligent and voluntary before it can be accepted.
34

[Headnote 22]
The court should conduct a Faretta canvass to apprise the defendant fully of the risks of
self-representation and of the nature of the charged crime so that the defendant's decision is
made with a clear comprehension of the attendant risks.'
35
SCR 253(2) states that during
the Faretta canvass the district court should inform the defendant of some of the dangers,
disadvantages and consequences of self-representation and lists specific warnings that the
district court should offer. SCR 253(3) states that the district court's canvass may include
questions about the defendant personally and about the defendant's knowledge and
understanding of the proceedings against him. Finally, SCR 253(4) states that the district
court shall make findings on the record concerning the defendant's competency to waive
counsel and whether the defendant is waiving his right freely, voluntarily and knowingly.
[Headnote 23]
This court has rejected the necessity of a mechanical performance of a Faretta canvass.
Even the omission of a canvass is not reversible error if it appears from the whole record that
the defendant knew his rights and insisted upon representing himself.
____________________

29
Wayne v. State, 100 Nev. 582, 584, 691 P.2d 414, 415 (1984).

30
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).

31
Faretta, 422 U.S. at 835; see also Godinez v. Moran, 509 U.S. 389, 400-01 (1993).

32
Godinez, 509 U.S. at 399.

33
Johnson v. State, 117 Nev. 153, 164, 17 P.3d 1008, 1016 (2001).

34
Godinez, 509 U.S. at 402.

35
Johnson, 117 Nev. at 164, 17 P.3d at 1016 (citing Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148,
150 (1997) (quoting Graves v. State, 112 Nev. 118, 124, 912 P.2d 234, 238 (1996))).
........................................
121 Nev. 200, 213 (2005) Hymon v. State
dant knew his rights and insisted upon representing himself.'
36
In Graves v. State, we
explained:
To the extent that any of our prior cases hint that specific matters should be part of a
canvass that go beyond the general requirements of Faretta, we note that those specific
matters are not constitutionally required for a valid waiver where it is apparent from the
record that the defendant was aware of the dangers and disadvantages of
self-representation.
37

[Headnote 24]
This court will give deference to the district court's decision to allow the defendant to
waive his right to counsel.
38
Through face-to-face interaction in the courtroom, the trial
judges are much more competent to judge a defendant's understanding than this court. The
cold record is a poor substitute for demeanor observation.
39

[Headnote 25]
First, Hymon contends that the district court abused its discretion by allowing Hymon to
represent himself, knowing that: (1) it previously ordered Hymon to undergo a psychological
evaluation, (2) Lake's Crossing diagnosed Hymon as having an antisocial personality
disorder, and (3) Hymon was unable to maintain his decorum in the courtroom. The State
contends that there was never any indication that Hymon was mentally incompetent.
[Headnote 26]
SCR 253(3)(c) states that the district court's canvass may include inquiry into the
defendant's mental health history. A defendant may be denied the right to represent himself if
a physical or mental impairment, even if not enough to render the defendant incompetent to
stand trial, renders the defendant unable to abide by rules of procedure or protocol.
40

During the Faretta canvasses, the district court inquired into Hymon's mental health and
Hymon responded that he was sane and had never been treated for any sort of mental illness.
The record indicates that the district court ordered the psychological evaluation because
Hymon was not cooperating with his counsel and refused to see the first psychologist. Lake's
Crossing indicated that Hymon was in good mental health, despite having an antisocial
personality disorder.
____________________

36
Graves, 112 Nev. at 125, 912 P.2d at 238 (quoting Wayne, 100 Nev. at 585, 691 P.2d at 416).

37
Id. at 125, 912 P.2d at 238-39.

38
Id. at 124, 912 P.2d at 238.

39
Id.

40
Johnson, 117 Nev. at 166-67, 17 P.3d at 1017.
........................................
121 Nev. 200, 214 (2005) Hymon v. State
that Hymon was in good mental health, despite having an antisocial personality disorder. The
record shows that Hymon was capable of abiding by the rules of procedure and protocol and
was able to use them to his advantage when appropriate. Accordingly, we conclude that the
district court adequately inquired into Hymon's mental health when performing the Faretta
canvass.
Second, Hymon contends that while he answered that he knew the elements of the offenses
that he was charged with, he could not have stated them upon further inquiry. SCR 253(3)(f)
states that the district court's canvass may include an inquiry into the [d]efendant's
understanding of the elements of each crime and lesser included or related offenses.
Hymon told the district court that he had attended approximately eleven preliminary
hearings and six trials, including one for robbery with use of a deadly weapon, and had done a
lot of legal reading while in prison. We conclude that the record repeatedly demonstrates that
Hymon had significant legal knowledge of the crimes with which he was charged and had
significant similar criminal experience. The district court adequately inquired into Hymon's
knowledge regarding the elements of the offenses.
Third, Hymon argues that he did not understand that he could be sentenced as a habitual
criminal and receive up to five life sentences. SCR 253(3)(g) states that the district court's
canvass may include an inquiry into the [d]efendant's understanding of the possible penalties
or punishments, and the total possible sentence the defendant could receive. The record
indicates that the sentences were explained several times to Hymon, and he independently
filed a motion for discovery under the habitual criminal act.
Finally, Hymon contends that the district court failed to adequately inquire into his
understanding of the possible defenses. Hymon indicated that he erroneously wished to base
his defense on alleged violations of his constitutional rights, and he intended to do so by
calling various court officials to testify regarding the relevant law.
[Headnotes 27, 28]
SCR 253(3)(h) states that the district court's canvass may include an inquiry into the
[d]efendant's understanding of the pleas and defenses which may be available. The right to
defend is given directly to the accused; for it is he who suffers the consequences if the
defense fails.
41
The standard of competency for a defendant to choose his own defense is
the same level of competency needed to stand trial.
42
The law requires that the defendant be
competent and that the waiver is knowing, voluntary and intelligent.
____________________

41
Faretta, 422 U.S. at 819-20.

42
Johnson, 117 Nev. at 164, 17 P.3d at 1015.
........................................
121 Nev. 200, 215 (2005) Hymon v. State
dant be competent and that the waiver is knowing, voluntary and intelligent.
We agree that the record seems to indicate that the district court was under the mistaken
impression that if the defendant is competent to stand trial, then no further inquiry is required
in regards to whether the waiver is knowing, voluntary and intelligent. However, we conclude
that the record indicates that Hymon understood his possible defenses. In an attempt to rebut
the essential elements of the crimes, Hymon competently cross-examined the witnesses,
presented jury instructions and argued that the State failed to establish its case. These
maneuvers demonstrate that Hymon understood and was capable of pursuing his viable
defenses.
Accordingly, the record demonstrates that the district court conducted a specific,
penetrating and comprehensive Faretta canvass. Furthermore, the record supports that
Hymon was competent to waive his right to counsel and that his waiver was knowing,
voluntary and intelligent.
Habitual criminality
[Headnote 29]
Hymon argues that the district court erred by sentencing him as a habitual criminal
because the certified copies of his judgments of conviction were not properly admitted into
evidence. Hymon contends that the convictions were not before the court because, while they
were introduced and marked, the district court never admitted them.
[Headnote 30]
NRS 207.016(3) provides:
If a defendant charged pursuant to NRS 207.010, 207.012 or 207.014 pleads guilty to or
is found guilty of the primary offense but denies any previous conviction charged, the
court shall determine the issue of the previous conviction after hearing all relevant
evidence presented on the issue by the prosecution and the defendant.
For the defendant to be sentenced as a habitual criminal, the State must prove the defendant's
prior convictions beyond a reasonable doubt.
43
[A] certified copy of a felony conviction is
prima facie evidence of conviction of a prior felony.
44

We conclude that Hymon's argument is without merit. While the better practice is for the
district court to clearly enunciate that evidence has been admitted, other courts have
recognized that the failure to do so is not fatal.
____________________

43
Hollander v. State, 82 Nev. 345, 349-50, 418 P.2d 802, 804 (1966).

44
NRS 207.016(5).
........................................
121 Nev. 200, 216 (2005) Hymon v. State
idence has been admitted, other courts have recognized that the failure to do so is not fatal.
45
It is not indispensable that an exhibit be offered and admitted in evidence by any precise
words.'
46

In this case, it is unclear whether the certified copies of Hymon's judgments of conviction
were admitted into evidence because the district court did not specifically state that they were.
Nevertheless, the documents were received into evidence, the parties argued them, and based
on certified copies of Hymon's judgments of conviction, the district court determined that
Hymon qualified as a habitual criminal. The copies were marked. The State presented Hymon
with copies, and the district court trailed the proceedings so that Hymon could review them.
Upon reconvening, Hymon not only objected to the evidence, but he also successfully argued
against the validity of one of the convictions. The district court clearly considered the
documents when it sentenced Hymon as a habitual criminal. The vault exhibit form shows
that four certified copies of judgments of conviction were offered and admitted. Furthermore,
on appeal, Hymon does not dispute the validity of the four judgments of conviction.
Accordingly, the district court did not err by determining that Hymon qualified as a habitual
criminal and sentencing Hymon as such.
CONCLUSION
We conclude that the district court's failure to hold a hearing before ordering Hymon to
wear a stun belt constitutes harmless error. However, we note that, in the future, the district
courts must hold a hearing in accordance with the guidelines established in this opinion
before ordering a defendant to wear a stun belt. Additionally, the district court did not abuse
its discretion by allowing Hymon to exercise his constitutional right to represent himself after
conducting two thorough Faretta canvasses. Finally, we conclude that, even though the
district court did not state that Hymon's prior judgments of conviction had been admitted
into evidence, the district court did not err by sentencing Hymon as a habitual criminal.
Accordingly, we affirm Hymon's convictions for robbery with the use of a deadly weapon,
larceny from a person and assault with a deadly weapon and his sentences under the habitual
criminal statute.
Rose and Gibbons, JJ., concur.
____________________

45
See Zimmerman v. Chicago Bd. of Trade, 360 F.3d 612, 622 (7th Cir. 2004); Morris v. State, 477 A.2d
1206, 1216 (Md. Ct. Spec. App. 1984); Com. v. Nicolella, 452 A.2d 1055, 1056 (Pa. Super. Ct. 1982); Gee v.
Lewisville Memorial Hosp., Inc., 849 S.W.2d 458, 461 (Tex. Ct. App. 1993).

46
Zimmerman, 360 F.3d at 622 (quoting Hastings v. Reynolds Metals Co., 165 F.2d 484, 486 (7th Cir.
1947)).
____________
........................................
121 Nev. 217, 217 (2005) Matter of Harrison Living Trust
In the Matter of the THEDA HARRISON LIVING TRUST Dated June 21, 1991, and as
Amended and Restated on December 17, 1991, and as Amended on January 6, 1992, and
December 2, 1992.
MICHELE TERIANO, Appellant, v. NEVADA STATE BANK, Respondent.
No. 41275
June 9, 2005 112 P.3d 1058
Appeal from a district court order denying a motion to set aside a trust distribution order as
void. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Trust beneficiary petitioned for an order surcharging trustee for breach of fiduciary duty in
distributing assets according to court order that trustee knew was void. The district court
denied the petition. Beneficiary appealed. The supreme court, Hardesty, J., held that trust
beneficiary was equitably estopped from setting aside void judgment for failure to bring
petition within reasonable time; overruling Garcia v. Ideal Supply Co., 110 Nev. 493, 874
P.2d 752 (1994).
Affirmed.
Glen J. Lerner & Associates and Paul D. Powell, Las Vegas, for Appellant.
Jolley Urga Wirth Woodbury & Standish and R. Gardner Jolley and L. Christopher Rose,
Las Vegas, for Respondent.
1. Courts.
If the language of a court rule is clear and unambiguous, the court must conclude
that the plain meaning of the rule was intended and enforce the rule as written.
2. Trusts.
Trust beneficiary was equitably estopped from seeking damages from trustee by
bringing petition to surcharge trustee for distribution of assets by order that trustee
knew was void nearly a year after the order, which was not within a reasonable time;
overruling Garcia v. Ideal Supply Co., 110 Nev. 493, 874 P.2d 752 (1994). NRCP
60(b)(4).
3. Estoppel.
Lack of diligence in taking an action that raises equitable estoppel in response to the
action is generally a factual issue for the district court's consideration.
4. Estoppel.
When the facts regarding lack of diligence are undisputed or when only one
inference can be drawn from the facts, the existence of equitable estoppel becomes a
question of law.
........................................
121 Nev. 217, 218 (2005) Matter of Harrison Living Trust
5. Estoppel.
Equitable estoppel functions to prevent the assertion of legal rights that in equity and
good conscience should not be available due to a party's conduct.
6. Estoppel.
The four elements of equitable estoppel are: (1) the party to be estopped must be
apprised of the true facts; (2) he must intend that his conduct shall be acted upon, or
must so act that the party asserting estoppel has the right to believe it was so intended;
(3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he
must have relied to his detriment on the conduct of the party to be estopped.
Before Becker, C. J., Rose and Hardesty, JJ.
OPINION
By the Court, Hardesty, J.:
In this appeal, we consider whether petitions to challenge void judgments pursuant to
NRCP 60(b)(4)
1
may be denied in exceptional circumstances. Because NRCP 60(b)
expressly requires filing petitions within a reasonable time, we conclude that district courts
may consider lack of diligence, including equitable estoppel principles, to deny relief from a
void judgment.
FACTS
In June 1991, Theda Harrison established the Theda Harrison Living Trust. Michele
Teriano was named the principal beneficiary receiving Harrison's substantial assets, jewelry
and personal property. Teriano's distribution included stocks valued at $700,000, jewelry
valued at $111,000 and personal property with an unknown value. Terry Marsala, the other
beneficiary, was to receive $100,000 and Harrison's home furnishings.
Harrison died in September 2000 and left, among other assets, a collection of valuable
paintings. Trust trustee, Wells Fargo, retained counsel to render an opinion interpreting the
terms personal property and home furnishings for the purpose of determining which
beneficiary would receive Harrison's paintings. Counsel opined that the term home
furnishings included the paintings. Before Wells Fargo could distribute the Trust, Teriano
substituted Nevada State Bank (NSB) as the new trustee.
Given the dispute over the paintings, NSB petitioned the court for instruction before
distributing the Trust assets. Both beneficiaries of the Trust were sent notice of the
scheduled hearing; however, Teriano's notice was sent to an incorrect address.
____________________

1
NRCP 60 was amended, effective January 1, 2005. When Teriano moved to set aside the district court's
order, the provision regarding void judgments was contained in subsection (b)(3). The provision regarding void
judgments is now NRCP 60(b)(4).
........................................
121 Nev. 217, 219 (2005) Matter of Harrison Living Trust
ies of the Trust were sent notice of the scheduled hearing; however, Teriano's notice was sent
to an incorrect address. The probate court ruled that the paintings were home furnishings
and directed that they be distributed to Marsala.
Upon learning of the probate court's order, Teriano's attorney immediately notified Teriano
of the distribution order. However, Teriano claims she did not receive notice of the probate
court's ruling until two months after the hearing was held. The attorney who drafted the Trust
requested that NSB's counsel seek reconsideration of the home furnishings decision. The
drafting attorney prepared and signed the petition for reconsideration. He also provided an
affidavit where he testified that Harrison declared to him that the paintings were to be
considered personal property.
Teriano advised NSB that she did not receive notice of the first hearing. NSB advised
Teriano that a notice of the hearing on the petition for reconsideration would be given, but the
second notice was also sent to an incorrect address, and Teriano did not receive notice of that
hearing either. The attorney who drafted the Trust did not receive notice of or attend the
second hearing. The probate court denied the petition for reconsideration because the drafting
attorney failed to appear.
Following the probate court's denial of the motion for reconsideration, Teriano retained
new counsel, who prepared and filed an order denying the motion for reconsideration.
Teriano's new counsel also filed a notice of entry of order denying the petition for
reconsideration and copied all counsel.
NSB questioned Teriano's intention to challenge the probate court's order and advised
Teriano that it would proceed with the distribution of the entire Trust. More than thirty days
after Teriano's written notice of the order's entry, NSB distributed $100,000 and the paintings
to Marsala and the remaining Trust property and Trust jewelry to Teriano. Marsala later sold
the paintings.
More than a year after the distribution of Teriano's Trust property, Teriano filed a petition
for an order surcharging trustee NSB for breach of fiduciary duty, or in the alternative, to
vacate as void the court's order finding that the paintings were home furnishings. A hearing
was held on Teriano's petition, with both parties agreeing that Teriano had not received notice
of the probate hearing in which the probate court decided the distribution of the paintings.
The district court determined that Teriano had accepted property pursuant to the probate
court order and was estopped from challenging the trust distribution order because she waited
eighteen months to file the petition. Therefore, the district court denied Teriano's petition to
surcharge NSB for breach of fiduciary duty and to vacate the probate court order. This appeal
followed.
........................................
121 Nev. 217, 220 (2005) Matter of Harrison Living Trust
DISCUSSION
Void judgments, due diligence and equitable estoppel
NRCP 60(b) provides that the court may relieve a party or a party's legal representative
from a final judgment, order, or proceeding . . . (4) [if] the judgment is void. The rule further
provides that the motion shall be made within a reasonable time.
2

The standard to be applied in reviewing orders denying NRCP 60(b)(4) motions has thus
far been unclear. In Garcia v. Ideal Supply Co., this court held that there is no question of
discretion on the part of the court when a motion is made under [NRCP 60(b)(4)].'
3
The
Garcia court further noted that there is no time limit on an attack on a judgment as void. . .
. [E]ven the requirement that the motion be made within a reasonable time . . . cannot be
enforced' under NRCP 60(b)(4) motions.
4

However, in contrast, this court, four days after the decision in Garcia, held in Deal v.
Baines that a party would not be permitted to challenge the validity of a judgment under
NRCP 60(b)(4) when that party was guilty of an unexplained and unreasonable delay.
5
In
Deal, the defendant moved to vacate a judgment after a two-year delay on the grounds that he
was not present at trial and the trial took place beyond the five-year mandatory dismissal
period of NRCP 41. This court stated, [I]t was unreasonable to wait nearly two years to file a
motion under Rule [60(b)(4)].
6

Most state and federal courts interpreting provisions equivalent to NRCP 60(b)(4) have
held that there is no time limit for motions to vacate void judgments.
7
For instance, the Ninth
Circuit has stated, [I]f a judgment is void, a motion to set it aside may be brought at any
time.
8
But some courts have acknowledged that relief from a void judgment or order may
be denied in exceptional circumstances.
____________________

2
NRCP 60(b) (emphasis added).

3
110 Nev. 493, 495, 874 P.2d 752, 753 (1994) (quoting 11 Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure 2862 (1973)).

4
Id.

5
110 Nev. 509, 512, 874 P.2d 775, 777-78 (1994).

6
Id.

7
See U.S. v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (stating that nearly
overwhelming authority exists for the proposition that there are no time limits with regards to a challenge to a
void judgment); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (11th Cir. 1994) (observing that
the First, Fifth, Seventh, Tenth and D.C. Circuits hold that Rule 60(b)(4) motions are not subject to a
reasonable-time limitation); Ex Parte Full Circle Distribution, L.L.C., 883 So. 2d 638, 642-43 (Ala. 2003)
(collecting federal and state cases that impose no time limit); Fisher Systems Leasing v. J & J Gunsmithing, 21
P.3d 946, 951 n.4 (Idaho Ct. App. 2001) (recognizing that many other jurisdictions have severely relaxed or
completely done away with the reasonable time' requirement as to Rule 60(b)(4) motions).

8
In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir 1985).
........................................
121 Nev. 217, 221 (2005) Matter of Harrison Living Trust
lief from a void judgment or order may be denied in exceptional circumstances.
9
However,
those courts did not articulate the grounds for exceptional circumstances, and the source of
the exceptional circumstances doctrine, Moore's Federal Practice, no longer adheres to the
doctrine.
10
We further note that the majority rule permits an attack on a void judgment at any
time, but a minority of courts have recognized that lack of diligence may preclude relief.
11

Garcia and the majority position disregard the express language of NRCP 60(b), which
requires such motions to be made within a reasonable time. They rely on the following
commentary by Professors Wright and Miller:
Necessarily a motion under this part of the rule differs markedly from motions under
the other clauses of Rule 60(b). There is no question of discretion on the part of the
court when a motion is under Rule 60(b)(4). Nor is there any requirement, as there
usually is when default judgments are attacked under Rule 60(b), that the moving party
show that he has a meritorious defense. Either a judgment is void or it is valid.
Determining which it is may well present a difficult question, but when that question is
resolved, the court must act accordingly.
By the same token, there is no time limit on an attack on a judgment as void. . . .
[E]ven the requirement that the motion be made within a reasonable time, which
seems literally to apply . . . cannot be enforced with regard to this class of motion.
12

As the commentators recognize, however, the rule's language does not exclude challenges to
void judgments from the reasonable-time requirement.
13

____________________

9
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 n.6 (5th Cir. 1988); Pacurar v.
Hernly, 611 F.2d 179, 181 (7th Cir. 1979). See generally McDaniel v. U.S. Fidelity & Guar. Co., 478 S.E.2d
868, 870-71 n.1 (S.C. Ct. App. 1996) (compiling federal and state cases).

10
See 12 Moore's Federal Practice 60.44[5][c] (3d ed. 2004); Bludworth, 841 F.2d at 649 n.6.

11
E.g., Corathers v. Facemire, 404 S.E.2d 769 (W. Va. 1991) (motion filed twenty-eight years after
judgment entered); McDaniel, 478 S.E.2d at 870 (concluding the court is bound to follow the reasonable-time
requirement in Rule 60(b)(4)).

12
11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure 2862, at 322-24 (2d ed. 1995)
(footnotes omitted).

13
Id. at 324 (stating that the requirement that the motion be made within a reasonable time,' which seems
literally to apply to motions under Rule 60(b)(4), cannot be enforced).
........................................
121 Nev. 217, 222 (2005) Matter of Harrison Living Trust
[Headnote 1]
If the language of a court rule is clear and unambiguous, the court must conclude that the
plain meaning of the rule was intended and enforce the rule as written.
14
This court has
previously declined to formulate exceptions to the plain language of a rule.
15

[Headnote 2]
While Garcia previously recognized that motions to set aside void judgments are not
subject to a time limit, we confirm that courts retain the discretion to apply lack of diligence
principles to NRCP 60(b)(4) void judgment challenges. To the extent that Garcia precludes
any consideration of lack of diligence, it is overruled.
We recognize that judgments, once found to be void, should generally be set aside. But we
see no reason to ignore the express language of a rule that requires the district courts to
consider the timeliness of a motion to set aside a void judgment when determining whether
exceptional circumstances, such as lack of diligence or equitable estoppel, exist to justify
denying the motion. The reasonableness of the time taken to set aside such judgments is an
important factor in such cases.
[Headnotes 3, 4]
Lack of diligence is generally a factual issue for the district court's consideration.
16
Whether the party seeking to establish equitable estoppel has met his or her burden is also
generally a question of fact.
17
But when the facts are undisputed or when only one inference
can be drawn from the facts, then the existence of equitable estoppel becomes a question of
law.
18
The decision to apply equitable estoppel is committed to the district court's sound
discretion, and the court's decision is therefore reviewed under an abuse of discretion
standard.
19

____________________

14
Anheuser Busch v. Industrial Claim Office, 28 P.3d 969, 970 (Colo. Ct. App. 2001); Hill v. Sacka, 666
N.W.2d 282, 287 (Mich. Ct. App. 2003) (applying plain meaning rule to statutory construction).

15
Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1100 (1980).

16
McDaniel, 478 S.E.2d at 870 (stating that whether a Rule 60(b)(4) motion is brought within a reasonable
time is a matter addressed to the trial judge's sound discretion); Perry v. Kroger Stores, 741 S.W.2d 533 (Tex.
App. 1987) (discussing lack of diligence in service of process context).

17
See Breliant v. Preferred Equities Corp., 112 Nev. 663, 674, 918 P.2d 314, 321 (1996) (stating that burden
of proving equitable estoppel is on party asserting estoppel); Sword v. Sweet, 92 P.3d 492, 499 (Idaho 2004)
(recognizing that whether laches, a species of equitable estoppel, may apply is primarily a fact question);
Hawthorne Trust v. Maine Sav. Bank, 618 A.2d 828, 831 (N.H. 1992) (noting that existence of equitable
estoppel is fact question).

18
See, e.g., Nugent v. Slaght, 638 N.W.2d 594, 602 (Wis. Ct. App. 2001).

19
Sword, 92 P.3d at 499; Nugent, 638 N.W.2d at 602; Thompson v. Bd. of Cty. Com'rs of Sublette, 34 P.3d
278, 280 (Wyo. 2001).
........................................
121 Nev. 217, 223 (2005) Matter of Harrison Living Trust
[Headnotes 5, 6]
Equitable estoppel functions to prevent the assertion of legal rights that in equity and
good conscience should not be available due to a party's conduct.
20
This court has
previously established the four elements of equitable estoppel:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting the estoppel must be ignorant
of the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
21

Among other things, silence can raise an estoppel quite as effectively as can words.
22

Although the district court did not specifically make formal findings with respect to the
four elements of equitable estoppel, it determined that Teriano should be estopped from
asserting a lack of notice. In this case, the facts were undisputed; consequently, the existence
of equitable estoppel is a question of law, which we review de novo.
23
Additionally, if
express findings are lacking, we may imply findings when, as in this case, the evidence
clearly supports the district court's conclusion.
24

Here, instead of challenging the probate court's oral denial of the reconsideration petition,
Teriano's counsel filed a proposed order and notice of entry of order denying the
reconsideration petition. This order propelled distribution of Trust assets to Teriano, which
she enjoyed for more than a year before filing her petition. Given that Teriano's attorney
drafted and filed the written order denying reconsideration, the Trustee could reasonably
assume Teriano would not challenge the distribution order and, therefore, distributed the
Trust assets in accordance with the order.
____________________

20
Topaz Mutual Co. v. Marsh, 108 Nev. 845, 853, 839 P.2d 606, 611 (1992) (citing United Brotherhood v.
Dahnke, 102 Nev. 20, 22, 714 P.2d 177, 178-79 (1986)).

21
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982).

22
Id. at 614, 655 P.2d at 998-99.

23
See, e.g., Clark County v. Sun State Properties, 119 Nev. 329, 72 P.3d 954 (2003). In cases where facts are
disputed, the decision to apply equitable estoppel is committed to the district court's sound discretion, and the
court's decision is therefore reviewed under an abuse of discretion standard. Sword v. Sweet, 92 P.3d 492, 499
(Idaho 2004); Nugent v. Slaght, 638 N.W.2d 594, 602 (Wis. Ct. App. 2001); Thompson v. Bd. of Cty. Com'rs of
Sublette, 34 P.3d 278, 280 (Wyo. 2001).

24
Hannam v. Brown, 114 Nev. 350, 357, 956 P.2d 794, 799 (1998).
........................................
121 Nev. 217, 224 (2005) Matter of Harrison Living Trust
We conclude that under these circumstances, the district court did not abuse its discretion
in finding that Teriano unreasonably delayed filing a petition to set aside a void judgment,
and in applying equitable estoppel to Teriano's petition. She did not appeal the initial probate
court order, although she learned of the ruling promptly after the hearing. She did nothing to
prevent the distribution of the paintings that occurred in late 2001. Instead, Teriano's
attorneys filed an order and notice of entry of order, which effectively confirmed the
distribution. Teriano did not file her NRCP 60(b) petition, arguing that the paintings should
have gone to her, until eighteen months after the probate hearing and more than a year after
the distribution of all the Trust property. Before Teriano filed her Rule 60(b) petition, NSB
justifiably relied on the distribution order and distributed the paintings to Marsala who later
sold them. Teriano had the advice of two counsel, knew of the notice defects, and consciously
decided to accept her share of the Trust assets rather than objecting to the distribution of the
paintings to Marsala. The findings of lack of diligence and application of equitable estoppel
are proper, and the district court did not err in denying Teriano's petition under NRCP
60(b)(4) to set aside as void the distribution order.
Breach of fiduciary duty
Teriano claims that the district court erred in denying her petition to surcharge NSB for
breach of fiduciary duty, arguing that a trustee has a fiduciary duty to provide notice to a trust
beneficiary and that NSB breached that duty by repeatedly mailing her notice to an incorrect
address.
Because NSB was acting in accordance with an order this court has deemed beyond
challenge, we conclude that there is no breach of fiduciary duty for which NSB could be
surcharged. We conclude that the district court properly denied Teriano's motion to surcharge.
CONCLUSION
We conclude that the district court did not err in denying Teriano's motion under NRCP
60(b)(4) to set aside as void its previous order. We recognize that there is no time limit to
challenge a judgment as void. However, NRCP 60(b) specifically provides that motions to
challenge orders as void must be made within a reasonable time. Therefore, courts may deny
motions to set aside void judgments when there exist exceptional circumstances such as a
lack of diligence or when equitable estoppel principles apply. Under the circumstances of this
case, the district court's decision to deny the motion to set aside was proper.
........................................
121 Nev. 217, 225 (2005) Matter of Harrison Living Trust
to deny the motion to set aside was proper. We also conclude that the district court did not err
in denying Teriano's petition to surcharge NSB. Accordingly, we affirm the district court's
order.
Becker, C. J., and Rose, J., concur.
____________
121 Nev. 225, 225 (2005) State v. Dist. Ct. (Riker)
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE MICHAEL CHERRY, District Judge, Respondents, and DAVID
ROBERT RIKER, Real Party in Interest.
No. 44108
June 9, 2005 112 P.3d 1070
Original petition by the State for a writ of prohibition or mandamus.
State petitioned for a writ of prohibition or mandamus ordering the district court to vacate
its order and to dismiss defendant's habeas petition as procedurally barred. The supreme court
held that district court had a duty to consider whether defendant's post-conviction petition
claims were procedurally barred.
Petition granted in part.
[Rehearing denied September 14, 2005]
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
Steven S. Owens, Chief Deputy District Attorney, Clark County, for Petitioner.
Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal
Public Defender, Las Vegas, for Real Party in Interest.
1. Mandamus; Prohibition.
The supreme court considers whether judicial economy and sound judicial
administration militate for or against issuing either a writ of mandamus or prohibition.
2. Mandamus; Prohibition.
Mandamus and prohibition are extraordinary remedies, and the decision to entertain
a petition lies within the supreme court's discretion.
3. Mandamus; Prohibition.
The purpose of a writ of mandamus or prohibition is not simply to correct errors.
4. Habeas Corpus.
Application of the statutory procedural default rules to post-conviction habeas
petitions is mandatory.
........................................
121 Nev. 225, 226 (2005) State v. Dist. Ct. (Riker)
5. Habeas Corpus.
To avoid dismissal of a successive habeas petition, a defendant must plead and
prove specific facts that demonstrate good cause for his failure to present claims before
or for presenting claims again and actual prejudice; he cannot rely on conclusory claims
for relief but must provide supporting specific factual allegations that if true would
entitle him to relief. NRS 34.810(3).
6. Habeas Corpus.
A defendant is not entitled to an evidentiary hearing on a habeas petition if the
record belies or repels the allegations.
7. Habeas Corpus.
To show good cause for a successive habeas petition, defendant must demonstrate
that an impediment external to the defense prevented him from complying with
procedural rules.
8. Habeas Corpus.
Actual prejudice requires defendant, who files a successive post-conviction habeas
petition to show not merely that the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.
9. Habeas Corpus.
Absent a showing of good cause to excuse procedural default in filing a successive
post-conviction habeas petition, the court will consider a claim only if the petitioner
demonstrates that failure to consider it will result in a fundamental miscarriage of
justice.
10. Criminal Law.
The law of a prior appeal is the law of the case in later proceedings in which the
facts are substantially the same; this doctrine cannot be avoided by more detailed and
precisely focused argument.
11. Habeas Corpus; Mandamus.
Given the untimely and successive nature of defendant's post-conviction habeas
petition, the district court had a duty to consider whether any or all of his claims were
procedurally barred and the court's failure to make such a determination constituted an
arbitrary and unreasonable exercise of discretion so as to warrant mandamus relief.
NRS 34.726, 34.800, 34.810.
12. Habeas Corpus.
While defendant's claims in his second post-conviction habeas petition that his first
post-conviction counsel was ineffective in regards to his first petition were not subject
to procedural default for failure to raise them in prior proceedings, his claims of
ineffective counsel did not make his second petition immune from other procedural
default, such as untimeliness. NRS 34.726, 34.800, 34.810.
13. Criminal Law.
A court need not discuss or decide every potential basis for its decision as long as
one ground sufficient for the decision exists.
14. Habeas Corpus.
Court's conclusion in a case that one procedural bar precludes relief on a
post-conviction habeas petition carries no implication regarding the potential
applicability of other procedural bars.
Before the Court En Banc.
1

____________________

1
The Honorable Michael L. Douglas, Justice, voluntarily recused himself from participation in the decision
of this matter.
........................................
121 Nev. 225, 227 (2005) State v. Dist. Ct. (Riker)
OPINION
Per Curiam:
This is an original petition by the State for a writ of prohibition or mandamus. The
underlying proceeding in the district court involves an untimely and successive
post-conviction habeas petition filed by David Robert Riker, the real party in interest here.
The State contends that the claims raised in Riker's petition are procedurally barred and the
district court abused its discretion or exceeded its jurisdiction in ordering an evidentiary
hearing on the merits of the claims. The State seeks a writ ordering the district court to vacate
its order and to dismiss Riker's habeas petition as procedurally barred.
For the last year and a half this court has been burdened with an increasing number of
petitions by the State seeking our extraordinary intervention in post-conviction habeas
proceedings. These petitions ask this court to compel district courts to impose procedural bars
against post-conviction habeas claims. We have granted relief in some of these cases, and we
determine that some relief is appropriate here. However, we emphasize that mandamus or
prohibition is an extraordinary remedy, not a means for routine correction of error, and
accordingly set forth some guidance on the narrow circumstances under which that remedy
may be appropriate regarding post-conviction procedural bars. We also address some claims
that Riker makes in attacking this court's general application of post-conviction procedural
default rules.
FACTS
In 1992, Riker and Richard Allan Walker were charged with murder and robbery, both
with the use of a deadly weapon, in the stabbing death of Kevin Marble in Las Vegas.
2

Riker initially entered a plea of not guilty. In November 1992, Riker told his attorney that
he wanted to plead guilty to both charges. Four doctors of psychology or psychiatry evaluated
Riker to determine his competency. All concluded that he was able to assist his counsel,
though one believed that Riker's depression rendered him incapable of rationally entering a
guilty plea. In August 1993, the district court thoroughly canvassed Riker regarding his desire
to plead guilty and then accepted Riker's guilty plea. In September 1993, Riker underwent
another psychological evaluation. The examining doctor concluded that Riker wanted to
commit suicide but was competent to aid and consult with his attorney. Later that month,
Riker moved to withdraw his guilty plea.
____________________

2
Riker v. State, 111 Nev. 1316, 1318, 905 P.2d 706, 707 (1995); Walker v. State, 113 Nev. 853, 858-59, 944
P.2d 762, 765-66 (1997).
........................................
121 Nev. 225, 228 (2005) State v. Dist. Ct. (Riker)
that month, Riker moved to withdraw his guilty plea. The district court denied the motion.
In February 1994, a three-judge panel conducted a penalty hearing. The panel found one
aggravating circumstance: the murder occurred during the commission of a robbery, and
Riker killed the victim. The panel found two mitigating circumstances: Riker was only 20 at
the time of the murder, and he had a history of mental disturbance. The three judges decided
that the aggravating circumstance outweighed the mitigating circumstances and returned a
death sentence. This court affirmed Riker's judgment of conviction and sentence in November
1995.
3

In the meantime, Walker went to trial, and in June 1994 a jury convicted him of
first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon.
He received two consecutive sentences of life without the possibility of parole.
4

Riker filed a post-conviction petition for a writ of habeas corpus in November 1996. The
district court filed an order denying the petition in January 1998, and this court dismissed
Riker's appeal in December 1998. Riker filed a habeas petition with the federal district court
in October 1999. That court stayed the proceedings to allow Riker to exhaust all of his claims
in state court.
Riker filed a second post-conviction habeas petition in state court in March 2003, alleging
23 grounds for relief. The State moved to dismiss the petition, arguing that it was barred
procedurally. Riker filed an opposition to the State's motion with over 800 pages of exhibits
in support. He contended that the procedural rules could not be applied against him due to
the discretionary and arbitrary application of those rules. In January 2004, Riker filed a
motion for leave to conduct discovery accompanied by nearly 1400 pages of exhibits. The
exhibits included 47 subpoenas, 55 letters requesting discovery, and 65 other documents. The
State filed an opposition to the discovery motion.
In June 2004, Riker filed an amended habeas petition of more than 220 pages, raising 30
more claims for relief. Accompanying the amended petition were more than 1000 pages of
exhibits. In addition, more than two dozen exhibits were filed under seal. The same day,
Riker also filed a motion seeking a protective order which would keep under seal his
responses to discovery requests by the State. He wanted the order to apply to materials
allegedly protected by the attorney-client privilege or work-product doctrine and to stay in
effect as long as his murder trial in California was pending.
____________________

3
Riker, 111 Nev. 1316, 905 P.2d 706.

4
Walker, 113 Nev. at 858, 944 P.2d at 765-66.
........................................
121 Nev. 225, 229 (2005) State v. Dist. Ct. (Riker)
ing.
5
The State filed an opposition to Riker's motion and moved to strike his amended
petition.
The district court held a hearing on the various pending matters in August 2004 and
decided to grant an evidentiary hearing:
Well I've read everything and to me, I'm going to certainly allow an evidentiary
hearing. I think it's only right at this stage as thenow the equivalent of being the trial
judge now on this case, it's back to me. I want to make as complete a record as possible
in the District Court. Reason being, is I know where this is going to go. It's a death
penalty case. It's going to go to the Supreme Court. I don't want them to remand it to me
if they affirmif I deny the post-conviction relief after all the hearing and everything
and then it's affirmed by the Supreme Court. It's going to go into Federal Court. I don't
want to see it again. I mean that's why I wantmaybe it's selfish on my part, but I want
to get as much done here so that I'm through with it.
And the only way to do that is to allow the Federal Public Defender to pursue the
post-conviction relief on the basis of ineffective assistance of counsel.
Later in the hearing the following exchange occurred among counsel for the State, the district
court, and Riker's counsel.
Mr. Owens: On the ordering of an evidentiary hearing, you're aware that on the first
Petition for Post-Conviction an evidentiary hearing was denied and that was upheld on
appeal. It seems to me we're taking a step back. If it was denied earlier, why would we
now want to grant some several years later
The Court: Because it's a different judge. I view the death penalty case much
differently than some of my other jurists. I know that's just the chance you guys take
when you come to this department. I'm the one who had a guy get death two weeks ago.
And I know what it's like. So I mean I sentenced a guy to death and he got death.
Mr. Pescetta: I would say, your Honor, you know rather than simply rely on that, that
there is an enormous amount of material outside the record on appeal that is before this
court now that wasn't in the first Habeas Corpus Petition and so whatever record the
Nevada Supreme Court upheld the denial of an evidentiary hearing on in the first
proceeding, the facts are wholly different at this point in the record before your
Honor.
____________________

5
Apparently, Riker and Walker are facing trial for the April 1992 murder of John Phippin in Blythe,
California. Cf. Riker, 111 Nev. at 1318, 905 P.2d at 707.
........................................
121 Nev. 225, 230 (2005) State v. Dist. Ct. (Riker)
of an evidentiary hearing on in the first proceeding, the facts are wholly different at this
point in the record before your Honor.
The Court: Well not only that, Ijust my own experience in this, with two people,
two of my former clients on death row . . . . I know how important it is that a proper
record be made in the trial court. And that's what I'm trying to do. I just want to make a
proper record. If I've expanded it a little bit, I don't think it's going to hurt because when
we go into Federal Court on this, and you guys are going to go into Federal Court,
there's no doubt, and Mr. Pescetta's not going to let this stop at the Supreme Court. And
even if I deny it and the Supreme Court affirms my denial, it's going to go into the
Federal District Court. And I want to make sure that I'm finished with it. That I've
exhausted . . . whatever State remedies there are and that there's a full record. So there's
no remand back to Judge Cherry to conduct further evidentiary hearings. So I'll give
you that opportunity.
In a written order entered on September 29, 2004, the court denied the State's motions to
dismiss the habeas petition and to strike the amended petition, granted Riker's motions for a
protective order and for leave to conduct discovery, and granted an evidentiary hearing on
Riker's claims of ineffective assistance of post-conviction counsel.
DISCUSSION
Post-conviction procedural default rules and extraordinary intervention by this court
The State contends that the district court abused its discretion or acted in excess of its
jurisdiction in three ways: in ordering an evidentiary hearing to review issues on the merits
even though numerous procedural defaults exist and no good cause has been shown to excuse
those defaults; in allowing Riker to conduct discovery to explore issues that should have been
dismissed; and in granting Riker a protective order allowing him to keep claims for relief and
exhibits under seal for an indefinite period of time. The State asks this court to issue a writ of
prohibition or mandamus to the district court ordering that court to vacate its order of
September 29, 2004, and dismiss Riker's second post-conviction habeas petition as
procedurally barred. We conclude that the operative question is whether Riker's claims are
procedurally barred and that the district court abused its discretion in not considering the
applicable procedural default rules to decide this question. Therefore, we grant the State's
petition in part and direct the district court to consider and apply the appropriate rules and
decide whether Riker's claims are procedurally barred.
........................................
121 Nev. 225, 231 (2005) State v. Dist. Ct. (Riker)
Pertinent legal standards
[Headnotes 1-3]
This court may issue a writ of mandamus to compel the performance of an act which the
law requires as a duty resulting from an office, trust, or station or to control a manifest abuse
of or arbitrary or capricious exercise of discretion.
6
We may issue a writ of prohibition to
arrest the proceedings of any tribunal exercising judicial functions in excess of its
jurisdiction.
7
Neither writ issues where the petitioner has a plain, speedy, and adequate
remedy in the ordinary course of law.
8
This court considers whether judicial economy and
sound judicial administration militate for or against issuing either writ.
9
Mandamus and
prohibition are extraordinary remedies, and the decision to entertain a petition lies within the
discretion of this court.
10
The purpose of neither writ is simply to correct errors.
11

[Headnote 4]
Application of the statutory procedural default rules to post-conviction habeas petitions is
mandatory.
12
Habeas corpus petitions that are filed many years after conviction are an
unreasonable burden on the criminal justice system. The necessity for a workable system
dictates that there must exist a time when a criminal conviction is final.
13

The procedural rules pertinent to this case appear to be the following. NRS 34.726(1)
provides in part that absent a showing of good cause for delay, a petition challenging the
validity of a judgment or sentence must be filed within one year after this court issues its
remittitur on direct appeal.
14
Riker filed his instant petition almost 8 years after this court
decided his direct appeal. To show good cause for the delay, he must demonstrate that it
was not his fault and that dismissal of the petition will unduly prejudice him.
____________________

6
See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

7
See NRS 34.320; Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989).

8
See NRS 34.170; NRS 34.330; Hickey, 105 Nev. at 731, 782 P.2d at 1338.

9
See State v. Babayan, 106 Nev. 155, 175-76, 787 P.2d 805, 819 (1990).

10
Hickey, 105 Nev. at 731, 782 P.2d at 1338.

11
See, e.g., State of Nevada v. Dist. Ct., 116 Nev. 127, 133, 994 P.2d 692, 696 (2000); Goicoechea v.
District Court, 96 Nev. 287, 289-90, 607 P.2d 1140, 1141 (1980).

12
State v. Haberstroh, 119 Nev. 173, 180, 69 P.3d 676, 681 (2003).

13
Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269 (1984).

14
See Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001). In cases where the petitioner's
conviction preceded the enactment of NRS 34.726, the one-year filing period extends from January 1, 1993, the
effective date of NRS 34.726. Id.
........................................
121 Nev. 225, 232 (2005) State v. Dist. Ct. (Riker)
good cause for the delay, he must demonstrate that it was not his fault and that dismissal of
the petition will unduly prejudice him.
15

[Headnotes 5, 6]
NRS 34.810(1)(a) provides that a post-conviction habeas petition must be dismissed if
[t]he petitioner's conviction was upon a plea of guilty and the petition is not based upon an
allegation that the plea was involuntarily or unknowingly entered or that the plea was entered
without effective assistance of counsel. NRS 34.810(2) provides that a second or successive
petition must be dismissed if it fails to allege new or different grounds for relief and . . . the
prior determination was on the merits or, if new and different grounds are alleged, . . . the
failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the
writ. To avoid dismissal, Riker must plead and prove specific facts that demonstrate good
cause for his failure to present claims before or for presenting claims again and actual
prejudice.
16
He cannot rely on conclusory claims for relief but must provide supporting
specific factual allegations that if true would entitle him to relief.
17
And he is not entitled to
an evidentiary hearing if the record belies or repels the allegations.
18

[Headnotes 7-9]
To show good cause, Riker must demonstrate that an impediment external to the defense
prevented him from complying with procedural rules.
19
Actual prejudice requires him to
show not merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.
20
Absent a showing of good cause to excuse procedural default,
the court will consider a claim only if the petitioner demonstrates that failure to consider it
will result in a fundamental miscarriage of justice.
21

[Headnote 10]
Furthermore, the law of a prior appeal is the law of the case in later proceedings in which
the facts are substantially the same; this doctrine cannot be avoided by more detailed and
precisely focused argument.
____________________

15
NRS 34.726(1).

16
NRS 34.810(3).

17
Evans v. State, 117 Nev. 609, 621, 28 P.3d 498, 507 (2001).

18
Id.

19
See Crump v. Warden, 113 Nev. 293, 302, 934 P.2d 247, 252 (1997).

20
United States v. Frady, 456 U.S. 152, 170 (1982); see also Hogan v. Warden, 109 Nev. 952, 960, 860 P.2d
710, 716 (1993).

21
See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
........................................
121 Nev. 225, 233 (2005) State v. Dist. Ct. (Riker)
doctrine cannot be avoided by more detailed and precisely focused argument.
22

Finally, NRS 34.800(1) provides that a court may dismiss a petition if delay in its filing
either prejudices the State in responding to the petition, unless the petitioner shows that the
petition is based upon grounds of which he could not have had knowledge by the exercise of
reasonable diligence before the prejudice arose, or prejudices the State in its ability to
conduct a retrial of the petitioner, unless the petitioner demonstrates that a fundamental
miscarriage of justice has occurred. If the pertinent period of delay exceeds five years, as in
this case, it leads to a rebuttable presumption of prejudice to the State.
23

The narrow circumstances in which extraordinary intervention is appropriate; the
relief appropriate in this case
[Headnote 11]
We begin our analysis by stressing that extraordinary relief is not warranted for routine
correction of errors that a district court may make. Such relief is not in order, for example,
where a district court has considered the applicable procedural default rules, applied them to a
post-conviction habeas petition, and concluded that claims are not procedurally barred. That
the State, or even this court, might disagree with the district court's conclusion is not a reason
to seek extraordinary relief as long as the district court has made a reasonable effort to follow
the applicable law regarding procedural default. Even if a district court errs, consistent
application of procedural default rules in this state can be maintained by our review of the
matter on appeal from the district court's final resolution of a petition.
However, the statutory rules regarding procedural default are mandatory and cannot be
ignored when properly raised by the State. Therefore, in a case where it is clear that the
district court has disregarded the applicable law and failed to decide the issue of procedural
default or decided the issue by applying clearly incorrect legal standards, extraordinary relief
is likely warranted. In this case, the district court disregarded the applicable law and invoked
incorrect standards in rejecting the State's assertions of procedural default. But we do not
ourselves decide the question of procedural default, as the State requests; rather, we direct the
district court to assess the record and Riker's specific claims, consider and apply the
appropriate rules of procedural default, and decide in a written order whether claims are
procedurally barred.
____________________

22
See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).

23
NRS 34.800(2).
........................................
121 Nev. 225, 234 (2005) State v. Dist. Ct. (Riker)
Given the untimely and successive nature of Riker's petition, the district court had a duty
imposed by law to consider whether any or all of Riker's claims were barred under NRS
34.726, NRS 34.810, NRS 34.800, or the law of the case previously pronounced by this court.
The district court, however, did not refer to or apply these legal standards in granting the
evidentiary hearing. It cited concerns which, while understandable, are not controlling. The
district court considered itself the equivalent of . . . the trial judge and consequently wanted
to make as complete a record as possible. This is an incorrect basis for an evidentiary
hearing. Once a defendant has pleaded guilty, as long as the validity of the plea is recognized,
he is not entitled to a trial or a hearing comparable in scope to a trial.
24
The district court also
repeatedly expressed the aim of thoroughly considering and deciding Riker's case in order not
to see it again. Though an appropriate goal in regard to cognizable issues, this consideration
does not nullify procedural default rules. The district court stated further that an evidentiary
hearing would be granted because it was a different judge and view[ed] the death penalty
case much differently than some of my other jurists. I know that's just the chance you guys
take when you come to this department. Again, although serious and careful consideration of
death penalty cases is always required, the fact that a habeas petitioner faces a death sentence
does not somehow lessen the effect of procedural bars. Nor should the temperament and
particular concerns of a district judge determine whether the bars will be given effect.
None of the factors discussed by the district court permitted it to disregard the question of
the applicability of the procedural default rules. We conclude that mandamus relief is
appropriate here because determining whether procedural bars apply to an untimely or
successive habeas petition is an act which the law requires of the district court and that court's
failure to make this determination here constituted an arbitrary and unreasonable exercise of
discretion. Also, the State has no plain, speedy, and adequate remedy in the ordinary course
of law for this abuse of discretion. Particularly in this case where the claims are so numerous
and the requests for discovery so extensive, judicial economy and sound judicial
administration militate for granting relief: determining the applicability of procedural bars
may eliminate the need for or narrow the scope of any discovery or evidentiary hearing.
____________________

24
See NRS 34.810(1) (requiring dismissal of a petition if the petitioner pleaded guilty unless the petition
alleges that the plea was involuntary or unknowing or was entered without effective assistance of counsel);
Tollett v. Henderson, 411 U.S. 258, 267 (1973) ([A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.).
........................................
121 Nev. 225, 235 (2005) State v. Dist. Ct. (Riker)
discovery so extensive, judicial economy and sound judicial administration militate for
granting relief: determining the applicability of procedural bars may eliminate the need for or
narrow the scope of any discovery or evidentiary hearing.
Criticism of this court's general application of procedural default rules
We are returning this matter to the district court for it to assess the record, to determine the
pertinent facts, and to decide the applicability of the procedural default rules to Riker's
specific claims. But in his answer, Riker presents certain issues that extend beyond the facts
of this case and raise questions of law which are appropriate for our resolution.
25

[Headnote 12]
First, Riker asserts that his first post-conviction habeas counsel was appointed to represent
him pursuant to statutory mandate and that this gave him the right to effective assistance by
that counsel. He therefore concludes that under Crump v. Warden
26
his claims that his first
post-conviction counsel was ineffective conclusively establish cause for this second
post-conviction petition. This overstates the holding in Crump, where we concluded that such
claims were not subject to procedural default under NRS 34.810(1)(b) for failure to raise
them in prior proceedings.
27
Crump does not stand for the proposition that claims of
ineffective first post-conviction counsel are immune to other procedural default, e.g.,
untimeliness under NRS 34.726 or NRS 34.800. As we have explained elsewhere,
A claim of ineffective assistance of counsel may also excuse a procedural default if
counsel was so ineffective as to violate the Sixth Amendment. However, in order to
constitute adequate cause, the ineffective assistance of counsel claim itself must not be
procedurally defaulted. In other words, a petitioner must demonstrate cause for raising
the ineffective assistance of counsel claim in an untimely fashion.
28

____________________

25
In presenting these issues, Riker refers to a number of this court's unpublished orders. Our unpublished
orders do not constitute precedent, and a party cannot cite them as legal authority. See SCR 123 (providing two
exceptions not applicable here). In this case, we have considered and discussed these orders not as legal
precedent but only to determine if they support factually Riker's allegations.

26
113 Nev. at 303-04, 934 P.2d at 253.

27
Id. at 304-05, 934 P.2d at 254.

28
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (footnotes omitted).
........................................
121 Nev. 225, 236 (2005) State v. Dist. Ct. (Riker)
Riker also argues that procedural default rules cannot be applied to his case because in
other cases this court has disregarded the bars or has applied them inconsistently. We accept
neither Riker's premise that we regularly disregard the bars nor his conclusion that disregard
or inconsistency on our part would excuse his own procedural default. First, any prior
inconsistent application of statutory default rules would not provide a basis for this court to
ignore the rules, which are mandatory, as we explained in Pellegrini v. State.
29
Second, we
flatly reject the claim that this court at its discretion ignores procedural default rules.
30
Riker
offers a number of flawed, misleading, and irrelevant arguments to back his position that this
court has exercised complete discretion to address constitutional claims, when an adequate
record is presented to resolve them, at any stage of the proceedings, despite the default rules
contained in [NRS] 34.726, 34.800, and 34.810.
To begin with, Riker criticizes this court's consideration of unpreserved error on direct
appeal and equates such consideration with a failure to respect procedural bars in
post-conviction proceedings. This equation is utterly without merit. Unpreserved error on
direct appeal is not subject to procedural bars or anything equivalent to such bars; on the
contrary, statutes grant this court the discretion to consider unpreserved errors or even require
the court, in some cases, to consider such errors. NRS 178.602 expressly provides this court
with the discretion on direct appeal to consider plain error despite a failure to preserve the
issue at trial or to raise the issue on appeal.
31
As we have explained before, this plain-error
rule applies only on direct appeal and does not create a procedural bar exception in any
habeas proceeding.
32
Furthermore, in direct appeals of death sentences, NRS 177.055(2)
specifically requires this court to review on the record, among other things, [w]hether the
sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor.
Thus, when Riker cites Butler v. State,
33
a recent direct appeal where this court applied
NRS 177.055(2), he is wrong that the decision has any bearing on the consistency of our
application of post-conviction procedural default rules, and he is wrong that it involved this
court's exercise of unwarranted discretion. Butler and this court's other dispositions on direct
appeal cited by Riker are of absolutely no relevance to the issue of consistent application
of post-conviction procedural bars.
____________________

29
117 Nev. at 879-80, 34 P.3d at 532.

30
See id. at 879-86, 34 P.3d at 532-36.

31
NRS 178.602 provides: Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.

32
Pellegrini, 117 Nev. at 884, 34 P.3d at 535.

33
120 Nev. 879, 900, 102 P.3d 71, 85 (2004).
........................................
121 Nev. 225, 237 (2005) State v. Dist. Ct. (Riker)
of absolutely no relevance to the issue of consistent application of post-conviction procedural
bars.
34
Similarly irrelevant is Riker's criticism of this court's treatment of jurisdictional
challenges.
35
Nor is Riker's position supported by this court's occasional use of standard
footnotes stating that no relief is warranted based on proper person submissions.
36

Riker also mischaracterizes many of our decisions in an effort to defend the ruling below.
For example, he contends that we ignored procedural bars in Bennett v. State, from which he
quotes the following: [w]ithout expressly addressing the remaining procedural bases for the
dismissal of Bennett's petition, we therefore choose to reach the merits of Bennett's
contentions.
37
The full context of this quoted material demonstrates that we did not ignore
the procedural bars but addressed Bennett's claims within the framework of those bars:
Although there appears to be merit to the State's insistence that Bennett has not
demonstrated good cause for failing to raise certain issues in prior proceedings and for
revisiting issues that have already been decided by this court, whether Bennett can show
cause for doing so is related to his ineffective assistance of counsel allegations.
Furthermore, whether Bennett can show prejudice from the dismissal of his petition is
intricately related to the merits of his claims. Without expressly addressing the
remaining procedural bases for the dismissal of Bennett's petition, we therefore choose
to reach the merits of Bennett's contentions, which are clearly lacking for the most part
and, in terms of those allegations of arguable merit, do not otherwise warrant a new
penalty hearing.
38

____________________

34
E.g., Lane v. State, 110 Nev. 1156, 881 P.2d 1358 (1994), overruled by Leslie v. Warden, 118 Nev. 773,
59 P.3d 440 (2002); Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), vacated, 511 U.S. 79 (1994); Lord v.
State, 107 Nev. 28, 806 P.2d 548 (1991).

35
Riker's criticism is baseless as well. In Jones v. State, we did not rule that the requirement of subject matter
jurisdiction is waivable; rather, we ruled in Jones's first post-conviction proceeding that by pleading guilty he
had conceded the facts establishing such jurisdiction. Docket No. 24497 (Order Dismissing Appeal, August 28,
1996). And in a later proceeding, we ruled that the issue of jurisdiction was settled under the doctrine of the law
of the case. Jones v. Warden, Docket No. 39091 (Order of Affirmance, December 19, 2002).

36
Riker cites specifically Baeta v. State, Docket No. 37524 (Order of Affirmance, November 2, 2001), and
Wilson v. State, Docket No. 29802 (Order Dismissing Appeal, April 9, 1998).

37
111 Nev. 1099, 1103, 901 P.2d 676, 679 (1995) (emphasis added by Riker).

38
Id. (emphasis added).
........................................
121 Nev. 225, 238 (2005) State v. Dist. Ct. (Riker)
According to Riker, in Ford v. Warden
39
we addressed a claim of direct appeal error
raised for the first time in a second post-conviction proceeding without discussing or applying
default rules. Actually, in that case we noted Ford's request that we revisit the evidence in her
case and modify her sentence, but we perceive[d] no basis for reconsidering our previous
holding and declined to do so.
40
Our denial of Ford's request simply upheld the law of the
case and in no way infringed any procedural bars.
In a 15-page order in Jones v. Warden,
41
we ruled that the claims in a successive
post-conviction habeas petition were procedurally barred. In the final paragraph of the order,
we rejected Jones's challenges to his three-judge sentencing procedure, including one under
Ring v. Arizona.
42
We stated that [e]ven assuming Ring's recent date provides appellant
with good cause for failing to raise it in an earlier proceeding, we conclude that appellant
suffered no prejudice; we then concluded that appellant's other grounds for challenging the
three-judge sentencing panel are meritless.
43
Based on this final sentence, Riker concludes
that we ignored applicable procedural bars. This conclusion is unjustified. In the context of
our application of the procedural bars throughout the order, meritless indicated the
appellant's failure to show prejudice and did not signify that we abruptly chose to dispense
with the procedural bars and decide these final claims directly on the merits. The same
essential analysis applies to Bejarano v. Warden,
44
and Riker's characterization of that
opinion as disregarding procedural default rules is also incorrect.
[Headnotes 13, 14]
Riker maintains that a number of other decisions by this court support his position that we
apply procedural default rules inconsistently, but under scrutiny the support fails to
materialize. He cites several of our orders that dismissed appeals after applying the doctrine
of the law of the case, which is compatible with the statutory procedural bars, not inconsistent
with them as Riker appears to suggest.
45
Even more puzzling, Riker cites as instances of
inconsistency dispositions in which we have expressly enforced statutory procedural bars
and denied relief.
____________________

39
111 Nev. 872, 901 P.2d 123 (1995).

40
Id. at 886-87, 901 P.2d at 132.

41
Docket No. 39091 (Order of Affirmance, December 19, 2002).

42
536 U.S. 584 (2002).

43
Jones, Docket No. 39091, at 14-15 (footnote omitted).

44
112 Nev. 1466, 1471 n.2, 929 P.2d 922, 926 n.2 (1996).

45
See, e.g., Williams v. Warden, Docket No. 29084 (Order Dismissing Appeal, August 29, 1997) (also
applying procedural bar to new claims); Rogers v. Warden, Docket No. 22858 (Order Dismissing Appeal, May
28, 1993); Williams v. State, Docket No. 20732 (Order Dismissing Appeal, July 18, 1990).
........................................
121 Nev. 225, 239 (2005) State v. Dist. Ct. (Riker)
sistency dispositions in which we have expressly enforced statutory procedural bars and
denied relief.
46
Apparently, he reasons that in denying relief to a petitioner on the basis of
one procedural bar without discussing the possible application of another procedural bar, this
court has asserted discretion to disregard the procedural bars. He does not make this
reasoning explicit, nor does he offer any authority for it. It is, of course, a frivolous claim. A
court need not discuss or decide every potential basis for its decision as long as one ground
sufficient for the decision exists.
47
This proposition is fundamental to legal analysis and
judicial economy, as well as simple logic. Thus, our conclusion in a case that one procedural
bar precludes relief carries no implication regarding the potential applicability of other
procedural bars.
Riker contends that our order in O'Neill v. State
48
flouts NRS 34.800(2) by not addressing
laches and the presumption of prejudice to the State set forth in that statute. However, that
statute requires the State to specifically plead laches and prejudice. Nor is it likely such a
pleading would have gained relief given our determination that O'Neill had established cause
and prejudice under NRS 34.726 for the untimely filing of his petition.
Riker's contentions regarding several other of our decisions are also incorrect. He asserts
that in Farmer v. Director
49
we addressed the merits of two claims even though they were
not raised on direct appeal: whether the guilty plea was involuntary and whether the
aggravating circumstances were insufficient. But these questions were not procedurally
barred. The voluntariness of a guilty plea is an appropriate claim in a first post-conviction
habeas petition, and the challenge to the aggravating circumstances was a basis for a
claim of ineffective assistance of counsel, also appropriately raised.
____________________

46
Milligan v. Warden, Docket No. 37845 (Order of Affirmance, July 24, 2002); Riley v. State, Docket No.
33750 (Order Dismissing Appeal, November 19, 1999); Ybarra v. Warden, Docket No. 32762 (Order
Dismissing Appeal, July 6, 1999); Wilson v. State, Docket No. 29802 (Order Dismissing Appeal, April 9, 1998);
Farmer v. State, Docket No. 29120 (Order Dismissing Appeal, November 20, 1997); Sechrest v. State, Docket
No. 29170 (Order Dismissing Appeal, November 20, 1997); Nevius v. Warden, Docket Nos. 29027 & 29028
(Order Dismissing Appeal and Denying Petition, October 9, 1996). Riker also cites Koerner v. Grigas, 328 F.3d
1039, 1043-44 (9th Cir. 2003), which describes this court's affirmance of a dismissal of a successive petition.

47
See, e.g., Thomas v. State, 120 Nev. 37, 48, 83 P.3d 818, 825 (2004) (We need not decide whether this
failure [by counsel to challenge improper remarks by the prosecutor] was prejudicial since we have already
determined that a new penalty hearing is necessary.); Allan v. State, 118 Nev. 19, 26, 38 P.3d 175, 179 (2002)
(In light of this conclusion [that the district court erroneously ruled that the appellant could be impeached with
his confession], we need not reach [appellant's] other contentions.).

48
Docket No. 39143 (Order of Reversal and Remand, December 18, 2002).

49
Docket No. 18052 (Order Dismissing Appeal, March 31, 1988).
........................................
121 Nev. 225, 240 (2005) State v. Dist. Ct. (Riker)
petition, and the challenge to the aggravating circumstances was a basis for a claim of
ineffective assistance of counsel, also appropriately raised.
50
Riker asserts that in Farmer v.
State
51
we addressed a claim of improper admission of victim impact evidence on the merits
despite procedural default. He is incorrect. Farmer claimed ineffective assistance of counsel,
and we concluded that he failed to demonstrate prejudice. The claim was appropriately raised
because a statute mandated appointment of counsel for Farmer in his first post-conviction
petition in 1986.
52
Riker also criticizes this court for not requiring the petitioner to file
another petition and plead cause in Feazell v. State, but we did not disregard procedural
default in that case; rather, we expressly addressed the issue, applying NRS 34.810(1)(b)(3)
and concluding that cause existed and prejudice resulted.
53
And the claim we addressed in
denying rehearing in Nevius v. Warden
54
was not procedurally barred because it arose only
after the original habeas petition was filed. Although the claim should not have been raised
for the first time on rehearing, we considered it in the interest of judicial economy and
rejected it.
Riker also cites decisions by this court dating to the 1970s and even earlier. Such early
decisions are irrelevant to the question of consistent application of the procedural bars
because, as we explained in Pellegrini, the pertinent statutory law (and our own caselaw
concerning the treatment of ineffective assistance of counsel) evolved over the years and did
not establish the current rigorous, comprehensive procedural bars until the mid-1980s.
55

Riker claims that this court has issued contradictory decisions as to whether a petitioner
can demonstrate cause to excuse a procedural default. He asserts generally that this court's
decision-making is inconsistent in various cases in various ways, but he fails to deal with the
specific facts of those cases and the distinctions in our rulings. For example, he states that in
State v. Haberstroh
56
this court construed a stipulation in a post-conviction habeas
proceeding as establishing cause under the procedural default rules.
____________________

50
See NRS 34.810(1)(a); Kirksey v. State, 112 Nev. 980, 999, 923 P.2d 1102, 1114 (1996) (Where the
defendant has pleaded guilty, the only claims that may be raised thereafter are those involving the voluntariness
of the plea itself and the effectiveness of counsel.).

51
Docket No. 22562 (Order Dismissing Appeal, February 20, 1992).

52
See 1987 Nev. Stat., ch. 539, 42, at 1230; Crump, 113 Nev. at 303, 934 P.2d at 253 ([A] petitioner who
has counsel appointed by statutory mandate is entitled to effective assistance of that counsel.).

53
Docket No. 37789 (Order Affirming in Part and Vacating in Part, November 14, 2002).

54
Docket Nos. 29027 & 29028 (Order Denying Rehearing, July 17, 1998).

55
117 Nev. at 870-72, 883, 886, 34 P.3d at 526-27, 534, 536.

56
119 Nev. 173, 69 P.3d 676.
........................................
121 Nev. 225, 241 (2005) State v. Dist. Ct. (Riker)
court construed a stipulation in a post-conviction habeas proceeding as establishing cause
under the procedural default rules. He claims that we acted inconsistently in Sullivan v. State,
57
refusing to recognize cause despite the parties' stipulation that a habeas petition was
timely. The cases, however, are readily distinguishable. Haberstroh involved a successive
habeas petition, and the parties stipulated to allow resolution of some of the issues on the
merits.
58
We held that parties in a post-conviction habeas proceeding cannot stipulate to
disregard the procedural default rules, but we realized that Haberstroh had in good faith
relied upon the stipulation and did not present evidence or argument in regard to cause for
raising his claims.
59
In order to decide the appeal while still complying with the relevant
procedural bars, we treated the stipulation as establishing the facts to show cause to raise the
relevant claims but allowing consideration of the claims' merits only to determine the
question of prejudice.
60
The basis for our approach was the recognition that [p]arties can
stipulate to the facts but not to the law.
61
The stipulation in Sullivan ran afoul of this same
proposition. In that case, we concluded that the parties' stipulationthat a supplemental
habeas petition was timely simply because it was filed within one year of the entry of an
amended judgment of convictionwas incorrect as a matter of law.
62
[T]he one-year
statutory time limit did not automatically restart for Sullivan's post-conviction claims simply
because the district court entered the amended judgment of conviction.
63
Since Sullivan's
claims were not related to and did not contest the clerical correction contained in the
amended judgment of conviction, entry of the amended judgment did not provide good
cause to excuse the untimely filing of his petition.
64
There is no conflict between this holding
and Haberstroh.
65

____________________

57
120 Nev. 537, 96 P.3d 761 (2004).

58
119 Nev. at 180, 69 P.3d at 681.

59
Id. at 181, 69 P.3d at 681.

60
Id. at 181, 69 P.3d at 681-82 (footnote omitted).

61
Id. at 181 n.8, 69 P.3d at 681 n.8.

62
Sullivan, 120 Nev. at 540-41, 96 P.3d at 763-65.

63
Id. at 541, 96 P.3d at 764.

64
Id. at 541-42, 96 P.3d at 765.

65
Riker also claims that Doleman v. State, Docket No. 33424 (Order Dismissing Appeal, March 17, 2000), is
inconsistent with Haberstroh. Doleman was a direct appeal of an amended judgment of conviction imposing a
new sentence. It involved a stipulation allowing Doleman to raise an issue that did not pertain to the amended
judgment; in our order, we explained that the issue was not appropriately raised but clarified that we had
previously rejected it as lacking merit. To the extent that Doleman bears any resemblance to Haberstroh, there
is, again, no conflict.
........................................
121 Nev. 225, 242 (2005) State v. Dist. Ct. (Riker)
Riker also suggests that this court's determination in Stevens v. State,
66
that Stevens had
established cause for filing an untimely petition, contradicts Crump v. Warden.
67
However,
our order in Stevens in no way conflicts with our opinion in Crump. We concluded that
Stevens should have been appointed counsel in his first petition and that under the extremely
unusual circumstances presented in this case, good cause existed for his failure to file a
timely second habeas petition.
68
We recognized that appointment of counsel was not
automatic under the pertinent statute but concluded, among other things, that the district court
had erred by failing to consider Stevens's request for counsel given that Stevens was under a
penalty of death and had alleged an arguably colorable ineffective assistance of counsel claim
in his first petition.
69
In Crump we held simply that a petitioner who has counsel appointed
by statutory mandate is entitled to effective assistance of that counsel.
70
Crump does not
mean, as Riker apparently assumes, that without such a mandate a court's failure to appoint
counsel cannot provide good cause for procedural default.
We end with Riker's reliance on caselaw that after our 2001 decision in Pellegrini clearly
lacks the authority attributed to it. The answer filed on Riker's behalf cites our decision in Hill
v. State
71
as an instance of our ignoring procedural bars, but in Pellegrini we discussed the
facts underlying Hill and explained that it did not offend the procedural default rules because
the district court improperly had failed to appoint counsel for Hill in dismissing his first
post-conviction petition.
72
Riker's answer simply ignores Pellegrini's discussion of Hill.
Even more troubling, it cites our 1974 decision in Warden v. Lischko
73
for the proposition
that a district court has the discretionary power to rule on a barred claim. Yet in Pellegrini we
not only explained that the procedural bar for waiver in 1974 was far less stringent than the
current bar; we expressly overruled Lischko in regard to the proposition for which the answer
cites it.
74

____________________

66
Docket No. 24138 (Order of Remand, July 8, 1994).

67
113 Nev. 293, 934 P.2d 247.

68
Stevens, Docket No. 24138, at 3.

69
Id. at 4.

70
113 Nev. at 303, 934 P.2d at 253.

71
114 Nev. 169, 953 P.2d 1077 (1998).

72
Pellegrini, 117 Nev. at 885, 34 P.3d at 536. For the same reason, our order disposing of Hill's first
post-conviction petition, which Riker cites separately, also does not support Riker's position. Hill v. State,
Docket No. 18253 (Order Dismissing Appeal, June 29, 1987).

73
90 Nev. 221, 523 P.2d 6 (1974), overruled by Pellegrini, 117 Nev. at 886, 34 P.3d at 536. He also cites
Krewson v. Warden, 96 Nev. 886, 620 P.2d 859 (1980), which invokes Lischko.

74
Pellegrini, 117 Nev. at 886, 34 P.3d at 536.
........................................
121 Nev. 225, 243 (2005) State v. Dist. Ct. (Riker)
CONCLUSION
We grant the State's petition in part and direct the clerk of this court to issue a writ of
mandamus that directs the district court to vacate its order of September 29, 2004, which
denied the State's motions to dismiss the habeas petition and strike the amended petition,
granted Riker's motions for a protective order and leave to conduct discovery, and granted an
evidentiary hearing. The writ shall also direct the district court, consistently with this opinion,
to assess the record and determine the pertinent facts, consider and apply the appropriate rules
of procedural default to Riker's specific claims, and issue a written order that sets forth, with
suitable findings and conclusions, which, if any, claims are procedurally barred and which, if
any, are not. If the district court concludes that all the claims are barred, it shall issue its order
as a final one.
75
If it concludes that any claims are not barred, it shall conduct further
proceedings in this matter as appropriate.
76
We hereby also vacate the stay imposed by our
order of November 12, 2004.
____________
121 Nev. 243, 243 (2005) Weiner v. Beatty
STEVEN WEINER, Appellant, v. THOMAS D. BEATTY, Esq., Respondent.
No. 39605
June 9, 2005* 116 P.3d 829
Appeal from a district court order granting summary judgment in a legal malpractice
action. Eighth Judicial District Court, Clark County; Valorie Vega, Judge.
Principal filed suit against school administrators' union and against attorney who was hired
by union to represent principal during investigative interview and subsequent arbitration
hearing, and who was simultaneously retained by school district to represent school district's
assistant general counsel in a separate federal law suit. The district court granted attorney's
summary judgment motion, and principal appealed. The supreme court, Hardesty, J., held that
principal could not bring legal malpractice claim against attorney but rather had to pursue
claim against union for breach of duty of fair representation.
____________________

75
See NRS 34.830.

76
In his answer to the State's petition, Riker also argues that our recent decision in McConnell v. State, 120
Nev. 1043, 102 P.3d 606 (2004), applies, invalidating the one aggravating circumstance found in his case.
Because this issue has not been presented to the district court or addressed by the State, we do not consider it
here.
*Reporter's Note: The court issued its decision in this matter on June 9, 2005. The opinion printed here is the
corrected opinion issued on August 8, 2005.
........................................
121 Nev. 243, 244 (2005) Weiner v. Beatty
Affirmed.
Kossack Law Offices and Robert J. Kossack, Las Vegas, for Appellant.
Laxalt & Nomura, Ltd., and Bruce R. Laxalt and Kerry Zachariasen Malone, Reno, for
Respondent.
1. Appeal and Error.
Appellate court reviews a district court's decision to grant summary judgment de
novo.
2. Judgment.
Summary judgment is appropriate when, after a review of the record viewed in the
light most favorable to the nonmoving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.
3. Judgment.
In determining whether summary judgment is proper, the nonmoving party is
entitled to have the evidence and all reasonable inferences accepted as true.
4. Attorney and Client; Labor and Employment.
Public-employee union member does not have an independent claim for legal
malpractice against an attorney provided by his union, but instead, union member's
remedy lies in an action against the union for breach of the duty of fair representation
under the Employee-Management Relations Act (EMRA). NRS Chapter 288.
5. Attorney and Client.
School principal did not have legal malpractice claim against attorney who was hired
by union to represent principal during investigative interview and subsequent
arbitration hearing, and who simultaneously represented school district's general
counsel in separate suit, but rather principal was required to pursue action against the
union for breach of the duty of fair representation under the Employee-Management
Relations Act (EMRA) because representation arose out of collective bargaining
agreement, and attorney was considered an arm of the union. NRS Chapter 288.
6. Labor and Employment.
The duty of fair representation governs the relationship between union members and
union representatives. NRS Chapter 288.
7. Labor and Employment.
When a collective bargaining agreement is in place, the union and its bargaining
representatives owe a duty of fair representation to its members. NRS Chapter 288.
8. Labor and Employment.
The duty of fair representation requires that when the union represents or negotiates
on behalf of a union member, it must conduct itself in a manner that is not arbitrary,
discriminatory, or in bad faith. NRS Chapter 288.
9. Labor and Employment.
If the union's conduct is deemed to be within the duty of fair representation, liability
will not lie against the union for acts undertaken in representing a union member.
........................................
121 Nev. 243, 245 (2005) Weiner v. Beatty
Before the Court En Banc.
OPINION
1

By the Court, Hardesty, J.:
In this appeal, we consider whether a public-employee union member has an independent
claim for legal malpractice against an attorney provided by his union. We conclude that state
labor law should be interpreted consistently with federal labor law, which bars legal
malpractice claims against lawyers supplied by unions. A union member's remedy lies in an
action against the union for breach of the duty of fair representation.
FACTUAL AND PROCEDURAL HISTORY
Dr. Steven Weiner worked for the Clark County School District (CCSD) from 1973 until
his termination in 1997.
In October 1996, Weiner was suspended from his employment as a principal at Robinson
Middle School. Weiner was a member of the Clark County Association of School
Administrators (CCASA), a recognized employee organization
2
or union for school
administrators. The collective bargaining agreement between CCASA and CCSD provided
that an employee under investigation was entitled to union representation. Although Weiner
had the option to retain his own personal counsel, he requested assistance from CCASA in his
quest for reinstatement.
CCASA hired and paid attorney Thomas D. Beatty to represent Weiner during the
investigative interview and subsequent arbitration hearing. CCSD was represented in the
arbitration by its general counsel C.W. Hoffman, Jr. After three days of hearings, the
arbitrator concluded that CCSD had just cause to terminate Weiner.
Unbeknownst to Weiner, Beatty was simultaneously retained by CCSD to represent
CCSD's assistant general counsel in a separate, federal law suit.
Weiner filed a state court action against CCASA and then against Beatty individually for
malpractice. The cases were consolidated, and Beatty sought summary judgment. The district
court concluded that section 301(b) of the Labor Management Relations {Taft-Hartley) Act
preempted Weiner's claim.
____________________

1
This corrected opinion is issued in place of the opinion filed June 9, 2005.

2
NRS 288.040 defines an employee organization as an organization of any kind having as one of its
purposes improvement of the terms and conditions of employment of local government employees.
........................................
121 Nev. 243, 246 (2005) Weiner v. Beatty
(Taft-Hartley) Act
3
preempted Weiner's claim. The district court also determined that a
lawyer representing a collective bargaining organization or union, who argues on behalf of an
individual union member, cannot be sued by that member for malpractice. Consequently, the
district court granted Beatty's summary judgment motion. Weiner then appealed.
4

DISCUSSION
[Headnotes 1-3]
This court reviews a district court's decision to grant summary judgment de novo.
5
Summary judgment is appropriate when, after a review of the record viewed in the light most
favorable to the nonmoving party, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.
6
In determining whether summary judgment
is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences
accepted as true.
7

Weiner filed a malpractice action against Beatty under state law. The district court
determined that federal law preempted the state law malpractice claim because under federal
law, a union member cannot sue the union attorney for malpractice.
8
Rather, the union
member must sue the union itself for breach of the duty of fair representation.
9

Federal labor law interpreting Taft-Hartley section 301(b) protects individual union
members, agents and representatives from civil liability, so long as their conduct and actions
are within the purview of the collective bargaining agreement.
10
In Atkinson v.
____________________

3
29 U.S.C. 185 (2000).

4
Weiner and CCASA subsequently stipulated to dismiss Weiner's appeal against CCASA.

5
Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).

6
Medallion Dev. v. Converse Consultants, 113 Nev. 27, 31, 930 P.2d 115, 118 (1997).

7
Id.

8
Peterson v. Kennedy, 771 F.2d 1244, 1259 (9th Cir. 1985).

9
Id.

10
See Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981) (holding union members participating in
wildcat strike cannot be held individually liable for violating no-strike clause of collective bargaining
agreement, whether or not the union participated in or authorized the illegality); Atkinson v. Sinclair Refining
Co., 370 U.S. 238 (1962) (barring employer from suing certain union members individually in their capacity as
agents of the union for alleged involvement in a strike in violation of the collective bargaining agreement);
Hardline Elec. v. Intern. Broth. of Elec. Workers, 680 F.2d 622 (9th Cir. 1982)
........................................
121 Nev. 243, 247 (2005) Weiner v. Beatty
Sinclair Refining Co., the United States Supreme Court held that union officers and
employees are not individually liable for acts performed under the banner of collective
bargaining.
11
The Atkinson Court emphasized specifically that the policy of holding only the
union liable cannot be evaded or truncated by the simple device of suing union agents or
members, whether in contract or tort, or both, in a separate count or in a separate action for
damages.
12

Additionally, the vast majority of courts have determined that an attorney hired by a union
to defend a union member covered under a collective bargaining agreement is an agent of the
union.
13
Therefore, a state law malpractice claim will not lie.
A leading case is the Ninth Circuit Court of Appeals decision in Peterson v. Kennedy.
14
In
Peterson, the court reasoned that a union provides a service to the member when it furnishes
legal counsel,
15
the attorney-client relationship exists between the union and the attorney,
16
and a different standard of care governs union liability and claims for legal malpractice.
____________________
(following Complete Auto Transit, Inc. by stipulation of the parties); United Steelwkrs. of America v. Lorain,
Etc., 616 F.2d 919 (6th Cir. 1980) (holding that employer cannot maintain action against union officers and staff
representatives in alleged illegal strike involving arbitrable issues); Universal Communications Corporation v.
Burns, 449 F.2d 691 (5th Cir. 1971) (holding that television station cannot sue union official for attempting to
induce political candidates to boycott station by falsely telling candidates that other stations were unionized);
Williams v. Pacific Maritime Association, 421 F.2d 1287 (9th Cir. 1970) (holding that union members are not
permitted to sue individual union officers and executive officials of defendant union); Suwanchai v.
International Broth. of Elec. Workers, 528 F. Supp. 851 (D.N.H. 1981) (determining that union official was
immune under section 301 in action against union and official for breach of duty of fair representation in failing
to timely file or properly present grievance); Balestreri v. Western Carloading, 530 F. Supp. 825 (N.D. Cal.
1980) (holding that in ex-employee's action against union and its business agent for failure to adequately
represent plaintiff regarding his discharge for fighting, union agent is immune under section 301); Henry v.
Radio Station KSAN, 374 F. Supp. 260 (N.D. Cal. 1974) (holding that employees could not sue union business
agent individually for inadequate representation in dispute with employer regarding alleged race discrimination).

11
370 U.S. at 249.

12
Id.

13
E.g., Peterson, 771 F.2d at 1257-60; Montplaisir v. Leighton, 875 F.2d 1, 5-7 (1st Cir. 1989); Best v.
Rome, 858 F. Supp. 271, 274 (D. Mass. 1994); Mamorella v. Derkasch, 716 N.Y.S.2d 211, 213 (App. Div.
2000); Sellers v. Doe, 650 N.E.2d 485, 487-88 (Ohio Ct. App. 1994); Collins v. Lefkowitz, 584 N.E.2d 64, 65
(Ohio Ct. App. 1990) (holding that an attorney who is handling a labor grievance under a collective bargaining
agreement has not entered into an attorney-client relationship with the union member).

14
771 F.2d 1244.

15
Id. at 1258.

16
Id.
........................................
121 Nev. 243, 248 (2005) Weiner v. Beatty
claims for legal malpractice.
17
Therefore, the court held that both in-house and outside
counsel were an arm of the union.
18
Accordingly, the court concluded that counsel were also
protected by the rule set forth in Atkinson that union officers and employees are immune from
personal liability for acts undertaken as union representatives.
19

[Headnotes 4, 5]
Weiner contends, however, that the collective bargaining agreement between CCASA and
CCSD falls outside the scope of federal labor law because he was employed by a political
subdivision of Nevada.
In pertinent part, federal labor statutes provide, The term employer' includes any person
acting as an agent of an employer, directly or indirectly, but shall not include . . . any State or
political subdivision thereof.
20
For purposes of this provision, political subdivisions are
entities that are either . . . created directly by the state, so as to constitute departments or
administrative arms of the government, or . . . administered by individuals who are
responsible to public officials or to the general electorate.'
21
Under the federal labor
statutes' express terms, then, they do not govern employees of political subdivisions of the
state.
22

As the CCSD is a political subdivision of the State of Nevada,
23
the federal labor statutes
do not apply directly to the CCSD or its employees. Instead, because the CCSD is a local
government employer
24
and Weiner is a local government employee,
25
the Nevada
Employee-Management Relations Act (EMRA)
26
governs this case.
The EMRA is silent on the issue of immunity from personal liability for union officers and
employees for acts undertaken as union representatives. We note, however, that by enacting
the EMRA, the Legislature "intended to apply principles similar to those of the NLRA to its
public employers."
____________________

17
Id. at 1259.

18
Id. at 1258.

19
Id.

20
29 U.S.C. 152(2) (2000); id. 142(3).

21
Chaparro-Febus v. Local 1575, 983 F.2d 325, 329 (1st Cir. 1992) (quoting NLRB v. Natural Gas Utility
District, 402 U.S. 600, 604-05 (1971)).

22
N.A.A.C.P., Detroit Branch v. DPOA, 821 F.2d 328, 331-32 (6th Cir. 1987).

23
NRS 386.010(2) (Each county school district created by this chapter is hereby declared to be a political
subdivision of the State of Nevada whose purpose is to administer the state system of public education.).

24
NRS 288.060 (defining local government employer as any political subdivision of this State or any
public or quasi-public corporation organized under the laws of this State and includes, without limitation, . . .
school districts).

25
NRS 288.050 (defining local government employee as any person employed by a local government
employer).

26
NRS Chapter 288.
........................................
121 Nev. 243, 249 (2005) Weiner v. Beatty
EMRA, the Legislature intended to apply principles similar to those of the NLRA to its
public employers.
27
We have held that precedent interpreting the federal statutes is
persuasive in interpreting the EMRA.
28
Further, we recognized in Cone v. Nevada Service
Employees Union that local government employee organizations are subject to the duty of fair
representation.
29
And, we determined in Rosequist v. International Ass'n of Firefighters that
fair representation of an employee by a union involving the implementation of the terms of a
collective bargaining agreement is a right arising under the [EMRA] and the failure of a
union to fairly represent an employee interferes with that right.
30

[Headnotes 6-9]
We take this opportunity to further address the scope of the duty of fair representation
under the EMRA. We agree with federal law that the duty of fair representation governs the
relationship between union members and union representatives.
31
When a collective
bargaining agreement is in place, the union and its bargaining representatives owe a duty of
fair representation to its members.
32
The duty of fair representation requires that when the
union represents or negotiates on behalf of a union member, it must conduct itself in a
manner that is not arbitrary, discriminatory, or in bad faith.
33
If the union's conduct is
deemed to be within the duty of fair representation, liability will not lie against the union for
acts undertaken in representing a union member.
34

In examining a union's fair representation duty, other states have embraced federal labor
law, holding that when a union furnishes an employee with legal counsel, it provides a
service to the member.
35
For that reason, given the union's duty of fair representation, the
union is ultimately responsible to the employee for any deficiency in the performance of the
legal service.
36

____________________

27
Truckee Meadows v. Int'l Firefighters, 109 Nev. 367, 374, 849 P.2d 343, 348 (1993).

28
See id. at 375-76, 849 P.2d at 348-49.

29
116 Nev. 473, 479, 998 P.2d 1178, 1182 (2000); see also NRS 288.140(1); NRS 288.270(2).

30
118 Nev. 444, 449, 49 P.3d 651, 653 (2002).

31
Steelworkers v. Rawson, 495 U.S. 362, 372 (1990).

32
Marquez v. Screen Actors, 525 U.S. 33, 44 (1998).

33
Vaca v. Sipes, 386 U.S. 171, 190 (1967).

34
Id.

35
Mamorella, 716 N.Y.S.2d at 213; Sellers, 650 N.E.2d at 487; Collins, 584 N.E.2d at 65.

36
Id.
........................................
121 Nev. 243, 250 (2005) Weiner v. Beatty
In considering the scope of the fair representation duty, a majority of courts have
concluded that a rule imposing personal liability on public-employee union agents would be
inconsistent with the standard of conduct required of the union.
37
Union agents should not be
held to a negligence standard of care, when the union for whom they work is liable only if its
representation is arbitrary, discriminatory, or in bad faith.
38
We agree with these courts,
and further, we see no reason to adopt a rule imposing malpractice liability on union lawyers
representing public employees, when the same lawyer would have no liability under federal
labor law representing a nonpublic-employee union member.
Accordingly, we conclude that the EMRA should be interpreted consistently with the
federal labor statutes, which bar legal malpractice claims against lawyers supplied by the
union.
39

Beatty's representation of Weiner arose out of the collective bargaining agreement between
CCASA and CCSD, as Beatty was appointed counsel for a grievance covered by the
collective bargaining agreement. CCASA paid Beatty. Weiner accepted the service provided
by his union and declined the opportunity to retain his own personal attorney. Therefore,
Weiner's claim directly implicates the union's duty of fair representation under the EMRA.
Under the rule in Peterson, Beatty is considered an arm of the union. As an arm of the union,
Beatty is protected from a malpractice suit stemming from this representation, for the union is
the sole source of recovery.
CONCLUSION
We conclude that when a union provides an attorney to represent a union member in a
matter related to a collective bargaining agreement, that attorney is an agent of the union. As
an agent of the union, the attorney is not susceptible to a malpractice claim; rather, a claim by
the union member will only lie against the union itself based on a breach of the duty of fair
representation. Accordingly, we affirm the district court's order granting summary judgment
in favor of respondent Beatty.
Becker, C. J., Rose, Maupin, Gibbons, Douglas and Parraguirre, JJ., concur.
____________________

37
Peterson, 771 F.2d at 1259; Best, 858 F. Supp. at 275.

38
Vaca, 386 U.S. at 190.

39
By this rule, we express no opinion concerning a union attorney's ethical obligations to a grievant as that
issue is not before us.
____________
........................................
121 Nev. 251, 251 (2005) Towbin Dodge, LLC v. Dist. Ct.
TOWBIN DODGE, LLC, a Nevada Limited Liability Company; TOWBIN JEEP EAGLE,
LLC, a Nevada Limited Liability Company TOWBIN NISSAN, INC., a Nevada
Corporation; and TOWBIN AUTOMOTIVE, INC., Doing Business as TOWBIN
INFINITY, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE KATHY A. HARDCASTLE, District Judge, Respondents, and
OVERLAND FINANCIAL SERVICES, LLC, an Arizona Corporation; MAPFS
CORP., a Suspended California Corporation; MICHAEL MACKENZIE, Trustee of
MAPFS, a Suspended California Corporation; FEDERATED FUNDING, INC., an
Unknown Entity; ROBERT DIXON, Individually; and HELLER FINANCIAL, INC.,
a Delaware Corporation, Real Parties in Interest.
No. 43750
June 9, 2005 112 P.3d 1063
Original petition for a writ of mandamus or prohibition challenging a district court order
that struck an affidavit of bias and prejudice as untimely and seeking disqualification of a
district judge.
After trial judge had heard and ruled upon several pretrial motions, plaintiffs filed
statutory affidavit of bias and prejudice, alleging that trial judge's ruling in separate case
involving plaintiffs' counsel, in which case another attorney asserted attorney's lien on
contingent fee earned by counsel, necessarily implied that trial judge found plaintiffs' counsel
to be not credible. The district court struck the affidavit as untimely but granted a temporary
stay. Plaintiffs petitioned for writ of mandamus or prohibition. The supreme court held that:
(1) trial judge had authority to consider timeliness of plaintiffs' statutory affidavit of bias and
prejudice; (2) statutory exception to general deadline for filing affidavit of bias and prejudice
was inapplicable to plaintiffs' case, overruling Matter of Parental Rights as to Oren, 113 Nev.
594, 939 P.2d 1039 (1997); and (3) plaintiffs could file motion to disqualify based on Nevada
Code of Judicial Conduct, alleging judge's impartiality might reasonably be questioned,
overruling PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 894 P.2d 337 (1995).
Petition denied.
R. Clay Hendrix, Las Vegas, for Petitioners.
........................................
121 Nev. 251, 252 (2005) Towbin Dodge, LLC v. Dist. Ct.
Allf, Paustain & Szostek and Nancy L. Allf and Timothy P. Thomas, Las Vegas, for Real
Parties in Interest Overland Financial Services, LLC, MAPFS Corp., and Michael
MacKenzie.
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Richard F. Holley and Oliver
J. Pancheri, Las Vegas, for Real Party in Interest Heller Financial, Inc.
1. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law
requires as a duty resulting from an office, trust, or station, or to control an arbitrary or
capricious exercise of discretion. NRS 34.160.
2. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of the supreme
court to determine if a petition for writ of mandamus will be considered.
3. Mandamus.
A petition for a writ of mandamus is the appropriate vehicle to seek disqualification
of a judge.
4. Judges.
District court judge had authority to consider the timeliness of plaintiffs' statutory
affidavit of bias and prejudice, which sought disqualification of the judge. NRS 1.235.
5. Judges.
Statutory exception to general statutory rule that affidavit of bias and prejudice must
be filed against judge before hearing on any pretrial matter, under which exception
affidavit of bias and prejudice can be filed based on newly discovered grounds for
disqualification before jury is empaneled, evidence is taken, or any ruling is made at
trial, did not apply, where trial judge had been assigned to the case before deadline for
filing affidavit of bias and prejudice under statutory general rule; overruling Matter of
Parental Rights as to Oren, 113 Nev. 594, 939 P.2d 1039 (1997). NRS 1.235(1), (2).
6. Judges.
If new grounds for a judge's disqualification are discovered after the time limits have
passed for filing a statutory affidavit of bias and prejudice, then a party may file a
motion to disqualify based on the Nevada Code of Judicial Conduct (NCJC), alleging
the judge's impartiality might reasonably be questioned, as soon as possible after
becoming aware of the new information; overruling PETA v. Bobby Berosini, Ltd., 111
Nev. 431, 894 P.2d 337 (1995). NRS 1.235; NCJC Canon 3E.
7. Judges.
A motion to disqualify a judge, based on the Nevada Code of Judicial Conduct
(NCJC), must set forth facts and reasons sufficient to cause a reasonable person to
question the judge's impartiality, and the challenged judge may contradict the motion's
allegations, but the motion must be referred to another judge. NRS 1.235; NCJC Canon
3E.
8. Mandamus.
Plaintiffs had adequate remedy at law, in form of motion to disqualify based on
Nevada Code of Judicial Conduct (NCJC) alleging trial judge's impartiality might
reasonably be questioned, and thus, plaintiffs were not entitled to writ of mandamus
after trial judge dismissed, as untimely, statutory affidavit of bias and prejudice.
........................................
121 Nev. 251, 253 (2005) Towbin Dodge, LLC v. Dist. Ct.
were not entitled to writ of mandamus after trial judge dismissed, as untimely, statutory
affidavit of bias and prejudice. NRS 1.235; NCJC Canon 3E.
Before the Court En Banc.
OPINION
Per Curiam:
In this petition, we consider whether an affidavit to disqualify a district judge, filed after
contested pretrial matters were heard but almost immediately after the alleged basis for
disqualification was discovered, was timely. NRS 1.235 sets forth the procedure for
disqualifying district judges and requires that an affidavit be filed at least twenty days before
trial or at least three days before any contested pretrial matter is heard. We conclude that the
statute must be enforced as written. But when new grounds for disqualification are discovered
after the statutory time has passed, the Nevada Code of Judicial Conduct provides an
additional, independent basis for seeking disqualification through a motion under the
governing court rules. Accordingly, since petitioners filed a statutory affidavit, not a motion
under the Nevada Code of Judicial Conduct, their affidavit was untimely, and we deny the
petition.
FACTS
Attorney R. Clay Hendrix represents the petitioners, plaintiffs in the underlying district
court case, Towbin Dodge, LLC, et al. v. Overland Financial Services, LLC, et al. (the
Towbin case). The Towbin case is assigned to respondent Chief Judge Kathy A. Hardcastle.
Petitioners concede that Judge Hardcastle heard and ruled upon several pretrial motions in the
Towbin case before they moved to disqualify the judge on August 3, 2004.
Hendrix also represented a plaintiff in another case before Judge Hardcastle, styled Benoy
v. Fitzgeralds Las Vegas, Inc. (the Benoy case). The Benoy case involved different parties and
was unrelated to the Towbin case. Hendrix began working on the Benoy case while employed
at the Law Offices of Richard McKnight, P.C. Hendrix then left to start his own firm, and he
states that the termination of his relationship with McKnight was less than cordial.
McKnight filed an attorney's lien in the Benoy case.
Upon learning that the Benoy case had settled, McKnight filed a motion to adjudicate the
attorney's lien. The hearing on this motion took place before Judge Hardcastle on August 2,
2004. At the hearing, McKnight represented that when Hendrix left McKnight's employ, they
had orally agreed to equally split any contingency fees on files Hendrix took with him.
........................................
121 Nev. 251, 254 (2005) Towbin Dodge, LLC v. Dist. Ct.
employ, they had orally agreed to equally split any contingency fees on files Hendrix took
with him. Hendrix disputed McKnight's representation and stated that no agreement had been
reached. Hendrix further contended that the only work he performed on the Benoy case while
employed with McKnight was drafting one demand letter and a simple complaint. According
to Hendrix, he performed virtually all of the work on the matter after terminating his
relationship with McKnight. At the hearing, Judge Hardcastle ruled that the contingency fee
in the Benoy case should be split equally between Hendrix and McKnight.
The next day, August 3, 2004, petitioners filed an affidavit of bias and prejudice under
NRS 1.235 in the Towbin case, seeking to disqualify Judge Hardcastle. Petitioners assert that
by ruling as she did, Judge Hardcastle necessarily found Hendrix to be not credible, and thus
she is biased against him.
On August 4, 2004, Judge Hardcastle struck the affidavit as untimely, stating that she had
heard and ruled on many pre-trial motions in this case. But she granted a temporary stay so
that petitioners could file a writ petition with this court.
Petitioners filed the instant petition, which challenges Judge Hardcastle's order striking the
affidavit. Petitioners also ask this court to consider the merits of their request and to
disqualify Judge Hardcastle. We granted a stay and directed the real parties in interest to file
an answer to the petition. Real parties in interest Overland Financial, MAPFS Corp., Michael
MacKenzie and Heller Financial filed timely answers. The remaining real parties in interest
did not respond to our order.
DISCUSSION
[Headnotes 1-3]
A writ of mandamus is available to compel the performance of an act that the law requires
as a duty resulting from an office, trust or station,
1
or to control an arbitrary or capricious
exercise of discretion.
2
A writ of mandamus will not issue, however, if petitioner has a plain,
speedy and adequate remedy in the ordinary course of law.
3
Further, mandamus is an
extraordinary remedy, and it is within the discretion of this court to determine if a petition
will be considered.
4
We have previously noted that a petition for a writ of mandamus is the
appropriate vehicle to seek disqualification of a judge.
____________________

1
See NRS 34.160.

2
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

3
NRS 34.170.

4
Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also Smith v. District Court,
107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
........................................
121 Nev. 251, 255 (2005) Towbin Dodge, LLC v. Dist. Ct.
mandamus is the appropriate vehicle to seek disqualification of a judge.
5

[Headnote 4]
Nevada has two statutes governing disqualification of district court judges. NRS 1.230
lists substantive grounds for disqualification, and NRS 1.235 sets forth a procedure for
disqualifying district court judges. Hendrix first argues that Judge Hardcastle lacked authority
to consider the affidavit's timeliness. The real parties in interest assert that our case law
interpreting SCR 48.1, governing peremptory challenges against judges, supports the district
court's exercise of jurisdiction to consider the timeliness of an affidavit of bias and prejudice.
In Jacobson v. Manfredi,
6
we approved a district judge's actions in evaluating the
timeliness of an affidavit, although we did not explicitly address the judge's authority to do
so.
7
Similarly, we have expressly held that a district judge may consider the timeliness of a
peremptory challenge under SCR 48.1.
8
Accordingly, we conclude that Judge Hardcastle
properly considered the timeliness issue.
[Headnote 5]
Petitioners and the real parties in interest base their arguments concerning the timeliness of
petitioners' affidavit on different parts of NRS 1.235. The statute provides, with emphasis
added:
1. Any party to an action or proceeding pending in any court other than the Supreme
Court, who seeks to disqualify a judge for actual or implied bias or prejudice must file
an affidavit specifying the facts upon which the disqualification is sought. The affidavit
of a party represented by an attorney must be accompanied by a certificate of the
attorney of record that the affidavit is filed in good faith and not interposed for delay.
Except as provided in subsections 2 and 3, the affidavit must be filed:
(a) Not less than 20 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
2. Except as otherwise provided in this subsection and subsection 3, if a case is not
assigned to a judge before the time required under subsection 1 for filing the
affidavit, the affidavit must be filed:
____________________

5
City of Sparks v. District Court, 112 Nev. 952, 954, 920 P.2d 1014, 1015-16 (1996).

6
100 Nev. 226, 679 P.2d 251 (1984).

7
Id. at 230, 679 P.2d at 253-54.

8
See Nevada Pay TV v. District Court, 102 Nev. 203, 205, 719 P.2d 797, 798 (1986).
........................................
121 Nev. 251, 256 (2005) Towbin Dodge, LLC v. Dist. Ct.
time required under subsection 1 for filing the affidavit, the affidavit must be filed:
(a) Within 10 days after the party or his attorney is notified that the case has been
assigned to a judge;
(b) Before the hearing of any pretrial matter; or
(c) Before the jury is empaneled, evidence taken or any ruling made in the trial or
hearing, whichever occurs first. If the facts upon which disqualification of the judge is
sought are not known to the party before he is notified of the assignment of the judge or
before any pretrial hearing is held, the affidavit may be filed not later than the
commencement of the trial or hearing of the case.
Hendrix argues that the emphasized language applies to his affidavit. Since his affidavit
was based solely on the events that occurred at the August 2 hearing in the Benoy case and
was promptly filed the next day, Hendrix maintains that it was timely. The district court
applied subsection 1 of the statute, which provides that an affidavit is untimely if the
challenged judge has already ruled on disputed issues.
Hendrix's argument concerning the language in subsection 2 is flawed, because subsection
2 applies only when a judge is not assigned until after subsection 1's time for filing an
affidavit has passed. Here, Judge Hardcastle was assigned to the case well within the time
required by subsection 1, and so the exception in subsection 2 for newly discovered grounds
does not apply. Consequently, Judge Hardcastle correctly concluded that the affidavit was
untimely, as she had ruled on contested pretrial matters.
9

Subsection 1 provides no remedy for situations such as this one, when grounds for
disqualification are discovered only after the time periods in subsection 1 have passed. Here,
Hendrix's affidavit was based solely on the events that occurred at the August 2 hearing, and
the affidavit was promptly filed the next day. Clearly, then, the alleged basis for
disqualification was not known, and could not reasonably have been known, in time to meet
the deadlines under NRS 1.235(1). Our case law discussing judicial disqualification is of
limited assistance, because we have generally held that a particular affidavit or motion was
both untimely and lacked merit,
10
or we have concluded that the affidavit or motion was
both timely {or excused on an equitable basis) and meritorious.
____________________

9
See Valladares v. District Court, 112 Nev. 79, 83-84, 910 P.2d 256, 259-60 (1996) (holding that the
affidavit must be filed before the earlier of twenty days before trial or three days before any contested pretrial
matter).

10
See City of Sparks, 112 Nev. at 954, 920 P.2d at 1016; Snyder v. Viani, 112 Nev. 568, 916 P.2d 170
(1996); Valladares, 112 Nev. 79, 910 P.2d 256; Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380,
422-29, 873 P.2d 946, 972-77 (1994); Brown v. F.S.L.I.C., 105 Nev. 409, 777 P.2d 361 (1989);
........................................
121 Nev. 251, 257 (2005) Towbin Dodge, LLC v. Dist. Ct.
was both timely (or excused on an equitable basis) and meritorious.
11
For example, in
Valladares v. District Court,
12
we held that an affidavit of bias and prejudice was untimely
when it was filed eight minutes before an arraignment. But we nevertheless also considered
the affidavit's merits, and we concluded that the petitioner had not established disqualifying
bias or prejudice. In contrast, in Matter of Parental Rights as to Oren,
13
we held that an
affidavit filed after trial had already begun was timely because it was filed promptly after
appellant discovered grounds for disqualification, and we then held that disqualification was
required.
Nevertheless, one prior case, PETA v. Bobby Berosini, Ltd.,
14
provides a basis for seeking
judicial disqualification when grounds are discovered beyond the time limits of NRS 1.235.
We held in PETA that the Nevada Code of Judicial Conduct (NCJC) sets forth not only
ethical requirements for judges, but can also provide a substantive basis for judicial
disqualification. NCJC Canon 3E specifically sets forth grounds for disqualification, and
provides in pertinent part:
CANON 3
A judge shall perform the duties of judicial office impartially and diligently.
. . . .
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances
where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer,
or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously practiced law served during such association as a lawyer
concerning the matter, or the judge has been a material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the judge's
spouse, parent or child wherever residing, or any other member of the judge's family
residing in the judge's household, has an economic interest in the subject matter in
controversy or in a party to the proceeding or has any other more than de minimis
interest that could be substantially affected by the proceeding;
____________________
Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989), modified on other grounds by Powers v.
United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998); Jacobson, 100 Nev. at 229-31, 679 P.2d at
253-54.

11
See Matter of Parental Rights as to Oren, 113 Nev. 594, 939 P.2d 1039 (1997); PETA v. Bobby Berosini,
Ltd., 111 Nev. 431, 894 P.2d 337 (1995).

12
112 Nev. 79, 910 P.2d 256.

13
113 Nev. 594, 939 P.2d 1039.

14
111 Nev. at 435, 894 P.2d at 340.
........................................
121 Nev. 251, 258 (2005) Towbin Dodge, LLC v. Dist. Ct.
matter in controversy or in a party to the proceeding or has any other more than de
minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship
to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be
substantially affected by the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
(e) Reserved.
(f) the judge, while a judge or a candidate for judicial office, has made a public
statement that commits, or appears to commit, the judge with respect to
(i) an issue in the proceeding; or
(ii) the controversy in the proceeding.
In PETA, we did not set forth any procedural mechanism for seeking disqualification based
on the NCJC. Instead, we analogized to NRAP 35 (concerning disqualification of supreme
court justices) and considered the PETA respondents' motion on its merits.
15
Of particular
pertinence to this case, we did not specify any procedure to be followed at the district court
level, because PETA concerned a motion to disqualify a district judge sitting as a substitute
justice of this court. We take this opportunity to clarify the procedure to be followed when a
party seeks to disqualify a district judge, and we look to federal practice for guidance.
Federal law contains two separate, independent methods for seeking a judge's
disqualification. 28 U.S.C. 144
16
bears similarities to both NRS 1.235 and SCR 48.1,
which governs peremptory challenges. Like NRS 1.235, 144 applies specifically to the
district court and requires the party seeking to disqualify a judge to file an affidavit
setting forth the facts and reasons supporting the allegation of bias.
____________________

15
Id. at 433 n.2, 894 P.2d at 338 n.2.

16
28 U.S.C. 144 (2000) provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit
that the judge before whom the matter is pending has a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall
be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or
good cause shall be shown for failure to file it within such time. A party may file only one such affidavit
in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good
faith.
........................................
121 Nev. 251, 259 (2005) Towbin Dodge, LLC v. Dist. Ct.
trict court and requires the party seeking to disqualify a judge to file an affidavit setting forth
the facts and reasons supporting the allegation of bias. But unlike NRS 1.235, which permits
the challenged judge to respond, and which requires another judge to determine whether
actual or implied bias or prejudice exists, 144 operates like SCR 48.1, in that the matter is
automatically transferred to another judge.
17

The other federal statute concerning judicial disqualification, 28 U.S.C. 455, is
substantially similar to NCJC Canon 3E.
18
Like Canon 3E, 455 applies to all justices and
judges, and it contains no procedural mechanism for enforcement.
19
Nevertheless, the
federal courts follow a procedure whereby a party may move to disqualify a federal judge
based on the grounds listed in 455.
____________________

17
See SCR 48.1(2).

18
28 U.S.C. 455 (2000) provides, in pertinent part:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom
he previously practiced law served during such association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of
the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his
household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or
any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the
spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the
outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a
reasonable effort to inform himself about the personal financial interests of his spouse and minor children
residing in his household.

19
See 28 U.S.C. 455 (2000); see also U.S. v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996); Lindsey v. City of
Beaufort, 911 F. Supp. 962, 967 (D.S.C. 1995); see generally 12 James Wm. Moore, Moore's Federal Practice
63.60-63.63 (3d ed. 2005).
........................................
121 Nev. 251, 260 (2005) Towbin Dodge, LLC v. Dist. Ct.
eral courts follow a procedure whereby a party may move to disqualify a federal judge based
on the grounds listed in 455.
20
The federal courts have generally required that such motions
be filed as soon as possible after the moving party learns of the grounds for disqualification.
21
Additionally, the motion should allege facts demonstrating that the judge's impartiality
might reasonably be questioned.
22
The motion's allegations are not deemed to be true and
may be controverted by the challenged judge.
23
Finally, the challenged judge may elect to
decide the motion or to refer the motion to another judge.
24

[Headnotes 6, 7]
We conclude that the federal procedure provides a convenient method for enforcing Canon
3E in situations when NRS 1.235 does not apply. Thus, if new grounds for a judge's
disqualification are discovered after the time limits in NRS 1.235(1) have passed, then a party
may file a motion to disqualify based on Canon 3E as soon as possible after becoming aware
of the new information. The motion must set forth facts and reasons sufficient to cause a
reasonable person to question the judge's impartiality, and the challenged judge may
contradict the motion's allegations. We deviate from federal practice in one respect, however.
While the federal procedure permits the challenged judge to hear the motion, we share the
concerns identified by some federal courts when the challenged judge decides the motion.
25
Thus, the motion must be referred to another judge. To the extent that our opinion in PETA
suggests that motions under the NCJC must meet timelines contained in other provisions,
such as NRS 1.235 or NRAP 35, it is overruled.
____________________

20
See Lindsey, 911 F. Supp. at 967.

21
See Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (holding that party
seeking disqualification must do so at the earliest moment after knowledge of facts demonstrating a basis for
disqualification); U.S. v. Owens, 902 F.2d 1154, 1155 (4th Cir. 1990) (stating that [t]imeliness is an essential
element of a recusal motion); see also E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.
1992) (denying motion for disqualification as untimely, but declining to adopt per se rule).

22
NCJC Canon 3E(1); see also PETA, 111 Nev. at 436, 894 P.2d at 340 (setting forth test for determining
whether a judge should be disqualified); Lindsey, 911 F. Supp. at 967 n.4 (stating that a motion to disqualify
under 455 must state facts and reasons sufficient to show that a reasonable person would harbor doubts about
the judge's impartiality).

23
See United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985); Mass. School of Law at Andover v.
Amer. Bar Ass'n, 872 F. Supp. 1346, 1349 (E.D. Pa. 1994).

24
See El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 142 n.8 (1st Cir. 1994); U.S. v. Craig, 853
F. Supp. 1413, 1415 (S.D. Fla. 1994).

25
See, e.g., In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994).
........................................
121 Nev. 251, 261 (2005) Towbin Dodge, LLC v. Dist. Ct.
overruled.
26
Similarly, our decision in Matter of Parental Rights as to Oren is overruled to
the extent that it held the disqualification affidavit in that case timely under NRS 1.235.
27

[Headnote 8]
Writ relief is not warranted in this instance because petitioners have an adequate remedy at
law in the form of a motion to disqualify based on the Code of Judicial Conduct, as set forth
in this opinion. Accordingly, we deny the petition.
28

____________
121 Nev. 261, 261 (2005) Village Builders 96 v. U.S. Laboratories
VILLAGE BUILDERS 96, L.P., a California Limited Partnership, Appellant, v. U.S.
LABORATORIES, INC., a Delaware Corporation; and TESTING ENGINEERS OF
NEVADA, INC., a Delaware Corporation, fka BUENA ENGINEERS, INC.,
Respondents.
No. 40950
VILLAGE BUILDERS 96, L.P., a California Limited Partnership, Appellant, v. U.S.
LABORATORIES, INC., a Delaware Corporation; and TESTING ENGINEERS OF
NEVADA, INC., a Delaware Corporation, fka BUENA ENGINEERS, INC.,
Respondents.
No. 41420
June 9, 2005 112 P.3d 1082
Consolidated appeals from an order, certified as final under NRCP 54(b), granting
summary judgment and an order awarding costs. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
Customer sued successor corporation for negligence of predecessor after successor
purchased the predecessor's assets. The district court granted summary judgment for
defendants on grounds that there was no successor liability. Customer appealed. On
consolidated appeals, the supreme court, Rose, J., held that: (1) successor was not liable
under de facto merger exception, (2) successor was not liable under mere continuation
exception, and (3) successor was not entitled to costs award without memorandum verifying
the costs.
____________________

26
See 111 Nev. at 433 n.2, 894 P.2d at 338 n.2.

27
See 113 Nev. at 598-99, 939 P.2d at 1042.

28
We make no comment on the merits of Hendrix's disqualification request.
........................................
121 Nev. 261, 262 (2005) Village Builders 96 v. U.S. Laboratories
Affirmed in part and reversed in part.
Santoro, Driggs, Walch, Kearney, Johnson & Tho